^9 ^ ^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY JUDICIAL DECISIONS OF THE STATE SUPERINTENDENT OF COMMON SCHOOLS STATE SUPERINTENDENT OF PUBLIC INSTRUCTION STATE COMxMISSIONER OF EDUCATION FROM 1822 TO I9I3 BY THOMAS E. FINEGAN ALA. Pd.D. LL.D. Of the Albany County Bar Assistant Commissioner for Elementary Education of the State of New York ALBANY, N. Y. THE UNrV^ERSITY OF THE STATE OF NEW YORK 1914 'J ^ THE UNIVERSITY OF THE STATE OF NEW YORK Regents of the University With years when terms expire 191 7 St Clair McKelavay ALA. LL.D. D.C L. L.H.D. Chancellor Brooklyn 1926 Pliny T. Sexton LL.B. LL.D. Vice Chancellor Palmyra 191 5 Albert Vander Veer M.D. M.A. Ph.D. LL.D. Albany 1922 Chester S. Lord M.A. LL.D. ----- New York 1918 William Nottingham M.A. Ph.D. LL.D. - - Syracuse 192 1 Francis M. Carpenter ------ - Mount Kis2o 1923 Abram I. Elkus LL.B. D.C.L. - - - - - New York 1916 Lucius N. Littauer B.A. ------ Qloversville 1924 Adelbert AIoot --------- Buffalo 1925 Charles B. Alexander M.A. LL.B. LL.D. Lit.D. Tuxedo 1919 John Moore- ----'----- - Elmira 1920 Andrew J. Shipman ALA. LL.B. LL.D. - - New York ^ President of the University l^tvJ Y SO ^^'^ Commissioner of Education Hn3B \ John H. Finley ALA. LL.D. Augustus S. Downing ALA. L.H.D. LL.D. For Higher Education Charles F. Wheelock B.S. LL.D. For Secondary Education Thomas E. Finegan M.A. Pd.D. LL.D. For Elementary Education Director of State Library James L Wyer, Jr, ALL.S. Director of Science and State Museum John AL Clarke Ph.D. D.Sc. LL.D. Chiefs of Divisions Administration, George Al. Wiley M.A. Attendance, James D. Sullivan Educational Extension, William R. Watson B.S. Examinations, Harlan H. Horner B.A. History, James A. Holden B.A. Inspections, Frank H. Wood ALA. Law, Frank B. Gilbert B.A. Library School, Frank K. Walter ALA. ALL.S. Public Records, Thomas C. Quinn School Libraries, Sherman Williams Pd.D. Statistics, Hiram C. Case Visual Instruction, Alfred W. Abrams Ph.B. Vocational Schools, Arthur D. Dean D.Sc. To The Late Andrew S. Draper LLB. LLD. In Recognition of his services to pubUc education as a teacher, a member of a city board of edu- cation, a trustee of a State Normal College, a State Superintendent of Public Instruction, a superintendent of schools in a leading American city, a president of a great university, and Com- missioner of Education of the State of New York from April i, 1904, to March 29, 191 3. [3] INTRODUCTION In 1822, the Legislature conferred upon the State Superintendent of Common Schools the authority to hear and determine all questions in controversy which might arise in the administration of the common school system. The decision of the State Superintendent upon such questions was made final. As the public school system has developed, the authority of the chief school officer of the State has been extended in such matters until the Commissioner of Education is not only authorized but is required to hear and determine such cases as are properly brought before him. These cases are called appeals and include all disputed points which may arise at school district meetings or school board meetings or that may grow out of the official action or decision of any school officer. The language of the law is broad and includes the official act or decision of any officer, school authorities or meetings under the general Education Law or any other law pertaining to the common school system. The Commissioner of Edu- cation is given great power in this respect, as the law distinctly provides thai his decision in all such cases shall be " final and conclusive and not subject to question or review in any place or court whatever." It will be observed that the chief educational officer of the State has exercised this judicial function for ninety years. The exercise of this authority for such a long period has resulted in the establishment of rules of practice so that a proceeding before the Commissioner of Education must be instituted as an appeal or petition and with the formality of a court proceeding. The law gives the Commissioner of Education the authority to make such necessary orders in a proceeding as will make effectual his decision therein. More than twelve thousand formal opinions have been rendered by the chief officer of the State education system during the ninety years that this practice has been in operation. For many years these decisions were not numbered but over six thousand of such decisions have been rendered since the plan of num- bering them was commenced. The decisions in these cases have been regarded as binding in the interpre- tation of the laws relating to the schools, as the decisions of the courts have generally been upon the interpretation of all laws. This method of disposing of contested cases involving the administration of the schools has been of vital service to the interests of public education. It has provided an inexpensive, expeditious means for the settlement of the numerous questions which are bound to rise in the administration of a work involving so much detail and such important interests as a great system of education which is designed to meet the necessities of ten million people. This plan also placed the interpretation of these questions with the officer charged with the general supervision and direction of the State's educational policies so that such questions ..should be determined upon sound educational principles. [5] O INTRODUCTION The preparation of this vokime has necessitated great labor and research. These decisions were not all in printed form. It was necessary to obtain copies and read the entire number of twelve thousand and more. From these about eight hundred cases have been selected. Those have been chosen which are of value in showing the historical development of the school system and more particularly those which have a bearing upon the interpretation of the present laws governing that system. The labor of preparing this volume was commenced during the period which I served as Chief of the Law Division of the Education Department and had been completed at the time of the Capitol fire on March 29, 191 1 when the manuscripts thereof were destroyed in that fire. Some courage and some faith in the necessity of the work were necessary for the duplication of the labor required to prepare the manuscripts a second time. This task is again completed and in the hope that the volume may be of sufficient service to those officially charged with the management of the schools to cause them to feel that the labor of the author has been well directed. T. E. F. Albany, N. Y. December //, ipjj APPEALS JURISDICTION OF SUPERINTENDENTS DISCUSSED AND DETERMINED If commissioners withhold assent to raise a tax larger than $400 for building a school- house, their refusal is subject to review upon appeal. Decided September 18, 1841 Spencer, Superintendent The inhabitants of the village of Cuba had been united in one district by the consolidation of two others. 'They had been offered a site for a schoolhouse, in a central and commodious location, upon the sole consideration that they should erect upon it a house worth $800. They unanimously voted to accept the site and raise the tax, and applied to the school commissioners for consent to levy that sum. Consent was refused on the ground that the consolidation of the districts would be the means of breaking up the select school hitherto maintained in the district, and, further, that the inhabitants were unable to bear the increased burdens of such an organization. The commissioners have a discretionary power to grant or refuse their con- sent. But in this case it was not wisely exercised. They were bound to have a stronger interest in the improvement of the common schools than in the welfare of a private select school. The inhabitants, who ought to understand their own interests, and know their pecuniary resources, had unanimously resolved to raise the tax and shoulder the burden of the new organization. The commissioners ought not to assume that they had overestimated their ability. The majority of the inhabitants of a district may consist of persons destitute themselves of pecuniary resources, and desirous to avail themselves of the property of the minority to build an unnecessarily costly schoolhouse for the district. The check, which the commissioners possess, to abuses like this, is wase and salutary, and that check was undoubtedly conferred with a view to the possible happening of cases of this description. The discretion exercised in this case, like that of granting or refusing a cer- tificate to a teacher, is the subject of appeal. The authority of the Superintend- ent upon appeal extends to all matters arising under the school laws. His deci- sions have been treated as conclusive by the courts, and acquiesced in by the Legislature and the people. The commissioners were ordered to give their consent to the tax of $800. Per Spencer, July 19, 1841. Subsequently the same case came up a second time, on the refusal of the [7] 5 THE UNIVERSITY OF THE STATE OF NEW YORK commissioners to obey the order of the Superintendent. The previous decision was sustained and enforced in an elaborate opinion, from which we take the portions treating of discretionary powers, and the appellate jurisdiction of the school department. " The discretion of public officers is a legal one, to be governed by sound principles, and not by the capricious whim of the individual, and the instances are frequent where courts of law regulate and direct the exercise of discre- tionary power by officers, where third persons have an interest in such exercise. The only discretion which courts do not undertake to control is that which, accord- ing to Justice Sutherland (5 Wendell 125), 'is not and can not be governed by any fixed principles and rules.' Few matters would seem more susceptible of the application of fixed rules than the size of a schoolhouse necessary to accommo- date properly a given number of children, the amount of money required for its construction, and the ability of a district to raise a given sum. So that even upon any of the ordinary processes of law, this would be a case where the dis- cretionary power of commissioners could be regulated and controlled. But when we consider that a tribunal has been erected for the express purpose of super- vising all the officers engaged in the administration of the common school system ; that there is scarcely an act to be performed by them which does not involve more or less discretion, and that an appeal is given from all these acts in the most comprehensive terms ; we see at once that the rules which would govern legal proceedings on common law process are not the proper guides, and that we must recur to broader and more enlarged principles. " The word ' appeal ' comes from the civil law, and its nature and office is to substitute the appellate tribunal for that whose acts are examined ; and, if the case be one involving discretion, then the appeal invokes that very discretion in the superior, in the same manner and to the same extent that it was possessed by the inferior. ' The cause is in the appellate court,' says the Supreme Court of the United States, in i Wheaton 112, 'as if it were in the inferior court.' " The great majority of cases decided in this Department are those involving more or less discretionary power. " The statute itself enumerates many cases that are entirely of a discre- tionary character. The decisions of district school meetings upon any subject upon which they are competent to act, such as the designation of the site of a schoolhouse, the amount of money to be raised by tax, and the omission to levy taxes, involve large discretion, but are nevertheless subject to appeal by the express words of the law. The formation and alteration of school districts must be guided by a sound judgment upon various facts and circumstances, such as the number of children, the amount of taxable property, the extent of territory, and the convenience of the inhabitants. Some fixed rules may be applied, but in many cases the decision must depend on general ideas of the propriety and fitness of things. "Among cases not enumerated, and which fall within the fourth subdivision of the section conferring the right of appeal, the following are of daily occur- rence, viz: the granting or refusing a license to a teacher; the valuations of JUDICIAL DECISIONS : APPEALS Q schoolhouses or other property on the formation of new districts; the refusal of trustees to call special meetings, to employ teachers, or to keep the schools open, and the employment and dismissal of teachers; the government of the school; the admittance and expulsion of scholars, etc. Indeed it would be difficult to specify a single act which any officer concerned in the administration of the system may perform, that has not been the subject of appeal. " The present case presents less opportunity for the exercise of discretion than many of those above enumerated. The expense of a schoolhouse must depend upon its size and materials. Its size, the number of rooms, and' the proper conveniences, will depend upon the number of children in the district of the proper age to occupy it. The only other element for consideration is the ability of the district, a fact easily ascertained from the assessment roll. There is, therefore, nothing in the nature of the decision to be made to prevent its being reviewed and examined upon fixed and settled principles. " So far as our laws afford any analogy in cases of appeal, there does not appear to be any distinction between discretionary and other cases. Thus, appeals to county judges from commissioners of highways, respecting the opening, altering and discontinuing of highways, necessarily involve that discretion which depends on private judgment. " Upon the most mature deliberation, then, I can not doubt that the granting or refusing of a certificate, that a larger sum than $400 should be raised for building a schoolhouse, is necessarily the subject of an appeal to the Superin- tendent. And as, in all cases of appeal, the statute declares his opinion to be ' final,' there must be some mode of giving it effect. In the present case, the commissioners decline obedience to the order directing them to grant the required certificate. From that refusal an appeal has been made, and the commissioners have answered. The whole system must be very defective if there be no power to have an act performed which the competent tribunal has determined to be legal and proper. Perhaps the appellants may enforce the order of the Superin- tendent, by an application to the Supreme Court for a mandamus. " But, if there be a more direct, simple and less expensive remedy, I am bound to pursue the policy of the statute in erecting this tribunal by furnishing it. I think there is. It is a universal principle, recognized in England and in this country, that the court to which a writ of error or an appeal is brought is bound to render the judgment which the inferior tribunal should have rendered. Upon this principle, this Department may authorize the inhabitants of the district, at a lawful meeting, to raise the additional sum necessary for building a new schoolhouse that being the judgment or decision which, in the opinion of the Superintendent, the commissioners should have made. I find an order of my immediate predecessor, founded on this principle, and analogous to the one pro- posed to be made on this appeal, in the case of the trustees of school district no. 30, in Johnstown, in Common School Decisions, page 161. The inhabitants of the district had authorized the trustees to make such repairs to the schoolhouse as they should think necessary and proper, and, in pursuance of such authority, they^ad contracted with a workman to make the repairs, and agreed to pay 10 THE UXIVERSITV OF THE STATE OF NEW YORK him $30. But the district refused to vote more than $25. On appeal, the Super- intendent, Mr Dix, held that the district was bound to indemnify the trustees; and he ordered that the trustees should make out a tax list for the whole amount and collect it." In pursuance of this opinion, the district was authorized to raise a tax of $400, over and above the $400 which the district could otherwise raise, and the trustees were empowered to levy and collect it. 3583 The law intends the jurisdiction of the Superintendent of Public Instruction to be state- wide and to cover all controversies touching any official act of local school officers. His jurisdiction is not obtained from local school acts, but from the general school law, and is general unless taken away by a special act in language so clear as to leave no doubt of its intent. Decided April 4. 1887 Draper, Superintendent In an appeal brought from the action of the board of education of the city of Binghamton in the matter of the change or designation of certain textbooks, the board denied that the Superintendent had any jurisdiction to hear and decide the appeal. " It is said that the school system of the city of Binghamton is governed by a special act of the Legislature (chapter 322, Laws of 1861) and its amend- ments and that there is nothing in this special act conferring upon the State Superintendent the authority to detennine appeals from the acts of the board of education of that city. It is also insisted that the provisions of the Consoli- dated School Act (chapter 555, Laws of 1864) concerning appeals to the State Superintendent from the acts of local school officers do not extend jurisdiction to t^e act of a board of education in a city having a special school act. It is accord- ingly argued that there is no jurisdiction at all in the present case." The question is an important one and I have endeavored to give it that exami- nation which its gravity demands. I have examined the statutes specially referring to the supervision of the schools of the city of Binghamton with considerable care and am of the opinion that, if jurisdiction in this case depended alone upon these statutes, it would not be difficult, reading the several successive acts together, to discern an intention to confer it, on the part of the Legislature. But in my opinion it does not depend upon the provisions of the special acts, having reference only to a particular locality. Title 12, section i, chapter 555, Laws of 1864, is as follows: Section i Any person conceiving himself aggrieved in consequence of any decision made JUDICIAL DECISIOXS: APPEALS II 1 By any school district meeting. 2 By any school commissioner or school commissioners and other officers, in forming or altering, or refusing to form or alter, any school district, or in refusing to apportion any school moneys to any such district or part of a district. 3 By a supervisor in refusing to pay such moneys to any such district. 4 By the trustees of any district in paying or refusing to pay any teacher, or in refusing to admit any scholar gratuitously into any school. 5 By any trustee of any school district library concerning such library, or the books therein, or the use of such books. 6 By and district meeting in relation to the library. 7 By any other official act or decision concerning any other matter under this act, or any other act pertaining to common schools, may appeal to the Superintendent of Public Instruction, who is hereby authorized and required to examine and decide the same; and his decision shall be final and conclusive, and not subject to question or review in any place or court whatever. The seventh subdivision of this section contains language as comprehensive as could well be employed. It authorizes any person aggrieved at " any other official act or decision concerning any other matter under this act, or any other act pertaining to common schools," to appeal to the State Superintendent. The contention of the respondent's counsel that the phrase, " any other official act," refers only to acts by the same body, or of the same nature as though specified in the first six subdivisions of the section, can not be adopted. It is an official act concerning " any other matter under this act, or imder any other act pertain- ing to common schools," which is the subject of appeal. It was the obvious intent of the Legislature to provide an easy, inexpensive, speedy and conclusive way for procuring a determination of complaints against any official act of any local school official. Both the language of the law and the different steps taken by the Legislature to bring it to its present state, sustain this construction. Enacted in the early days of the school system, it has from time to time been added to with the evident purpose of making it clear that the jurisdiction of the Super- intendent is intended to be statewide, and is to cover all controversies touching any official act of local school officials. These provisions of the general law were, in substance, in force long before the passage of the special laws referring only to the city of Binghamton. If the Legislature had intended to cut off the right of appeal, as to that city, it would have so provided in the laws particularly applicable to it. It not only did not do this, but it is worthy of note that it expressly preserved the right in the first instance, and omitted to do this only upon a reenactment of the Bing- hamton school laws, consequent upon the granting of a city charter to the place. It is fair to assume that the omission at that time was either because of inad- vertence or because an express reservation was deemed unnecessary. In any event, the State Superintendent does not get jurisdiction from local school acts, but from the general school law. The authority must be held to be general, unless taken away by a special act, in language so clear as to leave no doubt of its intent, and there is no such taking away in the statutes applicable only to the city of Binghamton. 12 THE UNIVERSITY OF THE STATE OF NEW YORK There is another consideration which has not been suggested by the able and alert counsel who appeared upon the argument of this appeal, and which, in view of the foregoing, is perhaps not material to the determination of the question of jurisdiction, and yet it has sufficient bearing upon it to justify me in mentioning it. The appellant claims that the action of the respondent is in violation of chapter 413 of the Laws of 1877, entitled "An act to prevent frequent changes of textbooks in schools." This is an " act pertaining to common schools." The question brought here is one arising under it. The determination of this question may involve the construction of the provisions of this general law, rather than of the special laws relating to Binghamton. It will hardly be contended that the Legislature meant to leave it to the board of education or trustees in each city or district having a special school act, to place such con- struction as it should see fit upon this general law, and to suit its acts to its views of the meaning of the law, without affording a means of redress to persons differing with it in opinions and aggrieved by its acts. Such a view would result in as many different constructions of the meaning of this statute as there are different localities having special acts, and would defeat the purpose and intent of this general law. In view of these considerations, it seems clear to me that the grievance of the appellant is properly brought before the Department by means of an appeal, and that, under the laws, it is the duty of the Superintendent to determine the matter. On this same subject, see also decision no. 3576, dated ]\Iarch 19, 1887, 5384 In the matter of the appeal of Elias P. Mann, mayor of the city of Troy, from the decision of the board of education of the city of Troy, dismissing the charges preferred against Edwin S. Harris, superintendent of schools. The Appellate Division of the Third Department has held that the Commissioner of Edu- cation has the legal authority to hear and determine an appeal from the action of a board of education of a city of the second class operating under the uniform charter for cities of such class in a proceeding to remove the city superintendent of schools on charges. Decided March 9, 1908 Hon. George B. Wellington, corporation counsel and attorney for appellant Hon. John T. Norton, attorney for respondent Draper, Commissioner On May 24, 1907, Elias P. Mann, mayor of the city of Troy, preferred charges against Edwin S. Harris, superintendent of schools of said city. The board of education gave a hearing on such charges and thereafter dismissed the same. On September 4, 1907, Mayor Mann instituted this proceeding to review JUDICIAL DECISIONS : APPEALS I3 the action of the board of education in dismissing such charges. Superintend- ent Harris, a party in interest in such proceeding, raised the question of juris- diction of the Commissioner of Education to entertain such appeal. On October 2, 1907, I gave a hearing upon the question of ni}^ jurisdiction to hear such appeal and heard argument of counsel for the respective parties to this proceeding. At the close of such hearing I decided that the statutes made it my duty to hear and decide such appeal. On October 9, 1907, an alternative writ of prohibition was obtained from ]\'Ir Justice Betts by Superintendent Harris restraining me from hearing or deciding such appeal. Such writ was returnable at Kingston Xovember 16, 1907. Proper return was made and argument heard on that date on a motion to quash such writ. On February 25, 1908, Justice Betts rendered a decision holding that the Commissioner of Education did have the legal authority to hear and determine such appeal and dismissing the writ of prohibition. The object sought by this appeal was the removal of Superintendent Harris. During the latter part of January Mr Harris resigned the office of superintend- ent of schools of the city of Troy. It appears unnecessary therefore to give this proceeding further consideration and on motion of Mr Wellington, attorney for appellant, the appeal is hereby dismissed. Edmund VVhittier against the inhabitants of school district no. 11 in the town of Ogden. An appeal to the Superintendent will not be entertained when the point at issue has been settled by an adjudication upon the same case in a court of competent jurisdiction. Decided June 23, 1826 Flagg, Superintendent This was an appeal from the prpceedings of a meeting of the inhabitants of school district no. 11 in the town of Ogden, at which a tax of $250 was voted to build a schoolhouse. The facts are fully set forth in the decision of the Superintendent. It is alleged that the vote imposing the tax was carried by the admission on the part of the moderator of the illegal votes of William Hill and Alsen Smith. The appellant has presented a number of affidavits to show that Hill and Smith, in the opinion of those who testify, were not legal voters. The affidavits set forth generally that the persons testifying have no knowledge that Hill and Smith were legal voters, and from their situation and circumstances do not believe they were. On the other side, the record of proceedings before a magistrate is pro- duced and duly authenticated, by which it is shown that Hill and Smith were •prosecuted for having voted, without being entitled to vote by law, and that on 14 THE UNIVERSITY OF THE STATE OF NEW YORK the trial of Ihe cause it appeared that they were legal voters at the time of the meeting, from the proceedings of which the appeal is brought. In addition to this, Smith and Hill testify that they were at the time of the meeting worth $50 in taxable property. The Superintendent feels bound to recognize the decision of the court as having settled the point that Hill and Smith were legal voters. This being the only point at issue, it is ordered that the appeal in this case be dismissed. 3375 Frank J. Alverson v. Michael Joy, jr, trustee of school district no. 14, town of Springwater, county of Livingston. The courts having acquired jurisdiction of the subject matter -of an appeal through an action brought thereon by the appellant, the appeal will not be entertained. Decided April 22, 1890 Draper, Superintendent The appellant, on the 15th day of October last, was employed by the respondent to teach the common school in said district for the period of sixteea weeks. No agreement was made between the appellant and the respondent on the subject of janitor work, or the care of the schoolhouse. The appellant alleges that upon assuming the charge of the school, he found that no arrange- ment had been made for building fires and cleaning the school building; that he applied to the trustee who assured the appellant that he would attend to the matter at once. This, however, he neglected to do, and the appellant cared for the fires and cleaned the schoolhouse ; that the appellant then engaged a boy who assisted in those services for a period of five weeks, for which assistance the boy charged $3, which the respondent refused to pay. Thereafter, the appellant con- tinued to care for the schoolhouse, sweeping the same and building fires until the close of his term. The appellant claims for such services the sum of $15, and for the services of the boy the further sum of $3. The respondent admits that there was no agreement with the appellant relative to the janitor work, denies that he ever agreed to arrange for having this work done, and avers that it was the custom of the district for the teacher to perform this work. It appears further, that before taking this appeal the appellant brought an action against the respondent before a justice of the peace in said county for the value of the identical services claimed by this appeal. The fact that an action had been commenced, and that the appellant had sought in the courts the same remedy he now seeks by this appeal, makes a decision by me improper, if not unnecessary. It is a well-established rule that, when the courts have acquired jurisdiction of a matter in controversy over which this Department has concurrent jurisdiction, an appeal will not be entertained. It is unnecessary, therefore, to look into the merits of this appeal. The appeal is overruled. JUDICIAL decisions: appeals is 3754 In the matter of tl.e appeal of Irving Holcomb v. school district no. 17, of the town of Hancock in the county of Delaware. Appeals to the Department will not be sustained when the papers submitted are so very defectively prepared, and so poorly arranged as to render it altogether impossible to gain any intelligent understanding from them. Decided January 19, 1889 Draper, Superintendent Several appeals are brought before the Department by the appellant above named, all of which involve the right of the respondent to tax certain parcels of land owned by the appellant and described by him as lots nos. 5, 6, 7, 16, 17, 18, 26, 27, 28, 36, 2)7' 38, 46, 47, 48, 56, 57, 58, lying in the Spooner tract. These lots all He in district no. 17, but the appellant claims that they are owned and occupied by him, and that they lie in one body, and that as his residence is in district no. 12 of the town of Hancock, the lots referred to should be taxed in that district. The papers submitted by the appellant are numerous, and are very defect- ively prepared and so poorly arranged as to render it altogether impossible to determine in which case he desires each to be considered. Indeed, it is difficult to understand after the most earnest efforts, what the purpose of the several sepa- rate appeals may be. There is no map worthy of consideration submitted. I shall not imdertake to finally determine upon these papers the question as to whether the lots referred to are properly taxable in school district no. 12 or no. 17, but have concluded to discuss the appeals and permit the taxes now levied to be collected, for the following reasons : 1 Because of the defective papers and insufficient map. 2 Because it is shown that the property referred to lies bodily within dis- trict no. 17, and is described as separate lots. 3 Because it is shown that it has been taxed in that district for many years. 4 Because it appears that the appeals were longer delayed than they should have been; in one case at least, the proceedings have gone so far as a levy and sale under execution by the district collector. In view of the foregoing, the several appeals are dismissed without preju- dice to the right of the appellant to raise the question as to the right of district no. 17 to tax this property at any future time. 4169 In the matter of the appeal of Seymour C. Bishop and others from proceedings of a special school meeting of district no. i, town of Fairfield. Herkimer county. To sustain an appeal to this Department, the appellant must show that he is aggrieved, " that is, injured, by the action or decision of which he complains. There should be some real grievance, some positive and serious injury sustained to justify a resort by appeal l6 THE UNIVERSITY OF THE STATE OF NEW YORK to this Department for redress. Where there is no proof that the appellant or any quahfied voter of the district has sustained any damage or injury, or that the educational interests of the district have sustained damage, the appeal will be dismissed. Decided March 9, 1893 P. H. McEvoy, attorney for respondent Crocker, Superintendent On or about December i, 1892, the trustee of district no. i, town of Fair- field, Herkimer count}^, removed from said district, thereby creating a vacancy in the office of trustee in said district. The clerk of said district issued a notice, stating the fact of the vacancy in the office of trustee, and calling a special meet- ing of said district to be held at the schoolhouse in said district on December 2y, 1892, at 7 o'clock p. m., for the purpose of electing a trustee to fill said office. That said clerk posted said notice for seven full days prior to said December 27, 1892, in seven conspicuous places in said district, but did not serve any other notice of said meeting. That on said December 27, 1892, said special meeting was held and one Simon Eustace was elected trustee to fill said vacancy. That said Eustace accepted said office and entered upon the discharge of the duties thereof, contracted for a teacher and a school is being conducted in said district. From the proceedings of said special meeting this appeal is taken. The appeal states that the appellant was not served with a notice of said special meeting and had no knowledge of said meeting, and upon information and belief avers that Stephen Comstock, Charles Rands and Philo Hoover, resi- dents of, and legal voters in, said district, were not notified of said meeting and had no knowledge thereof. The affidavit of Comstock only is presented in sup- port of this allegation, and his affidavit is to the fact that he (Comstock) had no notice or knowledge of the meeting. Section 7 of title 7 of the Consolidated School Act of 1864 provides " The proceedings of no neighborhood or district meeting, annual or special, shall be held illegal for want of due notice to all the persons qualified to vote thereat, unless it shall appear that the omission to give such notice was wilful and fraudulent." No wilful or fraudulent intent on the part of the clerk in the service of the notice of said special meeting is alleged or shown; but he seems to have acted according to such knowledge as he had upon the subject, believing his action to be legal and proper. There is a complete failure on the part of the appellant to show that he, or any one, has been injured by the alleged irregularity in the service of the notice of said special meeting, and that the results of fhe meeting would,, under any circumstances, have been diiferent. No person can sustain an appeal unless he is aggrieved, that is, injured, by the action or decision of which he complains. There should be some real griev- ance, some positive and serious injury sustained, to justify a resort by appeal to this Department for redress. There is no proof that the appellant, or any JUDICIAL DECISIONS : APPEALS I7 qualified voter of the district, has sustained any damage or injury, or that the educational interests of the district have sustained damage. Tile appeal herein is dismissed. 3611 In the matter of the appeal of Octave N. Bonnefond, from certain proceedings of the annual school meeting held in district no. 23, town of Hancock, Dela- ware county, August 31, 1S86. Where a former trustee is charged, after he has ceased to be a school officer, with wrong- fully retaining money of the district, the State Superintendent is without jurisdiction over the person charged. In such case, redress can be obtained only through the courts. Decided June 20, 1887 Draper, Superintendent This is an appeal by a resident and taxpayer of school district no. 23, town of Hancock, Delaware county, from the proceedings of the annual school meet- ing held in said district August 31, 1886. The particular proceeding of the meeting objected to by appellant was the vote given to accept the report of the retiring trustee, which contained an item of eleven dollars, paid by said retiring trustee to his counsel for his costs and disbursements in preparing an appeal from the proceedings of the annual meet- ing, at which one Thomas Swope was declared elected trustee, and immediately thereafter entered upon the performance of the duties of such office. The appel- lant avers that said retiring trustee appropriated eleven dollars for such expense without a vote of a district meeting authorizing it, or the determination of a county judge after an appeal from a refusal of a district meeting to so authorize the expenditure ; that at the time the appeal was taken, said retiring trustee was not a school officer, and was not authorized by a vote of a district meeting to prosecute such appeal. The present trustee answering said appeal, alleges that said appeal was decided in favor of said retiring trustee, who was the appellant therein; that at the last annual meeting the retiring trustee presented his annual report, and. after request by some voters, presented a receipt for eleven dollars from his attorneys for such services, after which the meeting approved and adopted the report. I shall not express an opinion as to the legality of the retiring trustee's action, or the action of the district meeting in accepting and approving the same. The former trustee having ceased to be a school officer at the meeting in question, this Department has no jurisdiction over him. If he has retained moneys illegally, the statute points out the manner of recovering the same by civil and criminal proceedings in the courts. The amount involved is small and the appellant's tax therefor is scarcely noticeable, being ten or twelve cents. ■• V Having no power to enforce a decision of this appeal, if one should be made, I disiniss the same. li) THE UNIVERSITY OF THE STATE OF NEW YORK 3995 In the matter of the appeal of E. R. Fuller v. James ]M. Shultz and Henry Wheeler, as trustees of school district no. 8, towns of Bath, Wheeler and Avoca, county of Stcub:n. Appeals will not be entertained where the allegations are vague and indefinite, and legal and comprehensive proof is not furnished. Decided September 7, 1891 Draper, Superintendent By this appeal the removal of the respondents from the offices held by them, as trustees, is sought. The respondents are charged generally with converting district funds to their own use ; with receiving pay from the district for services personally ren- dered ; with giving orders upon the collector when there were no funds in his hands ; with using public money for repairs without a vote of a district meeting authorizing such repairs ; with being discourteous to their associate trustees, and with refusing to respect the expressed wish of the voters in the matter of employing a teacher, and finally, " with many minor illegal acts and irregularities too numerous to mention." An answer has been interposed in which some of the allegations of the complaint are flatly denied. Others are admitted and an explanation attempted, and countercharges of irregularities made against the appellant during the time he w'as a trustee of the district. I am satisfied that the affairs of the district are in a chaotic state. If the respondents have given district orders upon the collector or supervisor when there was no district or public money in their hands, they are guilty of a misde- meanor and are amenable to punishment therefor. If they have appropriated district money to their own use, they are guilty of a felony. If they have become individually interested in contracts with the district, they are guilty of a misdemeanor, and if found guilty of either of the offenses, they should be punished and removed from ofiice. But I have not sufficient evidence before me upon which a conviction could be had. A majority of the board of trustees at a regularly called meeting of the board, could legally employ a duly licensed teacher, even though a majority of the patrons of the school and taxpayers of the district were dissatisfied with such selection. I have received numerous letters and sworn statements upon each side relating to the charges and counter charges, of which no proof is fur- nished showing service of copies upon the other side, which I am, in consequence of the failure to show due service, unable to use upon the consideration of this case. From the correspondence, it would seem that hght upon some of the charges has been discovered since the appeal was prepared. The allegations of the appellant are too vague and obscure. JUDICIAL DECISIONS : APPEALS I have concluded to dismiss the appeal, without prejudice to the right of the appellant to renew the same, when the charges can be more intelligently and definitely stated and more comprehensive and legal proofs offered. 3-01 In the matter of the appeal of Edward Thompson v. George L. Johnson, as trustee of joint school district no. 14, towns of Nassau, Stephentown and New Lebanon, counties of Rensselaer and Columbia. An appeal taken four months after the performance of the act complained of, when no sufficient excuse for the delay is given, will be dismissed. Decided May 28, 18S7 Draper, Superintendent This is an appeal by a resident and taxpayer of joint school district no. 14, towns of Nassau, Stephentown and New Lebanon, counties of Rensselaer and Columbia, from the action of the trustee of said district in issuing a tax list to collect S193.20. The tax list was issued on the 4th day of October 1886. It is alleged by the appellant that the district meeting authorized a tax of only $150 and that the trustee has added thereto $43.20, which was unauthorized. I'he trustee, who appears as respondent, alleges that the sum of $150 was for the current expenses of the school year, and that there existed a deficiency for teachers' wages of $43.20, which it was necessary to raise. It is also alleged that the appeal was not taken until four months had elapsed after the return of the warrant by the collector, and that the appellant had paid his tax under said tax list and the warrant thereto attached. In view of the facts, which are undisputed, that the tax list and warrant were delivered to the collector in October last and the tax collected of every taxpayer but one, and that the appeal was not taken until February 22, 1887, I am compelled to dismiss the appeal under the rules. Appeals must be taken within thirty days from the time of the act com- plained of, or some satisfactory excuse must be given for the delay. None has been given. 5008 In the matter of the appeal of The Hartwood Club v. Frank L. IMuller, as trustee of school district 5. Forestburgh. Sullivan county. An appeal from a school district tax list must be brought by the party aggrieved immediately upon being apprised of the issuance of such tax list. A delay in appealing until after the tax is paid, or its collection enforced, will be fatal. Decided May 31, 1902 .- ^Villiam H. Crane, attorney for appellant George H. Smith, attorney for respondent 20 THE UNIVERSITY OF THE STATE OF NEW YORK Skinner, Superintendent This is an appeal from the action of the trustees of school district 5, Forest- burgh, Sullivan count}', in assessing in the school year 1900-1 the sum of $54.50 for school taxes upon the property of the appellant, and also assessing in the school year 1901-2 upon such property the sum of $60.45 for school taxes. The appeal herein was filed in this Department April 9, 1902, and the answer thereto was filed May 7, 1902. The following facts are established by the pleadings filed herein : The appellant herein, The Hartwood Club, is a domestic corporation of the State of New York, incorporated in pursuance of chapter 267 of the Laws of 1875, and the several acts amendatory thereof and supplementary thereto, and was organized in the year 1890 for the purpose of owning and maintaining a game and fish preserve and a summer home for its members, and became the owner, and still owns, a large tract of land in great lots 17, 18, 19 and 20 in the first division of Minisink patent, which tract is a continuous body, and lies mostly in the town of Forestburgh, Sullivan county, and partly in the town of Deer Park, Orange count}^ State of New York. The clubhouse, barns, cottages and important improvements owned by the appellant are located on lot 17 and in joint school district 6, aforesaid, and the agent of the appellant resides upon said tract of land and is in occupation of the same, but lives in a dwelling located on lot 17, in said district 6, and the lands in lots 18, 19 and 20 are entirely without buildings thereon, and unoccu- pied except by the said agent of the appellant, as aforesaid. In the year 1900, upon the assessment roll of the town of Forestburgh, all the said lands of the appellant were assessed as sixty-five acres improved, at a valuation of $105 per acre; 2783 acres unimproved, at a valuation of $1.50 per acre; making a total of 2848 acres, at a total valuation of $11,000. In sajd year 1900 the assessors of the town of Forestburgh, in an apportionment made by them, filed with the clerk of said town, apportioned the value of the property of the appellant for school purposes at the sum of $5000. The trustee of school district 5, in the tax list issued by him for the school year 1900-1, assessed the appellant $54.50 upon its property valued at $5000, which sum the appellant paid, under protest, to the collector of said district January 18, 1901. In the year 1901 the property of the appellant was assessed upon the town roll of Forestburgh at $11,500, and the town assessors of 1901 filed with the town clerk an apportionment of the value of the property of the appellant for school purposes in school district 5 at the sum of $5250. The trustee of school district 5, in the tax list issued by him for the school year 1901-2, assessed the appellant $60.45 upon its property, valued at $5250, which sum the appellant paid, under protest, to the collector of the district September 30, 1901. The appellant claims that the apportionment so made by the assessors of the town of Forestburgh was null and void ; that the assessments so made upon the tax rolls of school district 5 were irregular and without warrant of law ; that the taxes so levied in pursuance of such assessments were without juris- JUDICIAL decisions: appeals 21 diction of the trustee, and that the moneys collected thereupon should be returned to the appellant. This Department has uniformly held that an appeal from a tax list, on what- ever grounds, must be brought before the payment of the tax, or the collection of the tax; that such appeals must be brought by the party considering himself aggrieved immediately upon becoming apprised of the existence of such tax list. A delay in appealing until the tax is paid or its collection enforced will be fatal. The rules of practice relative to appeals taken to me provide that an appeal should be taken within thirty days after the making of the decision or the per- formance of the act complained of, or within that time after the knowledge of the cause of complaint came to the appellant, or some satisfactory excuse must be rendered for the delay. The first act complained of by the appellant was performed in the year 1900, and the second act complained of was performed in the year 1901. No satisfactory excuse is given by the appellant for the delay in bringing the appeal herein. The appellant having paid the taxes assessed upon its property, I am powerless to afford any relief. The appeal herein is dismissed. 3628 In the matter of appeal of Abbie ^l. Armstrong v. the trustees of school district no. 15, town of Hopkinton, county of St Lawrence. Appeal dismissed, not having been taken timely and no reason for the delay being shown. Decided August 10, 1S87 Draper, Superintendent This appeal is taken by a person who alleges she was employed in the month of December 1885, by Herbert C. Maynard, then trustee of school district no. 15, town of Hopkinton, in said county, to teach the school in said district for the term of twenty-eight weeks, commencing on or about the 20th day of December 1885, at the rate of eight dollars per week; that she commenced teach- ing pursuant to said agreement and continued for the term of ten weeks ; that at the expiration of said ten weeks a contagious disease prevailed in the district, and that, on account thereof, the trustee requested the teacher to dismiss the school until such disease should disappear; that the appellant dismissed the school accordingly; that said appellant was notified by the trustee that he would advise her when he was ready to have the school begun; that in April 1886, the appellant was requested by the trustee to attend a teachers institute; that she did attend said institute and at its close returned to the district and com- menced teachins: the school and taught for three weeks; that thereupon the 22 THE UNIVERSITY OF THE STATE OF NEW YORK appellant was informed by said trustee that diphtheria was still prevailing in the district and, acting upon the advice of a physician, he had concluded to close the school for another term ; that the appellant returned home and did not and could not engage in any occupation on account of such unfulfilled engagement .with the trustee, and that she kept herself at all times in readiness to finish out the term for which she was employed, but that the trustee never notified her to finish such term; that she was paid the sum of $112 only on account of such engagement, and that the district is now indebted to her in the sum of $112, which sum she has demanded payment of from the trustee, and the trustee refused and still refuses to pay the same or any part thereof. This appeal was verified on the i6th day of October 1886, but was not filed in the Department until the 3d day of March 1887, and a copy of the same does not appear to have been served upon the trustee until the 26th day of Feb- ruary 1S87. For an informality the petition was returned to the appellant and refiled in this Department on the 15th day of March 1887. No answer has been received from the trustee to this appeal. The rules of the Department require appeals to be taken within thirty days from the performance of the act complained of, and without entering into the merits of this case, or without intending to prejudice any rights which the appellant may have in an action in the courts against the district for the recovery of wages, I am compelled to dismiss the appeal. 3963 In the matter of the appeal of Lovina Munson v. school district no. 9, of the town of Hartwick, county of Otsego. Appeals not brought within thirty days, unless the delay is excused for satisfactory rea'sons , shown, will not be entertained. Claims for damages for breach of contract, when the extent of the damages are altogether indefinite and uncertain, will not be entertained by the Department. Decided February 16, 1891 Edick & Smith, attorneys for appellant Pierce & Arnold, attorneys for respondent Draper, Superintendent The appellant claims to have been employed by the trustee of the district above named in December 1889, to teach the school in said district for the period of sixteen weeks in the next summer, at the rate of four dollars per week. Numerous conversations between the father of the appellant and the trustee are set forth in their papers, to establish said employment. The term was to com- mence on the last Monday of March 1890. When the time arrived the trustee refused to permit the appellant to open the school, and informed her that he had JUDICIAL DECISIONS : APPEALS 23 employed another teacher. She brings her appeal for the purpose of enforcing her claim to damages for a breach of the alleged contract. The appellant is too late in bringing her appeal. The rules of the Depart- ment require that it should be brought within thirty days, or that some satisfac- tory excuse should be rendered. But aside from this fact, her appeal could not here be entertained. It has been repeatedly held that the Department would not undertake to enforce a claim for damages for the breach of a contract, when the extent of the damage was altogether indefinite and uncertain. See case of Tillson v. school district no. 4, in the town of Forestburgh, in the annual report of this Department for 1890, at page 131. The remedy of the appellant is an action in the courts. The appeal is dismissed. Power of the Department to grant rehearings in matters of appeal considered. Decided April 18, 1859 Van Dyck, Superintendent This is an appeal asking for a rehearing of all matters in controversy in the district that have been brought before this Department since March 24, 1S57. The main purpose of this appeal is to secure a rehearing, upon the merits, of those facts and arguments presented in an appeal to this Department which was dismissed December 19, 1857, and by restoring, as far as may be, the con- dition of things existing at that time, to afford the appellants the relief at that time sought. At this point we are met by the position of the counsel for the respondents, that this Department has no power to grant a rehearing of any matter of appeal, and that, the order of this Department dismissing the appeal having been issued, no further action upon the matters embraced in that appeal can be taken. It would be doing injustice to the able, ingenious and plausible argument of the counsel upon this point, for the Department to controvert it simply m action, by granting the rehearing, without any statement of the grounds upon which its conclusions respecting the extent of its rights and powers are based. First, upon this particular case it may justly be said that the decision of the Department upon it was expressed or rendered in the communication to Commissioner Boyce, that embodied the conclusions at which the Department had arrived from an examination of the evidence adduced; it is, to all intents and purposes, the decision of the questions at that time pending, and it was pro- posed, when certain conditions should be reached by the further acts of the parties themselves, to issue an order adapted to the circumstances of the case at that future time. On information, supposed to be reliable, that the conditions stated had been reached, the order was issued dismissing the appeal; this bemg done for the sole purpose of enforcing the decision already rendered. The dis- 24 THE UXIVERSITY OF THE STATE OF NEW YORK missal of the appeal, therefore, was not the decision of the case, as appears by its terms, in which it especially disclaims to act upon the questions raised in the controversy, they having been disposed of (as was supposed) according to the terms of the decision rendered by the Department. If it be objected that this decision was not in form and under seal, it is sufficient to answer that the statute does not prescribe the manner or form in which these decisions shall be expressed. That is left to the judgment of the Department itself. The seal, or other forms commonly attending the rendering of a decision, are proper as evi- dences to third parties of the authenticity of the proceedings. But they are of no importance to the Department itself, which is cognizant, at all times, of its own decisions. An order of the Department may be antecedent or supplementary to a decision, and hence may be continued in force, or vacated, at the pleasure of the Department. Thus, on an appeal, by inhabitants, from the proceedings of trustees in the matter of paying public moneys to a teacher, it might be necessary to issue an order to the supervisor, directing him to withhold the payment of the moneys of that district until otherwise directed. It will not be held that this order is fixed and can not be vacated. So, where an order is issued supple- mentary to a decision, and with a view, or for the purpose of enforcing its con- clusions, if the Department shall afterward find that such order is insufficient to accomplish the enforcement of the decision, or, owing to any circumstances of which the Department was unaware, is calculated to thwart the ends proposed by the decision to be reached, it is absurd to maintain that such order may not be modified or vacated, and such other order be issued as will conform to the doctrines of the decision rendered. I come now to a review of the power of the Department to grant, a rehear- ing of a case upon its merits, after a decision has once been rendered. The argument of the counsel was chiefly confined to two points : First, that the power to rehear a matter of appeal, after decision rendered, could only exist b)'- express legislative provision, and, no such power having been conferred by the statute, it, of course, did not exist. Second, that the words of the statute, which declare that the " decisions of the Department shall be final and conclu- sive," expressly prohibit the exercise of any such power as is asked by the appellants. In the decisions referred to by the counsel, I fail to find any cases where the power to rehear a cause upon the merits has been denied, that are at all analogous to the one now present. In denoting the distinction between a superior and an inferior court — that is, one competent to grant a new trial and one incompetent — the courts say: " We think that a superior court of general juris- diction must have full cognizance of one at least of the principal departments of tlie law throughout the State, and must be free, in its primary action, from the control of any other tribunal." I can conceive of no language that should more clearly describe and desig- nate this Department than that above quoted. I can, therefore, draw no other JUDICIAL decisions: appeals 25 conclusion than that this Department is a superior court of general jurisdiction, and hence that to it the decisions relative to tlie powers of inferior courts do not apply. But again, in i Johnson's Cases 179, which the counsel cited in support of his position, I find the f ollovring language : " The power of granting new trials can only be appHed in a manner which precludes the possibility of its exercise being reviewed in this or any other court." These are just the circumstances under which this Department always exercises this power. And, further, in the same decision, the court says: " Indeed, no inferior jurisdiction can possess this power without express authority," plainly implying that courts of superior or general jurisdiction may, in the very nature of their organization, possess this power of granting new trials. It is my conviction, therefore, that the power to grant a new trial of any cause brought before this Department on appeal may exist without special legis- lative designation, being involved in the powers distinctly conferred, and the 'purposes and objects sought to be accomplished in the organization of this tribunal. I pass now to consider the second point in the argument of the counsel upon this question of the power of the Department to grant a new trial, which is based upon the restrictive terms of the statute itself, which says that " the decision of the State Superintendent shall be final and conclusive." This language has ever been interpreted as characterizing the exclusiveness of the jurisdiction of this Department in matters brought before it for deter- mination, and not as limiting the Department itself to a single examination of any cause before it. It was designed as a check against the interference of other authorities wath the decisions here rendered, and not as defining or circumscrib- ing the powers of the Department itself. The nature of the trust committed to this Department, and the form of procedure necessary for the proper exercise of its powers, preclude the presump- tion that the Legislature ever intended that the terms " final and conclusive " should bear the construction put, upon them by the counsel in this case. The indication of the exercise of this power by this Department to grant nev/ trials is made not essentially to meet the present case, but to meet and put at rest, so far as it can be done here, the general issue so strongly raised; and I must and shall assume that the practice of this Department, in granting new trials for causes satisfactory to itself, is a legitimate and necessary exercise of powers with which, in the nature of its organization, it is invested. 26 THE UNIVERSITY OF THE STATE OF NEW YORK 3508 Nathaniel Coon and others v. Abner L. Sprague, sole trustee of school district no. 14, Sandy Creek, Oswgeo county. When an appeal has been decided, such appeal will not be reopened, unless upon the ground of newly discovered evidence. The submission of testimony not contained in original appeal is not sufficient, unless it is made to appear that such testimony was not known to, or could not have been procured by tTie appellants at the time of bringing the original appeal. Decided June i, 18S6 Draper, Superintendent This is a proceeding purporting to be an " amended appeal " from the election of Abner L. Sprague as sole trustee of school district no. 14, Sandy Creek, Oswego county, N. Y., at the annual meeting held August 25, 1885. It appears from the records of this Department that an appeal was taken from such election and a decision rendered therein on the 12th day of December 18S5. This appeal was filed in the Department Alay 11, 1886. Under the rules of practice, an appeal from the action of an annual meeting must be brought within thirty days from the date of such meeting or some satisfactory excuse must be rendered in the appeal for the delay. Again when a decision has been rendered in an appeal, such appeal will only be reopened upon the production of ncAV evidence which was not in the possession of the appellant, or could not have been procured when the appeal was brought. While more testimony is submitted in the papers now before me than was contained in the former appeal, it does not appear that such testimony was not known to or could not have been procured by the appellants at the time of bringing the first appeal, and no reason is given for bringing this appeal at so late a day except that it was supposed that the papers in the* former case were sufficient, no answer having been made to them. This is not a satisfactory excuse. For these reasons I would decline to entertain the appeal. It might be well (or more satisfactory), however, for me to add briefly, that I have examined the papers herein, and find that the appellants allege as the grounds of their appeal, that the respondent was not eligible to the office of trustee, and that the election was procured by illegal votes. But I also find, by a thorough examination of the testimony, that the appellants fail to show either that Abner L. Sprague was, at the time of his election, ineligible to the office of trustee, or that his election was procured by illegal votes. The appeal is overruled. JUDICIAL decisions: appeals 3941 In the matter of the appeal of James D. Van A^echten and others from the proceedings of an adjourned annual meeting held in school district no. ii of the town of Schodack, county of Rensselaer. Action of a district meeting in allowing a claim for legal services incurred by a district ofi.-cr in defending an appeal, sustained. Decided December i8, 1890 Draper, Superintendent This is an appeal by residents of school district no. 11, town of Schodack, county of Rensselaer, from the proceedings of the adjourned annual meeting held on the 9th day of August 1890, in voting to allow a claim of $133.25 for legal services rendered by Messrs Davenport & Hollister, counselors at law, for the respondents in the matter of the appeal of Alfred T. Bortle and others from the election of James Benner as trustee of the above-mentioned district. The grounds of the appeal are: that the motion to allow the claim was not made by a legal voter; that the vote was not taken by ayes and noes; that che said James Benner was not instructed by a resolution of a district meeting to defend the appeal; that the claim was not itemized and verified to the district meeting; that the charge is exorbitant; that the appeal brought was sustained; that the appeal was not against any official act of the trustee. The respondent alleges that, at the meeting referred to, a motion was regu- larly put and carried authorizing a tax to raise the sum of $133.25 to Hquidate the charge for legal services rendered by Davenport & Hollister as attorneys for said James Benner and others ; that the said Benner made no charge for expenses incurred by himself beyond the charge for his attorneys as above stated, and that the same was regularly presented to the district meeting and allowed. Respond- ent alleges that the motion to pay the claim was regularly made by a resident and taxpayer of the district, and carried by a nearly unanimous vote, not to exceed three of the fifteen or eighteen persons present voting against the same. He alleges that he has no acquaintance with the value of legal services, and can not state, of his own knowledge, whether the charge is exorbitant or not. In the consideration of this appeal, my attention is directed to subdivision 14 of section 16 of title 7 of the Consohdated School Act, which reads as follows: The inhabitants so entitled to vote, when duly assembled in any district meeting, shall have power, by a majority of the votes of those present, to vote a tax ... to pay the reasonable expenses incurred by district officers in defending suits or appeals brought against them for their official acts. . . ■ I have no evidence before me which will enable me to pass upon the value I 28 THE UNIVERSITY OF THE STATE OF NEW YORK of the services rendered by the attorneys whose bill is objected to, except the record evidence connected with the appeal on file in this Department, and the fact that the attorneys appeared before me upon the argument of said appeal. This is a matter which the district meeting had authority under the statute to act upon. As it has acted, its action must be upheld unless good ground is shown for setting it aside. The burden of proof is upon the appellant to show that the bill audited was excessive. They fail to show this. Indeed, they adduce no proof at all to show it. The overwhelming vote in the district meeting indi- cates a general willingness in the district to pay the bill, and consequently, a general belief that the amount claimed was not excessive. The appeal must be dismissed and the stay heretofore granted herein is hereby set aside and revoked. 3983 In the matter of the appeal of Jonathan E. Leach and others v. George E. Fralick, as trustee of school district no. 4, towns of Marathon and Willett, county of Cortland. Costs and expenses incurred in instituting proceeding on appeal can not be legally allowed by a district meeting, unless the appeal was instituted or prosecuted by a school district officer in his official capacity. Decided June 30, 1891 William D. Tuttle, attorney for appellant Milo C. Paige, attorney for respondent Draper, Superintendent By this appeal an item for expenses incurred in preparing and prosecuting an appeal before the State Superintendent of Public Instruction, w^ich item has been audited and allowed by a district meeting, and thereupon included in a district tax, is objected to, upon the ground that the action of the district meeting was without authority of law. From the evidence before me, and which is undisputed, it appears that the appellant was the immediate predecessor of the respondent herein in the office of trustee of school district no. 4, towns of Marathon and Willett, Cortland county, and that during the appellant's term of service the respondent was the clerk of said district ; that during this time an appeal was taken by the respond- ent herein and others from certain proceedings of the then trustee. It is conceded that the appeal was not brought by the direction of a district meeting, and the appellant herein alleges that it was not brought by the clerk ex officio, but only in an individual capacity in which he was joined by other taxpayers of the district. The respondent insists that he proceeded upon such appeal as district clerk, and that he personally incurred the attending expenses. JUDICIAL DECISIONS : APPEALS 29 Had the appeal been instituted or prosecuted by the direction of a district meeting, or without such direction by the clerk, in his official capacity in a case in which he would have been authorized to institute such a proceeding, the item would be approved, no question having been raised as to its reasonableness. My attention having been directed to the former appeal, no. 3883, I have examined the pleadings of the appellant therein, and I do not find that the district clerk instituted said appeal in his official capacity or in any other than an indi- vidual one, and I am, therefore, led to the conclusion that the case is not brought within the statutory provision w^hich authorizes a district meeting to allow the expenses incurred by a district officer in prosecuting an appeal. The appeal is sustained, the action of the district meeting declared invalid, and the order heretofore granted herein enjoining the collector of the amount voted for expenses incurred on said appeal, is hereby made permanent. 3558 In the matter of the appeal of Aaron X. Losee and others v. Alfred P. Blenis, as trustee of district no. 7, town of Greenville, Greene county. The district meeting appointed a committee to represent the district upon proceedings before the county judge, for determining the amount of the liability of the district for costs and expenses of an appeal in which the district had been involved (section 9, title 13, Consolidated School Act), and the chairman of the committee having been subsequently elected trustee, levied a tax for the sum of $195 to pay the counsel fee and expenses of such committee. Held, (i) that a charge for services of counsel amounting to $160 for defending against a claim of $180, was exorbitant; (2) that the committee could not be allowed any compensation for their services; (3) that the committee could not be allowed for the use of their own conveyances. Decided January 28, 1887 E. C. Hallenbeck, Esq., attorney for appellants Franklin J. Taylor, Esq., attorney for respondent Draper, Superintendent The district from which this appeal emanates is very small, comprising, all told, about twenty taxable inhabitants. It has been involved in a quarrel for a long time, and there seems little prospect of a settlement. About a year since, Alfred P. Blenis, the respondent above named, and others, appealed to this Department to remove from office Leander \V. Hallock, then trustee of said district. The decision of such appeal, made upon the 29th day of March 1886, denied the application. Subsequently Mr Hallock presented to a district meeting a claim for costs, charges and expenses incurred by him upon such appeal, and upon the refusal of the district meeting to pay the claim, he appealed to the county judge of Greene county to adjust the same, pursuant to the provisions 30 THE UNIVERSITY OF THE STATE OF NEW YORK of section 9 of title 13 of the Consolidated School Act of 1864, and the district subsequently appointed a committee consisting of Mr Blenis, Amos B. Story and Oliver H. Bogardus to protect its interests before the county judge. In the discharge of its duty, the committee incurred some expense and employed counsel. Two lawyers were called in to represent the district before the county judge and defend against a claim amounting to $iSo. There appears to have been two adjournments of the proceedings before the county judge, and finally in Sep- tember, that officer adjusted the claim of Hallock, at the sum of $120. Then Mr Blenis, the respondent above named, having in the meantime been elected trustee of the district, made out a tax list and warrant and placed the same in the hands of the collector for the purpose of raising the sum of $195 to cover the expenses of the committee. From this action this appeal is taken. Whether the committee appointed to represent the district had the right to employ counsel or not, is a matter not free from doubt, but as the trustee who was pressing the claim against the district was represented before the county judge by counsel, there would seem to be some reason in the district being so represented, and as counsel were, in fact, employed, and did appear and repre- sent the district, and as the objections of the appellants here seem to be directed against the amount of the claim for counsel fees rather than against the right of the committee to employ counsel, I am not inclined to inquire into that question too closely. But in any event, it is difficult to justify the proceedings of the com- mittee in employing two attorneys to represent it upon a very simple proceeding before the county judge, when the claim against the district was but for the sum of $180, and it is still more difficult to justify the claim which is presented for counsel fees in the sum of $160, for defending against a claim for $180. Furthermore, it is noticed that the committee have included in their personal bills, items for the use of their own conveyances in going to the county seat upon the several occasions when the matter was expected to be up for con- sideration. The statute only authorizes them to charge for expenses incurred in the performance of their duty, and provides only that such expenses shall be a charge upon the district. It is not possible to hold that they we^i-e subjected to expense in the use of their own convevances. I have, therefore, concluded to sustain the appeal, unless the respondent shall, within fifteen days from the date hereof, withdraw the warrant and tax list from the hands of the collector, and reduce the amount levied by said tax list, by deducting therefrom all items charged by members of the committee for the use of their own conveyances and by reducing the amount claimed for the services of counsel to the sum of $75. The said trustee has my permission to withdraw said warrant and tax list and correct the same as herein indicated. In case this is done, restitution must be made to such of the taxpayers in the district as have paid the amount levied against them by the said tax list, or. at least by restoring so much of the amounts so paid respectively, as will be in excess of the amount which they will be obliged to pay under the modified and corrected tax list. In the meantime, the matter will be held in abeyance, and upon proof of such modification being made, the appeal will be dismissed. JUDICIAL decisions: appeals 31 3399 Expenses of a member of the board of education in defending action brought against him are chargeable against the district. .Decided March 12, 18S5 Ruggles, Supcrintcndcr.t This appeal is brought from the action of the annual meeting in ordering payment of the sum of $235 to one of the trustees for the legal expenses incurred by him in defending certain actions brought against him. From November 28, 1882, until June 30, 1883, Sandford S. Gowdey was employed as principal teacher in the school in that district. The board of edu- cation in May 1883, assumed to discharge Gowdey from the duties of his office, the discharge to take effect on the 30th of June 1883. In July 1883, Gowdey claimed that he had not been legally discharged, and appeared at the schoolhouse of the district and interfered with a teacher, employed by the board of education in the discharge of her duties, and ordered her and the trustees to vacate the school at once. Gowdey insisted upon his right of possession of the schoolhouse as teacher for several days thereafter. Finally the board held a special meeting to consider what action should be taken in the premises to stop the intrusion of Gowdey, and at the meeting a resolution was unanimously adopted directing George W. Payne, the president of the board, to employ counsel to " defend " the board in the matter of the dispute between said board and Gowdey. Payne was advised by counsel to make complaint to a justice of the peace and have said Gowdey arrested forthwith. On the 8th of September Payne reported to the board the retaining of Benjamin W. Downing as counsel and the advice given by him, and the board then and there adopted a resolution, instructing Payne to cause the arrest of said Gowdey. Acting under this instruction, Payne made a complaint against Gowdey to Justice Van Nostrand, of Flushing, who issued a warrant for his arrest. The case coming on for trial, counsel deeming the warrant irregular withdrew it, and immediately procured another from the justice. The prisoner was immediately rearrested and thereupon tried and acquitted. After his acquittal, Gowdey brought two suits against Payne in the Supreme Court in Queens county, one for false imprisonment and one for malicious prosecution, laying his damages at $10,000 in each suit. These suits were tried at the January circuit following. The plaintiff was nonsuited in both cases. The first case was dismissed on the ground that the warrant was a good one, and in the second case (the action for malicious prosecution), on the ground that upon his own testimony, there was probable cause for the arrest of the plaintiff by the trustee, for disturbing the school. Following this a suit was brought by Payne's counsel in these cases, in a justice's court, against the board of education, some time in June or July 1884. In this suit the complaint charged that the plaintiff and B. W. Downing, rendered certain services for said board, at its request, and that the reasonable value of such services was $200. The answer of the defendant denied that the services were rendered at the 32 THE UXIVERSITY OF THE STATE OF XEW YORK request of the defendant, or for its benefit. The judgment for the defendant in this case seems to have been based upon the ground that the plaintiff never had any privity with the defendant, and that he failed to show that he legally derived his claim through any person who was in privity with such defendant. The counsel. Drew and Downing, thereupon demanded payment for these serv- ices from the trustee Payne, who at the annual meeting presented an account in writing of the costs, charges and expenses paid by him, with the items thereof, verified by his oath or affirmation, and asked the adoption of the resolution by the meeting, that the same might be assessed upon the taxable property of the district, and when collected to be paid over to said Payne. There are two questions worthy of consideration in this case: 1 Was the determination of the case of Drew against the board of education of such a character as to constitute res ad judicata f 2 Was Payne a district officer within the meaning of sections 7 and 8, title 13, of the Code of Public Instruction? A party setting up an estoppel by reason of a former adjudication, must by competent evidence prove affirmatively that the issues on the former adjudi- cation were the same, and between the same parties or their privies. Xow, it appears that the action of Drew against the board of education proceeded upon the theory that he and his partner, Downing, were employed by the board. The judgment of dismissal in this case was based upon the ground that they were not so employed, and this was undoubtedly correct. Downing and Drew were employed by direction of the board of education in a criminal action against Gowdey, out of which grew the suits for false imprisonment and malicious prosecution brought by Gowdey against Payne, who had, in the criminal action, made the complaint under the direction of the board. It can not be held that the judgment of dismissal, in the action of Drew against the board of education, could in any way estop a district meeting from legally adopting the resolution from which this appeal is taken, if Payne was a district officer, within the mean- ing of sections 7 and 8, title 13 of the Code of Public Instruction. This leads to the second question. Was Payne a district officer within the meaning of sections 7 and 8, title 13 of the Code of Public Instruction? \\'hile the board of education is a corporation, and the individuality of its members is lost sight of in the action of the board, yet each member of the board must be regarded as a school officer ; especially so, where the board delegates to, or charges a member 'with, certain definite duties. Such was the case in the |)roceeding which led to the resolution of the annual meeting and to this appeal. The board of education vexed and annoyed by the action of Gowdey, whom they had assumed to dis'charge from his position as teacher by a formal resolution, directed the president to take legal advice as to the best means to defend the board under the circumstances. Payne did as he was directed, and reported back to the board the advice he received, and was in terms empowered and directed to cause the arrest of Gowdev for disturbing the school. All these A JUDICIAL DECISIONS : APPEALS 33 proceedings were taken in good faith ; Gowdey was arrested, tried and acquitted. Up to this point the board of education was directly responsible for the action of its agent, and had suit been brought by counsel against the board for services in this criminal proceeding, and for the advice given to Payne, acting as its agent and president, there can be no doubt that recovery would have been had. But now, Gowdey commenced his two actions in the Supreme Court against Payne. There is no doubt, from the evidence, that in the trial of these two cases it was shown that Payne's action in the arrest of Gowdey was taken as trustee ; and in these cases he was forced to defend the suits brought against him for his action as trustee. So, that from the beginning to the end of the controversy, Payne acted in his capacity as a district officer. I think there can be no doubt these actions involved the rights and interests of the district, and that it was within the province of the district to provide for the payment of the reasonable costs, charges and expenses of tlie district oflicers. 4652 In the matter of the appeal of Louis F. Metz as trustee of school district 8, Ridgeway, Orleans county, from action of special school meeting in school district 8, Ridgeway, Orleans county, held on January 28, 1898. Where a school district meeting refuses to pay the reasonable expenses incurred by a district officer in defending an appeal brought against him for his official acts, an appeal will lie to the State Superintendent of Public Instruction from such refusal. If, upon such appeal, it is established that the appeal so defended by the district officer was taken wholly from his official acts, or contained allegations charging him as such officer with acting improperly or illegally, and the expenses paid by him in such defence are reasonable, the State Superintendent has jurisdiction and may make such order therein by directing the levymg of a tax or otherwise as shall, in his judgment, be proper and necessary to give effect to such decision. Decided May 13, 1898 Harry Cooper, attorney for appellant Irving L'Hommedieu, attorney for respondent Skinner, Superintendent This is an appeal from the action of a special school district meeting held in school district 8, Ridgeway, Orleans county, January 28, 1898, in refusing to vote a tax for the sum of $30 to pay the expenses incurred by the appellant in defending an appeal brought against him for his official acts as trustee of such district. Watson H. Whipple, a qualified voter of such school district, has answered the appeal and alleges that the appellant defended the appeal as an individual and not as trustee ; that such defence was made by him without the authorization or sanction of the inhabitants of such district. From the proofs herein, and from the records of this Department, it appears that the appellant was the trustee of such district for the school year of 1896-97 ; that on August 3, 1897, the annual school meeting was held in such district, 34 THE UNIVERSITY OF THE STATE OF ^E\V YORK at which certain proceedings were taken, from which one Bowen and the respondent herein appealed to me, alleging in such appeal, among other things, that said trustee Metz " had resorted to deceitful, fraudulent and unlawful tactics in order tp secure his reelection as trustee," etc. ; that he had called such meeting to order at 7.30 p. m. when the notice of the meeting, as posted by the clerk, states that the meeting would be held at 8 p. m. ; that the proceedings of the meeting were principally taken and the meeting adjourned before the majority of the voters of the district arrived at the schoolhouse, etc.; that the election of district officers was illegal and that illegal votes were received; that a copy of the appeal was served upon trustee Metz, who employed counsel and filed his answer thereto. Upon the proofs filed in such appeal it appears that on July 29, 1897, trustee Metz inquired of the district clerk whether he had posted notices of the annual meeting, and was informed that he had not, and thereupon was directed by the trustee to post such notices ; that such clerk posted one notice in which he stated that the meeting would be held on August 3, 1897, at 8 o'clock p. m. ; that on the evening of August 3, 1897, nearly all of the qualified voters of the district assembled in the schoolhouse, or upon the schoolhouse grounds, and a discussion arose as to whether the meeting could be legally organized at 7.30 or 8 p. m., and Trustee Metz stated to those present that the clerk had not inserted in the notice posted the hour fixed by the school law for holding the meeting, and the meeting would be called to order at 7.30, and requested all present to come into the schoolhouse and be present at such meeting; that about one-half of the voters present entered the schoolhouse and took part in the meeting, the others remaining outside and declining to take part in such meeting; that after the adjournment of the annual meeting the persons who declined to enter the school- house held a meeting and voted to appeal from the action of the annual meeting, and said Bowen and Whipple appealed. In my decision of such appeal I decided that such annual meeting was legally held, and that Metz was legally elected trustee; that there was no one elected district clerk, and that the collector was not legally elected, no5 was the tax legally voted, and directed that a special meeting be called for the purpose of electing a district clerk and collector, and to vote upon the question of levying a tax or taxes. It also appears that Trustee Metz called a special meeting of the district, to be held on October 12, 1897, to transact the business directed by my decision, but added thereto a notice that such meeting would also be asked to vote a tax to defray the expenses of the trustee incurred by him in defending the appeal brought by Bowen and Whipple ; that such special meeting refused to vote such tax; that Trustee Metz appealed from such refusal, and the respondent herein answered said appeal, alleging therein (as in his answer herein) that Metz did not defend the appeal of "Bowen and Whipple as trustee, but as an individual, and such appeal was not taken from the official acts of Metz, and that he was not requested by the inhabitants to defend. He also alleges that as such special meeting was called pursuant to the directions contained in mv decision for JUDICIAL DECISIONS : APPEALS 35 specific purposes, the action of the meeting in voting upon the expenses incurred by Metz was without authority. In my decision of the appeal of Metz I stated that the contention of the respondent, Whipple, that Metz did not answer the appeal of Bowen and Whipple as trustee but as an individual, was not well taken ; that as such appeal charges Metz in his acts as trustee with deceitful and fraudulent practices to secure his reelection as trustee, such appeal was brought from his official acts relative to such annual meeting ; that upon the facts established he acted properly in defending such appeal ; that the sum of $30 paid by him as expenses in such defense was reasonable, and that no good reason was shown why the qualified voters of school district 8, Ridgeway, should not vote a tax to pay the same. In subdivision 15 of section 14, title 7 of the Consolidated School Law of 1894, it is enacted that the inhabitants entitled to vote, when duly assembled in any district meeting duly called and held, have power, by a majority of the votes of those present, to vote a tax to pay the reasonable expenses incurred by district officers in defending suits or appeals brought against them* for their oflicial acts, or in prosecuting suits or appeals brought by direction of the district. When an appeal is brought, which alleges improper or illegal acts on the part of a district officer, such officer may apply to, and obtain from, a district meeting authority to defend the same, or he may defend such appeal without such authority. If defended without obtaining such authority from the district he can present to an annual meeting, or a special meeting of the district, duly called, a statement of the expenses incurred by him in such defense, and such meeting has authority to vote a tax to pay the reasonable expenses so incurred by him. If the meeting refuses to vote a tax he may appeal from such refusal to the State Superintendent of Public Instruction under title 14 of the Con- solidated School Law of 1894. If upon such appeal it is established that the appeal defended by such district officer was taken wholly from his official acts, or contained allegations charging such officer with acting improperly or illegally, and that the expenses paid by him in such defence are reasonable, the State Superintendent has jurisdiction to entertain such appeal, and may make such order therein by directing the levying of a tax or otherwise as shall, in his judgment, be proper and necessary to give eflfect to such decision. I decide: That the said appeal of Bowen and Whipple was brought not only from certain proceedings taken at the annual school meeting, held in school district 8, Ridgeway. Orleans county, on August 3, 1897, but from certain improper and illegal acts done by Metz as trustee of said district; that said Metz, as such trustee, properly interposed a defence to such appeal; that the sum of $30 incurred and paid by him in defending such appeal is reasonable. It is ordered. That for the purpose of giving effect to my decision herein, Louis F. Metz, as trustee of school district 8, Ridgeway, Orleans county, is directed to levy a tax for the sum of $30 upon the real and personal property subject to taxation in such district for school purposes, to pay the reasonable 30 THE UXIVERSITY OF THE STATE OF NEW YORK expenses incurred by him in defending the said appeal brought by Messrs Bowen and Whipple, charging therein improper and illegal acts on the part of said Metz as trustee of such district. 4507 In the matter of the appeal of Harvey D. Titch from proceedings of annual school meeting held August 4, 1896, in district no. 10, town of Andes, Dela- ware county. Under the provisions of subdivision 15 of section 14, article i, title 7, of the Consolidated School Law of 1894, the inhabitants entitled to vote, w^hen duly assembled in any district meeting, shall have power, by a majority of the votes of those present, to vote a tax to pay the reasonable expenses incurred by district officers in defending suits or appeals brought against them for their official acts or in prosecuting suits or appeals by the direction of the district against other parties. The provisions contained in sections 4 to 8, inclusive, of article i, title 15, of the school law, have reference solely to tlie prosecution or defense by trustees of school districts in actions or proceedings brought by or against them in the courts of the State, but not expenses incurred by district officers in defending appeals brought to the State Superintendent of Public Instruction. Decided November 7, 1896 Williams & Conlon, attorneys for appellant Wagner & Fisher, attorneys for respondent Skinner, Superintendent This appeal is taken from the proceedings of the annual school meeting held on August 4, 1896, in school district no. 10, town of Andes, Delaware county, in the adoption of a resolution that so much of an account of Wagner & Fisher, amounting to the sum of $142.50, as exceeds the sum of $15 therein, be audited and allowed at said amount, and said sum be included in the tax list as asked for by the trustee in his report, upon the ground that the part of the said account amounting to $127.50 is not a proper charge against said district. Frank B. Scudder, as trustee of said district, has answered said appeal. The items in the account of said Wagner & Fisher to which tRe appellant objects are: For services and disbursements in the appeal of Lewis C. Titch, against John G. Scudder, trustee, and William Middlemist, collector of said district : Drawing answer and affidavits and making copies for services $25 00 Drawing rejoinder, affidavits and making copies for services 25 00 Three days' service in drawing brief 30 00 Disbursements in said appeal 7 50 For services before county judge in the appeal of Harv^ey D. Titch from the action of school meeting held December 10, 1S95, in refusing to allow said Titch the expenses incurred by him in defending an appeal : Services before county judge, making argument, copying decision, serving same, and disbursements made 30 00 Services in the Matter of the Appeal of Rene M. Jackson 10 00 $127 50 JUDICIAL decisions: appeals 37 It appears that on or about January i, 1896, one Lewis C. Titch appealed to the State Superintendent of Public Instruction from the action of John G, Scudder, trustee, and William Middlemist, collector of said district and that said trustee and collector employed the law firm of Wagner &. Fisher to defend tham iu said appeal; that in August 1895, William Middlemist appealed to the State Superintendent of Public Instruction from the proceedings of the annual school meeting held in said district in August 1895, at which Harvey D. Titch was claimed to have been elected trustee, and that said Titch employed counsel to defend said appeal, and at a special school meeting held in said district on December 10, 1895, said Titch presented to said meeting an account amounting to $51.44 for expenses incurred by him in defending said appeal and asked to have said amount allowed to him; but said meeting refused to allow any part thereof, and said Titch presented the matter to the county judge of Delaware county, who decided that no part of said claim of Titch ought to be charged to said district; that at a meeting held in said district on December 21, 1895, at the house of one Calvin Smith, John Smith and William Middlemist were appointed a committee to represent said district before said county judge in said matter of the claim of said Harvey D. Titch; that said committee employed said Wagner & Fisher as their counsel in the hearing before said county judge; that in January 1896, Rene M. Jackson brought an appeal to the State Superintendent of Public Instruction from the refusal of John G. Scudder. trustee of said district, to pay her the sum due to her for services rendered as a teacher in the school in said district, and said trustee employed said Wagner & Fisher to defend said appeal. It does not appear that said liarvey D. Titch, as trustee, in defending the appeal of Middlemist, nor said Scudder, trustee, and Middlemist, collector, in defending the appeal of Lewis C. Titch, nor said Scudder, trustee, in defending the appeal of Miss Jackson, were or any one of them was, authorized by a vole of the district to make such defense. In subdivision 15 of section 14, article i, title 7, of the Consolidated School Law of 1894, it is enacted that the inhabitants entitled to vote, when duly assem- bled in any district meeting, shall have power, by a majority of the votes of those present, to vote a tax to pay the reasonable expenses incurred by district officers in defending suits or appeals brouglit against them for their official acts, or in prosecuting suits or appeals by direction of the district against other parties. Under the provisions of the school law above cited, when an appeal, in any school district, is taken by any voter or voters of said district, from the proceed- ings of a school meeting or from the acts of any school district officer, or the refusal of such district officer to act, to the State Superintendent of Public Instruction, or when a suit in the courts is brought against any district officer, a special meeting of such district may be called for the purpose of determining whether the district shall defend such appeal or suit. If such meeting shall determine to defend the appeal or suit, then, under section 51, article 6, title 7, 38 THE UNIVERSITY OF THE STATE OF NEW YORK of the Consolidated School Law, any reasonable expense incurred in said defense is a charge upon the district, and the trustee or trustees may raise the amount thereof by tax in the same manner as if the definite sum to be raised had been vo*ed by a district meeting. When, however, no authorization to defend the appeal or suit is given by the district, and the trustee or trustees of the district in good faith believe the appeal or suit should be defended, he or they should employ competent counsel to assist in such defense, and when the appeal or suit is decided, an account for the expenses incurred by the district officer or officers in such defense should be presented at an annual or special meetmg of the district, and such meeting has authority to vote a tax to pay the reasonable expenses incurred by said district officer or officers therefor. In the appeal of Lewis C. Titch, Scudder, as trustee, and Middlemist, as collector, without any authorization of the district, defended the appeal and employed counsel who rendered services therein and the account for such services was presented at the annual meeting and the aggregate amount of $87.50 allowed by said meeting. I can not say that the amount allowed was not reason- able for the services rendered, and the action of the meeting in allowing the same is approved. The appeal of Miss Jackson was brought while the appeal of Lewis C. Titch was pending and undetermined, and Scudder, as trustee, defended the appeal and employed counsel therefor. The counsel for the appellant and respondent therein stipulated for a stay therein until the Lewis C. Titch appeal was decided. The charge of counsel of Trustee Scudder in the appeal of Miss Jackson was not unreasonable, and the district meeting allowed it, and such action is approved. The remaining item for consideration is the charge of Wagner & Fisher, as counsel for a committee of the district before the county judge, in opposing the claim of Harvey D. Titch for expenses incurred in defending an appeal brought under title 14 of the Consolidated School Law, by William Middlemist from the proceedings of the annual school meeting in said district, held in August 1895, which expenses a school meeting refused to allow, or to vote a tax to pay. In the Code of Civil Procedure the word " action," as used in the new revision of the statutes, when applied to judicial proceedings, signifies an ordi- nary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense (section 3333, Code of Civil Procedure). Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding (section 3334, Code of Civil Procedure). By section 1926 of the Code of Civil Procedure it is enacted that an action or special proceeding may be maintained by the trustee or trustees of a school district; and by section 1931, an execution can be issued upon a judgment for a sum of money, rendered against the trustee or trustees of a school district JUDICIAL decisions: appeals 39 in an action or special proceeding brought by or against him or them in his or their official capacity, and may be collected out of the property of the trustee or trustees, and the sum must be allowed to him or them, in the settlement of his or their official accounts, except as otherwise specifically prescribed by law. Subdivisions 15 and 17 of section 14, article i, title 7, and sections 4, 5. 6, 7 and 8 of article i, title 15, of the Consolidated School Law of 1894, provide for reimbursing the trustee or trustees of school districts for costs, expenses and judgments paid in actions and proceedings in the courts. Harvey D. Titch, when the school meeting refused to allow, or to vote a tax to pay, the reasonable expenses incurred by him in defending the appeal to the State Superintendent by Middlemist, seems to have entertained the belief that under sections 4 to 8, inclusive, he could appeal from the action of said meeting to the county judge of his county. In this he was mistaken, as the expenses he had incurred were not incurred in defending any action or proceed- ing brought against him as trustee in the courts, nor for any costs or damages adjudged against him as such trustee in the courts, and the county judge had no jurisdiction of such appeal to him. Sections 4 to 8, inclusive, have reference solely to the prosecution or defense by trustees of school districts in actions or proceedings brought by or against them in the courts of the State, and not expenses incurred by district officers in defending appeals brought to the State Superintendent of Public Instruction. The alleged special meeting held at the house of Calvin Smith, on December 21. 1895, at which the committee was appointed to represent the district before the county judge on the appeal of Harvey D. Titch, was, on appeal to me, declared to be illegal and void, and all proceedings had and taken thereat vacated and set aside. Assuming, for the purpose of argument only, that said committee was legally appointed, and said Titch was authorized to appeal to the county judge, I concur with Superintendent Draper in the opinion expressed by him in decision no. 3558. rendered January 28, 1887, that whether such committee had the right to employ counsel is not free from doubt. I decide that the annual school meeting held in said district on August 4, 1896, did not have authority to vote a tax to pay the sum of $30 for the services of Wagner & Fisher as counsel for said committee or district in the hearing before the county judge upon the said appeal taken to him by Harvey D. Titch. The appeal herein is sustained as to so much thereof as is taken from the item of v$30 allowed at said annual meeting, and as to all other matters it is dismissed. It is ordered, That so much of the proceedings of the annual school meeting held in district no. 10, town of Andes, Delaware county, on August 4, 1896, as allowed the item of $30 for the services of Wagner & Fisher, before the county judge of the said county, upon the appeal to him of Harvey D. Titch, be, and the same is, vacated and set aside. 40' THE UNIVERSITY OF THE STATE OF NEW YORK 4890 In the matter of the appeal of Squire M. Brown and Alfred E. Stacey from certain proceedings taken at the annual meeting held August 7, 1900, in school district 9, Elbridge, Onondaga county. Under the Consolidated School Law of 1894, the qualified voters duly assembled at a school meeting in any school district, have the povi'er, by a majority vote, to levy a tax to pay the reasonable expenses incurred by district officers in defending suits or appeals brought against them for their official acts. The trustees of school districts have the power, when the schoolhouse is not in repair, or not properly ventilated or heated, or has been injured or damaged by the elements, or is not of sufficient capacity to accommodate the children attending school in the district, to hire rooms temporarily, and levy a tax to pay the rent thereof. Decided October 9, 1900 Lewis & Crowley, attorneys for appellants Northrup & Xorthrup, attorneys for respondents Skinner, Superintendent This is an appeal taken from the action of the annual school meeting held August 7, 1900, in school district 9, Elbridge, Onondaga county, in authorizing the levy of a tax for the sum of $85 for the payment of expenses incurred by the trustees of such district in defending a suit or action brought against them for their official acts; and authorizing the levy of a tax for the sum of $100 for the payment of the rent of certain rooms in the Munro academy. The appellants allege, as the grounds for bringing their appeal, in substance, that the levy of a tax for the sum of $85 was illegal and void, because the bill for such sum was not properly presented or verified, and had not been paid by the trustees, and was not incurred in the exercise of their official duties ; that the levy of a tax for $100 for rent of rooms in the Munro academy is illegal and contrary to the interests of the district and the taxpayers therein, and con- trary to the policy and practice of the Department of Public Instruction in regard to district property. Messrs Ranney, Allen and Cone, as trustees of such district, have answered the appeal. The following facts are established from the pleadings and proofs filed herein : In June 1899 certain proceedings were taken under the provisions contained in article I, title 8 of the Consolidated School Law of 1894, and the acts amenda- tory thereof, for the consolidation of school districts 8, 9 and 10, Elbridge, Onon- daga county, by the establishment of a union school therefor and therein; that the trustees of school district 10, Elbridge, brought an action in the Supreme Court against Messrs Allen, Templar and Ranney, then trustees of said school district 10, individually and as such trustees, and against the trustees of school district 8, and others, alleging certain irregularities and illegal acts in proceed- ings taken to consolidate said school districts 8, 9 and 10 by the establishment of JUDICIAL decisions: appeals 41 a union school therefor and therein ; and upon the complaint and affidavits, and without notice to the defendants, on or about August 2-8, 1899, obtained a pre- liminary injunction restraining the defendants from further proceedings in the establishment of such union school during the pendency of such action ; that the said trustees of district 10 employed the firm of Xorthrup & Northrup, coun- selors at law, residing in Syracuse, X. Y., to appear, act for them and .defend the said suit brought against them ; who did appear and perform services for said trustees therein : that upon an order to show cause, and an argimient for and against the continuance of the said injvmction, such injunction was continued during the pendency of such action; that no trial of said action upon the merits was ever had, but after the making of the order aforesaid, upon a stipulation of the respective parties, an order was entered at a special term of the Supreme Court, held at Syracuse, October 14, 1899, discontinuing said action without costs to either party as against the other, and thereupon and in the manner aforesaid, said litigation, in respect to the said proceedings for the consolidation of such districts 8, 9 and 10, by the establishment of a union school therefor and therein, ended without any final decision of the court as to whether such proceedings were, or were not, legal; that said firm of Northrup & Northrup presented to said trustees a bill for the services so rendered, as aforesaid and for which the trustees had become personally liable to pay, amounting to the sum of $85 ; that bill was presented at the annual meeting held August 7, 1900, in said school district 9, and a motion or resolution appropriating the sum of $85, and to include said sum in tlie tax lev)- for the payment of the same, was adopted, the vote thereon being taken by ballot, 22 persons voting for and 6 agamst. That a special meeting of the inhabitants of said school district 9, qualified to vote at school meetings therein, duly called, was held therein June 8, 1900, to consider the advisability of building an addition to the schoolhouse therein, or for the renting of part of the :\Iunro academy, and hiring a third teacher; that a resolution was adopted by a vote of 27 in favor and 6 against, ascertained by a ballot being taken, authorizing the trustees of said school district 9 to rent of the trustees of the ^lunro academy the three east rooms in said academy, jn which to conduct the school of such district upon the terms and conditions stated at such meeting; that the conditions of such rental so made by said trustees are to continue for two years with the privilege of ten years, the rent for the first year to be $50, and making certain changes to the extent of $50 ; that after one year it shall be $100, with the option to either party to terminate the lease or contract by giving six months' notice prior to the end of the school vear, the trustees of the district agreeing to vacate such rooms at any time in favor of a normal school if one shall be established therein ; that at said annual meeting, held August 7, 1900, a motion was adopted by a vote of 22 for and 2 against, ascertained by a ballot, that the sum of $100 be appropriated for rent of, and changes in. such rooms so rented and authorizing such sum to be included in' the tax levV; that the school in said district, for the present school year, opened September 10, 1900, in the three rooms in such academy, so rented, with three teachers and an attendance of 93 scholars. 42 THE UNIVERSITY OF THE STATE OF NEW YORK It is also established that the schoolhouse of said district is a two story building with one room below and one above, having but one stairway; that it is an extremely cold building; that there is no mode of ventilation; that it is unsanitary; that it will not accommodate over 75 scholars while the number of scholars now attending the school in the rooms in the Munro academy is 93, of which number only 8 are nonresidents ; that the entire number of children of school age in the district, by the last census, is 127. The respondents allege that the action of the district in renting and occupy- ing the rooms in the Munro academy is intended to be temporary only, and to await the outcome of a movement that has been inaugurated for the establish- ment of a normal school to be located in said academy ; that should the efforts to establish such normal school fail, steps will be taken for permanently improv- ing the schoolhouse of the district, or building a new schoolhouse. The contention of the appellants that the action of the annual school meet- ing, held August 7, 1900, in the appropriation of the sum of $85, and to include such sum in the tax list, was illegal and void, is not well taken. Under the provisions contained in subdivision 15 of section 14, article i, title 7 of the Consolidated School Law of 1894, the qualified scoters duly assembled at a school meeting in any district, have the power, by a majority vote, to levy a tax to pay the reasonable expenses incurred by district officers in defending suits or appeals brought against them for their official acts. The proofs herein show that the trustees of district 9 were sued in the Supreme Court for official acts performed by them ; that they employed com- petent legal counsel to defend them in such suit; that such counsel performed services therein for which they charged the sum of $85 ; that such sum was reasonable ; that the school meeting had the legal authority to vote to annro- priate money to pay said sum and to authorize the same to be included in the district tax. The contention of the appellants that the action of the special school meet- ing, held June 8, 1900, in authorizing the trustees to rent of the trustees of the Munro academy certain rooms therein in which to conduct the school of the district, and the action of the annual meeting in appropriating the sum of $100 to pay such rent is illegal, is not tenable. Subdivision 5 of section 47, article 6, title 7 of the Consolidated School Law of 1894 provides that it shall be the duty of the trustees of every school district, and they shall have power, to hire rooms or buildings for school pur- poses, and to keep such rooms in repair, etc. Subdivision 8 of section 14, article i, title 7, provides that the school dis- trict meetings have the power to vote a tax to hire or purchase rooms or build- ings for schoolrooms, etc., and to keep the same in repair, etc. It is the policy of the school law and of this Department that school districts should own the buildings in which their schools are maintained. Neither the school law nor this Department favors the hiring of rooms for school purposes, in any school district except temporarily, and then only when the schoolhouse JUDICIAL DECISIONS : APPEALS 43 of the district is not in repair or not properly ventilated and heated, or has been injured or damaged by the elements, or is not of sufficient capacity to accom- modate the children attending the school in the district. It is in proof that at the time of the contract for the renting of rooms in the Munro academy, the schoolhouse was not of sufficient capacity to accommo- date the children of the district, with no mode of ventilation, unsanitary, and difficult to heat. The renting of said rooms was temporary, the agreement con- taining a clause that either party could terminate the lease by giving six months' notice prior to the end of the school year. It is in proof that the school meeting at which the trustees were authorized to enter into such lease, was held June 8, 1900. No appeal has been taken to me from the proceedings of such meeting. This Department has uniformly held that where no appeal has been duly and legally taken from the action of a school meeting, so far as this Department is concerned such action will be deemed to have been legal and valid. The special meeting, held June 8, 1900, having duly and legally authorized the respondents herein to rent said rooms and to make changes therein, the expense of which the first year was not to exceed $100, and no appeal having been duly and legally taken from such action, the respondents had the legal authority to raise by tax said sum without any further action at any district meeting. September 11, 1900, upon petition of the appellants, I made an order staying all proceedings on the part of the respondents herein as trustees of said district in the payment of said sums of $85 and $100 respectively, and staying all pro- ceedings on the part of the collector of such district in the collection of the taxes assessed in a tax list delivered to him by said trustees with their warrant on or about September 5, 1900; until the hearing and decision of the appeal herein, or until a further order should be made by me herein. I decide that the appellants herein have failed in establishing their appeal herein and such appeal should be dismissed and said order of stay, made Sep- tember II, 1 000, should be vacated. The appeal herein is dismissed and said order of September 11, 1900, is hereby vacated. 5433 In the matter of the appeal of Olney A. Gififord from the tax list and warrant issued in school district no. i, towns of Sidney and Unadilla, counties of Delaware and Otsego. Equalization of taxes in joint districts; failure to conform to order of supervisors. A taxpayer may not appeal from the failure of a board of education to conform to the order of supervisors in equalizing the taxes in a district comprising a portion of two or more towns, unless he is injuriously affected by the failure of the board to comply with such order. 44 THE UXIVEKSITY OF THE STATE OF NEW YORK Notice of collection of taxes. The neglect of a collector to post a copy of the collector's notice of the collection of taxes on the door of the schoolhouse, as required by section 397 of the Education Law of 1909, does not nullify the tax list and warrant nor justify an order invalidating the proceedings of a board of education in respect to the collection of taxes. Decided January 6, 1910 Olney A. Gifford, attorney for appellant Charles H. Seeley, attorney for respondent Draper, Commissioner This appeal is brought from the tax list and warrant of union free school district no. i, towns of Sidney and Unadilla, counties of Delaware and Otsego, which was prepared by the board of education of such district and delivered to the collector thereof on the 7th day of September 1909. The district is a joint district embracing parts of the towns of Sidney and Unadilla. An application was duly made by taxj}ayers in the district for an equalization of the value of the taxable real property within the parts of the two towns embraced within the district. The supervisors of the towns met as provided by law, and determined that " 9654 per cent of all taxes levied upon the real property of the town of Sidney lying in said district, and 3^ per cent of all taxes levied on the real property of said district should be assessed upon the real property of the town of Unadilla lying in said district." The appellant insists that the board of education, in making its tax list, did not conform to the order of the supervisors, in that they failed to assess upon the real property alone, the portion of the taxes levied upon real property in the district. It is apparent that the board levied upon both the real and personal property in the parts of the two towns comprised in the district, the percentage of the entire tax to be levied in the district. What should have been done was first to ascertain the portion of the entire tax of the district to be borne by the real property in the district, and then impose 9634 per cent of this amount upon the real property situated in the part of the district in the town of Sidney, and impose the remaining t,}^ per cent upon the real property situated in the part of the district in the town of Unadilla. If this course had been pursued, the tax to be paid by the part of the district in the town of Sidney would have been increased a very few dollars — not more than fifteen. Special franchises are included as real property, leaving only about $20,000 of personal property valua- tion out of a total of about $660,000 to be affected by the error. The discrepancy caused by the error is very small. Taxpayers residing in the town of Sidney benefit by the error, while those residing in the town of Unadilla are adversely affected. The appellant does not allege where he resides ; the respondent alleges that he is not aggrieved by the mistake complained of, since he does not pay a tax upon personal property. The fact that he is not assessed on personal prop- erty in the district does not affect his standing in this proceeding. Btit unless he is a resident of tlie part of the town of Unadilla comprised in the district, he is not injured by the alleged error, and should not be heard to complain. JUDICIAL DECISIONS : ArrEALS 45 Another allegation of the petition pertains to the collector's notice. Its form is apparently sufficient. It was posted throughout the district in a number of con- spicuous places, on the 7th day of Se]):cmber, and the time of receiving taxes at I per cent was stated therein to expire October 6th, which was thirty days after the notice was so posted. But it seems that the collectbr neglected to post a copy of the notice on the door of the schoolhouse as required by the statute (Education Law, § 397). This was a mistake which is admitted by the collector, but it does not necessarily nullify the tax- list and warrant, nor does it justify an order invalidating the proceedings of the board in respect thereto. A large portion of the taxes on the tax list had been paid before this appeal was brought. The warrant was executed by the board September 6, 1909; it was delivered to the collector September 7, 1909, and notices were posted on the same day, and published September 11, 1909. Under such circumstances the appellant is roo late to raise the question as to the sufficiency of the posting of the notice. The appeal herein is dismissed. ASSESSMENTS Personal property in the hands or under the control of any executor or administrator must be assessed in the district where such executor or administrator resides. Decided April lo, 1884 Ruggles, Superintendent William C. Fields, late of the village of Laurens, Oswego county, died there on the 27th of October 1882, leaving a last will and testament in which executors were appointed. The will was admitted to probate and the executors duly quali- fied. The executors are residents of Albany, and had not been residents of the town of Laurens at any time for five years previous to the assessment appealed from. The trustee of school district no. 2, Laurens, assessed the personal estate of said Fields, deceased, in that district. The appeal is brought by the executors from such assessment. These facts bring the case within the provisions of the statute, that per- sonal property in the hands of, or under the control of, any executor or adminis- trator is assessable, where the administrator or executor resides, and not else- where. (Section 5, article i, title 2, chapter 13, part i, Revised Statutes.) RESCISSION When a special meeting had voted a tax for building a new house, and had adjourned four weeks to consider proposals for building, and at the adjourned meeting voted to rescind the vote levying the tax, the vote to rescind was legal and valid, even though the tax list had been made out, and a part of the tax voluntarily paid. Decided February 18, 1858 • A'an ]3yck. Superintendent At a special meeting duly called a vote was taken and carried, ayes 28, noes 24, to raise $1000 by tax on the district, for the purpose of building a new schoolhouse. The meeting then adjourned for four weeks for the purpose of receivmg propositions that might meantime be submitted to the trustees relative to site. At the adjourned meeting a motion was carried to reconsider the vote of the last meetmg, after which the meeting adjourned sine die In the meantime the tax list for the $1000 had been made out, and a part of the same had been voluntarily collected before the adjourned meeting; but this will avail nothing, as the trustees could not issue their warrant till the expiration of thirty days after the tax was voted. No legal collection could therefore have been made before that time. Voluntary payments may have been made which [46] JUDICIAL DECISIONS : ASSESSMENTS 47 the trustees would be authorized to receive, but these are not such collections as the courts contemplate in order to place the repeal of a tax levy beyond the power of a district meeting. It is assumed by the appellants that the special meeting being adjourned for a specific purpose, no other business could be transacted than that specified in the notice for adjournment. This is an error. The meeting was competent to transact any business brought before it. From- the evidence before me, I am compelled to regard the proceedings of the adjourned meeting as a fair expression of the will of the district upon lev}'ing the tax, and it is unfavorable to such action. The vote at the adjourned meeting is much larger than that of the special meeting; it is plain, therefore, that no advantage was taken of the absence of any considerable number of the voters by the majority in their vote to rescind the tax. Under these circum- stances, therefore, the proceedings of the adjourned meeting are declared legal and are herebv affirmed. 5240 In the matter of the appeal of Round Lake Association and Round Lake Sum- mer Institute from the assessment made against said association and against the property of said institute by the board of education of district no. 9, town of Malta, Saratoga county, for the year 1905, and also from certain acts of the collector of said district in refusing to receive certain taxes. The school law does not confer upon district trustees the power to review in their discretion the assessments made by town assessors. The power of such trustees to assess property is only incidental to their general functions and is restricted to cases of emergency or to correcting undisputed errors for which the law distinctly provides. Decided February 16, 1906 Irwin Esmond, attorney for appellants Draper, Coiiiniissioner The Round Lake Association is a domestic corporation organized and exist- ing under the provisions of chapter 617 of the Laws of 1868 and the acts amend-- atory thereof. This corporation acquired title to certain real estate located in the town of Malta, Saratoga county. This real estate was divided into lots, streets were established, etc., and such lots leased. These lots were leased for a period of 99 years and renewable to the lessee, " his heirs and assigns for a like term of years forever." For some time there has been a difference of opinion between the town assessors and the Round Lake Association as to whom this real prop- erty should be assessed. The association has contended that these lots should be assessed to the individual lessee while the town assessors have claimed that they should be assessed to the Round Lake Association. The town assessors in assess- 48 THE UXIVERSITY OF THE STATE OF NEW YORK ing property for the year 1905 assessed each of these lots separately but to the Round Lake Association. It appears that on August 25, 1905, an agreed statement of facts relating to this controversy was presented to the State Tax Commissioners and a stipulation entered into between the assessors of the town of Malta and the Round Lake Association by which the parties thereto agreed that the decision of the said tax commissioners on the questions therein presented for determination should " be final and binding upon all the parties hereto with respect to the said assessments for the year 1905, and that no other or further proceedings shall be instituted for the purpose of reviewing said assessments for said year." It also appears that the State Tax Commissioners referred all matters sub- mitted to them and pertaining to this subject to the Attorney General and on September 13, 1905, that officer wrote an opinion on the qusetions presented, holding that the real estate in question had been erroneously assessed and that such property should be assessed to the individual lessees and not to the Round Lake Association. This opinion appears to have been filed with the town assessors of the town of Malta on September 15, 1905, the last day allowed assessors under section 38 of the tax law for filing with town clerks the completed and verified assessment roll of the town. The town assessors do not appear to have been governed by the opinion expressed by the Attorney General and the State Tax Commissioners. No change was made by the town assessors in the method of assessment of the prop- erty in question before filing the completed and verified assessment roll of the town with the town clerk. It further appears that William A. Bedell, supervisor of the town of Malta, Saratoga county, petitioned the board of supervisors of said county to change the assessment of the property in question from the Round Lake Association to the individual lessees of such property pursuant to the provisions of section 60 of the tax law. On December 6, 1905, the law and finance committee of that board, to whom had been referred the petition of Supervisor Bedell, made a report recommending that said petition be given favorable consiideration. The report of this committee also contained the opinion of the Attorney General to the effect that the board of supervisors possessed the power under section 60 _of the tax law to make such change. This report was adopted and the board of supervisors directed Supervisor Bedell of the town of Malta to change the assess- ment of this property on the town assessment roll from the Round Lake Associa- tion to the individual lessees of such property. None of the questions above mentioned came within the jurisdiction of the Commissioner of Education. They have been recited here because of the relation which they bear to the questions which are wit'.iin his jurisdiction and which we are now to consider. On October 25, 1905, the board of education of school district no. 9, town of Malta, issued a tax list and w^arrant and placed such list in the hands of the collector of the district for collection. The boundaries of the Round Lalce Asso- jrnuiAL decisions: assessments 49 cia^ion grounds appear to be identical with the boundaries of this school district. The property in question is therefore all located within the boundaries of such school district. The president of the board of education is one of the town assessors and his views on the matter of assessing this property for school pur- poses would of course be the same as his views on the method of assessing such property for town and county purposes. Section 63 of title 7 of the Consolidated School Law provides that school district taxes shall be apportioned by trustees upon all the real estate within the boundaries of the district and that such property shall be assessed to the person or persons or corporation owning or possessing the same at the time such tax list shall be made out. Section 64 of the same title provides that the valuations of taxable property shall be ascertained so far as possible from the last assessment roll of the town after revision by the assessors. It is therefore the duty of tntstees in making out a tax list to assess real estate to the person or corporation owning it at the time such tax list is made out and at the valuation at which such property is assessed upon the latest completed and verified assessment roll of the town. If it is known by the trustees at the time the tax list is made out that the title to a parcel of real estate has been transferred since the assessment made Ijy the town assessors, it is the duty of the trustees to assess such property to the owner thereof at that time and in such amount as the property is assessed on the town assessment roll. Section 65 of title 7 of the Consolidated School Law confers upon trustees the power to make original assessments. This section defines the conditions under which such original assessments may be made. If any person shall request a reduction in the assessed valuation on his property, or if the assessed valuation of taxable property can not be ascertained from the last assessment roll of the town, or if the valuation of property shall have increased or dimin- ished since the last assessment roll of the town was completed and verified, or if an error, mistake or omission on tlie part of the town assessors has been made in the description or valuation of taxable property, the trustees have power to ascertain the true value of such property and to assess it accordingly. These are the only cases wherein a board of trustees may make an original assessment and in making such assessment they must proceed in the same manner as town assessors proceed in the assessment of property. Trustees are not required to appoint a grievance day unless they have made an original assessment. The necessity of empowering- trustees to make original assessments in the foregoing cases is quite obvious. Many clerical errors are made. The value of property often changes bet\veen the date of assessments made by assessors and the date of issuance of a tax list. It often occurs that new buildings are erected and then again buildings are destroyed so that the value of a piece of property may materially change. In such cases an injustice and many times a hardship would follow if some authority did not possess the power to make equitable changes under these circumstances. Provision is also made in section 84 of title 7 for the correction of errors in a tax list. 50 THE UNIVERSITY OF THE STATE OF NEW YORK The provisions of the school law above mentioned do not confer upon trustees the power to review in their discretion the assessments made by town assessors. Where an issue relative to the assessment of property is raised pre- vious to the assessment of such property and the town assessors with a full knowledge of the points involved in that issue proceed to a determination of such issue and thereby fix a valuation upon, and the ownership of, a piece of property, the right to review such action of the town assessors is not vested by law in school district trustees. To hold that the law extends such power to trustees of school districts would practically give such officers of the several school districts of a town the right to change the valuation upon every piece of property in a town. This is neither necessary nor desirable. It is unnecessary to speculate upon the results which would follow if the law were construed to confer such power upon school district trustees. If town assessors err in the determination of such questions, the aggrieved party should seek redress through proper channels and school district trustees should not undertake to review and correct the action of town assessors in such cases. I think it will not be claimed that if the town assessors had decided that the property in question was assessable to the individual lessees and had so assessed it the trustees of the school district could have lawfully reviewed such assessment and have assessed such property for school purposes to the Round Lake Association. Assessors are officers especially empowered to determine the valuation of property and to assess it accordingly. They are elected by the people to perform that special duty. Trustees are the chief administrative officers of school districts. Their power to assess property is only incidental to their general functions and is restricted to the cases above cited for the purpose of promptly meeting some emergency or correcting some undisputed error for which other provision has not been made. It was never contemplated under the provisions of the school law to which reference has herein been made that the power of trustees to assess property should be equal or superior to that of town assessors. [See decision no. 4163^] Appellant sought relief from the action of the town asse'ssors. He peti- tioned the board of supervisors of Saratoga county to correct the alleged error of the town assessors. The Attorney General of the State held that the board of supervisors possessed the power to make that correction. The board of supervisors in due time authorized that such assessment should be changed. Appellant's relief from the action of the board of education was an appeal to the Commissioner of Education and a petition to restrain the authorities of the school district from collecting the tax imposed by the tax list issued until the final determmation by proper authority of the question involved. It is unnecessary to determine whether in this particular case the board of education was bound by the agreement between the town assessors and the Round Lake Association and was required to assess this property in accordance with the method which the Attorney General held was proper and legal. The State Tax Commissioners and the Attorney General of the State hold that the JUDICIAL decisions: assessments 51 method of assessing the property in question was wrong. The Attorney General holds that the board of supervisors could legally correct the error made by the assessors. Such correction has been made. The property is now assessed upon the town assessment roll to the individual lessees of the property. The opinion of the tax commissioners and of the Attorney General should be respected and considered sound until the courts shall hold otherwise. Could this error have been corrected previous to the issuance of the tax list in the school district, it would have been the duty of the board of education to have assessed this prop- erty in accordance with the corrected town roll. Appellant should not be com- pelled to pay a tax levied for school district purposes upon the property in ques- tion through such error. Provision has been made in the school law whereby relief can be afforded through an order made by the Commissioner of Educa- tion. Such action will be taken. In the agreed statement of facts presented to the tax commissioners, two other questions were submitted for determination. The Round Lake Associa- tion and the Round Lake Summer Institute are two separate corporations. Each claimed exemption from taxation on certain properties. In the Attorney General's opinion that officer holds that the Round Lake Association was not entitled to such exemption. He expressed no opinion on the claim of the Round Lake Summer Institute to such exemption. The property owned by this cor- poration and the amount for which it is assessed is as follows: George West Museum S5000; Alumni Hall $500; Kennedy Hall $2000; and Garnsey Hall S2500. Round Lake Summer Institute was incorporated under the Regents on Jan- uary 12, 1889, as an academy. However, the only one of these buildings which appears to be used exclusively for educational purposes is the George West Museum and that property should be exempt from taxation for school purposes. [32 App. Div. 197; 74 App. Div. 553] The appeal herein is sustained. It is ordered, That the board of education of said school district no. 9, town of ]\Ialta, Saratoga county, be, and they hereby are. ordered to change, correct and amend the tax list issued by said board on or about the 25th day of October 1905, in and for said district by substituting for the name of Round Lake Asso- ciation the name of the individual lessees of the several parcels of real estate included in such tax list and assessed to Round Lake Association, and in case any of such lessees shall not be residents of said school district no. 9, Malta, to make such further changes in said tax list as shall be necessary to assess the property of such lessees as nonresident land in accordance with the provisions of section 6t,, title 7 of the Consolidated School Law. It is also ordered. That the collector of said district no. 9, Malta, shall immediately after said tax list has been thus changed, corrected and amended, give notice as provided in section 81, title 7 of the Consolidated School Law of the receipt of such tax list and the said collector shall thereafter receive volun- tary payment of the taxes of said tax list for thirty days as provided in said section 81.' ^2 THE UXIVERSITY OF THE STATE OF XEW YORK It is also ordered, That the collector of said district no. 9, Malta, shall receive any tax included in said tax list and which may be tendered to hirn by any officer or employee of the Round Lake Association or by any other person and shall credit the same to the person to whom said taxes are properly charge- able on said tax list. Jt is also ordered. That the said board of education of district no. 9, Malta, shall strike from such tax list the assessment against Round Lake Summer Insti- tute of $5000 on the George West ^Museum. 5381 In the matter of the appeal of the Round Lake Summer Institute from a certain assessment made against said institute and upon its property described as " George \\'est ^luseum and Park "' by the board of education of district no. 9, town of Malta, Saratoga county, for the year 1907. When the Supreme Court holds that property is exempt from taxation for State, county and town purposes by reason of being exclusively used for educational purposes and coming within the provisions of subdivision 7 of section 4 of the tax law it v.-ill be held by this Department that such property is also exempt from taxation for school district purposes. Decided t'ebruary 25, 190S Irwin Esmond, attorney for appellant Draper, Commissioner This proceeding was filed at this Department October 24, 1907. An order was made by me on the date on which such proceeding was filed, restraining the collector of union free school district no. 9, town of Malta, from collecting or attempting to collect from the Round Lake Summer Institute a certain tax levied upon its property known as the " George West Museum and Park." A decision herein has not before been rendered for the reason that the moving papers showed that appellant had obtained a writ of certiorari from .the Supreme Court of the State of New York to review the proceedings of the board of assessors of the town of Malta, Saratoga county, in assessing the property in question, that a return to such writ had been made and filed by the said assessors, but that no hearing had been given thereon and therefore no determination of the issue involved. It appears that Mr Justice Van Kirk rendered a decision in such case on February 21, 1907, holding that the property in question is exempt from taxa- tion by reason of being exclusively us^d for educational purposes and coming within the provisions of subdivision 7 of section 4 of the tax law of the State and ordering that the assessment of such property for State, countv and town taxes be stricken from the tax rolls. If the property in question was exempt from taxation for town, county JUDICIAL DECISIONS : ASSESSMENTS 5.3 and State purposes for the reasons thus held, it follows that it is also exempt from taxation for school district purposes. It further appears that the property in question was assessed for school purposes in the year 1905 and that on an appeal to this Department it was held that such property was exempt from taxation. The appeal herein is sustained. It is ordered, That the board of education of union free school district no. 9, town of Malta, county of Saratoga, shall strike from the tax list of such district issued by said board of education on or about the 24th day of September 1907, any assessment against the Round Lake Summer Institute upon property described as " George West ]\Iuseum and Park " and that the said board of education shall strike from any other tax list now in force in said district any assessment appearing thereon against the Round Lake Summer Institute upon the said property described as !' George West }kluseum and Park." It is further ordered. That the board of education of said union free school district no. 9, town of ]\Ialta, county of Saratoga, is hereby enjoined and restrained from assessing for school district purposes the property of the said Round Lake Institute known as " George West Museum and Park " so long as said property shall continue to be used exclusively for educational purposes. 3967 In the matter of the appeal of G. D. S. Trask v. the trustees of school districts nos. 2 and 5, lown of Castleton, Richmond County. Equitable relief is sought from erroneous assessments paid long before this appeal was instituted. Held, to be too late to secure the relief from this Department. Relief so sought must come from the courts. Opinion determines the place of taxation of a small tract of land lying in one district, adjoining land of same occupant and owner in another district, for a succession of years. Decided April 20, 1891 Draper, Superintendent The appellant who is the executive officer and agent in charge of property owned by the trustees of the Sailors Snug Harbor, situated in the town of Castleton, Richmond county, where he resides, has instituted this proceeding for the purpose of having it judicially determined where a certain lot of land, comprising three acres, situated within the boundary of district no. 2, in said town, should have been taxed for school purposes since the title to such property was acquired by the corporation represented by the appellant. It appears that the property in question was purcliased by the trustees of the Sailors Snug Harbor, in April 1888, and adjoins the main property of the corporation, situated in district no. 3 of said town, upon which its buildings are erected and where the appellant resides. 54 THE UNIVERSITY OF THE STATE OF NEW YORK The property in question was separately assessed upon the town assessment rolls after April 1888, and until the town assessment roll of 1890-91, when the entire body of land owned by the said corporation was assessed in one body. With these facts conceded, the question is asked where should the three acres, lying within the boundary lines of district no. 2 be taxed for school purposes. Section 66 of title 7 of the Consolidated School Act previous to the amend- ment of May 29, 1889, provided that " land lying in one body, and occupied by the same person either as owner or agent for the same principal, or as tenant for the same landlord, shall, though situated partly in two or more school districts, be taxable in that one of them in which such occupant resides." By legislative enactment the above section was amended May 29, 1889, so that since said date, lands lying in one body but in two districts are not to be taxed together for school purposes in the district in which the occupant resides, unless the said lands are assessed as one lot on the preceding town assessment roll. It will therefore be seen that the lot in question was taxable prior to the amendment of May 29, 1889, i" district no. 3, with the main land which it adjoined and where the occupant resided. Since May 29, 1889, and until the town assessment rolls of 1890-91 were prepared and revised by the assessors, it was taxable in district no. 2 as a separate lot. Since the revision of the said rolls of 1890-91, it was taxable in district no. 3. with the main land as one entire lot. Other questions are presented which I can not determine upon this appeal. It is too late to ask for equitable relief from erroneous assessments paid long before this appeal was instituted. Any relief so sought must come from the courts. 5166 In the matter of the appeal of Allen D. Spink as trustee of school district no. 4, Orangeville, and John S. Head as trustee of school district no. 17, Sheldon, county of Wyoming, to determine whether certain real estate shall be assessed as land lying in one body. No land can be assessed as land lying in one body which does not meet fully each of the four following conditions : (i) The land must lie in one body. There must be an actual line of contact between the boundaries of such two bodies of land. (2) Such land must be owned by one person. (3) The land must be occupied by one person. This person must be either the owner of such lands or the agent or tenant of one and the same landlord. (4) Such land must have been assessed as one lot on the last assess- ment roll of the town after revision by the assessor. Decided January 17, 1905 JUDICIAL decisions: assessments ^x^ Draper, Commissioner The trustees of these school districts have submitted a statement of facts agreed upon by them in relation to two parcels of land located therein. These facts show that Ira D. Calkins and his wife, Emma L. Calkins, jointly own a tract of lOO acres of land located in school district no. 17, Sheldon, and that they reside thereon. The facts also show that adjoining this 100 acres of land but located in school district no. 4, Orangeville, is another parcel of land of 76 acres owned by the said Ira D. Calkins. These two pieces of property were assessed by the town assessors in 1904 as one body of land. The question pre- sented for my determination is, Shall this land be assessed for school purposes in accordance with the provisions of section 63, title 7 of the Consolidated School Law, in school district no. 17, Sheldon, as land lying in one body, or shall the 76 acres be assessed in school district no. 4, Orangeville, and the 100 acres in school district no. 17, Sheldon? It appears that this question was submitted to the school commissioner of the first commissioner district of Wyoming county, in which these school districts are located, and he decided that such property should be assessed in district no. 17, Sheldon, as land lying in one body. I assume that the question was submitted to the school commissioner simply to obtain his opinion and not with the under- standing that such opinion should in any way be binding upon the districts. It was entirely proper to request an opinion from the school commissioner on this question and also proper that he should express one. or that he should give any advice to school officers on the question which might be helpful to them. It must be understood, however, that the school law does not confer on a school commissioner judicial or ministerial power to pass upon such questions and that the decision of a school commissioner thereon would have no binding effect upon the school districts. The school commissioner has filed an answer to this appeal. Since a state- ment of facts has been submitted by the trustees of two districts for determi^ nation of a question of law which such commissioner has not power to determme, this Department might properly refuse to accept such answer. He contends that the joint ownership of this 100 acres by Mr Calkins and his wife is not a bar to the assessment of these lands as land lying in one body. In this he is in error as we shall hereafter show. He also contends that the trustee of district no. 4, Orangeville, in assessing the 76 acres in question to Ira D. Calkins did not follow the course of procedure directed by law and therefore asks that the assessment by such trustee be declared illegal. The question of the validity of such assessment is not properly raised. The only question which this Department has been asked to determine in this appeal is whether the two bodies of land in question could be assessed as land lying in one body. This was the only question presented to the commissioner for his opinion. This is the only question which we can properly determine. The commissioner is also barred from raising the question of the validity of this assessment as he does not appear to be an aggrieved party under such assessment. 56 THE UNIVERSITY OF THE STATE OF XEW YORK In order to assess two bodies of land located in different districts as lying in one body under section 63 of title 7 of the Consolidated School Law, four dis- tinct conditions must be satisfied. These are : 1 Such lands must lie in one body. There must be an actual line of contact between the boundaries of such two bodies of land. 2 Such lands must be owned by one person. 3 Such lands must be occupied by one person. This person must be either the owner of such lands or the agent or tenant of one and the same landlord. ■ 4 Such lands must have been assessed as one lot on the last assessment roll of the town after revision by the assessors. Xo land can be assessed under this provision of law which does not meet fully each of the four conditions above stated. The statement of facts agreed upon by the trustees presenting this question shows that in this particular case the lands in question do not meet the second of these conditions. It is expressly stated that the lot of 100 acres is owned jointly by Ira D. Calkins and Emma L. Calkins and that the lot of 76 acres is owned by Ira D. Calkins. The whole of these two bodies of land is not therefore owned by one person. It is unnecessary to examine into this case to determine if the other conditions are satisfied. The failure to satisfy one condition renders it impossible to assess these two bodies of land in one school district. I decide, That the said lot of 76 acres should be assessed to Ira D. Calkins in school district no. 4, Orangeville, and that the said lot of 100 acres should be assessed to Ira D. Calkins and Emma L. Calkins in school district no. 17, Sheldon. It is ordered. That the trustee of school district no. 17, Sheldon, shall not include in any tax list issued by him the said lot of 76 acres owned by Ira D. Calkins and located in school district no. 4, Orangeville; that if the trustee of district no. 17, Sheldon, has already issued a tax list and has included thereon the said lot of 76 acres owned by Ira D. Calkins and such tax list has not been returned, the said trustee shall immediately amend such tax list by striking there- from such assessment against Ira D. Calkins ; that if the said Ira D. Calkins has paid a tax on such 76 acres to school district no. 17, Sheldon, during the current school year by reason of such 76 acres having been included in a tax list issued for tlie current year, then the trustee oi district no. 17, Sheldon, shall immediately refund to the said Ira D. Calkins any and all tax thus paid. 3935 In the matter of the appeal of Isaac E. Shipley and others, trustees of school district no. 6, town of Williamson, county of Wayne, v. Henry P. Benton, trustee of school district no. i of the same town. Lands lying in one body but in more than one district, owned and occupied as one farm, were not assessed in one body upon the last corrected town assessment roll. Held, not taxable for school purposes in one body in the district in which the occupant resided. JUDICIAL decisions: assessments 57 Each district is entitled to levy a tax only upon the land lying within its own boundary. Appeal dismissed upon the ground that appellants not being the owners of the land in question, were not the aggrieved persons. Decided December 3, 1890 Draper, Superintendent Appeal from the action of the trustee of school district no. i, town of Williamson, Wayne county, in including in a tax list an assessment against the lands of one John Shipley, 93 acres which lie in one body, 12 acres of which are within the bounds of district no. i, and 81 acres of which lie in district no. 6. The owner occupies the entire farm, and resides thereon in district no. i. The land is assessed in two parcels, 12 acres and 81 acres, respectively, upon the last corrected town assessment roll. The following is the statute providing for the assessment of such lands for school purposes : Section 66 . . . but land lying in one body and occupied by the same person, either as owner or agent for the same principal, or as tenant under the same landlord, if assessed as one lot on the last assessment roll of the town after revision by the assessors, shall, though situated partly in two or more school districts be taxable in that one of them in which such occupant resides. . . . (Title;) It will therefore be observed that, if this land in question had been assessed in one body by the town assessors, the action of the respondent would have been proper. As it is, each piece is taxable in the district in which it is situated. But I must dismiss the appeal upon another ground. The appellants are not aggrieved persons. John Shipley, the owner, may be, and may become so. The trustees of district no. 6 in preparing a district tax list, were in no way prevented from assessing a tax upon the 81 acres. The fact that it may have been improperly assessed in district no. i, was no bar to their right to assess. For the reasons given, the appeal is dismissed. 3931 In the matter of the appeal of Theodore G. Peck and others v. the board of education of union free school district no. 3, Haverstraw, Rockland county. Lands lying in one body but in two districts, all owned and occupied as one farm by the agent of the owners, who resides thereon, and which land is assessed in one body by the town assessors. Held to be taxable in one body in the district in which the agent of the owners who is also one of the owners, resides. Decided December 3, 1890 Draper, Superintendent The appellants, who reside in the town of Haverstraw, Rockland county, and one Edith P. Halstead, of the city of New York, are the owners of a certain 58 THE UNIVERSITY OF THE STATE OF NEW YORK body of land of about 360 acres, known as the " Peck estate," of which about 325 acres He in school district no. 2, Haverstraw, and about 35 acres lie in district no. 3, Haverstraw. The entire property is occupied by one or more of the owners, and particularly by the agent of the owners, Gordan H. Peck, and resides in the only dwelling thereon, which is on the land in district no. 2. The entire farm is in one body and is so assessed upon the last town assessment roll. The board of education of union free school district no. 3, Haverstraw, has made a separate assessment upon the land lying in their district, and from such action this appeal is brought. The entire farm is and has been for years assessed for school purposes in district no. 2. No answer has been filed. The action of the board of education of union free school district no. 3, as above set forth, can not be sustained. The statute in such cases provides : " . . . but land lying in one body and occupied by the same person, either as owner or agent for the same principal, or as tenant under the same landlord, if assessed as one lot on the last assessment roll of the town after revision by the assessors, shall, though situated partly in two or more school districts, be taxable in that one of them in which such occupant resides. . . ." (See section 66 of title 7 of the Consolidated School Act.) The assessment of the 35 acres in district no. 3 is therefore invalid, and the board of education is hereby ordered to withdraw and correct their tax list accordingly. The appeal is sustained. 3680 In the matter of the appeal of Calvin C. Reed, as sole trustee of district no. 12, town of New Lebanon, county of Columbia, for and on behalf of the United Society of Shakers, v. school district no. 9, in said town. Lands owned bj^ the United Society of Shakers which lie in one body, ,but in different dis- tricts, are taxable in the district in which the owners reside. The objection that the statute (section 66 of title 7, of the Consolidated School Act) refers to a sole ownership or occupancy — held, not tenable. Lands jointly owned are controlled by the same statute. Decided April 16, 188S W. C. Daley, attorney for the appellants Daniel E. Miller, attorney for the respondent Draper, Superintendent School district no. 12 of the town of Xew Lebanon is comprised of lands owned and occupied in common by numerous persons, known as the United Society of Shakers. Some of such lands, lying in one body, extend into district no. 9 of said town. District no. 9 claims the right to tax the lands which lie in that district. The Society of Shakers resist this claim, and contend that, under the JUDICIAL DECISIONS : ASSESSMENTS 59 provisions of section 66 of title 7, of the Consolidated School Act, said lands are liable to taxation only in district no. 12. This appeal is taken from a tax list, including the land in question, made and delivered to the collector in district no. 9, for the purpose of determining the matter. In general, real estate is taxable in the school district in which it is situated. The statute (section 66, title 7, chapter 555, Laws 1864) makes an exception to this general rule, however, in the following words, namely : " but land lying in one body and occupied by the same person, either as owner or agent for the same principal, or as tenant under the same landlord, shall, though situated partly in two or more school districts, be taxable in that one of them in which such occupant resides." I am called upon to determine whether the land in question must be held to be taxable under the general rule or under the exception thereto. The appellants say that the land in the two districts lies '' in one body," and this is disputed. They say also that such land is owned and occupied by the same persons, namely, the United Society of Shakers. It is admitted that there are two occupied dwellings upon the Shaker land in district no. 9, but it is claimed that the occupants are mere agents or employees of the society, and that seems to be the fact. An issue is raised between the parties as to the meaning of the words, " occupied by the same person either as owner or agent for the same principal, or as tenant under the same landlord." The respondents contend that the owner- ship or occupancy of the land must be by a single individual. The appellants assert that the statute meant that the land lying in two districts and one body must have an identical ownership, but that several persons may share in it. In support of their position the respondents cite the comments of the editor in the Code of Public Instruction (page 337, edition of 1887). The statements of the editor are based upon a decision made by Superintendent Gilmour, March 24, 1879, in appeal no. 2839. But an examination of the full opinion of the Superin- tendent clearly shows that it does not sustain the editorial comment referred to. In that case the ownership was not identical, the portion in one district being owned by one person and that in the other district being owned jointly by that person and another. So it can not properly be said that the Superintendent has ever held that land lying in one body must be owned wholly by but one person in order to be taxable in the school district in which the owner or occupant resides. What, then, did the Legislature mean when it used the language about which the parties to this appeal differ? In order to answer this, it is pertinent to inquire what the purpose was in enacting such a provision. It is evident that the object was to convenience and facilitate the transaction of public business. Land lying in one body, with an identical ownership, is valued for the purposes of taxation bv town assessors, and their valuation is fixed, determined and announced in the town assessment rolls. Trustees in school districts are charged with the duty of levying and collecting school taxes. But the law does not 60 THE UNIVERSITY OF THE STATE OF NEW YORK assume that they are as well qualified to fix and determine the values of real estate as are ofticers specially chosen for that particular purpose, and it there- fore provides that trustees shall, so far as possible, ascertain the values of real estate from the last assessment roll of the town. Lands lying together, and having the same ownership, are valued upon the assessment rolls as one piece. In very many cases the valuations placed upon these parcels by the town assessors could not be used by trustees in the levying of school taxes, for the reason that the parcels frequently lie in two or more school districts, but for the provision that they shall be taxed in the district containing the residence of the occupant. It was in furtherance of the law that trustees, in levying taxes, shall follow the town assessment rolls, and to obviate the necessity of imposing upon them the duty of fixing a value upon the respective parts of the whole parcel lying in each district, that the exception to the general principle was enacted. I can think of no other reason for this arrangement. Is there any reason why such an arrangement should be extended to lands having a sole ownership which does not apply with equal force to lands having a joint ownership? I can conceive of none. To take a contrary view would lead to endless uncertainty and con- fusion, for numberless land titles are involved in doubt, vested in heirs, and sub- ject to conflicting claims, the determination of which it is not the purpose of the law to impose upon the school authorities. Moreover, the same section of the statute which contains the provision under consideration also provides that " such property shall be assessed to the person or persons or corporation owning or possessing the same at the time such tax list shall be made out." The phrase under discussion uses the term " persons " and " occupant " in the singular number, but it will hardly be contended that there could be but one person occupying such a parcel of land, in order to render it taxable in the school dis- trict containing the residence. Yet the statute seems to imply that, as much as it does that the ownership must be in but one person. The statute not being distinct, it is our dut\^ to give it such a meaning as is consistent with the general and manifest purpose of the Legislature in enacting it. Reading the whole section together, and in connection with other sections relate^ to it, I had no difficulty in arriving at the conclusion that it was the purpose of the Legislature to say that lands lying in one body, and being owned and occupied by the same person or persons, no matter whether the ownership and occupancy is individual, or is shared in by several persons, shall be taxed in the school districts containing the residences of the owners or occupants. Coming to this conclusion, it necessarily follows that land, the legal title of which is in trustees representing the United Society of Shakers, must, so far as the levying of school taxes is concerned, be treated precisely the same as would be the case if such title were vested in a single individual. I have examined the last assessment roll of the town of New Lebanon, so far as any real estate in either school district no. 9 or district no. 12 of that town is concerned. I find that the largest parcel of land appearing upon such roll, in either of said districts, consists of 355 acres. This is not so large as to preclude JUDICIAL DECISION'S: ASSESSMENTS 6l undivided occupancy. Section 6"] of title 7 of the Consolidated School Act pro- vides that " the valuation of taxable property shall be ascertained, so far as possible, from the last assessment roll of the town.'' There was a wise purpose in this provision. Trustees are not at liberty to disregard it where it is possible to observe it. No state of circumstances is shown here which renders it impossible or impracticable for the respondents in the present case to follow it. This being so, they are not at liberty to divide lands appearing in single parcels upon the town assessment rolls, or to assume' to fix and determine for themselves the assessable valuation of the different parts. The law contemplates that the valua- tions fixed by the assessors shall be used by trustees, except where that is, for some reason, impossible. I fail to find any reason why it is impossible to do so here. The rule of the statute that provides that, in certain cases, land may be taxed for school purposes in another school district than that in which it is situated, sometimes operates harshly. Possibly it may be so in the present case, although I observe that the acreage and valuation in the two districts are not widely different, and I see nothing which leads me to think that the provision operates any more harshly in this case than in innumerable other instances. What this district may lose upon one side it may gain upon another. The gen- eral advantages which flow from the provision, in the practical transaction of the business to which it relates, I have no doubt, outweigh the disadvantages which may incidentally result from it. The appeal is sustained. 3700 In the matter of the appeal of Calvin G. Reed as sole trustee of district no. 12, town of New Lebanon, county of Columbia, on behalf of the United Society of Shakers, v. school district no. 9 in said town. The rule laid down by section 66, title 7 of the Consolidated School Act for assessing land lying in one body and owned or occupied by the same person, held, to apply to cor- porations as well as individual owners. Trustees are to follow assessors' valuations as far as possible. It is not the policy of the law to charge school officers with the responsibility of making original assessments to any considerable extent. Decided July 24, 1888 W. C. Daley, attorney for the appellant Daniel E. Miller, attorney for the respondent Draper, Supei'iiiteudent This is an appeal from a tax list made by the trustee in school district no. 9 of the tx»wn of N 70 acres of said lot 30 was set off from school district no. i, town of Ischua into school district no. 6, town of Franklinville; that subsequently to said year 1850 one Frederick Cline, a resident of school district no. 6, of Franklinville, became the owner of all of said 234 acres of land, then lying in one body, although situated partly in school district no. 6, Franklinville, and partly in district no. i, Ischua, and which land joined other lands owned by Cline, and said land during such ownership by said Cline was assessed and taxed for school purposes in said district no. 6, Franklinville; that since the ownership of said Cline there have been different owners of said land and all of them were residents of said school district no. 6, Franklinville, and during such ownership said lands con- tinued to be assessed and taxed for school purposes in said district no. 6, Frank- linville; that prior to and in the year 1892, O. W. Chamberlin and one Henry C. Farwell became the owners of the said 234 acres of land and also 119 acres upon which said Chne formerly lived; that in said year 1892 the said Chamberlin and Cline made a division of the land so owned by them; the said Chamberlin became the owner of the 234 acres and the said Farwell became the owner of the 119 acres on which Cline had resided; that in said year 1892 said Chamberlin purchased 3 acres of lot 22, situate in the town of Ischua and school district no. I, adjoining said parcel of 234 acres, and in May 1894, he purchased 3 acres in lot no. 30 adjoining said parcel of 234 acres situate in said school district and town; that said Chamberlin has sold off of said 234 acres, a parcel of 5 acres, situate in said school district no. i, Ischua. It further app^rs that on June 10, 1895, the date of the submission in the above entitled matter, the said Chamberlin was the owner of 235 acres of land in one body, of which 70 acres were situate in school district no. 6, town of Frankhnville, and 165 acres situate in school district no. i, town of Ischua; that said Chamberlin is a resident in the village of Ischua, in which village he owns a house and lot, and is a resident of said school district no. i, Ischua; that 232 acres of said land was assessed to said Chamberlin as one lot on the last assessment roll of the town of Ischua after revision by the assessors; that said Chamberlin, for the last two years, has been assessed and taxed for said land for school purposes in school district no. 6, Franklinville, and in school district no. i, Ischua, and that he is so assessed and taxed for said land in a tax list issued by the trustee of school district no. i, Ischua, which tax list is now in the hands of the collector of said district for collection. The question submitted to me upon the foregoing facts is, where the said JUDICIAL DECISIOXS: ASSESSMENTS 69 235 acres of land owned by said Cbamberlin, under the school law, should be assessed and taxed for school purposes. By section 63, of article 7, title 7, of the Consolidated School Law of 1894, cliapter 556 of the Laws of 1894, it is enacted that " school district taxes shall be apportioned by the trustees upon all real estate within the boundaries of the district which shall not be by law exempt from taxation, except as hereinafter provided, and such property shall be assessed to the person or persons, or cor- poration owning or possessing the same at the time such tax list shall be made out ; but land lying in one body and occupied by the same person, either as owner or agent for the same principal, or as tenant under the same landlord, if assessed as one lot on the last assessment roll of the town after revision by the assessors, shall, though partly situated in two or more school districts, be taxable in that one of them in which such occupant resides." Under the provisions of said sec- tion 63, trustees of school districts must apportion school district taxes upon all real estate within the boundaries of the district, not exempt by law from taxa- tion; and such property shall be assessed to the person or persons owning or possessing the same at the time the tax list shall be made out. The direction to trustees, as above cited, is subject to the following exception contained in said section 63. namely : but land l>^ng in one body and occupied by the same person, either as owner or agent for the owner, or as tenant of the owner, if assessed as one lot on the last assessment roll of the town after revision by the assessors, shall, though situated partly in two or more school districts, be taxable in that one of them in which such occupant resides. As it appears from the facts that there are 232 acres of land lying in one body, occupied by the same person, namely, O. W. Chamberhn, as owner, and that said 232 acres were assessed as one lot on the last assessment roll of the to\Yii of Ischua after revision by the assessors, said Cbamberlin, being a resident of school district no. i, Ischua, it is clear, under said section 63, that said 232 acres should be assessed for school purposes by the trustee of said district no. i, Ischua, to said Cbamberlin, as owner and occupant, although 70 acres of said 232 acres are situate in school district no. 6, Franklinville. It is also clear that the three acres purchased by Cbamberlin in ]\Iay 1895, should be assessed for school purposes in said school district no. i, Ischua. Where land lying in one body, although situate in two or more districts, is assessed for school purposes in the district in which the owner or occupant resides, such assessment does not alter the boundaries of the districts, nor tal town of Easton, ^^^ashington county. He has a son who will be 7 years of age November 23, 1905- For several years this district has contracted with school district no. 5, Easton, Washington county, under the provisions of title 15 of the Consolidated School Law for the education of its children. The distance from the home of appellant to the schoolhouse in district no. 5, Easton, is 4}^ miles. The 7 year old son of appellant must therefore travel 9 miles daily in order to regularly attend school under the contract between these two districts. At the annual meeting of school district no. 7, Easton, in August 1904, a resolution was adopted authorizing the trustee to contract for the education of the children of that district in " district no. 5, Easton, or some other district in the town of Easton." The trustee of district no. 7 was therefore given discre- tionary powers as to the district in the town of Easton with which he should contract. It appears that he made a contract with district no. 5, Easton. At the annual meetirig of district no. 7 in August 1905 a motion was adopted pro- viding that the resolution of the annual meeting of 1904, authorizing the trustee [151] 152 THE UNIVERSITY OF THE STATE OF NEW YORK to contract, should hold good for the ensuing year. The resolution of 1904 was also read by the clerk. The trustee for the current year therefore had the power to contract with district no. 5, Easton, or with any other district in the town of Easton. No one knew for a certainty at the time of the annual meeting of 1905 with what district the trustee would make a contract for the ensuing year. That was to be determined later by the trustee. He made such contract in due time with district no. 5, Easton. The annual meeting of 1905 also adopted a motion providing that $10 for each child attending school under the contract system should be paid to the parent or guardian of such child for its transportation for the entire year. It was also provided that if a child did not attend school the full year the allowance made for its transportation should be in proportion to the time such child did attend. The attorney for respondent asks that the appeal be dismissed on several grounds. These grounds are all technical and are not supported by substantial reasons. He contends that the proceeding is not an appeal but a petition. In this he is wrong. Appellant does state in the title of the proceedings that he peti- tions for provision for transportation for his child, but in his notice of appeal to the Commissioner of Education it is specifically stated : " The petitioner and appellant hereby appeals to you etc." The entire proceeding is in the nature of an appeal as defined by law and must be considered as such. It is also claimed that the appeal should be from the action of the annual meeting and not from the action of the trustee, and that such appeal was not brought within the 30 days limit fixed by the rules. The grievance of appellant does not date from the action of the annual meeting. Appellant did not know what transportation would be necessary for his child until he knew with what district a contract had been made. It is undisputed that the trustee had authority under the resolution of the annual meeting to contract with any district in the town of Easton. Appellant could not therefore know of the sufficiency of the transportation authorized by the annual meeting until he knew with what district a contract had been made and where his child would be required to attend school. It is not shown in the pleadings that more than 30 days occurred between the date on which knowledge of such contract having been made came to appellant and the date on which the appeal was filed. The trustee is, under the law, the proper person to provide for transportation when it is authorized and the appeal might therefore be properly taken from the action of the trustee or of the annual meeting. We must therefore hold that the appeal is properly before this Depart- ment and must be considered on its merits. The law authorizing the contract system provides that all contracts must be approved by the Commissioner of Education. This Department has refused to approve such contracts whenever the distance from the homes of any of the chil- dren to the schoolhouse at which they are required to attend school thereunder is too great for them to walk to and from school daily unless proper provision is made for their conveyance. Section 19, title 7 of the Consolidated School Law as amended by Laws of 1905, chapter 175, authorizes a district to levy a tax to provide transportation for JUDICIAL decisions: contract system 153 any or all children to the school which they must attend under a contract. It also provides that any portion of the public money apportioned a district may be used in payment of such transportation. Under this section the district meeting is to authorize the trustee to provide transportation and to vote a tax to raise neces- sary funds and the trustees of the district must then contract for the conveyance of the children. Attorney for respondent is wrong in his contention that trustees must con- tract in accordance with rules provided by the district meeting. The district meeting simply authorizes the contract for transportation and it is then the duty of trustees to make such contracts and to prescribe rules to govern the conveyance of children. The pleadings show that it has been the custom in this district for several years to allow the parents of children attending school under contract the sum of Sio for each child. This custom appears quite common in districts operating under the contract system. It is one to be severely condemned. The moral and legal obligation rests upon every parent to give his child the advantages of the school facilities afforded by our system of public education. He should do this even at great inconvenience and expense if necessary. He should not expect remu- neration nor should it be given for such trouble as may reasonably be expected of a parent to enable his children to attend school. It is difficult to understand on what mathematical basis a computation is derived by which it is determined that a parent is entitled to $10 for getting his children to and from school daily for one year. In most cases the parent is to no additional effort or trouble what- ever. The $10 is so much gain. When this course is pursued and transportation is not provided but should be, the plan operates as a hardship upon the child. This method of providing transportation is therefore demoralizing if not corrupt- ing. It has no authority of law. Proper and comfortable transportation can usually be provided for all the children in a district for the amount paid the several parents by employing one suitable person. Transportation is not to be provided unless it is necessary. Whenever it is necessary it must be provided. When it is provided it must be comfortable and suitable and of such character as to warrant the belief of parents that no harm will result therefrom to their chil- dren. It is necessary to provide proper transportation in this district and par- ticularly for the Nulty boy if the contract with district no. 5, Easton, is to stand approved. Such transportation has not been provided. Respondent claims that one Pierce, a neighbor of appellant, has offered to permit appellant's son to ride to school wnth his son. The age of Pierce's son is not given and we are unable to determine whether or not he is a proper person to be charged with the respon- sibility of taking the 7 year old son of appellant to and from school daily. The action taken by the annual meeting in relation to the transportation of children was not such as the law contemplates in such cases. The district meeting should have authorized the trustee to provide transportation in necessary cases and should have voted a tax for such sum as was necessary to meet the expenses of such transportation. 154 THE UNIVERSITY OF THE STATE OF NEW YORK To vote compensation to a parent from the public funds for taking liis child to and from school was not intended under the contract law. Payment to a parent for conveying his children to school comes dangerously near being an improper consideration to influence his vote in favor of the contract system when it might be more desirable to maintain a home school. A, school district should maintain a home school unless it clearly appears that the district is too weak financially and numerically to do so. Even then it should be clearly shown that the educational facilities of the district will be improved by contracting and that it may be done without imposing undue hardships upon the children required to attend school under such contract. Beyond that the intent of the law in pro- viding for transportation was that it should be regular and daily ; that individual parents should not derive pecuniary advantage from it ; and that nothing should be left to parental convenience or caprice. The general rule should be that one person of proper character, furnishing suitable accommodations, should be regu- larly employed, and the contract for transportation should be awarded, after opportunity for competition, to the most reliable party who will furnish the best transportation at the lowest cost to the district. School districts which are unwilling to provide suitable transportation must not operate under the contract system but must maintain a home school. The propriety of requiring a child 7 years of age to travel 9 miles daily to attend school must be seriously questioned. Unless substantial reasons are given for contracting in a district having such cases the wisdom of maintaining a home school is apparent. The respondent claims that the Nulty boy is only 7 years of age and not under the provisions of the compulsory education law and the district should not, therefore, be required to provide transportation for him. This statement should not be passed unnoticed. The law fixes the school age between 5 and 21 years. .A.11 persons between these ages are entitled by law to attend the school in the district in which they reside. When a district contracts for the education of its children it is regarded as maintaining a home school. This boy is therefore entitled to all the privileges in the school of district no. 5, Easton, that he would be entitled to in his home school were one maintained in the district. The appeal herein is sustained. It is ordered. That George W. \^an Buren, trustee of school district no. 7, Easton, Washington county, sliall within five days from the date hereof, issue a call for a special meeting of said district by giving notice thereof as provided in sections 2 and 6, title 7 of the Consolidated School Law for the purpose of authorizing the trustee to provide necessary transportation for the children of said district who are required to attend school in district no. 5, Easton, by virtue of a contract made by said trustee with said district no. 5, Easton, on August i, 1905, and also to vote the necessary appropriation therefor. It is also ordered, That if the special meeting of said district no. 7, Easton, \A'ashington county, authorized herein, shall fail or refuse to authorize the trustee to provide such necessary transportation and to make the necessary appropria- JUDICIAL decisions: contract system 155 tion therefor, the said Trustee Van Buren shall immediately report the same to me and shall thereupon immediately open a home school in said district no. 7, Easton, as provided by the Consolidated School Law. 5241 In the matter of the appeal of W. F. Dening from the proceedings of school district no. 13, town of Champion, county of Jetterson. The settled policy in relation to the contract system is that districts which contract must provide proper and suitable transportation for children who live so far from the school- house which they must attend as to be unable to walk to and from school daily. Decided February 21, 1906 W. B. Van Allen, attorney for appellant Draper, Commissioner The annual meeting of this district aiuhorized the adoption of the contract system instead of maintaining a home school. No provision was made for the transportation of pupils. The trustee made a contract with the West Carthage district. The appellant herein lives 2 miles from the schoolhouse of the West Carthage district. He has two daughters, one 14 years of age and the other 12 years of age. These children are delicate and each is afflicted with hernia. The older of these girls has been compelled to wear a truss although she does not at the present time. The younger girl has for some time and does now wear a truss. Because of their delicate constitutions and of their affliction they are physically unable to walk from their home to the West Carthage schoolhouse each morning and return at night. This would necessitate their traveling 4 miles each day in order to attend school. There is no dispute in this appeal as to these facts. The contention of respondent is that the district has ofifered to pay appellant a reasonable sum for conveying his children, but has not been able to agree with appellant on the amount which should be paid. Respondent further contends that appellant should convey his children to school himself if they are unable to walk. In each of these contentions respondent is wrong. In appeal no. 5219, decided by me October 31, 1905, I held as follows: To vote compensation to a parent from the public funds for taking his child to and from school was not intended under the contract law. Payment to a parent for conveying his children to school comes dangerously near being an improper consideration to influence his vote in favor of the contract system when it might be more desirable to maintain a home school. The intent of the law in providing transportation is that it should be regular and daily ; that individual parents should not derive pecuniary advantage from it ; and that nothing should be left to parental convenience or caprice. The general rule should be that one person of proper character, furnishing suitable accommodations, should be regularly employed and the contract for transportation should be awarded, after opportunity for competition, to the most reliable partv who will furnish the best transportation at the lowest cost to the district. 156 THE UNIVERSITY OF THE STATE OF NEW YORK The settled policy in relation to the contract system is that districts which contract must provide proper and suitable transportation for children who live so far from the schoolhouse which they must attend as to be unable to walk to and from school daily. In this case I must hold that transportation is necessary and that the trustee should provide it for the remainder of the current school year. The appeal herein is sustained. It is ordered, That Orrin Phillips, trustee of said school district no. 13, town of Champion, Jefferson county, be, and he hereby is, ordered to provide proper and suitable transportation for the two children of W. F. Dening from their home to and from the West Carthage schoolhouse, for the remainder of the current school year. 5427 In the matter of the appeal of D. B. Abrams et al. from the action of special meeting- of school district no. 14, Johnstown, Fulton county, in refusing to make a contract with the board of education of Gloversville. Action of district meeting in refusing to contract will not be disturbed, (Education Law, 1909, § 600) The statute (Education Law, 1909, § 600) clearly intends that the voters of a district shall determine whether contracts shall be made with other districts for the instruction of pupils, or such pupils be instructed in the home school. If the voters have had a fair opportunity to express their views as to this question the Com- missioner of education will not intervene on an appeal to overthrow the will of a majority. Policy of Department in favor of maintenance of home school. It has been the policy of the Department to encourage the maintenance of home schools; the Commissioner of Education has refused to approve contracts for the instruction of pupils out of the district where it is apparent that the best educational interests of the district would not be thereby promoted. It would not accord with this policy to compel a district to con- tract for the instruction of all or part of its pupils against the will of a majority of the legal voters of the district, fairly expressed at a legal meeting. Decided December 16, 1909 William A. Macdonald, attorney for appellants Wood & Hader, attorneys for respondents Draper, Commissioner This appeal is brought by D. B. Abrams and others from the action of a special meeting held in district no. 14 of the town of Johnstown, county of Fulton, on the 24th day of August 1909, in refusing to make a contract with the board of education of the city of Gloversville for the instruction of a portion of the pupils residing in said district no. 14. The appellants and respondents appeared by counsel and made oral arguments in support of their contentions. It appears that the appellants reside in that portion of district no. 14 lying near the boundary line of the city of Gloversville, and it is probably true that their children mav attend the schools in that city with less inconvenience than the JUDICIAL decisions: contract system 157 school in their own district. Contracts were made by such district with the city during the years 1906, 1907 and 1908. A resolution to continue this arrange- ment was submitted at the annual meeting and voted down. The trustee called a special meeting for the purpose of reconsidering the question, and it was again voted not to contract. It is thus apparent that a fair chance was given to all the qualified voters of the district to vote upon the question. No claim of unfairness in the vote is made by the appellants. They base their prayer for relief upon the hardships imposed upon their children by compelling them to attend the district school which is located from a mile and a half to two miles from where they live, and to reach which they are required to travel over a road which is exceed- ingly difficult during the winter months. There is not much question as to these facts. They are entitled to careful consideration on this appeal. But there is a question of law and policy involved which impedes the granting of the desired relief. Section 600 of the Education Law provides for the instruction of all or a part of the pupils of a district under a contract with another district, or a city, when such district shall empower the trustee or board of education to make such contract "by a vote of a majority of the qualified voters present and voting thereon." Unless such contract is authorized the district must provide for all its pupils in its own school. The statute clearly intends that the voters of the district shall determine whether contracts shall be made with other districts or the pupils be instructed in the home school, ^^'hen opportunity has been afforded such voters to fairly express their views as to this question, and it is decided that the pupils should be instructed in the home school, the Commissioner of Education should not intervene on an appeal to overthrow the will of the majority. It has been the policy of the Department to encourage the maintenance of home schools, and in the exercise of his power under the statute, the Commissioner of Education has refused to approve contracts for the instruction of pupils out of the district, where it was apparent that the best educational interests of the dis- trict would not be thereby promoted. It would not accord with this policy to compel a district to contract for the instruction of all or part of its pupils agamst the will of a majority of the legal voters of the district, fairly expressed at two meetings when the question was submitted. The appeal must therefore be dismissed. The peculiar circumstances of this case seem to demand that some relief be afforded the appellants. Their children ought not to be required to walk from their homes to the school and back each day during the winter months. Although the appellants have not asked for such relief, it seems proper to suggest that the trustee make provision for conveying the pupils residing in the part of district no. 14, in which the appellants reside, and that such pupils be required to meet the conveyance furnished by the trustee at some conveniently accessible point. This conveyance should be provided during the wdnter months and until May i. 1910. It is also suggested that the school commissioner of the district be asked to consider the advisability of adjusting the boundaries of this and neighboring 158 THE UNIVERSITY OF THE STATE. OF NEW YORK districts with a view of establishing a single district along the boundary line of the city of Gloversville, the residents of which district would be best served by a contract made with the city for the instruction of its pupils. It would seem that a new district might be thus established without material injury to the dis- tricts from which its territory is taken. If such a district is formed the appel- lants should be placed in the new district, and they would therefore probably receive the privilege of attendance in the city schools. The anneal herein is dismissed. 4499 In the matter of the appeal of R. H. Palmer and others v. Oscar H. Farrington and James S. Sloan, trustees, school district no. 9, town of Montgomery, Orange county. Where at a school district meeting the vote upon a motion or resolution, empowering the trustee of the district to enter into a written contract with the board of education of an adjoining union free school district whereby all the children of the district may be entitled to be taught in the public schools of such adjoining union free school district, is not taken by ballot nor by taking and recording the ayes and noes of the qualified voters present and voting, such motion or resolution was not legally adopted, and the trustee or trustees of the district were not duly and legally empowered to make such contract. Decided October 26, 1896 E. B. Walker, attorney for respondents Skinner, Superintendent The appellants in the above-entitled matter appeal from the refusal of the respondents herein, as trustees of school district no. 9, town of Montgomery, Orange county, to contract with the Walden High School, whereby all the chil- dren of said school district may be entitled to be taught in said W'alden High School for a period of not less than 160 days in the school year of 1896-97, pursuant to a resolution empowering said trustees to make such contract for a sum of money not exceeding $275. adopted at the annual school meeting held in said district on August 4, 1896, as alleged by the appellants herein in said appeal. The respondents herein have answered the appeal, and ask that the appeal be dismissed upon various grounds alleged therein, and deny each and every allegation contained in the appeal. The respondents allege that the vote on the motion or resolution set forth in said appeal was not by ballot or ascertained by taking and recording the ayes and noes of the qualified voters attending and voting at such district meeting ; nor did such motion or resolution receive the vote of a majority of the qualified voters of said district ; that at said meeting a vote as required by law was demanded but such demand was refused and ignored. JUDICIAL decisions: contract system 159 The records of the proceeding's of the school meeting as recorded by the clerk of the district, relative to said motion or resolution, are as follows : " Reso- lution offered and seconded, that the trustees of school district no. 9 be required to enter into a contract with the board of education of Walden High School to teach the children of this district for ensuing year at a cost not to exceed $275. Carried." That there is nothing in said records to show how the vote upon said resolu- tion was ascertained, or the manner of voting thereon. The appellants in their reply to the answer herein, concede that the vote upon said resolution was not by ballot nor by taking and recording the ayes and noes. In section 14, article 4, title 15 of the Consolidated School Law of 1894, as amended by section 18, chapter 264 of the Laws of 1896, it is enacted that " whenever any school district adjoining a city or village, or adjoining any union free school district by a vote of a majority of the qualified voters of such district, shall empower the trustees thereof, the said trustees shall enter into a written contract with the board of education of such city, village or union free school district, whereby all the children of such district may be entitled to be taught in the public schools of such city, village or union free school district for a period of not less than one hundred and sixty days in any school year, upon filing a copy of such contract, duly certified by the trustees of such school district, and by the secretary of the board of education of such city, village or union free school district in the office of the State Superintendent of Public Listruction." Subdivision 18 of section 14, article t, title 7 of the Consolidated School Law of 1894, enacts that " in all propositions arising at said district meetings, involving the expenditure of money, or authorizing the levy of a tax or taxes, the vote thereon shall be by ballot or ascertained by taking and recording the ayes and noes of such qualified voters attending and voting at such district meetings." The respondents herein, as trustees of school district no. 9, were not required to enter into a contract under the provisions of section 14, article 4. title 15, above quoted, unless said school district by a vote of a majority of the qualified voters of said district should empower them to do so. The motion or resolution empowering or requiring said trustees to enter into said contract, being a proposition arising at said school meeting involving the expenditure of money, the vote thereon should have been taken by ballot or ascertained, by taking and recording the ayes and noes of such qualified voters attending and voting at such meeting. I decide that said resolution requiring said trustees to enter into a contract with the board of education of Walden High School to teach the children of said district for the ensuing school year at a cost not to exceed $275, was not legally adopted, and that said trustees of said district have not. by a vote of a majority of the qualified voters of such district, been empowered to make said contract. The appeal herein is dismissed. l6o THE UNIVERSITY OF THE STATE OF NEW YORK 5220 In the matter of the appeal of Cornelius Tellier and others from the action of the annual meeting and the trustee of school district no. 8, towns of Pal- myra and Marion, Wayne county. The law authorizing a trustee to contract for the education of the children of a district requires a majority vote of those present and voting and not a majority of all the voters of the district. Money raised by tax authorized at an annual meeting " for school expenses for the coming year " may legally be used to meet any expenses incurred by the district when such district has adopted the contract system. Decided October 31, 1905 Charles ATcLouth, attorney for appellants Joseph Gilbert, attorney for respondents Draper, Commissioner Notice was given as required by law of the annual meeting for school dis- trict no. 8, towns of Palmyra and Marion, Wayne county, to be held August i, 1905. The meeting was regularly held but was attended by only eight voters residing in the district. The meeting adopted a motion empowering the trustee to contract for the education of its children with the Marion union free school district. Under such instructions the trustee entered into a contract with the board of education of the Marion district and forwarded such contract to this Department September i, 1905, for approval. The contract was in proper form but did not show what provision had been made for the conveyance of pupils or whether it was necessary to make such provision. The trustee was requested to supply information to this Department on that point. On September 7, 1905, he gave full information on that point showing that provision had been made for proper transportation. He was promptly advised on receipt of such informa- tion that the contract would be approved. Appellant and nine other legal voters and taxpayers of the district appeal from the action of the annual meeting in authorizing such contract and from the action of the trustee in making the contract. Attorney for appellant claims that under the law creating the contract system a district meeting can not authorize a trustee to make such contract except by a majority vote of all the legal voters of the district. The law does not con- tain such provision. Section 14, title 15 of the Consolidated School Law, as amended by the Laws of 1904, chapter 322, specifically provides that a " majority of the qualified voters present and voting thereon " may empower a trustee to make such contract. The vote authorizing the trustee to make the contract in question was a majority of those present and voting. The second contention of the attorney for appellant is that the vote was not taken by ballot or by taking and recording the ayes and noes. He claims that a vote empowering the trustee to make a contract for this purpose involves an expenditure of district funds which necessitates the levying of a tax and that the vote must be taken by one of the two methods above stated. Under JUDICIAL decisions: contract system i6i the Consolidated School Law, on a proposition involving an expenditure of money or authorizing the levying of a tax, the vote must be by one of these methods. The official record of the proceedings of this meeting shows that an appropriation of $170 '' for school expenses for the coming year" was made. The vote on this proposition was had by ballot as the law directs. The law also provides that a district which contracts for the education of its children shall be regarded as maintaining a home school. Public money is apportioned such district upon this basis. Any expense, therefore, incurred in providing for the education of children under the contract system must be regarded as the equivalent of an expense to maintain a home school. The $170 voted at the annual meeting " for school expenses for the coming year " is therefore available to meet any expenses incurred under the contract system. The law specitically provides that funds apportioned to a district operating under the contract system may be used to pay the tuition under such contract and also the transportation of pupils. As the funds needed to meet the expense of this contract have been provided as the law directs it is not necessary that the vote authorizing the trustee to contract shall be taken in the manner by which a vote to appropriate funds shall be taken. It appears clear that the annual meeting was regularly and legally held and that such meeting regularly and legally empowered the trustee to contract with the Marion union school district. Under such instruction the trustee has made a contract for the education of the children of district no. 8 in the Marion union school district and he has also made a contract for the transportation of the children. The contract with the Marion union school district has been filed at this office, has met the requirements for such contracts and has been approved. The trustee appears to have acted in a candid open manner in the whole pro- ceeding. He has acted clearly within his legal rights and duties. His action in making the two contracts in question has undoubtedly created a district liabil- ity which must not be overlooked in a determination of this appeal. Appellants raise one point which demands careful consideration. They show that only eight of the legal voters were present at the annual meeting. It appears that the district has never before contracted but has always maintained a home school. It does not appear that it was generally known that the question of contracting would come up at the annual meeting. If the pleadings showed that any unusual hardship would result from the contract system, I should feel inclined to order a special meeting of the district and submit the question of contracting to that meeting for consideration. It appears, however, that the Marion school is a large graded school in the village of Marion and maintains school for 40 weeks during the year. The school facilities are greatly superior to those of district no. 8. It also appears that district no. 8 extends into the village of Marion and to within one-quarter of a mile of its schoolhouse. Many of the children in district no. 8 hve nearer to the schoolhouse in the village of Marion than to the schoolhouse in their own district. Several of the children residing in district no. 8 always attend 6 l62 THE UNIVERSITY OF THE STATE OF NEW YORK school in the Marion district and many would do so this year even if the con- tract in question had not been made. None of the children residing in district no. 8 will be required to travel an unreasonable distance with suitable conveyance provided. It does not appear that the children of district no. 8 will be subjected to any greater exposure or hardship in attending school in the village of Marion with transportation provided than they will be to attend school in their own district without transportation. In view of these reasons and the district liability existing under the contracts made by Trustee Smith, I think it is for the best interests of all concerned to refuse to interfere with the action regularly taken by the annual meeting. The appeal herein is dismissed. 4926 In the matter of the appeal of Abram C. Rowland and Herbert Oles v. Clark J. Beers, as trustee of school district no. 17, Walton, Delaware county. Under section 14 of article 4, title 15 of the Consolidated School Law of 1894, as amended by said section i, chapter 294, Laws of 1897, it is enacted that whenever any school district, by a vote of a majority of the qualified voters present and voting thereon, shall empower the trustees thereof, such trustees shall enter into a written contract with the trustees or board of education consenting thereto of any other district, village or city, whereby all the children of school age of such school district may be entitled to be taught in the public schools of such city, village or school district for a period of not less than 160 days in any school year. This Department rules that when such contract shall be executed, and the price fixed in the contract for tuition is less than the $100 district quota which the district will receive from the State, that the trustee may use the excess for the purpose of conveying such children to and from the school where they are taught, under such regulations as he may establish. Decided January 31, 1901 Marvin & Hanford, attorneys for appellants Neish & More, attorneys for respondent Skinner, Superintendent This is an appeal from the proceedings taken at a special meeting held September 6, 1900, in school district 17, Walton, Delaware county, empowering the trustee of the district to enter into a written contract with the trustees of school district 6, town and county aforesaid, whereby all the children of such district 17 may be entitled to be taught in the public school of such district 6 for not less than 160 days during the school year of 1900-1 ; and from the refusal of the trustee of school district 17 to furnish a conveyance for the children of the appellants respectively to and from their homes to the school in district 6. Trustee Beers of district 17 has answered the appeal, and to such answer the appellants have made reply. JUDICIAL decisions: contract system 163 In section 14 of article 4, title 15 of the Consolidated School Law of 1894, as said section was amended by section i of chapter 294, Laws of 1897, it is enacted that whenever any school district, by a vote of a majority .of the qualified voters present and voting thereon shall empower the trustees thereof, the said trustees shall enter into a written contract with the trustees or board of educa- tion consenting thereto, of any other district, village or city, whereby all the children of such district may be entitled to be taught in the public schools of such city, village or school district for a period of not less than 160 days in the school year; that upon the filing of a copy of such contract, duly certified by the trustees of such school districts, in the office of the State Superintendent of Public Instruction, such district shall be deemed to have employed a compe- tent teacher for such period, and shall be entitled to receive one distributive district quota for the school year. The object of said section 14 and the amendments thereof, is to permit school districts, weak financially or in total resident school population or both, to maintain their district organizations without maintaining a school therein, and to have all the children of school age taught in the school of an adjoining district or districts for at least 160 days in the school year, and thereby, to receive from the State a district quota of $100. This Department has held that where a contract is made whereby all the children of school age residing in the district may be taught for at least 160 days in the school year in the school of some other district, the trustee has the legal authority to use the excess of the $100 quota, after paying for the tuition of such children, under the contract, for the purpose of conveying such children to and from the school where they are taught, under such regulations as he may establish. It is established by the pleadings herein that a special meeting was duly held on or about September 5, 1900, in school district 17, Walton, Delaware county, for the purpose of deciding whether the children in such district should be taught in an adjoining district for the present school year; that the appellants herein were duly notified of such special meeting, but neither of them attended such meeting ; that a motion was made at such meeting as follows : " Shall the children of school district 17, Walton, be taught in adjoining district?," and was voted on by ballot and adopted unanimously ; that a motion was then made. " Shall the trustee of district 17 be authorized to contract with other districts for teaching the children of district 17? " and was voted on by ballot and unani- mously adopted; that September 13, 1900, Trustee Beers entered into a contract with Trustee Halbert of school district 6, Walton, whereby all the children of school age residing in school district 17, Walton, may be entitled to be taught in the school of said district 6 for a period of not less than 160 days in the school year commencing August i, 1900, at and for the sum of $2.50 for each child ; that such contract was made in duplicate and one part thereof, as appears from the records of this Department, has been filed therein and duly approved. 164 THE UNIVERSITY OF THE STATE OF NEW YORK It further appears that Trustee Beers, after consulting with the residents of district 17, having children of school age, as to the conveyance of such children to the school in district 6, September 15, 1900, entered into a written contract with one Samuel L. Halbert, a resident of district 6, whereby said Halbert agreed to convey all the children of school age, residing in said district 17, from the schoolhouse therein, to and from the schoolhouse in district 6, for and during each school day for the present school year for the sum of $125 ; that said Halbert commenced conveying such children under such contract on or about October i, 1900, and has so conveyed them each school day since that date; that the dis- tance between the schoolhouse in said district 17 and 6 is about 3^4 miles; that the time occupied in making the trip in the morning from the schoolhouse in district 17 to the schoolhouse in district 6 is from 30 to 45 minutes, and in returning in the afternoon from 40 to 60 minutes, according to the condition of the roads; that said Halbert uses a light spring wagon in pleasant weather, and a covered conveyance in stormy weather and such conveyances upon all trips are amply provided with robes and blankets. It appears that the appellants are the only residents of district 17 v/ho object to the conveyance of the children therein from the schoolhouse in the district, such appellants contending that such children should be conveyed from their homes to and from the school in district 6 ; tliat the appellant, Oles, resides about iYj miles from the schoolhouse in district 17, and the appellant Howland resides about 100 rods nearer the said schoolhouse than the appellant Oles ; that the children of the appellants are not required to walk a greater distance to attend the school in district 6 than they would if a school was maintained in the schoolhouse in district 17; that at the time of the special meeting in September in district 17 there were 13 children of school age residing therein, 3 of whom were then, and still are, attending the school in district 15; that since said special meeting 4 children have been added to district 17, but their parents are claimed to be transient residents; that not more than 12 children from district 17 will attend the school in district 6 at an aggregate cost to the district 17, for tuition for the present school year, of $30. The records of this Department show that the average attendance of pupils at the school in district 17 for the school year of 1899-1900 was but 5; that the assessed valuation of property subject to taxation therein was $8075, and the amount raised by taxation to support the school was $102.88; that the school in district 6 had an average attendance of 46 pupils, with two teachers, and an assessed valuation of $112,148; that said district possesses a new and commodious schoolhouse, with a better school than that heretofore maintained in district 17. From the facts established herein it is clear that the children residing in school district 17 are now provided with better school facilities at a much less expense than if a school had been maintained in such district, and can attend the school in district 6 without being required to walk any greater distance than they would be required if a school was maintained in the schoolhouse in district 17. The appeal herein is dismissed. JUDICIAL decisions: contract system 165 4505 In the matter of the petition of Manly S. Dodge, for the removal from office of Jerome L. Westbrook, as trustee of school district no. 8, town of Van Etten, Chemung count}'. Where at a school meeting a trustee of a school district is empowered to contract with the board of education of an adjoining free school district, for the education of the children of school age of the district, by a motion or resolution duly and legally adopted, and such trustee refuses or neglects to make a contract, he is guilty of a wilful violation or neglect of duty as such trustee, and is removed from office. Decided October 31, 1896 Skinner, Superintendent The petitioner in the above-entitled matter asks for the removal of Jerome L. Westbrook as trustee of school district no. 8, town of Van Etten, Chemung county, alleging that said Westbrook has been guilty of a wilful violation and neglect of duty as such trustee. An answer to said petition has been made by said Westbrook. The following facts are established: That the petitioner herein is, and has been since August 4, 1896, a qualified voter in said school district, and that said Westbrook is the trustee of said school district and has been such trustee since August 4, 1896; that on August 18, 1896, the petitioner herein delivered to and left with the said Westbrook as such trustee a petition signed by a majority of the taxable inhabitants and voters of said district, requesting said trustee to call a special meeting of said dis- trict for the purpose of considering the advisability of said district contracting with the adjoining union free school district no. i, of the towns of Van Etten and Spencer, for the education therein during the present school year of the children of school age in said district no. 8, under the provisions of the school law ; that on August 27, 1896, said Westbrook, as said trustee, called a special meeting of said district to be held on September 3, 1896, at 7.30 p. m., for the purpose of considering the advisability of making such contract as aforesaid and to pro- vide means for the transportation of said children to and from said school, if such contract should be deemed advisable; that said special school meeting of said district as called by said Westbrook, was held on September 3, 1896, and a resolution offered for consideration at said meeting by the petitioner herein, that the trustee be directed, instructed and empowered to contract with the proper authorities of the Van Etten union free school district for the education of the children of school age in said district no. 8 during the present school year, and that said trustee be further directed, instructed and empowered to hire or otherwise secure transportation of the children to and from said union free school, and which resolution was put to a vote, which vote was by ballot, and adopted; that the said Trustee Westbrook has not entered into any written contract with the board of education of union free school district no. i, towns of Van Etten and Spencer, as he was directed and empowered to do by the vote l66 THE UNIVERSITY OF THE STATE OF NEW YORK of said special school meeting of said district no. 8, held on September 3, 1896. The respondent herein has failed to give any valid reason for neglecting and refusing to enter into said contract. It further appears herein that, after said petition requesting him to call a special meeting was presented to said Westbrook, on August 12, 1896, he refused to call said meeting until a letter from this Department was shown to him, in which it was stated that when a respectable number of the voters of a district present a petition to the trustee to call a special meeting of the district for a proper purpose, it is the duty of such trustee to call said meeting. It further appears, as bearing upon the question as to whether said Westbrook was acting in good faith, and to carry out the wishes of the district, that after the petition was presented to him to call said special meeting, and before he called said meet- mg, he entered into a contract with a Miss Bennett to teach the school in said dis- trict for a period of 16 weeks, said school to commence on September 14, 1896. It also appears that at the time of filing the petition herein. Miss Bennett was teaching the school, and that but one pupil attended. In and by section 14, article 4, title 15, of the Consolidated School Law of 1894, as amended by sec- tion 18, chapter 264, of the Laws of 1896, it is enacted that " whenever any school district adjoining a city or village, or adjoining any union free school district, by a vote of a majority of the qualified voters of such district, shall empower the trustees thereof, the said trustees shall enter into a written contract with the board of education of such city, village or union free school district, whereby all the children of such district may be entitled to be taught in the public schools of such city, village or union free school district for a period of not less than 160 days in any school year, upon filing a copy of such contract, dul3^ certified by the trustees of such city, village or union free school district in the office of the State Superintendent of Public Instruction." When any such school district shall, by a vote of a majority of the qualified voters thereof, empower the trustees thereof, it is mandatory upon such trustees to enter into said contract. I decide that school district no. 8, town of Van Etten, by a vote of a majority of the qualified voters of said district, at the special meeting held therein on September 3, 1896, duly empowered the said Jerome L. Westbrook, trustee of said district, to enter into a written contract with the board of educa- tion of union free school district no. i, towns of A'an Etten and Spencer, whereby all the children of such district no. 8 may be entitled to be taught in the public schools of such union free school district no. i for a period of not less than 160 days in the school year of 1896-97; that it was mandatory on the part of said Westbrook to enter into said contract; that he has neglected and refused to enter into said contract, and that he, said Westbrook, as said trustee, is guilty of a wilful violation and neglect of duty, under the provisions of the school law. In section 13, of title i, of the Consolidated School Law, it is enacted that "when- ever it shall be proven to the satisfaction of the State Superintendent of Public Instruction, that any school officer has been guilty of any wilful violation or JUDICIAL DECISIOXS : CONTRACT SYSTEM 167 neglect of duty, the said Superintendent may, by an order under his hand and seal, which shall be recorded in his office, remove such school officer." The petition herein is sustained. Whereas, it having been proved to my satisfaction that Jerome L. West- brook, trustee of school district no. 8, town of Van Etten, Chemung county, has been guilty of wilful violation and neglect of duty as such trustee, under the Consolidated School Law, I do hereby remove said Jerome L. Westbrook from office as trustee of said school district no. 8, town of Van Etten, Chemung county. 5388 In the matter of the appeal of Fred H. Cross and Thomas Seymour from the act or decision of the voters of district no. 6, town of DeKalb, St Lawrence county, N. Y., at a special meeting held on Tuesday afternoon, February 18, 1908, at three o'clock and from each and every part thereof and from all acts and proceedings had in pursuance thereto. In districts operating under the contract system parents must be reasonable in their demands for transportation of their children and must accept service which insures their children safe, comfortable and prompt passage to and from school. While trustees are required to provide suitable transportation for children they are justified in resisting unreasonable demands based upon personal feelings. Decided May 23, 190S George A. Adams, attorney for appellants Abbott & Dolan, attorneys for respondent Draper, Commissioner This proceeding grows out of the action of school district no. 6, town of DeKalb, St Lawrence county, in voting to adopt the contract system instead of maintaining a home school. This is the third proceeding which has been before this Department during the past year as a result of this controversy. At a special meeting of the district held on the loth day of September 1907 the district authorized the trustees to contract for the education of its children pursuant to the provisions of article 4, title 15 of the Consolidated School Law. It appears that one of the children residing in district no. 6, DeKalb, could attend school in district no. 4, DeKalb more conveniently than in any other district and that the rest of the children residing in district no. 6 could attend school more conveniently in district no. 17, DeKalb. The trustee therefore contracted with these two districts. No provision was made at this special meeting for the trans- portation of these children. The child attending in district no. 4 was 9 years of age and had only i mile to walk to attend school. It did not appear to be neces- sary to provide transportation for such child. It appears from the contract filed at this Department that four children were to attend in district no. 17. Three of these were children of appellant Cross and one of appellant Seymour. The ages l6S THE UNIVERSITY OF THE STATE OF NEW YORK of the Cross children were 14, 8 and 6 years, and the age of the Seymour child was 7 years. The distance which these children were required to travel was about ij4 miles. Owing to the tender ages of part of these children, the distance they were required to travel and the general condition of the roads, transporta- tion was deemed necessary. The trustee did contract for such transportation. In a former appeal this Department held that the provisions of such contract were defective and too indehnite. In deciding such appeal I directed the trustee to call a special meeting to consider the question of transportation and also directed that the district should provide suitable, daily transportation or open and maintain a home school. Pursuant to this order a special meeting was held but was not conducted as the law directs. The facts were presented to this Department and under advice from the Chief of the Law Division the trustee called another special meeting for Februar}' 18, 1908. It is from the action of such meeting that tliis proceeding is brought. Two questions are raised in this appeal : T It appears that the vote at the special meeting authorizing the trustee to provide transportation v.as carried by 13 to 11. It is alleged by appellants that live persons voted in favor of such proposition who were not qualified voters at that district meeting. The burden of proof on this question is upon appellants. They must show affirmatively by a preponderance of evidence that at least two of these persons were not qualified to vote at such meeting and that they voted on the affirmative side of such question. The evidence submitted is insufficient to sustain such proposition. It appears that the district attorney is conducting an investigation of this alleged illegal voting and that the whole question will be presented to the grand jury in June. It would be unwise to delay a determina- tion of this proceeding until the evidence submitted on this question is before the court and available for use in this case. This proceeding should be determined before the close of school in district no. 17. 2 It is claimed that Thomas Golden, the person who contracted to convey the children to and from school is not a suitable person to perform such work and that he did not supply proper conveyances, blankets etc. This is the only question raised which on the record is entitled to serious consideration. It is not claimed that Golden is a man of moral dehnquencies. It is not alleged that he is addicted to tlie use of intoxicating drinks or that his conduct toward any of the pupils was ever improper. It is claimed that on a certain occasion at the home of appellant Cross, Golden hfted the young son of appellant by the ears and that the child has been afraid of Golden since then. It is also claimed that on one occasion when Golden was not conveying the children to school under con- tract he overtook the children on tlieir way to school and asked them to ride. After the children were in his conveyance it is claimed he ran his horses and frightened the children. It is shown, however, that since these occurrences appellant Cross has sent his children to the home of Golden and allowed them to remain there over night to enable said appellant and his wife to spend their even- JUDICIAL DECISIONS : CONTRACT SYSTEM 169 ing away from home or at places of entertainment. Evidence is introduced to the effect that he drove a spirited team of young horses and that he often drove his horses on a fast trot and sometimes one horse on a gallop. The evidence upon this point seems to be exaggerated but even at that it is unimportant. It does not establish that Golden is a bad man or a man who should not be trusted with such care of children as is required of a person who conveys them to and from school. It does not establish that he is an incompetent driver or unable to prop- erly manage a team of horses. It is not shown that this team ever became unmanageable or that Golden was ever unable to manage any horse or team which he was driving. It must therefore be held that it is not established that Golden is an unfit person to convey children to and from school. But one question therefore remains to be determined and that is, did Golden supply a suitable conveyance, properly equipped to convey these children to and from school ? The horses, wagon, sleigh, blankets — the whole outfit — should have been such as to provide a safe and reasonably comfortable passage for the children and to protect them from undue exposure during cold and stormy weather. If he did not supply such equipment or if appellants were dissatisfied with the services rendered by the contractor, the facts should have been reported to the trustee and it then became the duty of that officer to require the contractor to provide suitable conveyance and render proper service. Appellants were required to be reasonable in their demands and to accept sendee which insured their children safe, comfortable and prompt passage in going the i^^ miles which they were required to travel to attend school. \\'hile the trustee was required to provide suitable transportation for these children he was justified in resisting unreasonable demands based upon personal feelings. When a majorit}- of the voters of a district have adopted the contract system it is the duty of parents having children to send to school to cordially cooperate with the trustee and the part}' providing transportation in every reasonable effort to afford the children safe and comfortable conveyance. In this case appellants were not willing to cooperate with the trustee or con- tractor Golden. Appellants Avere opposed to the district contracting for the edu- cation of their children. They desired a home school maintained. They had determined not to accept the service provided by the trustee. Their principal effort has been directed toward vacating the action of the district meeting in authorizing the contract system, upon technical grounds. After the contract with Golden was authorized at the Februar)^ meeting Golden drove to the home of Cross to take the children to school. Cross refused to let the children go. Cross claims that the sleigh provided by Golden was not a suitable one. The evidence is to the effect that the sleigh was a light pair of bobs and one mechanic swears that there is no better pair of sleighs in the town. The principal objection raised by Cross to the sleigh is that the seats did not con- tain '' laz}^-backs." I think the evidence establishes that the conveyance provided by Golden was a proper one and should have been acceptable to appellants. It mav also be said that the action of this Department in directing the district to 170 THE UKIVERSITY OF THE STATE OF NEW YORK provide transportation was extremely liberal. The distance which the children were required to travel to reach the schoolhouse in no. 17 was only i^ miles. There are thousands of children throughout the rural districts who are required to walk much longer distances to attend school. This appeal must therefore be dismissed. 5368 In the matter of the appeal of Fred H. Cross and Thomas Seymour from the act or decision of the voters of school district no. 6, De Kalb, at a special meeting held September 10, 1907. Trustees are not required to contract for 160 days. Contracts may be made for a shorter period of time and school may be maintained in the district for a portion of the year. If the period of time covered by the contract combined with the period of time the home school is maintained equals 160 days the requirements of the law are satisfied. If a district desires to operate under the contract system instead of maintaining a home school it must provide suitable transportation for children of tender years who are required to travel long distances to attend schooL Decided December 23, 1907 Hale & Adams, attorneys for appellants Abbott & Dolan, attorneys for respondents Draper, Commissioner School district no. 6, De Kalb, at a special meeting held on the loth day of September 1907, authorized its trustee to contract for the education of the chil- dren in the district instead of maintaining a home school. The trustee thereafter entered into contracts by which part of the children of such district were to receive instruction in no. 17,. De Kalb, and part in no. 4, De Kalb. Copies of these contracts were duly filed in this Department. Appellants were opposed to the contract system and desired to maintain a home school. They bring this proceeding to vacate the action of such special meeting in authorizing the trustee to contract with other districts. The grounds in substance upon which the proceeding is based are : 1 That two persons voting at such special meeting were not legal voters and that the proposition to contract was carried by a majority of one vote only. 2 That the term of school provided in school district no. 17, and after the date on which the contract was executed does not cover 160 days and the trustee of no. 6 could not contract for a less period of time than 160 days. 3 That the transportation of pupils provided by the trustee is insufficient and unauthorized. Sufficient proof is not found upon the record to sustain the first contention. To vacate the action of the meeting upon the ground that the proposition was carried by illegal votes it must affirmatively be shown that sufficient illegal votes were cast in favor of the proposition to have carried such proposition. If the JUDICIAL DECISIONS : CONTRACT SYSTEM I7I evidence submitted should be regarded sufficient to hold that the two voters in question were not legally qualified to vote at such meeting it would also be neces- sary to show affirmatively that such persons voted in favor of the proposition to contract. Such fact is not established by the record. The trustee is not required under the law to contract for i6o days. He might contract for a shorter period of time and maintain school for a portion of time in the district. If the period of time covered by the contract combined with the period of time a home school is maintained should equal i6o days the requirements of the law would be satisfied. The fact is however that the contract provides that the children of school district no. 6 shall receive instruction in district no. 17 for 160 days. District no. 17 is therefore obligated to maintain school for the children of no. 6 for the full period of 160 days. It must therefore be held that the contracts in question were duly authorized and that they have been legally and properly executed. There is however one question presented by appellants which should receive careful consideration. The appellants are within their legal rights in insisting that suitable transportation shall be provided their children. The distance from the homes of appellants to the schoolhouse in no. 17 is about i^ miles and much greater than the distance from their homes to the schoolhouse in their home district. One of the appellant's children is only 6 years of age. The State will pay a contracting district a sum equal to the amount paid for tuition and transportation of pupils, but not to exceed the amount of the district quota to which such district would be entitled provided it maintained a home school. This district has an assessed valuation of $23,231 and might therefore receive a district quota of $175. The contracts filed show that respondent has agreed to pay $32 for the instruction of the children of the district. It also appears that the trustee has contracted to pay $135 for the partial transportation which has been provided. The entire cost of the transportation and tuition is therefore paid by the State and the expense of operating the school in this dis- trict under the contract system is no cost to the taxpayers of the district. It will not therefore operate as an injustice or hardship upon this district if the district is required to levy a tax in order to raise funds to provide proper transportation for its children. If a district desires to operate under the con- tract system instead of maintaining a home school it must provide suitable trans- portation for children of tender years who are required to travel long distances to attend school. I held in decision no. 5219 that such transportation should be regular and daily and that as a general rule one person of proper character, fur- nishing suitable accommodations, should be regularly employed and the contract should be awarded, after opportunity for competition, to the most reliable party who will furnish the best transportation at the lowest cost to the district. It appears from the pleadings in this case that the party to whom the con- . tract was awarded to convey these children to and from school is a proper person to perform such work and that he has suitable accommodations therefor. It does appear however that the contract does not require daily conveyance of children. 1/2 THE UXIVERSITY OF THE STATE OF NEW YORK The children are to be conveyed " on such days as the weather is extremely cold and the roads are impassable by reason of the elements or at any time that any reasonable person might say it was unreasonable that children of tender age should walk." This provision of such contract is defective. It is too indefinite and leaves the question of the necessity of transportation open to disagreement. A contract in such form is likely to breed dissatisfaction and contention. A parent might deem transportation necessaiy on a certain morning and request his children to wait for the conveyance. The party to convey the children might deem transportation unnecessary on that morning. Under such conditions children would be likely to get to school late and might not get to school at all. Contracts containing such conditions can not therefore be approved. The trustee of district no. 6 De Kalb, must therefore provide transportation daily for these children or must open and maintain a school in such district. If the trustee had not been authorized to provide transportation he should call a special meeting of the district at once for the purpose of obtaining such authori- zation. Should the district fail to authorize such transportation it is the clear duty of the trustee under the consolidated school law to open the school in the district as soon as he is able to make suitable arrangements therefor. So much of the appeal herein as relates to the insufficiency of the transpor- tation furnished by the trustee is sustained. It is ordered, That Alelvin A. Fletcher, trustee of school district no. 6, town of De Kalb, shall immediately take such action as may be necessary to provide suitable transportation on each school day that school is in session in school district no. 17, De Kalb, for the children of district no. 6, De Kalb, who are required to attend school in said district no. 17, De Kalb, and that if such trans- portation is not provided on or before January 10, 1908. the said Melvin A. Fletcher shall open and maintain a school in district no. 6, De Kalb. 5375 In the matter of the appeal of Jacob B. liildreth v. Daniel Ryant, sole trustee of school district no. 11, towns of Van Etten and Spencer. When better facilities can be afforded by contracting with two or more districts instead of contracting with one district such policy should be pursued. The law encourages such policy by specifically authorizing it. Decided January 27, 1908 Moreland & Thurston, attorneys for appellant Cornelius O. Seabring, attorney for respondent Draper, Commissioner The annual meeting of school district no. 11, towns of Van Etten and Spencer, authorized its trustee to contract for the education of its children instead of maintaining a home school. Pursuant to such authorization respondent Ryant JUDICIAL decisions: contract system 173 contracted with school district no. i, Van Etten. Appellant is a resident and taxpayer in school district no. 11. He has children of school age attending school. He resides 3^ miles from the schoolhouse of district no. i. His children are therefore required to travel 7 miles daily in order to attend school. His children are within the compulsory school ages and must attend school. The distance from appellant's residence to the schoolhouse in district no. 16, Van Etten is only iy2 miles. If appellant's children could attend school in district no. 16 they would be required to travel only 3 miles each day to attend school, instead of 7 miles. Appellant has been desirous of having a contract made with district no. 16 so that his children could attend the school in that district. The trustee refused to make such contract on the ground that the annual meeting instructed him to contract with no. i. The question received much attention through correspond- ence with the Eaw Division of this Department and also from the school com- missioner of Chemung county. A special meeting of the district was held about November 19, 1907 to vote upon authorizing a contract with no. 16 and such proposition was defeated. It is claimed by respondent that district no. i is a graded school and affords better school facilities than district no. 16, but this is not sufficient ground under all the circumstances to justify the majority of the voters of the district, no. 11, to refuse to authorize a contract for appellant's children and other children residing near appellant with district no. 16. If a district does not desire to maintain a home school but in lieu thereof wishes to operate under the contract system, it is incumbent upon such district to provide the best school facilities possible for all the children of the district. If better facilities could be afforded by contracting with two or more districts instead of contracting with one district such policy should be pursued. The law encourages such policy by specifically authorizing it. If appellant and the other parents resid- ing in his section of the district preferred to send their children to no. 16 and were willing to accept the school facilities afforded by such district, instead of sending them to the village school in no. i, because it would relieve their children from traveling 4 additional miles each day in order to attend school, it was the duty of district no. 11 to authorize the trustee to contract with district no. 16. I shall not vacate the action authorizing a contract with no. i nor shall I set aside such contract. A portion of the children residing- in no. ii can attend the school in no. i more conveniently than in any other district. It also appears to be the desire of their parents that they shall attend such school. It is unneces- sary therefore to disturb such contract. The only action necessary in this pro- ceeding is such as will give the children residing in the section of district no. 11 in which appellant resides school privileges which are reasonably accessible and satisfactory to their parents. This can be done by the district authorizing respondent R}'ant to contract for the education of such children in district no. 16. If the district refuses to authorize such contract the trustee of district no. 1 1 must open a home school in such district. The appeal herein is sustained. 174 THE UNIVERSITY OF THE STATE OF NEW YORK . It is ordered, That the trustee of district no. ii, towns of Van Etten and Spencer, Chemung county, call a special meeting of the legal voters of the dis- trict to authorize a contract with school district no. i6, Van Etten, for the educa- tion of the children residing in said district no. ii whose parents desire them to attend school in district no. i6. It is also ordered. That if such special meeting shall refuse or fail to author- ize the trustee of district no. ii. Van Etten and Spencer, to make such contract with district no. i6. Van Etten, the said trustee of district no. ii, Van Etten and Spencer, shall thereupon employ a teacher and open and maintain a school in said district no. ii, Van Etten and Spencer. ELECTIONS 5218 In the matter of the election of a member of the board of education of union free school district no. 6, town of Mohawk, Montgomery county. The claim of right or title to the office of trustee will not be sustained when the very right itself rests upon either fraud, corruption, negligence, imposition or wrong. An election resulting from sharp practice and in unfairness and injustice and not reflecting or representing the popular expression of those entitled to be heard, will be set aside and a new election ordered. The accepted doctrine of popular elections is that the great body of the voters shall have notice in fact of the election. It is not necessary that the formal notice of an election required by the law shall be given or shall be brought to the attention of each voter, but did knowledge of the fact that such election was set to be held at a fixed time become known to the great body of the voters? The paramount question in a proceeding to determine the title to the office of trustee is. Did the voters generally have an opportunity to legally express their choice for such trustee? The right of any individual to the office of trustee is subordinate to this great right of the legal voters. Decided October 30, 1905 George M. Albot, attorney for appellant J. S. Sitterly, attorney for respondents Draper, Commissioner This is an appeal to determine the right or title to the office of trustee in school district no. 6, town of Mohawk, ^Montgomery county. This is a union free school district whose boundaries do not coincide with the boundaries of an incor- porated village or city. The incorporated village of Fonda is located within the school district. At present less than 300 children of school age reside within the school district. Since 187S the annual meeting of this district has been held on Tuesday evening as required by law and the election of trustees on the afternoon of the following day. On July 3, 1905, the board of education issued the follow- ing notice : ANNUAL SCHOOL MEETING The annual school meeting of Fonda high school district no. 6, town of Mohawk, will be held in the school building on Tuesday evening, August i, 1905, at 7.30 o'clock. The annual election of one member of the board of education for three years will be held in the high school building on Wednesday, August 2d, from 12 o'clock noon until 4 p. m. Harry H. Dockstader George L. Davis John E. Cook Dated, Fonda, July 5, ipoj Board of Education [175] 176 THE UXIVERSITV OF THE STATE OF NEW YORK This notice was published for four consecutive weeks in the Fonda Democrat and posted in several public places within the district. The annual meeting held on the evening of August ist transacted the usual routine business which gen- erally comes before such meetings, passed a resolution to change the time of election of trustees from the afternoon of the Wednesday following the annual meeting to the time of the annual meeting, and then proceeded to the election of a trustee for the ensuing three years. Several of those present protested against the passage of such resolution and of the election of a trustee at that time, claim- ing that the election was illegal and that such election should be held on the fol- lowing afternoon in accordance with the official notice given by the board of education. The district meeting proceeded, however, to the election of a trustee. It appears that 64 votes were cast of which number Bernard Conlan, appellant herein, received 61 and was thereupon declared elected trustee by the chairman. It also appears that those who protested against the election of a trustee at that meeting refrained from voting. It has been the custom in this district for many years to hold a caucus imme- diately after the adjournment of the annual meeting to nominate a candidate for trustee to be voted for on the following afternoon. In accordance with that cus- tom those present at the annual meeting who believed the election should be held on Wednesday and who had refrained from participating in the election of Tues- day evening, held a caucus after the adjournment of the annual meeting and nominated Harry H. Dockstader for trustee. The board of education conducted an election on the following afternoon in accordance with the provisions of sec- tion 14, title 8 of the Consolidated School Law. At such election 143 votes were cast, all of which were for the said Harry H. Dockstader and he was thereupon declared elected. On August 2d the board of education held a meeting and organized by elect- ing the said Harry H. Dockstader the president of said board. This meeting of the board of education was clearly illegal, as section 13, title 8 of the Consolidated School Law provides that the annual meeting of the board of education shall be held on the first Tuesday following the annual meeting. The proper time to hold such meeting was Tuesday, August 8, 1905, and on that date the board of educa- tion held its annual meeting and recognized the said Harry H. Dockstader as the regularly elected trustee. The board of education also again elected the said Dockstader as its president. The board of education also refused to recognize the appellant, Conlan, as the legally elected trustee of the district. The present Consolidated School Law went into effect June 30, 1894. Pre- vious to that date the election of trustees in all school districts having more than 300 children of school age and whose boundaries did not coincide with those of an incorporated village or city was held under the provisions of chapter 24S of the Laws of 1878, except certain districts organized under special acts or especially exempted from the provisions of said chapter 24S. That law provided that the election of trustees in districts of this class should be held on the second JUDICIAL decisions: elections 177 Wednesday of October between the hours of 10 o'clock in the morning and 4 o'clock in the afternoon. Subsequently the date of annual meetings in school districts was changed by the Legislature to the last Tuesday in August and later to the first Tuesday in August, and the date of election of trustees in districts of this class was accordingly changed to the Wednesday following the last Tuesday in Augi-ist and later to the Wednesday following the first Tuesday in August. So it always occurred from 1878 to 1894 that the annual meeting was held on Tues- day evening and the annual election of trustees on the next day or Wednesday. In 1878 the hours of such election were changed so that thereafter the election was held between the hours of 12 m. and 4 o'clock in the afternoon. Chapter 556 of the Laws of 1894, the Consolidated School Law, repealed chapter 248, Laws of 1878, and also repealed the chapter fixing the date of annual meetings. Since the enactment of the Consolidated School Law in 1894 it has been necessar}' for all school districts to hold their annual meetings and to elect their trustees at the time fixed and in accordance with the provisions of said Consolidated School Law. Section 13 of title 8 of that law provides that the annual meeting of all union free school districts whose boundaries do not corre- spond to those of an incorporated village or city shall be held on the first Tuesday of August. Section 5 of title 8 provides that the election of trustees in union free school districts whose boundaries are not the same as those of an incorporated village or city shall be held at the annual meeting. However, section 14 of title 8 provides that in union free school districts in which the number of children of school age exceeds 300 and whose boundaries are not coincident with those of an incorporated village or city, the election of trustees may be held on the Wednes- day next following the date of the annual meeting. This section provides that districts desiring to hold the election of trustees on Wednesday may so determine by a majority vote to be ascertained by taking and recording the ayes and noes. This vote may be taken at an annual or a special meeting called for that purpose. District no. 6, IMohawk, held its election of trustees from 1878 to 1894 on the Wednesday following the date of the annual meeting. The presumption is that during that period of time the number of children of school age residing in the district exceeded 300. This district is also a union free school district whose boundaries do not coincide with those of an incorporated village or city. The pleadings do not show whether at the time of the annual meeting in 1894 the number of children of school age residing in the district exceeded 300. If the number of such children did exceed 300 this district in common with all other districts of its class possessed the authority to decide to hold the election of trustees on Wednesday afternoon instead of Tuesday evening. But it was necessary for this district in 1894, or any other district of its class, if it desired to continue to hold its election of trustees on the afternoon following the annual meeting, to so decide by a majority vote as above stated at either the annual meet- ing or at a special meeting. The records do not show that a vote was ever taken upon such proposition in this district. The board of education gave notice as required by law in 1S94 lyS THE UNIVERSITY OF THE STATE OF NEW YORK that the annual meeting of the district would be held on Tuesday night and the election on Wednesday afternoon. The annual meeting was held and transacted the business which usually devolves upon such meetings. It then adjourned and immediately thereafter those in attendance upon such meeting held a caucus and nominated a trustee to be voted for on the following day. On that day the election was held. No objection was raised by any resident of the district to this proceeding. Each year from 1894 down to the year 1905 the annual meet- ing has adjourned, a caucus to nominate a trustee has immediately thereafter been held, and on the following afternoon the election of trustees has taken place. It is contended by the attorney for respondents that the action of the annual meeting in 1894 in adjourning without considering in any way the elec- tion of a trustee; the action of those in attendance upon the annual meeting immediately after its adjournment in holding a caucus and nominating a trustee; the action of the legal voters in holding an election on the following day and a repetition of these various steps each year thereafter, was a substantial compli- ance with the requirements of section 14 of title 8 of the Consolidated School Law. Since 1894 it has been necessary for this district, or any other district of its class, to show two essential things in order to legally hold its elections on the Wednesday immediately following the annual meeting, namely, that the district contained more than 300 children of school age and that the district had determined by a majority vote as the law directs to hold the election on Wednes- day. It does not appear to my satisfaction that these conditions have been met as the law contemplates they should be. If the election of Wednesday was irregular or illegal, was the election of Tuesday night regular and legal ? The attorney for appellant contends that the pleadings do not raise the question of regularity of the election on Tuesday night. He contends that the only questions before this Department for determination are the regularity of the Wednesday election and the regularity of the action of the board of education in recognizing said Dockstader as the legally elected trustee of the district, and that this Department has not jurisdiction on the pleadings to determine the regularity of the Tuesday election. This contention is unsound. The appellant entitles this proceeding: " In the matter of the election of a member of the board of education of union free school district no. 6, town of Mohawk, Montgomery county." He states in his moving papers that he appeals " from all proceedings and determinations of said board at said last named meeting whereby this appellant was denied the right and privilege of sitting as a member and participating in the proceedings of said board as a law- fully elected member thereof." In the concluding paragraph of the moving papers the relief requested by appellant is " that the appellant be adjudged the duly and lawfully elected trustee or member of said board of education for the tei-m of three years commencing August i, 1905." He also files with his moving papers a copy of the proceedings of the annual meeting held on Tuesday night and makes the same a part of his pleadings. The appellant therefore directly raises the question of the regularity of the Tuesday election. He can not ask this Department to adjudge him the legally elected trustee without squarely JUDICIAL decisions: elections 179 submitting for determination the regularity in every particular of his election. He contends that respondents do not question the regularity of the Tuesday elec- tion and that in fact they admit it. In this he is wrong. Respondents admit the proceedings taken at each meeting but they specifically deny that appellant was legally elected or that any of his lawful rights were violated. They set up the official notice given by the board of education to the effect that the election of trustee would be held on Wednesday, they show that this had been the custom of the district for twenty-seven consecutive years, and they show that an election was held on Wednesday and contend for the regularity and legality of the same. Thus do they deny and question the regularity of the Tuesday election. But the question as to what either party to this proceeding may specifically raise is not conclusive upon this Department. This Department is a tribunal to which appellant appeals for a judicial determination of his right or title to an otlice and this Department has not only the jurisdiction but it is its bounden duty to inquire into the regularity of every proceeding pertaining to the election upon which appellant bases his claim to the right for which he contends and to deter- mine whether such right or title has been obtained as the law contemplates it should be. For seventy years this Department has held that in actions involving the right to an office " it will inquire into the bonae fides thereof. Were the things done as such as it was proper to do at said meeting? Has any one been misled, imposed upon, or wronged? If mistakes and irregularities have occurred will the greater hardship be imposed upon individuals by setting aside or sustaining such acts? {See decisions 3534 and 4327.) The courts of this State have always sustained this principle. In the case of The People v. Vail, Judge Bronson said: " Such proceeding reaches beyond those evidences of title which are conclusive for any other purpose, and inquires into and ascertains the abstract question of right. In legislative bodies which have the power to judge of their own membership, it is the settled practice, when the right of the sitting member is called in question, to look beyond the certificate of the returning officer; and I think a court and jury with better means of arriving at the truth, may pursue the same course." In the leading case of The People v. Pease, the Court of Appeals of this State held : " In all cases where the proceeding is by quo warranto, or in an action of that nature, it is held that such proceeding is instituted to try the right to the office directly, and it is competent to go behind the certificate, which would otherwise be conclusive, to ascertain the real facts of the case. It is conceded that this proceeding is to ascertain the very right of the person to the particular office, and that by means of it any negligence, mistake or fraud of the inspectors or canvassers in their proceedings may be corrected. The truth may be inquired into and the right ascertained. As a general rule affirm- ative facts are not to be presumed, but must be proved by the party asserting them. The disposition of the courts in this State is to look through the formal evidence of the right to the right itself and to set aside the election of officers when necessary to promote the ends of justice." (27 N. Y. 45) l80 THE UXIVERSITY OF THE STATE OF NEW YORK The Court of Appeals of this State m the case of Judson v. Thatcher held : " The defendant must show, before he can have judgment in his favor, that he has a legal title to the office. Possession is not, in such an action, evidence of his right ; the burden is upon him of showing that his possession is a legal and rightful one."' Where, however, the action is brought on the relation of one claiming the office, the failure of the defendant to prove his title does not establish that of the relator. Upon that issue the plaintiffs have the affirmative, and the burden is upon them to maintain it. The certificate of the proper officers is prima facie evidence of election to a public office. But the certificate, and the returns upon which it is based, are open to inquiry, and the returns will be corrected or set aside, so far as they are shown to be erroneous, if necessary to promote the ends of justice. The inquiry as to errors in the returns is not confined to intentional frauds on the part of the inspectors of election officers. They may be impeached and set aside for error, whether that of the officer or arising from the interference or illegal acts of third persons. (55 N. Y. 525) The pleadings show that the faction in control of the annual meeting and in favor of the election of Conlan passed the following resolution: Whereas, It has been the custom for some years past, in school district no. 6 of the town of Mohawk, to hold the election for a member or members of the board of education on the \\'ednesday following the annual school meeting between the hours of i p. m. and 4 p. m. Whereas, Said custom is unjust inasmuch as it disfranchises the greater number of the qualified electors of said district on account of their being unable to attend during the hours at which it has been held except at great loss and inconvenience to themselves, and. Whereas, It is also directly contrary to the school election law which speci- fies that in all union free scliool districts, with a population of less than 300 children of school age, the election shall be held at the annual school meeting. Therefore, it is hereby resolved, That at this and all subsequent meetings, until changed by a proper resolution, the election of a member or members of the board of education shall be the first order of business at said annual school meetings after organization and that any and all resolutions heretofore adopted afifecting the time and place of the annual school election in this district are hereby rescinded. Under section 14 of title 8 of the Consolidated School Law a district of this class which has been holding its elections under the provisions of such law may. by a majority vote, decide to change the time of such election from Wed- nesday to the time of the annual meeting. It appears clear that the faction favor- ing the election of Conlan believed that by passing the above resolutions they could proceed that night to the election of a trustee for three years. It does not appear that the faction favoring the election of Dockstader had any knowledge of the intention of the other faction and they had not attended the annual meeting as the official notice showed that the election would be held on Wednesday. The whole proceeding in voting to change the time of the election of trustee and the election itself may be properly looked upon as a scheme carefully planned to take advantage of those who might rely upon the official notice of the board and JUDICIAL decisions: elections i8i remain away from the annual meeting believing as they rightfully should, that the election would be held on Wednesday and in accordance with the custom prevailing in the district for the twenty-seven preceding years. This Department has always held that when an annual meeting decides to change the time of an election under said section 14, title 8, from Wednesday back to the annual meeting, such decision does not become operative until the election of the follow- ing year. Due notice having been given that the election would be held on Wednesday the people interested in such election might remain away from the annual meeting expecting to vote on Wednesday and would thus be deprived of the right to express a. choice for trustee. To hold otherwise would also open the road to many abuses which would result in great evil to the public school system. This policy is also in harmony with the trend of legislative thought for as recently as 1903 the Legislature amended the Consolidated School Law by providing that the number of trustees in any union free school district should not be increased or diminished unless due notice is given of the intention to present such question to the district for determination. A faction conspiring to control a board of education often accomplished that end by increasing or diminishing the number of members on such board at an annual meeting not largely attended and when it was not known that such action was contemplated. The action of the annual meeting in passing the resolution in question did not confer the lawful right to elect a trustee that night. It was not until after the ruling of this Department on that question was known to appellant's friends that they claimed Tuesday night as the legal time on which to hold the election. The resolution speaks for itself and shows conclusively that the annual meeting did not regard it legal to proceed to an election until after such resolution was adopted. The board of education gave official notice as before stated that the election of trustee would be on Wednesday. This notice was published in the village paper for four weeks immediately preceding the date set for the election. It was also posted in several public places in the district. It was a matter of com- mon interest and knowledge that the election of the district had occurred on that day for twenty-seven years immediately preceding. Should a faction in the district be permitted in view of these facts to take advantage of a technical pro- vision of law and thus prevent a large number of the electors of this district from exercising the right to express their choice for a trustee? It appears that 143 of such electors desired to vote and at the election of Wednesday did vote while only 64 voted for trustee at the annual meeting. It is contended by the attorney for the appellant that notice of the annual meeting was unnecessary and that failure to give notice does not invalidate an annual meeting. It is true that the law provides that a district meeting shall not be invalid for want of due notice to all qualified voters unless it shall appear that such omission was fraudulent or wilful. This Department has consistently refused to set aside the action of a meeting on such ground unless it has been shown that the failure to give notice was wilful or fraudulent, or the result of l82 THE UXIVERSITY OF THE STATE OF NEW YORK such meeting might have been changed had those who failed to receive notice been present and been permitted to participate in the proceedings of the meeting. When the omission of notice has shown such results this Department has uni- formly set aside the proceedings of meetings on that ground. (Sec decisions of this Department nos. 3587, 3593, 3741, 3809, 3820, 3912, 3921, 3926 and 4000) In decision 4000 it was held: "'Proceedings of an alleged annual meeting will be set aside where a long established custom in the district for calling the people together, had been purposely and intentionally omitted, thus enabling a very small minority of those intending to be present at the meeting to assemble and transact the business of the annual meeting." The accepted doctrine of popular elections is that the great body of the voters shall have notice in fact of the election. It is not necessary that the formal notice of an election required by law shall be given or shall be brought to the attention of each voter but did knowledge of the fact that such election was set to be held at a fixed time become known to the great body of the voters? Mechem says, at page 184: " When it is obvious that the great body of the electors were misled for want of the official proclamation, its absence becomes such an irregularity as prevents an actual choice by the electors ; prevents an actual election in the primary sense of that word, and renders invalid any semblance of an election which may have been attempted by a few, and which must operate, if it operates at all, as a surprise and fraud upon the rights of many." He also says in section 224: " It is well settled that where an election has been in fact had, and the great body of the electors have actually participated in it, irregularities not proceeding from a wrongful intent, in the manner of calling, holding or certifying the election, will, where they do not afifect the result, be ignored." McClary on Elections, section 176, says: "It does not follow that formal notice of the time and place of holding an election is always essential to its validity. Whether it is or not depends upon the question whether the want of formal notice has resulted in depriving any portion of the electors of their rights." In section 232 he says: " It is safe to say that a mistake should always be cor- rected if it can be corrected by the tribunal trying the contest. (Sec also Loring & Russell's Election Cases, Mass. p. 343 and 344 and cases therein cited.) The paramount question in this whole proceeding is, Did the voters generally of this district have an opportunity to legally express their choice for a trustee? The right of any individual to the office of trustee is subordinate to this great right of the legal voters. I know that the Court of Appeals of this State, in the case of The People v. Cowles, 113 N. Y. 350, held where a vacancy occurred in the office of a Supreme Court judge only a few days previous to the election and such vacancy was filled at the election although no official notice of such vacancy and the filling of the same was given, that such election was valid. It must be understood in this case, however, that the voters of the judicial district had in fact notice JUDICIAL decisions: elections 183 of such vacancy and of the election. The vacancy was caused by the death of a judge in New York City. His death was immediately announced in all the great journals of that city. The pohtical parties immediately nominated candidates to fill such vacancy. Four nominations were made. These nominations were printed in the daily papers and the relative merits and qualifications of such nominees were also discussed by the papers of that city. Then too the prevailing opinion of the court which was 4 to 3 was based upon a provision of the State Con- stitution. The books Avill be searched in vain for a case wherein a court or an officer possessing judicial powers has sustained the claim of right or title to an office when the very right itself rests upon either fraud, corruption, negligence, imposi- tion or wrong. The Court of Appeals of this State in 1900, matter of Mutual Fire Insurance Company of Albany (164 N. Y. 10) rendered a decision pertinent to the issue involved in this proceeding and shows the views of that tribunal upon an election resulting from sharp practice and in unfairness and injustice and not reflecting or representing the popular expression of those entitled to be heard. In this company there were two classes of voters known as cash polic)-- holders and note policyholders. At the annual election in 1900 an unexpected contest occurred. The inspectors reported 11 12 votes cast upon note policies for the Lyon board and 1347 votes upon similar policies for the Rathbone board. The inspectors refused to count 895 votes upon cash policies for the Lyon board. No votes upon cash policies were offered for the Rathbone board although they controlled 720 votes on such policies. The court (51 App. Div. 163) held that the cash policy votes cast for the Lyon board should be counted and also directed that the 720 votes on cash policies controlled by the Rathbone board should be counted although none of such votes were offered at the election. The Court of Appeals modified the order of the Appellate Division by holding that cash policyholders were entitled to vote but directing that a new election should be held. For the views of courts generally upon similar questions see also 17 Atlantic Reporter 952, 12 Vroom 297, 102 Cal. 184, 10 Iowa 212, 44 Mich. 89. There is a different relation between the Commissioner of Education and a proceeding before him from that which obtains between a court and a proceeding before it. A court is disinterested in all questions except the facts and the law. The Commissioner of Education is the administrative or supervisory officer of the whole educational system of the State. He is bound to have an interest in the equity, right and justice of all questions having a bearing upon the administration of the educational system. He must determine judicial questions with a view to- the general effect upon the school system as well as to the technical requirements of the law. In the settlement of questions relating to the election of school officers it is his duty to see that all parties are accorded a fair opportunity to participate in elections if they will, not only because of the need of extending justice to individuals interested but also because the peace and quiet of the school district can only be maintained by doing so. The will of the majority 184 THE UXIVERSITY OF THE STATE OF NEW YORK desiring to express itself and not guilty of any laglies must be given its opportunit5\ I decide, That neither the election at the annual meeting held on August i, 1905, nor on the Wednesday next following were regular or legal elections in the sense contemplated by the statutes and that in the interests of justice to all parties concerned and for the best educational interests of this district a new election should be held. It also follows that the action of the board of education in electing Harry H. Dockstader its president was illegal. The election in the future must be held at the annual meeting until the time for such election is changed as provided by law. So much of this proceeding as relates to the election of Harry H. Dockstader as a trustee and as the president of the board of education in said district no. 6, Mohawk, is sustained, and that relating to all other matters is dismissed. It is ordered. That the board of educatiori of union free school district no. 6. town of ]Mohawk, county of Montgomery, shall within 10 days from the date hereof, call a special meeting in such district and give notice thereof as provided in section 10 of title 8 of the Consolidated School Law, for the purpose of electing a trustee in said district whose term of office shall extend until July 31, 1908. It is further ordered, That the board of education of said district no. 6, ]\Tohawk, shall, within five days after the said election has been held, hold a meeting thereof for the purpose of electing a president of said board. 5293 In the matter of the appeal of E. H. Farrington and ■Mary A. Taylor from the proceedings of the annual meeting of union free school district no. r, town of Franklinville, county of Cattaraugus. Irregularities in calling or holding an election not proceeding from a wilful or wrongful intent and not affecting the results are not sufficient grounds for setting aside an election. Decided October 29, 1906 L. Thayer Waring, attorney for appellants George E. Spring, attorney for respondents Draper, Commissioner The board of education of union free school district no. i. town of Franklin- ville, county of Cattaraugus, passed a resolution providing that the election of that district to be held at the annual meeting should open at 4 o'clock in the afternoon and continue until 7 o'clock in the evening and that the election should be held in the town room of Morgan Hall. The resolution also provided that immediately after dosing the polls at 7 o'clock the annual meeting would be con- tinued in the opera house room of the same hall for voting appropriations, receiv- ing reports of officers and transacting any other business which might properly JUDICIAL decisions: elections 185 come before the meeting. After the adoption of this resolution by the board of education that body gave notice that the annual election of members of the board and the annual meeting would be held on August 7, 1906, at the time and place provided by such resolution. This notice was published in the Franklinville Journal, a paper published within the district, in the issues of July i8th and 25th, and August ist. The election and annual meeting were held accordingly. This district is a union free school district whose boundaries do not corre- spond with the boundaries of an incorporated village. It appears there are more than 300 children of school age in this district but that no action has been taken as provided by section 14, title 8 of the Consolidated School Law to establish the Wednesday following the date fixed by law for holding the annual meetings as the time for holding the annual election of members of the board of educa- tion in this district. Such election in this district must therefore be held as pro- vided by section 5 of title 8 at the annual meeting of the district. Section 13 of title 8 provides that the annual meeting of union free school districts whose boundaries are not the same as the boundaries of an incorporated village shall be held on the first Tuesday in August. The hour for opening such meeting and the place for holding it are not fixed by this section. Section 8 of title 7 how- ever provides that the annual meeting of every district in the State shall be held at the schoolhouse and at 7.30 o'clock in the evening unless at a previous meeting some other hour and place shall have been designated. It is not claimed that any meeting of this district has designated some other hour or place for holding the annual meeting. This Department has held that a district in which a union free school has been established is still an ordinar>- district except so far as the inhabitants and officers thereof are invested with additional powers and privileges. Under section 16 of title 8 all provisions of the Consolidated School Law which relate to common school districts apply to union free school districts except v^'here other or difi"erent provisions relating to union free school districts are prescribed by title 8. The statutes do not confer upon a board of education the power to fix an hour or place for an annual meeting. Therefore it must follow that in the absence of a fixed hour and place being prescribed by section 13 of title 8 and no action having been taken at a district meeting in prescribing an hour and place and the statutes not conferring power upon a board to fix such hour and place, the annual meeting of this district should have opened on August 7, 1906, at 7.30 o'clock p. m. in the schoolhouse. The action of the board in passing the resolution in question and in giving notice accordingly was irregular and without authority of law. Section 13 of title 8 provides that notice of annual meetings shall be given by the board of education in the manner stated in section 10 of that title. Sec- tion 10 provides that notice of meetings shall be published once in each week for the four weeks next preceding the date of such meeting in two newspapers published in the district, if there are two, or in one paper if there is but one published in the district. The notice given by the board appears to have been published in three issues of one paper instead of four and in only one issue of the second paper published within the district. l86 THE UNIVERSITY OF THE STATE OF NEW YORK Some time after this notice appeared in the newspapers the right of the board to designate 4 o'clock as the hour for opening such meeting appears to have been questioned. It also appears that there were two factions in the dis- trict and each faction nominated a ticket. One ticket known as the " administra- tion ticket " was supported by those who indorsed the board of education and the other ticket known as the " opposition ticket " was supported by those who were opposed to the board of education. A short time previous to the date of the annual meeting, representatives of each faction communicated with this Department to ascertain the right of the board of education to designate 4 o'clock as the hour for opening such meeting. The Chief of the Law Division was on his vacation at the time such communications were received. The situation as pre- sented in such letters appeared to be somewhat complicated and the clerk in charge of the Law Division was not willing to pass upon such questions but forwarded the letters to the chief of the division for his consideration. These letters did not contain all the information necessary to determine when the annual meeting should be held. Tlie law contains separate provisions for dis- tricts having 300 children of school age or less and districts having more than 300 children. From the information given, the Chief of the Law Division assumed that the district had less than 300 children of school age and replied to the letters in question on that understanding. As this district had more than 300 children of school age the board of education construed the letter from the Chief of the Law Division as not applying to their district. Another letter was written by the clerk of the district explaining more fully the conditions in this district and asking for a definite reply as to whether or not the meeting might legally be opened at 4 o'clock. This letter was addressed to Mr Finegan where he had been spending his vacation. Before its receipt he had gone to another place and the letter was reforwarded several times, reaching him at this Department on Tuesday morn- ing, August 7th, the date of the annual meeting. He immediately wired a reply to the effect that the meeting should open at 7.30 in the evening and suggested that a member of the board should be at the place designated for holding the meeting at 4 o'clock and give notice to any who might appear that the meeting would not open until 7.30 o'clock. There was to be a sharp contest on the election of members of the board of education. A thorough canvass had been made by both factions. The hour and place of the meeting had been given the fullest publicity possible and it did not seem practicable to the board of education to defer opening the meeting until 7.30 o'clock. It appears that a conference was held between some of the leaders of the two factions and it was agreed to open the election at 4 o'clock and keep the polls open until all had voted. This course was pursued. The meeting was called to order by a member of the board of education. The Hon. Alfred Spring, a Supreme Court justice and a member of the Appellate Division of the fourth department, was chosen chairman. He stated at the outset the ruling of this Department on the legal right of the board to call the meeting at 4 o'clock. He also stated what had informally been agreed upon and specifically asked if JUDICIAL DECISIONS : ELECTIONS 187 there was any objection to proceeding with the election. No objection was made. Representatives of both factions were present. Appellants appear to have been present, but if they were not they came in later and made no objection to the meeting being continued. Dr Kales, one of the prominent leaders of the opposi- tion party, was present. The evidence shows that he distinctly assented to the meeting being called at 4 o'clock. This he denies. But whether he agreed to it or not, he was present and ofifered no objection and participated in the proceed- ings of the meeting. The appellants also participated in the proceedings of the meeting and at no time did they object to the meeting being held open previous to 7.30 o'clock. Had the opposition ticket been successful this appeal would undoubtedly never have been brought. It is claimed by appellants that the board of education refused to be bound by the ruling of this Department in failing to comply with the suggestion contained in the telegram from j\Ir Finegan. This contention is not sustained. Immediately after the close of the annual meeting the chairman of such meeting advised this Department fully of the action taken and gave the reasons therefor which were satisfactory. The school law provides that no district meeting shall be invalid for want of due notice to all qualified voters unless it shall appear that such omission was fraudulent or wilful. In fact failure to give any notice of an annual meeting would not invalidate such meeting. The law fixes the date and the hour of annual meetings and the voters of a district may convene at that hour and transact the business of the district even if no notice is given. This annual meeting was in session at the time fixed by law and any legal voter of the district might have appeared at that time and exercised any of the rights or privileges which the law confers upon him. The legal rights of no voter of the district were violated by having the meeting opened at 4 o'clock. The polls were kept open until 8 o'clock and until all who desired had voted. The chairman distinctly asked two or three times if all who desired had voted. No protest was made by appellants, by Dr Kales or by any other person against closing the polls at 8 o'clock. It is not shown in the pleadings of appellant that any one was barred from voting by reason of the polls having been closed at 8 o'clock. The mere allegation of appellants that many were prevented from voting is insufficient. There should be some tangible evidence in support of such charge if it is to be given any weight. The same is true in relation to the charge that many illegal votes were cast. General charges of this character are not entitled to considera- tion unless there is evidence of some character to support them. Appellants do not give in their pleadings the name of one person who voted illegally or who was barred from voting by reason of the hours during which the polls were open. The pleadings show that more than 400 votes were cast and that the meeting was unusually orderly. It appears that but one vote was challenged. The chair- man questioned the challenged party and advised her not to vote. The advice was accepted. It appears that the building designated was one better adapted for holding the annual meeting than the schoolhouse. It was centrally located l8S THE UXIVERSITY OF THE STATE OF NEW YORK and accessible. No wrongful intention or motive is shown on the part of the board. The only object which the board seemed to have in mind was to afford all voters of the district an opportunity to vote for their choice of candidates in an orderly manner and with ease and comfort. In this all parties acquiesced and are therefore barred now from raising that question of irregularity and technical procedure. The main question in tliis appeal is, Did the voters of this district have a fair opportunity to legally and honestly express their choice for the candidates at such election? The accepted doctrine of popular elections as laid down by our courts is : " It is well settled that where an election has been in fact had, and the great body of the electors have actually participated in it, irregularities not proceeding from a wrongful intent, in the manner of calling, holding or certifying the elec- tion, will, where tliey do not affect the result, be ignored." It appears that the successful candidates received from 263 to ^j^, votes and the opposing candidates from 130 to 140 votes. The maioritv in favor of tb'^ successful candidates was so decisive that the general result of the election would not be changed by the few illegal A'otes which may have been cast in an election conducted as orderly and fairly as the election in question. No reason exists for ordering a new election. The appeal herein is dismissed. 542^ In the matter of the appeal of John Gasser, jr, from the acts and proceedings of the annual meeting in district no. 3, Hempstead, Nassau county. Destruction of excess ballots. The ballots cast for district officers at an annual meeting should be counted without unfolding them, except so far as to ascertain whether such ballots are single, and if it is found that the number of ballots cast was greater than the number of persons who voted, all the ballots should be replaced in the ballot box without being unfolded, and after the ballots are thoroughly mingled the excess ballots should be drawn out and destroyed. The fact that when the ballots are unfolded it is found that two of them may have been cast through error for a person for another office does not change the force and effect of this rule. Minutes of meeting. The duly recorded and certified minutes of a district meeting, included as a part of the pleadings of one of the parties to an appeal, will be taken as true, unless impeached by clear and convincing evidence. Decided November 18, 1909 John Lyon, attorney for appellant Clock S. Seaman, attorney for respondent Draper, Commissioner This appeal is brought to set aside the action of the chairman of the annual meeting in school district no. 3, town of Hempstead, county of Nassau, held August 3, 1909, in declaring Henry Rowhel elected trustee of such district for JUDICIAL DECISIONS : ELECTIOXS 189 a term of three years. Numerous affidavits have been presented by both parties, and there is conflict between them as to some of the material facts. It is con- ceded (i) that the appellant, John Gasser, jr, and Henry Rowhel were the only persons formally nominated for the office of trustee; (2) that 83 persons voted by ballot for candidates for the office of trustee, and that upon canvass by the inspectors it appeared that 85 votes had been cast; (3) that the meeting instructed the inspectors to destroy two ballots, one cast for the appellant Gasser, and the other for the respondent, Rowhel ; (4) that when the remaining ballots had been counted it appeared that Rowhel had 41 votes and Gasser had 39. The appellant alleges that when the votes remaining after the destruction of the 2 votes were counted, there were still 85 votes canvassed, 2 more than the number on the list of voters kept by the clerk of the meeting. The respond- ent denies this, but does not attempt to impeach the minutes of the meeting which show that 85 votes were counted, of which Rowhel received 41, Gasser 39, Leary 3 and Wellstood 2. The respondent Rowhel insists that he received a majority of the votes cast and was properly declared elected as trustee. He bases his contention upon the claim that there were only 85 votes in the ballot box when the count was begun ; that 2 of these ballots, which were marked "for district clerk," were cast for William Wellstood; that these 2 ballots should have been destroyed instead of the 2 ballots which were destroyed at the direction of the meeting; that the direction given by the meeting as to these 2 ballots was illegal and should be disregarded, and that counting for him the ballot which was destroyed, he received 42 votes, a majority of those legally cast at the election. It is not denied that when the ballots were counted after the polls were declared closed 2 more ballots were found than there were voters on the list. It was recognized by all present at the meeting that 2 ballots must be destroyed to make the number of ballots conform with the list of voters. The legal way would have been to count the ballots found in the ballot box without unfolding them, except so far as to ascertain that each ballot was single, and if it was found that the number of ballots deposited in the box was greater than the mmiber of persons who voted, all the ballots should have been replaced in the box without being unfolded, and after having thoroughly mingled the ballots, one of the inspectors should have drawn out the excess ballots, standing so that he could not see the ballots and with his back to the box. Such excess ballots should have been then destroyed without being unfolded. This is the procedure pre- scribed by law for like cases at general elections (see election law, 1909, § 367). This Department has held that the rules as to the destruction of excess ballots at general elections should apply to school elections (see appeal of Dillon, no. 4261, July 1894). It follows that the method used in the case now being considered was not regular. But the respondent did not object to the method adopted, and seems to have acquiesced in it. It can not be held that the vote for him, which was destroyed, should be counted for him, upon the assumption that when the ballots were unfolded two of them were illegal, and that if they were thrown ipO THE UNIVERSITY OF THE STATE OF NEW YORK out the number of ballots would conform to the list of voters. The election law, and parliamentary usage, demand that the excess ballots be drawn out before the ballots are unfolded. The rights of the candidates and the prevention of fraud demand that such a course be followed. If the vote for Rowhel, which was destroyed, had been counted for him he would have had 42 votes, enough to elect him. If it is held that he was not entitled to such vote, he was not elected and the chairman was wrong in declaring him elected. It must be held either that the method of destroying the excess ballots was illegal, which nullifies the ballot, or that the method, while irregular, was not illegal, in which event the respondent Rowhel received only 41 votes, one less than a majority of the votes cast for the office. It follows therefore that Rowhel was not legally elected. The appellant sets up as a part of his pleadings, a copy of the minutes of the meeting. The respondent has not attempted to impeach the accuracy of these minutes. It is an established rule frequently applied on appeals from the acts of district meetings, that the minutes of such meetings duly recorded will be taken as true unless impeached by clear and convincing evidence. The minutes of the meeting show that " the chairman announced 85 votes cast, 41 for Henry Rowhel, 39 for John Gasser, 3 for Arthur Leary and 2 for Wm. Wellstood." It thus appears from the minutes that Rowhel did not receive a majority of the votes cast, even admitting that he is right in his contention that the votes for William Wellstood should not be counted. It must be held that there was a failure to elect a trustee for the term of three years at the annual meeting and that a new election must be held for such purpose. The appeal is sustained. It is hereby ordered, That the action of the annual meeting of school district no. 3, town of Hempstead, county of Nassau, held August 3, 1909, in declaring Henry Rowhel elected as one of the trustees of such district for a term of three years be, and the same hereby is, set aside ; and It is hereby further ordered. That the clerk of such district give notice, as provided by law, of a special meeting of the qualified electors thereof to be held within thirty days after the filing of this decision, for the purpose of filling the vacancy caused by the failure to elect a trustee for a term of three years at the annual meeting. 3564 In the matter of the appeal of John A. Weatherwax from the proceedings of the annual school meeting in district no. 10, towns of Schaghticoke and Lansing- burgh, Rensselaer county. Where upon a ballot for trustee two ballots are found folded together, the presumption is that the vote is fraudulent, and when it is found that the ballots cast exceed the poll list by one, both ballots should be rejected. JUDICIAL DECISIONS : ELECTIONS I9I When a district clerk upon whom a copy of an appeal is served colludes with the appellant to keep all knowledge of such service from the respondent, sufficient ground is afforded for his removal from office. Decided February 9, 1887 G. H. Mallory, Esq., attorney for appellant Hon. A. C. Comstock, attorney for respondent Draper, Superintendent This is an appeal from the action of the annual meeting in district no. 10, in the towns of Schaghticoke and Lansingburgh, Rensselaer county, held upon the 31st day of August 1886, relative to the election of a trustee. It appears that there were three candidates named for the position, namely, John K. Over- rocker, Charles Moon and the appellant. John N. Bonesteel was made chairman of the meeting. Two tellers were appointed, namely, D. C. Halstead and Henry De Freest. Henry Smith was clerk and kept the poll list. When the meeting proceeded to elect a trustee, the names of the voters present were called, and each person, as his name was called stepped forward and deposited his ballot. In his appeal, the appellant alleges that at the conclusion of the voting, the tellers counted the ballots and announced that 42 ballots had been cast and the poll clerk stated that 42 persons had voted; that Mr Halstead, one of the tellers declared, while counting the ballots, that two ballots were folded together and that the chairman took and retained these two ballots and they were not counted ; that said two ballots were not folded together, but had slipped together ; that the two ballots not counted were for the appellant ; that the tellers reported the result of the ballot as follows, namely, Overrocker, 17; Weatherwax, the appellant, 16, and Moon, 7; that objection was made by the appellant and his friends to the rejection of the two ballots, and that it was insisted by them that said ballots should have been allowed to him, and that he was elected, as only a plurality was necessary to elect; that, as a result of the controversy, the meeting deter- mined to take another ballot, which was done, and resulted in Overrocker receiv- ing 21 votes and the appellant 19 votes, and Overrocker was declared elected. The affidavit of service showed that the papers of the appellant were served September 25, 1886, on Henry Smith, the district clerk. The papers were filed in tliis Department September 27, 1886. No answer having been received from the respondent, the case was disposed of on the statement of facts set forth by the appellant, and on the 15th day of November 1886, a decision was rendered, holding that the two rejected ballots should have been received and counted for Weatherwax and declaring him elected and entitled to the office of trustee. On the 17th of December, 1886, Mr Overrocker, who was declared elected trustee at the annual meeting, and afterward acted as such, and was deposed by the decision of November 14th, presented an application for a reopening of the case upon papers which had been served on Weatherwax on the 15th of Decem- ber. He alleged that he had received no notice whatever of the appeal ; that the district clerk had colluded with Weatherwax and concealed the papers from Over- 192 THE UNIVERSITY OF THE STATE OF NEW YORK rocker, the trustee most interested in the matter. He swore that he would have answered the appeal if he had had any knowledge of it, and that he had fully and fairly stated his case to counsel, and was advised by counsel that he had a good and substantial defense on the merits of the case. The statements of Mr Over- rocker remained uncontroverted the requisite length of time, and, on the 27th day of December, an order was made by the reopening of the case, and allowing yir Overrocker to come in and answer. The answer and the affidavits which he has since presented materially con- trovert the facts set up by the appellant. Not only the respondent, but the chair- man of the meeting, the two tellers who supervised the election, and numerous other persons of undoubted credibility, who stood about the table at the time the ballots were cast and counted, all swear that two ballots were folded together, both being in favor of said Weatherwax, and were so folded that the entire side of one was laid to and against the entire side of the other, and were evenly folded, with two folds, and had the appearance of one ballot, and could not have come together after they were cast ; that if both of said ballots had been counted, there would have been an excess of one ballot over the number indicated by the poll list; that at the time of the occurrence, Mr Weatherwax and his friends only claimed that one of the rejected ballots should have been counted for him, which Vv-ould have tied the result and made another ballot necessary ; that the chairman ruled that one, and but one, of the ballots folded together should be counted; that one of said ballots was counted, which resulted in a tie vote between Weather- wax and Overrocker; that another ballot was taken, upon which Overrocker was elected. The preponderance of proof seems with Mr Overrocker. The sworn statements of the chairman of the meeting and the tellers who supervised the election are entitled to great weight. If their statements are correct, the two bal- lots folded together were clearly fraudulent, and the tellers would have been justified in rejecting both of them. The fact, which seems to be pretty well established by the affidavits presented by Mr Overrocker, that the appellant at the time when the first ballot was announced, did not claim to be elected, but only insisted that one of the disputed ballots should be counted for him, and that there was a tie vote, rendering another ballot necessary, and that he maintained this position until after he was defeated upon the second ballot, is an important fact. It is important because it is added proof of the fact that it was the general belief of the meeting that the two ballots were fraudulently folded together. Whether they were or not is the vital point in the case. If they were, neither of them should have been counted, and their rejection would have elected the respondent upon the first ballot, or, upon the view of the matter most favorable to the appellant, would have justified the meeting in proceeding to another ballot. Upon all the proofs submitted, it is impossible to come to any other conclusion than that they were fraudulent, and that the appeal must be dismissed. It is proper to add that the manifest collusion between the appellant and the district clerk, by whicli the former served his appeal papers upon the latter as the official representative of the district, and the latter kept them from the knowledge JUDICIAL DECISIONS : ELECTIONS I93 of the trustee in ofhce, whom it was the purpose of the appeal to remove, not only disparages all of the proceedings of the appellant, and impairs confidence in affi- davits presented by him, but, if not capable of explanation, it affords sufficient grounds for the removal of the district clerk from office. The appeal is dismissed. 3S31 In the matter of the appeal of Reuben A. Scofield v. Stephen B. Ayres et al. \\ here, in a contest to determine who was elected trustee, it appears that five double ballots were found in the box, which were disregarded and not counted by the tellers, although the total number of ballots in the box was less than the number of persons voting, as shown by the poll list, and no evidence is produced to show that the double ballots were fraudulently folded together, but it is shown on the contrary that they might have shpped together after being cast; Held, that the tellers were not justified in throwing out the double ballots. They should have produced evidence to show that they were fraudulent, or should have counted them. If the number of ballots exceeded the poll list, the excess should have been withdrawn at random from the whole number. General allegations upon information and belief, that many persons voted who were not entitled to, will not suffice. Such persons should have been challenged at the election. It is necessary not only to state specifically who voted without right, but that such persons voted at the procurement, or in the interest of the opposition. Where affidavits are presented on one side by a number of persons who swear that they were paid for voting by the other side, and affidavits by the same affiants to the effect that their former affidavits were not true, and were made for pay, or when intoxicated, it is a case for the district attorney. Unless enough fraudulent votes are shown to have been cast to have changed the result, the Department will not set aside the election. A. C. Harwick, attorney for appellant Draper, Superintendent This is an appeal from the declared result of an election for trustees in the union free school district embracing the village of Penn Yan, in the county of Yates, held at the annual meeting, on the 7th of October 18S9. Three trustees were to be elected. Five persons were voted for. According to the determination of the inspectors, Mr Edson Potter received 536 votes, Mr P. P. Curtis 336, !\Ir Stephen B. Ayres 302, Mr R. A. Scofield 275, and Mr B. L. Holt 235, and the three first named were declared elected. The appellant, with a view to overthrowing this result, alleges : 1 That 10 ballots bearing the names of Scofield, Potter and Curtis were wrongfully thrown out and not cotmted by the inspectors. 2 That enough illegal votes were cast and counted for the ticket opposed to him to have changed the result as between Ayres and himself. 3 That the result as declared was attained through corrupt and fraudulent acts on the part of his opponents, including the purchasing of votes. 7 194 THE UNIVERSITY OF THE STATE OF NEW YORK The real and only issue is between the appellant and the respondent Ayres, and he alone interposes an answer. According to the inspectors, J\lr Curtis had a majority of loi over Mr Holt, and no substantial effort is made to overcome or set aside this result. But the declared result gave Mr Ayres but 27 majority over Mr Scofield, and the latter insists that this was attained by fraud, and should be set aside. Mr Ayres answers and denies the allegations of the appellant gen- erally and specifically. It becomes necessary to examine each of the appellant's grounds of appeal and the proofs thereupon submitted by the respective parties in interest. 1 It is claimed that 10 ballots cast for the appellant and his associates were thrown out and not counted by the inspectors. There is no conflict of evidence upon this point. Mr George R. Young, one of the members of the board of edu- cation, and a teller, kept the poll list of persons voting. At the conclusion of the voting this list showed the names of 563 persons who had voted. Upon counting the ballots before opening there Avere apparently but 559. Air Young, however, swears that upon opening the ballots, 5 double ballots, or 10 in all, were found folded together in pairs, each of which contained the names of Potter, Curtis and Scofield, and that none of these were counted. He says that the paper upon which these ballots were printed was thinner than that used for the other ballots, and that they were so folded that they might easily have been slipped together after being deposited in the box. This is the only evidence upon this point. Neither of the other inspectors makes any statement upon this evidence, and in view of the number of names on the poll list, I am of the opinion that the inspectors exceeded their authority in disregarding the 10 ballots referred to. It is more likely that tlie names of some voters were not recorded or checked than that more were reported than voted. If the votes in the box exceeded the names upon the poll list, the excess should have been withdrawn at random and cast aside, unless a majority of the inspectors were satisfied that the excess was due to the fraudulent folding of ballots together before voting. In the latter case the inspectors should appear here to sustain their action, with the reason for it. One of them appears and disowns and discredits the idea of fraudulent double ballots, and the others are not heard from. It therefore seems to me that the appellant is entitled to be credited with the 10 votes in question. 2 The appellant presents a list of names of 31 persons who voted, and who, he says, " upon faithful inquiry and search, he is unable to ascertain, possess the necessary qualifications to make them voters in said district." He swears, upon information and belief, that more than enough of them voted against him to have changed the result. It seems to me that this is not sufficiently specific and certain to be of value to appellant's case. If the right of any of these persons to vote was in doubt, they should have been challenged and required to desist or take the statutory oath, and a foundation laid for subsequent criminal proceedings against them. Neglecting that, and raising the question at this late day, it is upon the appellant to show affirmatively that these persons do not own. or hire real estate JUDICIAL decisions: elections 195 in the district, and were not assessed for more than fifty dollars of personal prop- erty on the last assessment rolls of the town, and were not the parents of children attending school during the last year, and did not meet any one of the other con- ditions which, under the statute, would qualify him to vote at a school meeting. Moreover, as it seems to me, even though he had made a prima facie case against the right of these persons or any of them to vote, he can not charge his opponent with the responsibility of defending or maintaining that right on their part with- out first showing by evidence more specific and substantial than information and belief, that such opponent had procured them to vote without right, or at least had profited by their unlawful votes. In other words, to make this point avail him, it was necessary for the appellant to show, affirmatively, by proof, that certain persons voted who had no right, and also that they voted for the respondent. It is of interest in this connection, although it v/ould not seem to be vital, that the respondent Ayres says under oath, that he has made inquiry in regard to this list of names and finds that nearly all of them were legal voters, but that he does not know whether they voted for him or not. and that he " has no knowledge or information that any vote was obtained for deponent by any person by reason of any corrupt or fraudulent practice on the part of any one." This seems to me to be certainly all it was necessary for him to say in answer to the general and unsupported allegations of the appellant upon this point. 3 In the third place, the appellant asserts and undertakes to prove that the bribery of voters was resorted to by his opponent. He presents the affidavit of Holder Snyder, who swears that one, Frank Conklin, told him he could get a dollar for voting the Ayres ticket, and that he promised to vote it but got there too late and did not vote. He also presents the affidavit of Bernard T. Barry, who swears that Morris F. Shepperd gave him an Ayres ticket to vote and that he voted it, and subsequently, Shepperd, in his presence, gave Howland Snyder one dollar to be divided between them for so doing, and Howland Snyder corroborates him. Appellant also presents the affidavit of Johnson Hewins, who swears Orville F. Randolph promised and paid him a dollar for voting the Ayres ticket. He also presents the affidavit of Frank Conklin to the efifect that he was employed for the sum of three dollars by Samuel P. Burrill to purchase " floaters " for the Ayres ticket at one dollar each, and names Charles Stanton, John Farrell and Charles Newland as men whose votes he purchased according to the terms of the agree- ment. The affidavit of John Kelly, who swears that he was promised one dollar by Frank Conklin for voting the Ayres ticket, but omits to say that he got the money, is also presented. The affidavit of Charles Stanton, saying that he was promised one dollar by Conklin, if he would vote the Ayres ticket, that he did vote it and afterwards received the money is also presented. Here is evidence to the effect that eight men at least were procured to vote against the appellant for pay. Although the number is not sufficient to wipe out the majority still standing against the appellant, I should be strongly inclined to 196 THE UNIVERSITY OF THE STATE OF NEW YORK deem it, if uncontradicted, sufficient to justify me in holding the election void in order to condemn such methods and rebuke persons who would be identified with or profit by them. I have, therefore, looked with considerable interest to see what answer the respondent makes upon this point. Mr Ayres presents an affidavit by Holder Snyder, in which that worthy swears that there is no truth in his affidavit presented by the appellant, and that he signed it when intoxicated. The respondent also presents an affidavit by Ber- nard T. Barr}', saying that there is no truth in the former affidavit made by him, and that he signed it when intoxicated and without knowing its contents. He also presents an affidavit by Howland Snyder, to the effect that he was asked by one William Sheldon to make an affidavit that he (Snyder) received money for his vote and that he refused to do so, as it would not be true ; that Sheldon asked him to state what took place, and he did so, and Sheldon pretended to write it down ; that Sheldon then read it to him, and that as he read it, it was that he did not sell his vote, and believing that to be the nature of the affidavit, he signed and swore to it. The affidavit of John Kelly is also presented, in which he swears that he did not vote at the election in question, and did not receive pay for so doing, and that he m.ade the affidavit presented by appellant at the solicitation of Sheldon, and was paid seventy-five cents for so doing. Also the affidavit of Charles Stanton that he made his former affidavit at the solicitation of Sheldon, and without knowing what was in it, and that as it is now read to him, it is not true, and that he did not receive any money for his vote at such election. This answer of the respondent to the third point of appellant's case, unfortu- nately does not reach and cover all the instances in which bribery is alleged, but it very seriously undermines his position. H some evidence of alleged bribery is shown to have been procured in the way this was, then we are left to speculate whether all is not of the same character. I am by no means satisfied that bribery was not resorted to. It is certain, however, that the appellant does not show enough of it to have changed the result of the election in any case, and out- side of legal right, there would hardly be sufficient ground in view of the doubts thrown upon all the testimony concerning bribery, for the exercise of the discre- tionary powers of the Superintendent. Whether bribery was resorted to or not, it is tolerably certain that other crimes were committed on one side or the other, if not by the principals, then by their zealous partisans, in connection with this school meeting. Such crimes should be ferreted out and punished, but this duty docs not devolve upon this Department, and it has neither the facilities nor the time for doing it. The law provides the machinery and the officers for attending to this phase of the subject. The Department will cooperate with the proper officers in punishing crime, so far as it may be able, but farther than that it can not go. The appeal must be dismissed. JUDICIAL decisions: elections 197 5401 In the matter of the appeal of Robert Thompson, school district no. 10, Depeyster, St Lawrence coimt}^ Ballot for trustee. Where two ballots for trustee were declared a tie, and a third ballot for the office was announced, votes cast on such ballot which stated that they were for a certain person for the office of collector, should not be counted, and if all the other votes were for a person named as trustee, he should be declared elected. Resolution to change site of schoolhouse. A resolution adopted at a special meeting which provided for a change of the " location of the schoolhouse to the center of the district," and did not describe the proposed site by metes and bounds, is fatally defective. Decided March i, 1909 W. A. Stamp, attorney for appellant Waterman & Waterman, attorneys for respondent Draper, Commissioner This appeal is brought by Robert Thompson on a petition complaining of the proceedings of the annual meeting of school district no. 10, town of Depeyster, county of St Lawrence, held August 4, 1908, whereby Fred E. Hurlburt was declared elected trustee of such district. It is further alleged by the appellant that the said Hurlburt unlawfully moved the school building from its former site to a site across the highway therefrom. It appears that at a special meeting called for the purpose it was voted to change the location of the school building to a point at the corner of the district. The petition is defective and inadequate to inform as to the relief desired. It contains no prayer for relief, and it is not easily understood therefrom as to what is required. It is alleged that Fred E. Hurlburt was not legally elected as trustee; that he is unlawfully performing the duties of that office. The appellant and respond- ent were both candidates for the office. There were two ballots, both of which resulted in a tie. It is claimed that one of the voters for Hurlburt was not a qualified elector. It does not appear that she was challenged and obviously was permitted to vote without question or protest. It is now too late to raise any such objection. Hurlburt was chairman of the meeting and it is claimed by the appellant that he had no right to vote for himself. This position is untenable. A chairman of an annual school meeting may vote for himself as trustee. The two ballots were therefore legally declared a tie. Upon the third ballot for trustee it appeared that four votes were cast for Hurlburt for trustee and four votes for another person as collector. It is apparent that Hurlburt's opponents misunder- stood the purpose of the ballot. The appellant and his wife insist in their affida- vits that the ballot v/as announced as for collector. The respondent and his wife are equally insistent that the ballot was announced as a third ballot for trustee. There is nothing to show which man and his wife are telling the truth. If this ballot was announced as for trustee, the votes cast for persons named as candi- dates for collector were properly excluded, and therefore the election of Hurlburt was valid. It certainly was in order to proceed with the balloting for trustee before voting for a collector. The persons voting should have known this. I am of the opinion that under the circumstances the respondent should be permitced to continue in office until the expiration of his term. 198 THE UNIVERSITY OF THE STATE OF NEW YORK The official acts of Hurlburt are valid so far as they are within the legal scope of his office. The appellant complains that the respondent disregarded the resolution adopted at the special meeting held August 15th which provided for the change of the " location of the schoolhouse to the center of the district." It does not appear that the resolution described the proposed site by metes and bounds as required by law. From what is contained in the record of this case I have no hesitation in concluding that the resolution adopted at this meeting is fatally defective and did not bind the trustee. He may have exceeded his author- ity in moving the school building to a site across the highway from the former site. But it appears that the former site was leased to the district by Mary C. Thompson for a term of years ; that it expired in June 1908 and that she refused to renew the lease. This condition may have justified the action of the trustee. It is unnecessary, however, to decide this question at this time. The schoolhouse should be permanently located on a site selected as required by law. The action of the special meeting in attempting to change the site was illegal. Another spe- cial meeting of the district should be called by the trustee at which a resolution should be voted upon describing definitely the location and boundaries of the site selected. A suitable site should be agreed upon. It should be located at a place as conveniently accessible as may be to the children of the district, having in view the accommodation of a majority of them. Swampy or badly drained places should be avoided even at the expense of accessibility. The appeal herein is dismissed ; but It is hereby ordered, That Fred E. Hurlburt, trustee of district no. 10, town of Depeyster, county of St Lawrence, within 60 days after the filing of this decision as hereinafter directed, issue and cause to be served, as provided by law, a notice of a special meeting of the qualified electors of such district for the purpose of voting upon a resolution designating a site for the schoolhouse in such district. 5396 In the matter of the election in union free school district no. i, of the town of Walton, Delaware county, held August 5, 1908. Ballots for long and short term. When three trustees are to be elected for a full term, and one for the balance of an unexpired term, the ballots must designate the terms for which the candidates are to be elected. Ballots which do not specify the terms are void, in the absence of evidence to show for whom the persons voting such ballots intended to vote. Defective ballots; intent of voter. A person who can identify a ballot cast by him for a school officer will be permitted to explain, on appeal, ambiguities and uncertainties contained therein, to the end that his intent may be ascertained and his vote counted in favor of the candidate of his choice. The voter's intent must, however, clearly appear by definite, positive and unequivocal statements. Decided November 24, 190S Draper, Commissioner It appears from the papers in this appeal that at the annual school meeting held in union free school district no. i, town of Walton, county of Delaware, JUDICIAL decisions: elections 199 nominations v.'ere made to fill the offices of three trustees, whose terms expired at that time, and to fill a vacancy caused by the resignation of one of the trustees during the preceding year. John G. More, William F. White and William D. Burns were named at this meeting as candidates to fill the vacancies caused by the expiration of the terms of the three outgoing trustees. Rev. R. C. Reed and William M. Peck, the appellant, were nominated to fill the unexpired term of the trustee who had resigned. R. W. Scott was named as a candidate for district clerk. No other nominations were made at this meeting for any of these offices. The election of these officers took place on the following day, August 5th. In accordance with the nominations made at the meeting held on the evening of August 4th, two sets of printed ballots were prepared, and deposited near the ballot box at the voting place. These ballots were in the following forms, desig- nated nos. I and 2 : N(x X FOR TRUSTEES FOR TRUSTEE Full term Short term William F. White John G. More W. D. Burns FOR TRUSTEES Full term William F. Wliite John G. More W. D. Burns No. a R. C. Reed FOR CLERK R. W. Scott FOR TRUSTEE Short term William M. Peck FOR TRUSTEE R. W. Scott When the polls were closed and the votes counted it appeared that two other sets of ballots had been prepared and voted. These ballots were in the following forms, designated nos. 3 and 4: FOR TRUSTEES Full term E. W. Harris John G. More W. D. Burns John G. More W. D. Burns FOR No. 3 FOR TRUSTEE Short term William M. Peck FOR CLERK R. W. Scott No. 4 SCHOOL TRUSTEES William M. Peck R. C. Reed Twenty-six electors voted ballot no. i ; 13, ballot no. 2 ; 13, ballot no. 3 ; and 6, ballot no. 4. One ballot was cast the same in form as no. 3, except that the name 200 THE UNIVERSITY OF THE STATE OF NEW YORK of R. C. Reed was written in the place of W. D. Burns. There were thus 59 ballots cast. The trustees acting as canvassers counted the votes for trustee and announced the result to be as follows : John G. More, 59 ; William F. White, 39 ; W. D. Burns, 57; E. W. Harris, 14; R. C. Reed, 33 ; William M. Peck, 33. They then declared that John G. ]\Iore, William F. White and W. D. Burns had been elected as trustees for the full term, and that as R. C. Reed and William ]\I. Peck had each received 33 votes there was no election of trustee for the short term. The provision of the Consolidated School Law relative, to ballots at elec- tions of district officers in union free school districts having more than 300 chil- dren of school age, is as follows : " Such ballots shall contain the names of the persons voted for, and shall designate the office for which each one is voted. The ballots may be either written or printed, or partly written and partly printed." There were three trustees to be elected in this district for a regular term of three years. There was one trustee to be elected for an unexpired term of one year. To comply with the statute it was necessary that each elector should designate on his ballot the persons for whom he wished to vote for the full term, and the person for whom he wished to vote for the short term. He could only vote for three for the full term and for one for the short term. The three can- didates receiving the greatest num.ber of votes for trustees for the full term and the candidate receiving the greatest number of votes for trustee for the short term should have been declared elected. The first question pertains to the validity of the six ballots cast in the form above designated as no. 4. The names of both Reed and Peck, the two opposing candidates for the short term, appear upon these ballots, that of Peck being printed and that of Reed being written at the end of the ballot with the name of White marked off. The appellant contends that the striking out of the name of White, who was a candidate for trustee for the full term, and adding Reed's name at the end, and leaving on that of Peck, indicates the intent of the elector to vote for Reed for the long term in the place of White, and for Peck for the short term. I do not think this contention can be sustained. There is nothing on the face of these ballots indicating the prefer- ence of the voters in respect to the two opposing candidates for trustee for the short term. A person who can identify a ballot cast by him for a school officer will be permitted to explain, on appeal, ambiguities and uncertainties contained therein, to the end that his intent may be ascertained and his vote counted in favor of the candidate of his choice. The voter's intent must, however, clearly appear by definite, positive and unequivocal statements. In the absence of suffi- cient evidence to establish such intent these ballots must be declared fatally defect- ive and therefore void. Four of the six persons voting these ballots have made affidavit to the effect that they intended to vote for More, Burns and Reed for trustees for the long term, and for Peck for trustee for the short term, and three of these four also made affidavit that they supposed the four candidates were all in the same class and that they did not know that some were candidates for the long term and others for the short term. I am of the opinion that these affidavits are not sufficient to explain the preferences of the voters casting these ballots and that they should not therefore have been counted. JUDICIAL decisions: elections 201 The remaining question is in respect to the ballot in the same form as no. 3, on which the name of W. D. Burns was erased and that of R. C. Reed was written in place thereof. This ballot must be counted as a vote for Reed for trustee for the long term, and as a vote for Peck for the short term. All the ballots actually cast at this election have been submitted by the respondents on this appeal and a recanvass is therefore possible. Applying the holdings heretofore made such ballots should have been counted as follows: Total votes cast 53. Trustees for long term, John G. ]More. 53 ; William F. White, 33 ; W. D. Burns, 52; E. W. Harris, 14; R. C. Reed, i. Trustee for short term, WilHam '}.!. Peck, 27; R. C. Reed, 26. It thus appears that John G. More, W. D. Burns and William F. White were elected trustees for the full term of three years, and that W. M. Peck was elected trustee for the unexpired term, and I so decide. The appeal herein is sustained. It is hereby ordered, That so much of the proceedings of the annual election of union free school district no. i, town of Walton, county of Delaware, held August 5, 1908, as declared the vote for the office of trustee in such district, to fill the vacancy caused by the resignation of J. A. Holley, to be a tie, is hereby set aside. It is hereby further ordered. That William M. Peck who is hereby declared to have been elected at such election to fill such vacancy, on and after the filing of this decision as hereinafter directed, shall be a member of the board of educa- tion of such district for a term to expire at the time of the annual election in 1909, and that he shall perform the duties and have the powers imposed or conferred by law upon the members of such board. 5299 In the matter of the appeal of Alva J. Sibbett from the action of a meeting of school district no. 13, towns of Manchester and Palmyra. An election will be set aside when it is shown that all who desired to vote were not accorded that privilege. Decided January 2, 1907 S. R. & B. C. Williams, attorneys for appellant Durfee & Lines, attorneys for respondents Draper, Commissioner The last annual meeting of this district convened August 7th, the date set by law, elected a trustee and other officers, transacted the usual business coming before an annual meeting and adjourned to a future date to consider the ques- tion of erecting a new school building. Five meetings were held between the date of the annual meeting and October 18, 1906. There can be no doubt but 202 THE UXIVERSITY OF THE STATE OF NEW YORK that the meeting adjourned for a special purpose. No other business was con- sidered at any of these meetings except that relating to the erection of a new building until the fifth meeting held on the i8th day of October. jMr Lines, one of the attorneys representing respondents, is clerk of the district and kept the record of the proceedings of these several meetings. His record of the proceedings of the meeting of August 21 st states that the object of the meet- ing was as follows: "The purpose of the meeting being the consideration of the question of altering and repairing the schoolhouse or building a new one." Again in stating the object of the meeting held September 4th, Mr Lines said: "To consider the matter of building a new schoolhouse." It was generally understood that the meeting was to consider the question of erecting a new schoolhouse and nothing else. It is unnecessary, however, to determine whether an annual meeting adjourned for a special purpose may con- sider at the adjourned meeting any question which rnight come before the annual meeting in order to decide the real question involved in this appeal. At the fifth adjourned meeting it was voted to increase the number of trustees from one to three and the meeting elected two additional trustees. If this meeting had the right to elect such trustees it was necessary that the election should be held as the statutes require. Under the law the election of trustees must be by ballot and this means that each voter present must be allowed the privilege of voting for a trustee if he desires to do so. This Department has repeatedly held in appeal cases that a district meeting can not legally elect a trustee by directing the clerk or some other person to cast the vote of the meeting for a particular person. W^hen an election has been held under such method of voting and an appeal therefrom has been brought to this Department such election has been set aside. It is claimed by appellant that in addition to the two nominees for whom the clerk cast a ballot two other persons, namely, Jordan Snook and William F. Garlock were nominated. Frank E. Blossom, a voter of the district, swears that he nominated Snook and Garlock. William Young, another voter of the district, swears that he seconded such nominations. Garlock swears that he heard his nomination and that of Snook made by Blossom and seconded by Young. Five other voters of the district swear that such nominations were made and seconded and that neither of such nominees declined. The pleadings of respondents contain several affidavits including that of the chairman of the meeting to the effect that they did not hear the nomination of Garlock. The chairman of the meeting also swears that at such time there was considerable talking in a low voice in the room. They admit Snook was nominated but claim he declined. Appellant claims that Snook declined when nominated for chair- man of the meeting but he did not decline the nomination for trustee. Respondents admit that after the clerk had cast a vote for the trustees the question of other nominations was raised and that it was claimed such nomina- tions had not been seconded. It is not necessary that nominations shall be seconded. A voter may vote for any person he desires in an election of trustees JUDICIAL DECISIONS : ELECTIONS 203 even if such person has not been nominated. It is not necessary that all per- sons present at a meeting shall vote. They must, however, be given the oppor- tunity to vote. Where it is apparent that there is no contest at an election it is unnecessary for all to vote. However, in such case even, the polls should be opened and one or more votes cast. The chairman might then ask if there are others who desire to vote and must give them ample opportunity to do so. He should also announce that if there are no others desiring to vote the polls will be closed. This action should be taken deliberately to the end that any person desiring to vote may do so. The polls may then be closed. All the require- ments of subdivision 4, section 14, title 7 should be strictly followed. Elections which are not held in accordance with the statutes can not be upheld. It appears from respondents' pleadings that the question of directing the clerk to cast the vote of the district for trustee was not voted upon. A motion to that effect was made but was not put by the chairman. It appears that the chairman directed the clerk to cast the vote. He announced that if there was objection a vote was necessary, but only waited 20 seconds for objection. The whole election appears to have taken place in about one minute and thereafter appellant inquired about the votes for the other nominees. Under all the cir- cumstances it must be held that the election in question was illegal. The appeal herein is sustained. It is ordered. That the action of a special school meeting of school district no. 13 of the towns of Manchester and Palmyra, held on the i8th day of Octo- ber 1906, in electing Joseph Blossom and S. M. Short trustees of said district be and the same is hereby vacated. 3822 In the matter of the appeal of Charles P. Hills, Garit Van Vranken and others v. school district no. 7, of the town of Watervliet. county of Albany. Proceedings of an annual school meeting set aside and new election ordered where it appeared that a large number of voters present thereat had no opportunity to vote upon the question of the election of a trustee. Decided November 8, 1889 O'Brien & Addington, attorneys for appellants John H. Gleason, attorney for respondents Draper, Superintendent The appellants allege that at the annual school meeting in the above named district, the chairman of the meeting arbitrarily declared one Jeremiah Sicker elected trustee for the ensuing year, without affording the voters present an opportunity to express their wishes in the matter. They say Sicker was first nominated and that Aaron Pease was also nominated, and that the chairman 204 THE UXIVERSITY OF THE STATE OF NEW YORK disregarded the last nomination, put the afiirmative of the question on the election of Sicker, and without putting the negative, or affording the opponents of Sicker an apportunity to vote against him, declared him elected. The chairman and others deny this and say that both sides of the question, on the election of Sicker, were put to the assemblage, and that no one voted against him. It is alleged on one side, and denied on the other, that the proceedings were ver}'- disorderly. It is difficult to determine all the facts in the matter, so opposed are the statements of the parties. But it is evident from these conflicting state- ments, that there were two distinct parties present at the school meeting, each with a candidate for the office of trustee, and it is scarcely conceivable that the members of one of these parties would have suffered their opponent to be elected without casting a vote against him, if the opportunity had been afforded them. On the side of the appellants, 21 men swear that they were present at the meet- ing, intending to vote against Sicker, and were prevented from doing so by the arbitrary course of the chairman. They swear also that not more than 14 persons were present in his favor. The respondents fail to controvert this material and, I think, controlling fact. In view of this, it seems to me that there should be a new election ordered, that the respective parties may at least have an opportunity for demonstrating which has a majority of adherents. The appeal is sustained. The alleged election of Jeremiah Sicker, as trustee, is declared void, and the district clerk is directed to give legal notice of a special meeting for the purpose of electing a trustee, to be held not less than ten nor more than twenty days from the date hereof. 3^14 In the matter of the appeal of Fred G. Batty v. Michael Moran, trustee of school district no. 2, of the town of Easton, county of Washington. The arbitrary course of the chairman of a district meeting in declaring himself elected trustee will not be sustained. Decided September 29, 1889 B. E. Center, attorney for appellant L. S. Pratt, attorney for respondent Draper, Superintendent At the annual meeting held in the above-named district on the 6th day of August 1889, Michael Moran was made chairman of the meeting. The appellant alleges that, immediately after organization, a motion was made that the said Moran be elected trustee for the ensuing year, when the appellant moved as an amendment that the meeting proceed to ballot for trustee ; that the chair refused to entertain the amendment, and proceeded to take a vote on the original motion ; JUDICIAL DECISIONS : ELECTIONS 205 that three or four voted in the affirmative and some twenty in the negative, but that the chairman declared the motion adopted and himself elected as trvistee. The respondent answers and denies these allegations. He says that there was no motion made to elect a trustee by ballot until after the motion that he be elected trustee had been adopted. The appellant alleges that there were but twenty-five persons present at the meeting. This is not denied by the respondent. Twenty-two persons swear that they were present and sustain the state of facts as alleged by the appellant. Six persons swear to tlie facts as set forth by the respondent. The preponderance of proof, therefore, is with the appellant. The fact that the chairman of the meeting was himself a candidate for trustee should at least have caused him to have desired that the manner of voting should be in accord with the wishes of his opponents. It seems that the meeting was characterized by much disorder, and it is alleged that forcible possession of the meeting was taken by the opponents of Moran, who selected another chairman and proceeded to hold another election for trustee, and to elect other officers. In view of all the circumstances, I do not feel justified in upholding this last-mentioned meeting. The appeal is sustained, the alleged election of Moran declared to be null and void, and the clerk of the district is directed to give public notice of a time and place for a special meeting of the district to transact the business of the annual meeting. 3656 In the matter of the appeal of John B. Aikens v. school district no. 9, town of Butler, county of Wayne. Unless it can be shown that persons alleged to be illegal voters were such, and that their votes might have changed the result, the action of a district meeting at which they voted will not be disturbed. Want of mental capacity to do ordinary business held not to disqualify a voter at a school meeting. Decided December 10, 18S7 Draper, Superintendent At the last annual meeting in school district no. 9, town of Butler, county of Wayne, it was agreed to elect a trustee by ballot. Upon the first ballot the result was a tie, and the meeting proceeded to another ballot which resulted in a majority of one for Elias H. Cady. Upon this ballot two persons, namely, William Gould and Charles Cornell, upon offering to vote were challenged, and they each took the oath and deposited their ballots. The appellant insists that these persons were not qualified electors of the district at the time of the meet- ing, and that they had not mental capacity to transact ordinary business. The appeal can not be sustained. It is not shown that the two persons whose votes are objected to voted for the prevailing side. It is claimed that they were not qualified electors of the district, but I am inclined to think that 206 THE UNIVERSITY OF THE STATE OF NEW YORK the proof submitted by the respondent establishes their right to vote, on the ground that they rent real estate Hable to taxation, and reside in the district, and were of the statutory age. There is nothing in the claim that they had not sufficient mental capacity to transact ordinary business. Unfortunately that is no disqualification, if it were true, but whether it was or not it is not important to consider. 3652 In the matter of the appeal of Charles Schafer, a resident of school district no. 3, town of Clarence, Erie county, v. the proceedings of the annual school meeting, held in said district, August 30, 1887. An election in a school district will not be overthrown because alleged legal voters did not vote or offer to vote. Any voter may freely challenge the right of another offering to vote. Decided December 8, 1887 Draper, Superintendent This appeal is taken by Charles Schafer, a resident of school district no. 3, town of Clarence, Erie county, from the proceedings of the annual school meet- ing in the election of a trustee, and from the ruling of the chairman of said meeting in excluding from voting the appellant, Fremont Danser and Henry Reigle, all o| whom the appellant alleges were legal voters. It is claimed that the appellant and Danser were tenants of real estate and the parents of children of school age, who had attended upon the school the year previous, and that Henry Reigle was a person liable to assessment for personal property. Had these men been permitted to vote, the result of the election would have been a tie vote between the opposing candidates. The respondent answers that these men did not offer to vote ; that the chairman simply stated that all who did not pay taxes would be required to swear in their votes, intending to imply that he would challenge all such persons. There was an irregularity at the election, which was held by ballot. One person voted whose right to do so was questioned and he consented that his ballot might be withdrawn, as he would not swear it in. This would vitiate the election if a single ballot would change the result. In this case it would not. The appellant and Messrs Danser and Reigle have not placed themselves in a position to criticise the election. If they claim the right to vote, they should have offered to vote, and if entitled to do so and challenged, they should have taken the prescribed oath. Any elector may challenge the right of another to vote. Indeed, only in this way may any illegal votes be kept from the ballot box. The law expressly provides the course which must be pursued by electors whose right to vote is disputed, and that course must be followed. Elections can not be overturned on the ground that persons had the right to vote and did not exercise, nor seriously attempt to exercise it. The appeal must be dismissed. JUDICIAL DECISIONS : ELECTIONS 207 3820 In the matter of the appeal of Sylvester Espenscheid and George Robinson v. school district no. 8, of the town of Sodus, in the county of Wayne. Where the proceedings of a district meeting are characterized by such disorder and con- fusion as to make it apparent that no fair expression of the opinions or preferences of the legal voters resulted therefrom, they will not be sustained, but a special meeting will be ordered. Decided October 23, 1889 Draper, Superintendent This appeal is brought for the purpose of determining who was elected trustee, or the result otherwise of the annual school meeting held in the above- named district. The papers are voluminous. I have undertaken to read them with care. After such reading I am unable to determine which of the two con- tending- parties is in the right. I am more inclined to believe that both sides are somewhat at fault for a most unfortunate controversy which exists in the dis- trict. It is claimed on one side that the annual meeting was organized before the legal time arrived, and by but seven persons who elected a trustee and trans- acted some other business, and that when some thirty or forty persons arrived at about the legal time and undertook to participate in the action of the meeting and made motions concerning district business, the chairman refused to recognize them, and that he finally declared the meeting adjourned without motion. On the other side this is all denied, and it is claimed that the meeting was not organ- ized until the proper time and was conducted fairly. Numerous witnesses swear squarely against each other. But one thing seems clear to me, and that is that there was much confusion and disorder at the meeting — so much so as to make it impossible for the Department to sustain the proceedings which are claimed to have been taken either by one side or the other. I have therefore concluded to hold that no district meeting was regularly held, and that a special meeting should be called for the purpose of transacting the business which devolved upon the annual meeting. It is therefore ordered that the district clerk of said district no. 8, of the town of Sodus and county of Wayne, call a special meeting of the district for the purpose of transacting such business, not less than ten nor more than twenty days from the date hereof. 3752 In the matter of the appeal of Henry Fink v. Patrick Hopkins. The official minutes of a district meeting show the election of a certain person as trustee, and also that the chairman so declared at the time of the election, although the action of the chairman is disputed. Held, that the official record will be accepted as true, unless impeached by clear evidence. -'08 THE UNIVERSITY OF THE STATE OF NEW YORK Illegal voting at school meetings is to be prevented by the exercise of the right of challenge and the exaction of the voter's oath as to his qualifications, and subsequent punishment for false swearing, if the person challenged is guilty of the same. A person who merely occupies land for which he pays no rent, and which he does not own or hire, and upon which he is an occupant by mere sufferance; Iieldj such occupant not to be qualified as a voter. Decided January 17, 18S9 Da vies & Johnson, attorneys for appellant James Gallagher, attorney for respondent Draper, Superintendent This appeal is brought for the purpose of determining who was elected trustee at the annual school meeting held in August 1S88, in school district no. 10, of the towns of Camden, Oneida county, and Constantia, Oswego county. It seems that, soon after the organization of the district meeting, an informal vote was taken for the office of trustee. It was then ordered that a formal ballot should be taken, which was done. On this ballot 17 votes were cast, of which 8 were for Patrick Hopkins, 7 for Henry Fink, i for John Ford and i a blank. A second formal ballot was taken, of which 10 were for Henry Fink, the appellant, and 7 for Patrick Hopkins. The official minutes of the meeting show the above facts, and that the chairman declared Fink elected. There is some controversy between the parties as to whether there was an official declaration of the result by the chair, and the chairman has made affidavits on both sides. I do not consider the question very material, but feel justified, under all the circumstances, in accepting the statement of the official record as the true one. Since the meeting, both Fink and Hopkins have claimed to have been elected. Mr Hopkins claims that Fink was not a qualified elector at the time the district meeting was held, and there- fore not eligible to a district office ; he also claims that one Henry G. Ford, who voted for Mr Fink, was not a qualified elector. On the other hand, Mr Fink, the appellant, claims that Charles Miller, Daniel Hopkins, George A. Cook and Vreeland Prest, who voted for the respondent, were not entitled to vote. No evidence is offered by the appellant to disprove the qualifications of either of the four persons named, except as to Vreeland Prest. The case must, therefore, turn upon the right of the appellant and Henry Ford to vote on one side, and of Vreeland Prest on the other. The appellant swears that he hires real estate in said district liable to taxation, and did so during the year prior to the annual meeting referred to. The fact seems to be that he is living on a farm owned by his wife, but this is not inconsistent with his claim. Moreover, it seems that his right to vote was challenged at the annual meeting, and that he insisted upon it and voted. The law does not contemplate the determination of a disputed question of that character in a collateral pro- ceeding. Its method of determining such a matter, where the right is insisted upon, is to confer the right of challenge, exact the oath of tlie voter, and punish him for false swearing. JUDICIAL DECISIONS : ELECTIONS 20g I find no sufficient ground to sustain the claim that the appellant was not a legal voter and not eligible to the trusteeship. In the case of Henry G. Ford, whose right to vote is disputed, he swears that he was born and brought up in the town of Camden, and has resided in said school district no. lo for the past six years, 'and has during that time held the office of trustee of said district for two years and the office of clerk for one year, and has voted at every school meeting held in said district during said time; that he has owned real estate, been assessed and paid taxes thereon, and has sent children to school in said district during all of said time, and that he is a legal and qualified voter. It is claimed by the respondent that Mr Ford lived in Canada for some time and that he became a naturalized citizen under the government of Great Britain. There is no proof of that fact offered, and in the absence of it, and in the face of his sworn statement showing his qualifications, and particularly in the face of the fact that for six years he has exercised the right of suffrage in the district school meetings, and during three years has held office in the district, the claim of the respondent against him can not be sustained. On the other hand, it is claimed by the appellant that Vreeland Prest, who voted for the respondent, is not a legal voter. Prest claims the right to vote, and founds his right upon the fact that he rents real property. The facts regard- ing such rental do not very clearly appear. Mr Spencer J. Ford swears that he owns the land which Prest claims to rent. Ke admits that Prest lives upon said land, but swears that he pays no rent therefor, and that he is only there at suft'erance. Prest, on the other hand, does not even say that he hires the same; he swears that he " occupies " it, and pays for the use by rendering services to the owner, in taking care of his stock, etc. By the admission, therefore, of Prest himself, his occupancy at the most, is only at sufferance. He has no title in the land. The owner would not be obliged to serve notice of dispossession upon him. He could be unceremoniously ousted at any moment. It may well be doubted if this is such an owning or hiring as would confer upon him the right of suffrage at a school meeting under the language of the statute. I therefore come to the conclusion that, of the votes cast upon the first formal ballot, there were seven legal votes cast for Mr Hopkins, seven legal votes for Mr Fink, and one for John Ford. It clearly required a majority to elect. Even if all the votes cast for the respondent had been legally cast by persons entitled to vote, he would not have been elected upon that ballot, for he had no majority of all the votes cast. This would be so considering the blank ballot as of no account. Upon the second formal ballot Mr Fink had ten legal votes and Mr Hopkins but six. From these considerations it naturally follows that the appeal must be sus- tained and the appellant declared to be entitled to exercise the functions of the office of trustee in the district named. 2IO THE UNIVERSITY OF THE STATE OF NEW YORK 3708 In the matter of the appeal of Hambly T. Orchard v. Ransom Dodge and C. P. Vail, trustees of district no. i. town of Beekman, Dutchess county. The election of a person as trustee by a district meeting to fill a vacancy, held, that the person so chosen would be entitled to hold the office only for the unexpired term, and that the district meeting could elect for no shorter period than the unexpired term. Decided September 22, 1888 Draper, Sitpermtendent This appeal is brought to determine the title of the appellant to the office of trustee in the district named. The respondents are trustees and refuse to acknowledge the right of the appellant to act with them in that capacity. The appellant sets forth the facts to be as follows : At the annual meeting held in the district in 1886, Charles A. Stephens was elected a trustee for the full term of three years. He moved from the district in the spring of 1887, and the supervisor of the town appointed P. A. Skidmore to fill the vacancy thus created. At the annual meeting in 1887 Skidmore was duly elected to fill the vacancy. The appellant claims that the district meeting of 1887 elected Mr Skidmore for the term of one year. The ininutes of the meeting seem to sustain this claim, but there seems to have been some contro- versy in the district as to whether the election of Skidmore in 1887 was for one year or for the balance of the term to which Stephens was elected in 1886. The district meeting in 1888 is shown to have considered the subject, and the meeting decided that Skidmore had been elected in 1887 but for one year, and thereupon it proceeded to elect the appellant for another year. The respondents interpose no answer, but have written a letter in which they admit the correctness of the statements of the appellant and ask for an immediate decision. I am of the opinion that the appellant has no lawful claim to the office. When the supervisor appointed Mr Skidmore trustee in place of Mr Stephens, who had moved away from the district, that appointment was good until the next annual school meeting, but the school meeting in 1887 had the power to elect a trustee to fill the vacancy for the unexpired term. There were two years of the term yet to run and they had no power to elect a trustee for that place for one year. There is apparently some conflict of opinion as to whether there was any intent to elect for one year or for the balance of the term. In my judgment, it is not material. If the meeting elected at all, it must have been for the balance of the term. It is undisputed that there was an election and Mr Skidmore was chosen. That being so, there was no vacancy to fill in the year 1888, and the election of the appellant at the school meeting of 18SS is, therefore, void and of no effect. The appeal is, therefore, dismissed. JUDICIAL DECISIONS : ELECTIONS 211 3568 In the matter of the appeal of Louis Wolf v. John Schaible, jr, and others, inspectors of election of school district no. 2, towns of !\Iiddletown and Southfield, county of Richmond. When a ticket voted at an election for trustee contained a name printed and another name written, the presumption is that the voter intended to vote for the latter, and neglected to erase the name of the former. Where the ballots cast for trustee run two short of the poll list, and two trustee ballots are found deposited in another box at the same election, they should be counted for the person whose name appears thereon. Decided May 3, 1887 Max Huebner, Esq., attorney for appellant Draper, Superintendent This appeal is taken by Louis Wolf from the action of the inspectors of election of school district no. 2, towns of Middletown and Southfield, in the county of Richmond, in declaring the result of an election for trustee held in said district August 31, 1886. The allegations of the appellant are, that at said election John Schaible, jr, Max C. Huebner and Squire Force acted as inspectors of election; that the appellant, one William Nulty and one Nelius were voted for for trustee; that the number of votes cast was 187; that the votes were canvassed as follows: For Wolf, the appellant 9^ For Nulty 84 For Nelius 8 That two ballots bearing the name of Louis Wolf for trustee were found in the box in which ballots for clerk were deposited, and two ballots for clerk found in the trustee's box; that one ballot for trustee contained the name of Louis Wolf printed thereon and the name of William Nulty written thereon; that if these three ballots had been counted, the vote would have exactly corresponded with the poll list kept at such election; that the ballot containing both the names of Nulty and Wolf was counted for Nulty, and the two ballots for Louis Wolf were rejected, and at no time included in the coimt. The chairman announced that no election had been held. The respondent, Max C. Huebner, for answer to the appeal denies that the votes as counted exceeded the poll list, and while admitting that there were two trustee ballots found in the clerk's box, denies that they were opened or that anyone saw the contents of the said ballots. He admits that a ballot containing both the names of Wolf and Nulty was counted for Nulty. He alleges that all parties interested have not been made parties, and further alleges that at least six illegal votes were cast for W^olf, and asks that the matter be referred to the school commissioner of Richmond county to enable all parties in interest to give testimony therein. 212 THE UXIVERSITY OF TPIE STATE OF NEW YORK On the 27th day of February 18S7, an order was made, dated that day, that Commissioner Theodore Frean should give notice to both parties, appellant and respondent, of a time and place where the testimony of witnesses for the respec- tive parties would be taken before him pursuant to law. On JNIarch 8, 1887. at 7 p. m., the commissioner was attended by counsel for the appellant and by ]Max C. Huebner, one of the respondents, and the attorney who appeared herein for respondents, and by Squire Force, another respondent herein, and announced to them that he would attend at the Edgewater village liall on the 12th da}' of ]\Iarch 1887, at 7 o'clock p. m., to proceed to take evidence herein pursuant to said order. Both attorneys agreed to meet at the time and place so fixed. That at the date, place and time so named, the commissioner attended and the appellant appeared wdth his counsel and witnesses, but neither respondents nor counsel appeared. After waiting over three-cjuarters of an hour the matter was, on motion of appellant's counsel, adjourned until 3.1arch 18, 1887, at 7 p. m. On the i8th day of March 1887, at 7 p. m., both appellant's and respondents' counsel appeared, and respondents' counsel applied for an adjourn- ment, which was denied, and respondents' counsel retired. The commissioner states that " the motion was denied because appellant had six witnesses present, five of whom had been subpoenaed." The evidence of the appellant was thereupon proceeded with. At the close of appellant's evidence, the appellant's counsel asked that a notice be served upon the respondents, Max C. Huebner and Squire Force, to attend at the next session, to be held on Saturday, ISIarch 28, 1887, at 9 a. n., which was done. After waiting some time on the adjourned day, one of the respondents, Squire Force, appeared, but stated that he had no counsel, did not want any and did not wish to be examined and had no witnesses he wished examined. Mr Huebner, although in the building and personally notified, did not appear before the commissioner. Thomas W. Fitzgerald, an attorney, appeared, and stated that he did so by direction of Mr Huebner, and asked for an adjournment. After waiting two hours, the commissioner declared the hearing closed, and has duly returned the evidence taken to me. From the testimony taken, I find the facts to be as follows : The poll list kept at the annual election showed that 187 votes Vv^ere cast for trustee. In canvassing the votes deposited in the trustee's box, it was found that the appellant received 92 votes, Nulty 84 and Nelius 8. There was one defective ballot, wdiich was probably intended to be cast for Nulty, and I so find. This would increase his vote to 85. There were two ballots for trustee in the clerk's box, placed there by mistake, which were cast for Louis Wolf, and as the counting of these two ballots would make the vote cast correspond exactly with the poll list, they should have been counted for him. This would have increased his vote to 94, and the result would JUDICIAL DECISIOXS : ELECTIONS 213 then appear as follows: Wolf, 94; Nulty, 85; Nelius, 8; giving Louis Wolf a clear majority of i. I therefore sustain the appeal and hold that Louis Wolf was duly elected trustee of school district no. 2, towns of Middletown and Southfield, count}' of Richmond, at the annual meeting held in 1SS6. 3533 In the matter of the appeal of O. B. Kelsey and others from the proceedings of the annual school meeting held August 31, 1886. in school district no. 2, towns of Little Valley and Salamanca, Cattaraugus county. An election of trustees set aside where it appeared that but t\vent}--t\vo persons voted. \et the ballot showed twelve for one candidate and eleven for another, one illegal ballot having been deposited, and it is not made to appear for whom. Decided January 7, 18S7 Coxe & Whipple, attorneys for appellants Draper, Superintendent This is an appeal by residents and voters of school district no. 2, towns of Little Valley and Salamanca, Cattaraugus county, X. Y., from the action of the annual school meeting held August 31, 1886, in said district, at vdiich an election for trustee was held and James Whalen was declared elected. For the appellants, it is alleged that but 22 persons voted, and yet the result showed 23 ballots cast, of which one Charles Easton was credited with 11 and James Whalen 12. The names of 11 persons, alleged to be qualified voters, are signed to the appeal. The respondents allege that 23 persons were present and that the vote as announced was correct, giving among others as having been present at the meeting one Alexander Stein; that said Whalen was declared elected trustee by the chairman; that upon information and behef two of the persons, Messrs Jones and Watkins, who signed the appeal and are alleged to liave voted for Easton, were not qualified voters at the meeting, and that one Chamberlain, whose signature is attached to appellants' papers, voted for Whalen, repeatedly promised to do so, and has admitted he did. The appellants reply and produce afiidavits of Messrs Jones and Watkins, which prove that they are qualified voters, and also several affidavits of persons who swear that Chamberlain stated to each of them that he voted for Easton at the meeting. Also, several affidavits that Alexander Stein did not vote at the meeting, and that he admitted he did not vote. From the proofs presented, it would appear that only 22 voted at the annual meeting, and the result which showed 23 ballots, proved that one illegal ballot may have been cast for either candidate. I can not determine for which candi- date it was cast. 214 THE UXIVERSITY OF THE STATE OF NEW YORK I have reached the conclusion that the appeal must be sustained and the election of James Whalen set aside and a new election held. I therefore direct the district clerk to give notice within fifteen days from the date of this decision of a special meeting to elect a trustee. 3937 In the matter of the appeal of M. H. Murray v. William T. Wilson, as trustee of school district no. 4, town of Newfane, county of Niagara. At an election for trustee five persons voted, and the right of each to vote was promptly challenged. The presiding officer was requested to administer the prescribed oath, but declined to do so. The alleged illegal votes were received. These votes determined the election. Held, that the action of the presiding officer was illegal and reprehensible, and a special election ordered. Decided December 3, 1890 Draper, Superintendent Appeal by an elector of school district no. 4, Newfane, Niagara county, from the action of the above-named William T. Wilson, in assuming to be trustee of said district, and from the proceedings of a special meeting held in said district August 12, 1890, and the action of the chairman of said meeting. The appellant alleges that a ballot for trustee at said meeting resulted as follows: For William T. Wilson, 14; for appellant, 9; blank, i; that five per- sons voted for Wilson for trustee who were not qualified electors ; that each was promptly challenged by appellant, and a request made that the prescribed oath be administered. This the chairman declined to do, and the illegal votes were received. The chair made no declaration of the result of the ballot. Mr Wilson, how- ever, has assumed the office. Deducting the five illegal votes cast for Mr Wilson from the total vote he lacked a majority, and consequently there was no choice or election. The action of the presiding ofiicer in refusing to recognize legitimate challenges, was illegal and reprehensible. The appeal is sustained. The district clerk is hereby directed to forthwith give notice of a special meeting to fill the vacancy in the office of trustee, as declared by this decision. 4395 Tn the matter of the appeal of Thomas H. Kavanaugh from proceedings of annual school meeting held on August 6, 1895, in district no. 10, town of Livonia, Livingston county, in the election of a trustee. The method of school meetings in the election of district officers when but one candidate for an office is presented of authorizing the clerk or some other person to cast a ballot for such candidate is not approved and is not deemed to be an election of such officer JUDICIAL decisions: elections 215 by ballot as required by the provisions of the school law. The polls should be open for the reception of ballots for each of the officers to be elected and the vote of every qualified voter who presents his or her vote should be received. It is optional with any voter whether he or she will vote, and when but one candidate is presented for an office and it is apparent that all the qualified voters present desire his or her election and the poll is open and balloting has commenced, after all have voted who wish, the ballot may be closed by unanimous vote of those present and the vote canvassed and the vote announced. Decided October 17, 1895 Skinner, Superintendent The appeal in the above-entitled matter appears to be intended as an appeal from the election of one P. G. Frutchey, as trustee of school district no. 10, town of Livonia, Livingston county, at the annual meeting of the district held on August 6, 1895. The appellant, as stated in his appeal, appeals from the proceedings and decision of the chairman of said annual meeting, one George L. McDonald, alleging that said chairman's name does not appear on the assessment roll, and said chairman did not send children to school in said district; that at said meet- ing, under the head of " nominations in order for trustee " a Mr Frutchey was nominated for trustee, and a motion was then made and seconded that the secre- tary be empowered to cast one ballot for Mr Frutchey; that the appellant herein moved to amend said motion that we proceed to ballot for trustee, and the amend- ment was declared lost by the chairman; that the chairman did not put the original motion but ordered the secretary to cast one ballot for said Frutchey against the remonstrance of the appellant and other legal voters present at said meeting. The contention of the appellant, as stated by him in his appeal is, thai the chairman not being a legal voter, disqualified him as chairman, and his ruling made a material difference in the conduct of said meeting under the statute ; that under the school law, all district officers shall be elected by ballot, and the chair- man shall declare to the meeting the result of each ballot as announced by the inspectors, etc. ; that the defeat of the amendment of the appellant, asking that the meeting proceed to ballot for trustee, did not amount to the election of a trustee, as it simply asked that the meeting proceed to elect officers as required by the statute, and in the 'event of any officer being elected in any other manner, said election must necessarily be void. No copy of the proceedings of said annual meeting accompanied the appeal nor is there any affidavit in support of said appeal annexed thereto or presented therewith. One Wilbor C. Turner, claiming to be the clerk of said school district has filed an answer to said appeal, which answer consists of a verified copy of the proceedings of said annual meeting, and annexed is an affidavit, signed and sworn to by seven persons who allege they are legal voters of said district, and attended said annual meeting, and that said minutes of said meeting are correct to the best of their memory and belief. By said copy of the minutes of the proceedings of said annual meeting it appears that said meeting was called to order by the clerk of the district for the 2l6 THE UNIVERSITY OF THE STATE OF XEW YORK preceding school year, and that L. M. Coe was nominated as chairman, but he declining to act, one George L. McDonald was nominated and elected chairman; that W. C. Turner was elected district clerk and L. H. Chamberlin collector; that a motion was made and seconded that the clerk cast one ballot for P. G. Frutchey for trustee, which motion was amended so as to read " that the meeting proceed to ballot for trustee " and such amendment was lost ; that the original motion, that the clerk cast one ballot for P. G. Frutchey for trustee, was unanimously carried, and the said clerk cast a ballot for said Frutchey for trustee who was declared elected by the chairman, and thereupon the meeting adjourned. The burden is upon the appellant to establish his appeal by a preponder- ance of proof. The appellant has failed to sustain his allegation in the appeal that the chairman of said meeting was not a qualified voter of the district. It Vv'as incum- bent upon the appellant herein, in charging that said chairman was not a qualified voter in said district to show by evidence the lack of qualifications on the part of said chairman in such terms as necessarily to exclude ever}^ presumption that he could be qualified under either of the heads stated in section ii, article i, title 7, of the Consolidated School Law of 1894. The appellant alleges in his appeal that the " chairman's name does not appear on the assessment roll and said chairman does not send children to school in this district." A person whose name does not appear on the assessment roll and does not send children to school m his district may notwithstanding be a qualified voter in the district under the provisions of said section 11, above cited. Under the provisions of the Consoli- dated School Act of 1864, chapter 555, of the Laws of 1864, prior to April 29, 1893, no method was prescribed as to the election of school district officers, except in districts having more than three hundred children. By chapter 500, of the Laws of 1893, which was approved by the Governor on April 29, 1893, and became operative on that date, subdivision 4, of section 16, of title 7, of said chapter 555, of the Laws of 1864 was amended requiring that such district officers shall be elected by ballot. Section 14, article i, title 7, of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894, which took effect on June 30, 1894, enacts that all such district officers shall be elected by ballot and prescribes the manner in which such elections shall be conducted. It does not appear that at said annual school meeting in said district that a suitable ballot box was provided by the trustee, nor that two inspectors of elec- tion were appointed in the manner determined by the meeting, nor that a poll list was kept containing the name of every person whose vote was received was kept by the district clerk or the clerk for the time of the meeting, nor that written or printed or partly written and partly printed ballots containing the name of the persons voted for for the respective ofiices of trustee, district clerk and collector were cast by the qualified voters of the district present at such meeting and desiring to vote, nor that any such vote was canvassed by such inspectors of election and the result of the ballot announced to the chairman of the meeting, and by said chairman to the meeting. The copy of the proceedings of said meeting, as set out in the answer to the appeal, fails to state that two JUDICIAL decisions: elections 21/ inspectors of election were appointed or that a poll list was kept. It is stated that W. C. Turner was elected clerk and L. H. Chamberlin was elected collector, but it does not state how either of them was elected. The statement therein relative to the election of a trustee is as follows : " A motion was made and seconded ' that the clerk cast one ballot for P. G. Frutchey for trustee for one year,' which motion was amended so as to read, ' that the meeting proceed to ballot for trustee.' The amendment was lost. The original motion ' that the clerk cast one ballot for P. G. Frutchey for trustee for one year ' was then unanimously carried, whereupon the clerk cast a ballot for P. G. Frutchey for trustee, who was declared elected by the chairman." The appellant alleges that under the head " nominations in order for trustee " said Frutchey was nominated by one of the voters present for trustee, and then a motion was made and seconded that the secretary be empowered to cast one ballot for said Frutchey, whereupon the appellant made the following amend- ment to said motion, namely, " that we proceed to ballot for trustee ;" that the chairman declared the motion lost; that neither at that time, nor at any other time during the meeting did the chairman put the original motion to vote, but ordered the secretary to cast one ballot for Mr Frutchey, notwithstanding an exception was then taken by the appellant and by other legal voters present. It will be seen that the only conflict between the appellant and respondent as to what actually occurred relative to the election of trustee, is as to whether or not the chairman, after announcing the defeat of the amendment offered by the appel- lant, put to vote the original motion. The respondent admits that the election of a trustee was not had and conducted as required by section 14, of article i, title 7, of the Consolidated School Law of 1894, above cited; he admits that a motion was made and entertained by the chairman that the clerk cast one ballot for said Frutchey for trustee, and that the appellant offered an amendment, that the meeting proceed to ballot for trustee. Under the provisions of the school law every qualified voter present at any school district meeting at which an election of a district officer or officers is had, has the right to vote for the person or persons he desires to fill such office or offices, and neither the chairman of the meeting nor any voter or voters present has or have the legal power, directly or indirectly, to deprive him or her of such right. The method of school meetings in the election of district officers, when but one candidate for an office is presented, of authorizing the clerk or some other person, to cast a ballot for such candidate, is not approved, and is not deemed to be an election of such officer by ballot as required by the provisions of the school law. In a few instances in which it has been indisputably established that all the voters present desired the election of a person nominated for a district office, and no voter asked that a ballot be taken I have sustained such election; but I am satisfied that even when there is no question but that the voters present at a meeting are unanimously in favor of a candidate for a district office, that to comply with the provisions of section 14, of article i, title 7, of the Consolidated School Law of 1894, the polls should be open for the reception of ballots for said office, and the vote of every qualified voter who presented his or her vote 2l8 THE UNIVERSITY OF THE STATE OF NEW YORK should be received. It is optional with the qualified voter wh.ether he will vote. and when but one candidate is presented for an office and it is apparent that all the qualified voters desire his or her election, and the poll is open and balloting has commenced, and all have voted who wish, by unanimous consent of the voters present, the ballot may be closed, and the votes canvassed and the result announced. From the papers presented in the appeal herein I am satisfied that it was not the unanimous wish of the qualified voters present at said annual meeting in said district that Frutchey be elected trustee of said district, and that the appel- lant herein by his said motion, or amendment to a motion, to the effect that the meeting proceed to ballot for trustee, was a request upon his part that a ballot be taken for trustee under the provisions of the school law, and such request should have been complied with. I find and decide that said P. G. Frutchey was not legally elected as trus- tee of said district at said annual meeting, nor was said Wilbor C. Turner legally elected district clerk of said district, nor was L. H. Chamberlin legally elected collector of said district. The appeal herein is sustained. It is ordered. That all proceedings had and taken at said annual school meeting, held on August 6, 1895, in said district no. 10, town of Livonia, Liv- ingston county, relating to the election of a trustee, district clerk and collector of said district, and of each of them, be, and the same are, and each of them is, vacated and set aside. It is further ordered, That the trustee of said district in office at the time said annual school meeting in said district convened, be, and he hereby is, authorized and directed to call a special meeting of the inhabitants of said district qualified to vote at school meetings of said district for the purpose of electing a district clerk, a collector and a trustee of said district for the present school vear. 4687 In the matter of the appeal of William Wendell and others from proceedings of annual school meeting held on August 2, 189S, in district i, Greenfield, Saratoga county, and the decision of the chairman of the meeting that Dudley J. Wait was elected trustee. At a school district meeting at which school district officers are elected it is the duty of the chairman of the meeting to declare to the meeting the result of each ballot as announced to him by the inspectors of election, and the person or persons having the majority of votes, respectively, for the several offices, shall be elected. Such chairman has no legal authority to decide who is elected as such officer or officers. Decided October 17, 1S98 S. M. Richards, attorney for respondents • JUDICIAL DECISIOXS: ELECTIONS 219 Skinner, Superintendent This is an appeal relative to the proceedings taken at the annual school meet- ing held August 2, 1898, in district i, Greenfield, Saratoga county, and from the decision of the chairman of the meeting that Dudley J. Wait was elected trustee. Dudley J. Wait and John B. Easton, the chairman of said meeting, have answered such appeal. The appellants and respondents herein admit that at such annual school meeting. Calvin Hopkins and Dudley J. Wait were each nominated for the office of trustee of said district, and thereupon a ballot was taken for the election of a trustee; that such ballot resulted as follows: Whole number of votes cast, 31, of which Calvin Hopkins received 18 and Dudley J. Wait 13; that upon each of the 13 ballots cast for Wait were written " For trustee, D. J. Wait," and upon each of the 18 ballots cast for Hopkins was written " Calvin Hopkins " only, with- out the word " trustee " or the words " for trustee ;" that after the result of the canvass of the ballots so cast was announced, the chairman of the meeting was asked to render a decision as to who was elected trustee, the said Wait and Hopkins each claiming to have been elected, and thereupon the said chairman decided and declared said Dudley J. Wait elected to the office of trustee of said district. The respondent, Wait, contends that the ballots cast for Calvin Hopkins not having thereon the word " trustee " or the words " for trustee " were blanks and v.ere not counted in favor of Hopkins, as they did not contain the name of the office for which they were cast, namely, trustee. This contention is not tenable. A " ballot " is a written or printed paper that expresses a voter's choice. A " blank " is a paper containing no written or printed matter, intended for some special use, as an unwritten or unprinted paper to be cast as a ballot. In the ballot had for trustee there was not found in the ballot box any paper or papers containing no written or printed matter ; but on the contrary, there were found 18 papers each containing the name of Calvin Hopkins. The respondent, Easton, alleges that as the school law, as contained in a circular of instruction issued by this Department, how to hold annual school meetings, a copy of which was handed to him at such meeting, requires that the ballots cast must contain the name of the office for which they were cast, he decided that Wait was elected trustee. It is clear that the respondent, Easton, did not correctly interpret such instructions. It is true that on page 2 of said circular of instructions it is stated, under the heading " Election of school district officers " " the votes should be written or printed, or partly written and partly printed, and contain the names of the person voted for as well as the office, and be deposited in the ballot box " ; but on page 8 of such circular, after stating the provisions of the school law relative to ballots for school officers, substantially the same as above quoted from page 2, it is further stated, namely, " The meeting may vote for persons for all the dis- trict offices on one ballot, or may vote for each officer separately. If the meeting decides to vote for each district officer separately, as for example, for trustee, a 220 THE UXIVERSITY OF THE STATE OF NEW YORK ballot with the name of a person thereon, but without the designation ' for trus- tee ' will be legal." In decision 4271, made by State Superintendent Crooker, October 5, 1894, in the appeal of Charles Lamoreaux and others from proceedings of annual school meeting held in district 7, Schoharie, Schoharie county, on August 7, 1894, Superintendent Crooker said: "The ballot should be written or printed, or partly written and partly printed, containing the name of the person voted for and designating the office for which each is voted. This latter provision has especial reference to where all the district officers are elected upon one ballot. When each district officer is balloted for separately the ballot will be valid, having thereon only the name of the person voted for, as each voter has knowl- edge of the office for which the ballot is being taken and the ballot is for that office only." See page 237, etc. volume i of the report of the State Superin- tendent of Public Instruction for 1895. At the annual school meeting held August 2, 1898, in district i, Greenfield, Saratoga county, no ballot was taken for the election of all the officers of such district at one and the same time, and upon one ballot containing the name of a person for each office, and designating the office for which each was voted. A ballot was taken for the office of trustee only, and each voter present and voting at the meeting had knowledge that the ballot so taken was for the office of trustee only. The chairman of a school meeting at which district officers are balloted for, has no legal authority to decide who is elected such officer or officers. Under the provisions of subdivision 4 of section 14, article i, title 7 of the Consolidated School Law of 1894, it is enacted that after a canvass of the votes cast the inspectors of election shall announce the result of the ballot to the chairman; that the chairman shall declare to the meeting the result of each ballot as announced to him by the inspectors, and the persons having the majority of votes respectively, for the several offices, shall be elected. The chairman can only declare to the meeting the result of the ballot as announced to him by the inspectors of election; the school law determines and declares who are elected, namely, the person or persons having a majority of the votes. I decide : 1 That in the ballot had at such annual school meeting for a trustee for the district, the 18 ballots found in the ballot box, containing on each the name of Calvin Hopkins, under the consolidated school law and the decisions of this Department, were valid ballots for said Hopkins as trustee of the district; that the inspectors of election in their canvass of the ballots cast for trustee should have counted said 18 ballots for Calvin Hopkins for trustee, and should have announced to the chairman of the meeting as the result of such canvass as follows: Whole number of votes cast for trustee, 31; of which Calvin Hopkins received 18 and Dudley J. Wait 13. 2 That at such annual school meeting, Calvfn Hopkins having received, in a ballot had thereat for trustee, a majority of the votes cast, was duly and legally elected trustee of such district. JUDICIAL DECISION'S: ELECTIONS 221 3 That the decision or declaration made by the chairman of such meeting that Dudley J. Wait was elected trustee of the district was without authority of law, and was void. The appeal herein is sustained. It is ordered, That the said decision or declaration made by John B. Easton, ns chairman of the annual meeting held on August 2. 1898, in district i, Green- held, Saratoga county, after the ballot had thereat for trustee, and the announce- ment by the inspectors of election of the result of such ballot that Dudley J. Wait was elected trustee of said district be, and the same is hereby, vacated and set aside. AQ02 In the matter of the appeal of John R. Welch and John F. Converse, trustees of school district no. 14, town of Ellisburgh, Jefferson county, from pro- ceedings of annual school meeting held in district no. 14, town of Ellisburgh. Jefferson county. Where at any school district meeting a district officer is elected by the color or form of an election although not strictly in accordance with the school law, such person becomes a de facto officer of the district and as such is authorized and required to perform the duties of his office until by an order of the Superintendent of Public Instruction such election is declared to be illegal and void. A person elected as trustee of a school district by color of an election and no appeal having been taken from his election, he will be deemed to have been duly elected for the term of time provided for in the school law. The action of a school district meeting, under the assumption that such election was invalid and thereupon electing a person to fill the vacancy assumed by the meeting to exist, without any order of the Superintendent declaring such election invalid, will be illegal and void. Decided December 17, 1894 A. M. Lefihngwell, attorney for appellants H. B. Pierson, attorney for respondents Crooker, Superintendent This appeal is taken from the action of the annual school meeting, held on August 7, 1894, in school district no. 14, town of Ellisburgh, Jefferson county, in the election of a trustee of said district to fill a vacancy in place of one F. A. Wood; and from the election of one Mrs Mary E. Wood as such trustee to fill such vacancy. The main ground upon which the appeal is taken, as alleged in the appeal, is that there was no vacancy in the office of trustee of said district to be filled by said district meeting, the said appellant, Welch, having been elected by color of an election, at the annual school meeting in said district held on August 22, 1894, as a trustee for the term of three years, and no appeal having been taken from such election, and the said W^elch never having resigned or refused to ser\'e or otherwise legally vacate said office. '222 THE UNIVERSITY OF THE STATE OF NEW YORK From the proofs presented the following facts are established : At the commencement of the school year of 1893, to wit, the first Tuesday of August 1S93, school district no. 14, town of Ellisburgh, Jefferson county, had the trustees, namely, the appellant, John R. Welch, whose term of office would expire on August 23, 1893, H. D. Laird, whose term of office would expire on the first Tuesday of August 1894, and J. F. Converse, whose term of office would expire on the first Tuesday of August 1895 J that some time in August 1893, and prior to the time of the annual school meeting in said district, to wit, on the fourth Tues- day of August 1893, the appellant, John R. Welch, resigned to S. W. Maxson, then school commissioner of the commissioner district in which said school district was situate, said office of trustee then held by him, which resignation was duly accepted by said Maxson; that no special meeting of said school dis- trict was called or held for the purpose of supplying the vacancy created in the office of trustee by said resignation of said Welch; that on August 22, 1893, the annual school meeting in said district was held, and among other acts and proceedings had and taken thereat, a motion was made that the clerk be instructed to cast one ballot for John R. Welch, the appellant, for trustee for three years, and the chairman put the motion to a viva voce vote, and not being able to decide, he called for a rising vote, when 16 persons present voted for the motion and 14 against ; whereupon the chairman declared the motion adopted, and thereupon the clerk of the meeting cast one ballot for said Welch as trustee of said district for three years, and said Welch was declared elected as such trustee ; that no appeal has ever been taken from the said action and proceedings of said anuual school meeting to the Superintendent of Public Instruction, nor any submission to him of the question as to the legality of said election of said A\ elch as trustee upon an agreed statement of facts relative to such election, signed by the contesting parties ; that on December 4, 1893, said School Com- missioner Maxson, assuming that there was a vacancy in the office of trustee of said school district caused by said resignation of the ai^pellant, Welch, as aforesaid, and the failure of the annual school meeting in August 1893, to elect a trustee, and that such vacancy had existed for more than thirty days, appointed one F. A. Wood as trustee of said school district to fill the vacancy in said office so assumed by him, said Maxson, as existing; that said appellant, Welch, was present at said annual meeting, held on August 22, 1893, and did not then nor has he since declined said office of trustee, nor has he refused to serve as such trustee, and he has not resigned said office or otherwise legally vacated said office, but, on the contrary, has during the time since said annual school meet- ing acted, to some extent, as such trustee ; that the said F. A. Wood, between December 4, 1893, and August 7, 1S94, did or performed acts as such trustee; that at the annual school meeting held in said district on August 7, 1894, a motion was made that the meeting proceed to ballot for a trustee to fill vacancy in the place of F. A. Wood who had been so, as aforesaid, appointed by School Commissioner Maxson to fill an assumed vacancy, and the appellant, Welch, offered an opinion by A. M. Leffingwell and a letter of this Department in JUDICIAL DECISIONS : ELECTIONS 223 regard to the annual school meeting held on August 22, 1893, both of which were read to the meeting, whereupon a vote was had upon said motion and the motion was declared adopted, and thereupon a ballot was taken for trustee, and one Mrs Mary E. Wood declared elected ; that from such election of Mrs Wood this appeal is taken. Under the provisions of subdivision 4 of section 15, title 7 of the Con- solidated School Law of 1864 as amended, which were in force on August 22, 1893, school district officers were required to be elected by ballot. It is clear from the proofs that the appellant, John R. Welch, was not elected a trustee of said school district at such annual meeting in accordance with the provisions of the school law then in force. Every qualified voter at a school meeting has the right to vote by ballot for whom he or she desires for any school district office, and such voter can not be deprived of such right by the action of such meeting, either directly or indirectly. The method of electing a trustee pursued at said meeting, if allowed at all, should only be allowed when such motion is the unanimous wish of the qualified voters present at such meeting. Under the school law, the only person who has the power to decide whether or not school district officers have been legally elected is the Superintendent of Public Instruc- tion, and the only method in which the question can be brought before him for a decision that will be binding upon all parties and the school district is by an appeal from the action and proceedings of the school meeting on the election of such officers, or by a submission to him of the question of the legality of such election by the contesting parties upon a statement of facts agreed upon and signed by such contestants. No appeal or submission, as above stated, has been taken or made relative to the action or proceedings of said annual school meeting held August 22, 1893, nor relative to the election of the appellant, Welch, as trustee, and, therefore, no decision has been made by me that the election of said Welch was illegal. Where at any school district meeting a school district officer is elected by the color or form of an election, although not strictly in accordance with the provisions of the school law, such person by such color of election becomes a de facto officer of the district, and as such de facto officer is authorized and required to perform the duties of the office until by an order of the Superin- tendent of Public Instruction such election is declared to be illegal and void. Until a decision is made declaring void the proceedings of the meeting that elected him, he is to all intents and purposes a legal officer of the district so far as the public and third persons are concerned while acting in his official capacity for the district. After said Welch, in August 1893, and prior to the annual meeting of said district, resigned the office of trustee and such resignation was accepted, there was a vacancy in said office which could have been supplied by a special meeting of the qualified voters of said district for the balance of the unexpired term. No such special meeting was had ; but at the annual meeting of the district, held on August 22, 1893, the appellant, Welch was, by the color or form of an 224 THE UNIVERSITY OF THE STATE OF NEW YORK election, elected a trustee of the district for the term of three years. When on December 4, 1893. Commissioner Maxson made his order appointing F. A. Wood as trustee of said district to fill a vacancy, there was no vacancy in the office of trustee of said district existing then ; and said commissioner erred in assuming there was such vacancy, or that the annual meeting held in August, 1893, failed to elect a trustee for the full term of three years. I find and decide. That upon the facts established herein and the reasons hereinbefore stated, the action of the annual school meetinsf held in said district on August 7, 1S94, in the election of Mrs Mary E. Wood, as trustee of said district, was illegal and void. The appeal herein is sustained. It is ordered, That so much of the action and proceedings of the annual meeting held on August 7, 1894, in school district no. 14 of the town of Ellis- burgh, Jefferson county, as relates to the election of Mrs Mary E. Wood, as a trustee of said district, to fi.ll a vacancy in place of F. A. Wood, or any vacancy, be, and the same hereby is, vacated and set aside as illegal and void. 4375 In the matter of the appeal of John HoUenbeck from proceedings of annual school meeting held on August 6, 1895, in district no. 3, town of Erin, Chemung county. An informal ballot for district officers is not recognized in the school law, but there is no provision of said law which forbids the qualilied voters at a district meeting at which any district officer or officers are to be elected, from taking an informal ballot to ascertain the views or wishes of such voters as to the person or persons to hold said office or offices. When said meeting adopts a resolution to take such informal ballot, such ballot is not a ballot under the school law for the election of a person to hll the office, and the ruhng of the chairman of the school meeting that the person receiving the majority of votes was elected trustee of the district was error. Decided September 2-, 1895 Skinner, Superintendent The appeal and affidavits in support thereof, in the above entitled matter, were filed in this Department on August 26, 1895. ^"0 answer to said appeal having been filed in this Department, the allegations contained in the appeal and proofs are taken as admitted. The allegations contained in the appeal herein, and affidavits relating to proceedings taken in the election of a trustee and voting taxes, are substantially as follows : That an annual school meeting was held in district no. 3, town of Erin, Chemung county, on August 6, 1895 ; that a chairman and secretar}^ of the meeting and two inspectors of election were chosen ; that the trustee had neglected to furnish a suitable ballot box to receive the ballots cast in the election of JUDICIAL DECISIONS : ELECTIONS 22.5 district officers ; that a motion was duly made, seconded, entertained by the chairman and unanimously adopted that the meeting proceed to take an informal ballot for a trustee of said district ; that such informal ballot was taken, two candidates being voted for, at which 43 votes were cast, of which one person received 20 votes and another person received 23 votes ; that on said informal ballot at least four qualified voters of said district, then present, did not vote but intended to vote when a formal ballot for trustee should be taken ; that after the result of said informal ballot was announced a motion was made and seconded that the meeting proceed to a formal ballot for trustee for the district ; but the chairman of the meeting ruled said motion out of order and refused to put the said motion to a vote ; that said chairman was asked to set aside the proceedings had in said informal ballot, and that the meeting proceed to the election of a trustee, which was denied, and said chairman declared the person who received a majority of the votes cast at said informal ballot duly elected as trustee of the said district. It further appears that two propositions for a levy of a tax, for two different purposes, were brought before said meeting for action, and that the vote thereon was not taken by ballot, or by taking and recording the ayes and noes of the qualified voters of the district present and voting upon each of said propositions, as required by the school law ; but such vote was taken viva voce. By section 14, of article i, title 7, of the Consolidated School Law of 1894. chapter 556 of the Laws of 1894, all school district officers shall be elected by ballot, and the trustees of each school district are required to provide a suitable ballot box at elections of district officers. An informal ballot for district officers is not recognized in the school law, but there is no provision of said law which forbids the qualified voters at a dis- trict meeting at which any district officer or officers are to be elected, from taking an informal ballot to ascertain the views or wishes of such voters as to the person or persons to hold said office or offices. When said meeting adopts a resolution to take such informal ballot such ballot is not a ballot under the school law for the election of a person to fill the office, and the ruling of the chairman of the annual school meeting, held in said district no. 3, town of Erin, that by and under said informal ballot the person receiving the majority of votes was elected trustee of the district was error, as it was apparent that no voter was misled, but all the voters present clearly understood that in and by such ballots they were simply giving expression of their choice for trustee, or putting candi- dates for the office in nomination, to be voted for when a regular ballot for the election of a trustee should be had. By such wrongful exercise of power on the part of the chairman of said meeting, in refusing to put the motion for a formal ballot for trustee, the qualified voters of said district present at said meeting were prevented from exercising the right accorded them under the school law in the election of a trustee for said district. Li subdivision 18, of section 14, article i, title 7, of said Consolidated School Law of 1894 it is enacted: " In all propositions arising at said district meetings, 8 226 THE UNIVERSITY OF tllE STATE OF NEW YORK involving the expenditure of money, or authorizing the levy of a tax or taxes, the vote thereon shall be by ballot, or ascertained by taking and recording the ayes and noes of such qualified voters attending and voting at such district meetings." It appears that in the action of said annual meeting in authorizing the levy of two taxes the vote thereon was not taken by either of the methods required by the provision of law above cited. I find and decide that at the annual school meeting held on August 6, 1895, in school district no. 3, town of Erin, Chemung county, no one was legally elected a trustee of said district; that no legal authorization of a levy of a tax or taxes for any sum whatever was made at said annual meeting; that all pro- ceedings had and taken at said meeting, relating to the election of a trustee of said district, should be vacated and set aside as illegal and void ; that a special meeting of the district should be held for the purpose of electing a trustee of the district, and to act upon propositions for raising money for school purposes and authorizing the levy of a tax upon the taxable property of said district therefor. The appeal herein is sustained. It is ordered, That all proceedings had and taken at said annual meeting held on August 6, 1895, ^^ said district no. 3, town of Erin, Chemung county, in the election of a trustee of said district, and in authorizing the levy of a tax or taxes in said district, be, and the same are, and each of them is, vacated and set aside. It is further ordered. That a special meeting of the inhabitants of said school district no. 3, town of Erin, Chemung county, be called for the purpose of electing a trustee of said district, and to act upon propositions for raising money for school purposes and authorizing the levy of a tax upon the taxable property of said district therefor. 4200 In the matter of the appeal of W. A. Roedel, F. J. Tolles and Walter C. Reid, from proceedings of annual meeting in union free school district no. i, town of East Chester, Westchester county. At an annual meeting of a union free school district for the election of trustees, three persons were elected, when only two persons should have been elected for a full term of three years. Held, that the person elected to fill an alleged vacancy, no such vacancy existing, such election was illegal and void. The voters in a union free school district have no authority, under the school law, to elect a district clerk. Decided November 15, 1893. Herbert B. Lent, attorney for respondents Crooker, Superintendent The appellants, three members of the board of education of union free school district no. t, town of East Chester, Westchester county, appeal from jrniciAi. decisions: elections 227 action and proceedings of the annual meeting of said district in the election of three persons as trustees of said district, and of a person as district clerk. The appellants ask for my decision to questions relative to the action of said meeting in relation to other matters before said meeting. Nathan Johnson, a member of said board of education, has interposed an answer to said appeal, and the appellants have tiled a reply to such answer. Both the appeal and answer herein have annexed to them, a copy of the proceedings of said annual meeting, signed by the chairman and secretary of said meeting. It appears that said meeting was called to order at 7.30 p. m., on August 22, 1893, and Nathan Johnson was duly elected chairman, and W. E. Heyward, secretary; that a motion was made and adopted to elect two trustees for full term, and one trustee to fill vacancy caused by resignation of Mr Belmont; that two tellers were appointed and a ballot was taken with the result as follows: Theodore D. Rich received 109, and Fred H. Hart 108 ; Thomas Beattie received 56, and Lawrence B. Holler 55, for the full term of three years; Lawrence B. Holler received 108 votes to fill vacancy, one year ; and E. L. Tourmine received 108 votes for district clerk; that upon the result of the ballot being announced the chairman declared Theodore D. Rich, Fred H. Hart and Lawrence B. Floller to be duly elected to fill the offices of trustees, and E. L. Tourmine, as district clerk. The contention of the appellants is that there were but two trustees to be elected, to wit, for the full term of three years, and that the election of Mr Holler, as trustee, was illegal and void, as there was no vacancy in the board of trustees to be filled ; also, that the meeting had no power to elect a district clerk. It is admitted by the appellants and respondent that the board of trustees of said union free school district, as constituted at the establishment of said union free school, consisted of six members, and it does not appear that such number has been changed. It appears that in 1889, Thomas R. Hodge and Edward Cordial were elected trustees for the full term of three years, and their terms of office would expire in 1892; that in 1890, Theodore D. Rich and L. B. Halsey were elected trustees for the full term of three years and their terms of office would expire in 1893; that Halsey resigned March 8, 1892, and Mr Reid was appointed in place of Halsey; that in 1891, Nathan Johnson and William Hitchcock were elected trustees for the full term of three years, and their terms of office would expire in 1894; that Hitchcock resigned April 15, 1892, and Mr Roedel was appointed in place of Hitchcock; that in 1892, it was necessary, at the annual meeting, to elect three trustees for three years in place of Messrs Hodge and Cordial, one trustee for two years in place of Hitchcock, and one trustee for one year in place of Halsey; that at the annual meeting in 1892, W. A. Roedel and Walter C. Reid were elected trustees for the full term of three years ; F. J. Tolles for trustee for the term of two years, and F. W. Belmont for the term of one year; that after said annual meeting of 1892, said board consisted of the following: Roedel and Reid, each for three years; their respective terms expiring in 1895; Johnson 228 THE UXIVEKSITV OF THE STATE OF NEW YORK and Tolles, for two years; their respective terms expiring in 1894, and Rich and Belmont for one year; their respective terms expiring in 1893; that Bel- mont removed from the district in the spring of 1893, and School Commissioner Noxon appointed Mr Yale as trustee, to fill the vacancy caused by such removal of Mr Belmont. It appears from the foregoing that at said annual meeting, held m said district, in August 1893, the terms of office as trustees of Messrs Rich and Belmont respectively expired, and said meeting had the legal right, and it was its duty to elect two trustees for the full term of three years in place of said Rich and Yale, appointed in the place of Belmont; that said meeting did elect Theodore D. Rich and Fred H. Hart as trustees for the full term of three years; that said board of trustees of said district, since August 22, 1893, is con- stituted as follows: Nathan Johnson and F. J. Tolles, whose respective terms of office will expire in August 1894; W. A. Roedel and W. C. Reid, whose respective terms of office will expire in August 1895, and Theodore D. Rich and Fred H. Hart, whose respective terms of office will expire in August 1896. I find and decide that the action of said annual meeting of said district, in voting for L. B. Holler, as trustee, for an unexpired term, was illegal and void, there not then existing any vacancy in the unexpired term of any trustee that the meeting had the legal power to fill, said meeting having the authority and power only to elect tvv^o trustees for a full term of three years in place of Messrs Rich and Yale; said Yale having been appointed in place of Belmont, who had removed from the district, before the expiration of his term of office. Section 7 of title 9 of the Consolidated School Law of 1864, as amended by chapter 161 of the Laws of 1877, provides that boards of education of union free school districts may, with the advice and consent of a majority of the legal voters entitled to vote on questions of taxation, to be had at an annual meeting of the inhabitants, appoint a clerk to the board. Such appointed clerk must be a resident of the district, and a person other than a trustee or a teacher in the employ of the board. The clerk so appointed shall be the general librarian of the district, and also perform all the clerical and other duties pertaining to his office. For his services he shall be entitled to receive a salary, which shall not be greater than twenty-five cents a year for each scholar, to be computed from the actual average daily attendance for the previous year, as set forth in the annual report to the school commissioner, or less, as in the best judgment of said legal voters to be had at such annual meeting ; such consent and approval not to be for a longer period of time than one year. In case no provision is made at an annual meeting of the inhabitants for the appointment and payment of a clerk, then, and in that case, the board will appoint one of their own num- ber to act as clerk. Prior to the amendment of section 7, 1877, said section provided that said board should elect one of their number clerk thereof, who should also be the generai librarian of the district. It seems that said union free school district no. I, of East Chester, has for a number of years elected a " district clerk" and did, at the last annual meeting, elect one E. L. Toumine " district clerk ;" and the said board of education have elected annually one of their number as clerk. JUDICIAL DECISIONS : ELECTIONS 229 Under section 7, above referred to, the board of education can appoint a clerk, not a member of said board, who will be entitled to a salary when so authorized by an annual meeting. The annual meeting does not " appoint," but may " advise and consent " to the appointment of a clerk at a certain salary, which salary is limited to twenty-five cents for each pupil of the number in actual average daily attendance, as stated in said section. Such authorization of the meeting to such appointment is valid for one year only. The clerk so appointed does not hold over after his term of office, which is one year from the date of the annual meeting. If no provision is made by the annual meeting for a clerk, the board shall appoint one of their own number as clerk ; but no salary or compensation can be paid for his' services. The annual meeting in said district did not " advise and consent " to the appointment of a clerk at a certain salary ; it elected a clerk, but that it had not the legal right to do, for by section 7, the appointment must be made by the board. Not having advised and consented to the appointment of clerk at a cer- tain salary in the manner provided by said section 7, the election of the meeting- of said Toumine as district clerk was illegal and void, and the board of educa- tion had the legal authority to elect one of said board as clerk, but who can not be paid any salary or compensation for his services. By section 15 of title 9 of the Consolidated School Law of 1864, it is pro- vided that it shall be the duty of boards of education, at the annual meeting of the district, besides any other report or statement required by law, to present a detailed statement in writing of the amount of money which will be required for the ensuing year for school purposes, exclusive of the public moneys, specify- ing the several purposes for which it will be required, and the amount of each. By section 16 of said title 9 it is provided that after the presentation of such statement, the question shall be taken upon voting the necessary taxes to meet the estimated expenditures, and when demanded by any voter present, the ques- tion shall be taken upon each item separately, and the inhabitants may increase the amount of any estimated expenditures, or reduce the same, except for teachers' wages, and the ordinary contingent expenses of the school or schools. At said annual meeting in said district said board submitted to the meeting a detailed statement in writing of the amount of money which would be required for the year ensuing for school purposes, exclusive of public moneys, specifying the several purposes for which it will be required, and the amount for each, and the said several sums amounted in the aggregate to $4400. No voter present at the meeting demanded that the question should be taken upon each item sepa- rately. A motion was made that the amount to be raised be the sum of $3800, without specifying the several purposes which it was for or the amount of each, and upon a ballot taken upon this motion 93 votes were cast, of which 58 votes were for an appropriation of $3800 and 35 votes were against any appropriation. The meeting had the legal right to reduce the amount estimated by the board to be required for the year then ensuing for school purposes, except for teachers' wages and the ordinary contingent expenses of the schools, and the vote to raise 230 THE UNIVERSITY OF THE STATE OF NEW YORK the sum of $3800 was legally adopted. The action of the meeting in voting the sum of $3800 can not be ignored by the board, nor can the board assess the amount of $4400 as presented by it to the meeting. The meeting failed to desig- nate the specific purposes for which the sum of $3800 should be expended and the amount for each purpose, and I can not direct the board as to the expendi- ture thereof, nor indicate in what items submitted by the board the reduction is to be made. Section 17 of title 9 of the Consolidated School Law provides that, if the inhabitants shall neglect or refuse to vote the sum or sums estimated necessary for teachers' wages, after applying thereto the public moneys, and other moneys received or to be received, for that purpose, or if they shall neglect or refuse to vote the sum or sums estimated necessary for ordinary contingent expenses, the board may levy a tax for the same, in like manner as if the same had been voted by the inhabitants. A motion was made at said meeting to raise $625 in addition to the sum already voted for the purpose of reimbursing the various funds over- drawn by reason of tlie establishment of the new school, and for other expenses not provided for in the appropriation of last year, and said motion was laid upon the table. It was optional with the voters present to lay the motion upon the table or to have taken a ballot upon it. The meeting decided to lay the motion upon the table, and their action was legal. There is no provision of the school law which required that a ballot should be taken upon it. The proposed appro- priation of $625, in addition to the sum already appropriated, not having been voted for by the meeting, there is no legal authority in the board to include the same in the tax list and assessment of the district. Section 20 of title 9 of the Consolidated School Law provides that it shall also be the duty of said boards of education, respectively, to have reference in all expenditures and contracts to the amount of moneys which shall be appropriated, or subject to their order or drafts, during the current year, and not to exceed that amount. The qualified voters in union free school districts, duly and legally assembled, only, under the school law, have authority to make appropriations of money and vote taxes for maintaining schools in their respective districts. Boards of trustees have no authority, under the school laws, to assess and levy taxes, other than for such purposes and such sums as they are so directed by the district meetings, except when such meetings neglect or refuse to vote sums necessary for teachers' wages and for ordinary contingent expenses. Said boards have no legal authority to exceed in their contracts and expenditures the sums appropriated and voted at the district meeting. When the district meeting votes a specific sum for a specific purpose, no part of sum so voted can be legally expended by said boards for any purpose other than that for which it was appro- priated ; nor can said boards legally transfer unexpended balances in any of such funds to make good a shortage that may exist in any other fund except by con- sent of the district meeting, as said boards have no legal authority to exceed the sums appropriated for special purposes, and, hence, there should not be any shortage. JUDICIAL DECISIONS : ELECTIONS 23I So much of the appeal herein as is taken from the action and proceedings had and taken at the annual meeting held in union free school district no. i, East Chester, Westchester county, relative to the election of Lawrence B. Holler as trustee of said district for an unexpired term, and the election of E. L. Toumine as district clerk, is sustained, and, as to the other matters, said appeal is dismissed. It is ordered that so much of the action and proceedings of the annual meet- ing held on August 22, 1893, in union free school district no. i, town of East Chester, Westchester county, as relates to the election of Lawrence B. Holler as a trustee of said district, and the election of E. L. Toumine as district clerk, be, and the same hereby is, vacated and set aside as illegal and void ; and the election of said Holler as trustee and said Toumine as district clerk is, and each of them is, hereby declared to be illegal and void. 4183 In the matter of the appeal of John B. Russell and others, from the proceedings of the annual school meeting held August 22, 1893, in union free school district no. 2, Wawarsing, Ulster county, in the election of trustee. Where, at an annual school meeting for the election of a trustee, 67 ballots were cast, of which Lewis D. B. Hoornbeek received 33 votes, Louis A. Hoornbeek received 32 votes, S. A. Hoornbeek received i vote and " C. D. B." received i vote, and the one vote for S. A. Hoornbeek was given to Louis A. Hoornbeek, and the ballot with " C. D. B." was given to Lewis D. B. Hoornbeek, and said Lewis D. B. Hoornbeek declared to be elected. Held, that there was no election of trustee and a special meeting of the district was ordered for the purpose of electing a trustee. Decided September 22, 1893 Crooker, Superintendent This appeal is from the proceedings of the annual meeting, held in union free school district no. 2. Wawarsing, Ulster county, held on August 22, 1893, in the election of a trustee. It appears, from the papers presented upon this appeal, that 67 ballots were cast for the office of trustee, as follows: Lewis D. B. Hoornbeek received 33 votes ; Louis A. Hoornbeek received 32 votes ; S. A. Hoornbeek received i vote, and " C. D. B." received i vote. In the canvass of the ballots so received the one vote for S. A. Hoornbeek was given to Louis A. Hoornbeek, and the ballot with "C. D. B." upon it was given to Lewis D. Hoornbeek, and result of the ballot declared by the chairman of the meeting was that there were 67 votes cast, of which Lewis D. B. Hoornbeek received 34, and Louis A. Hoornbeek received 33. Trustees of the school districts of the State must be elected by ballot and, except in school districts where the election of trustees is had under chapter 248, of the Laws of 1878. and the amendments thereof, the persons having a majority of votes respectively, shall be elected. 232 THE UNIVERSITY OF THE STATE OF NEW YORK At the annual meeting held in district no. 2, Wawarsing, Ulster county, 67 persons voted for trustee, a majority of which would be 34 votes. It appears that no one received 34 votes. The counting of the ballot for S. A. Hoornbeek for Louis A. Hoornbeek and the ballot for " C. D. B." for Lewis D. B. Hoorn- beek was error on the part of the officers of such meeting. The ballot for S. A. Hoornbeek should have been counted as a vote for the person whose name appeared upon said ballot, and not for Louis A. Hoornbeek. The ballot for " C. D. B." was a defective ballot and could not be counted for Lewis D. B. Hoornbeek, nor for any person, as there was not upon said ballot the name of any person. The ballot for trustee at said meeting should have been reported as follows : whole number of votes cast, 67 ; necessary to a choice, 34 ; Lewis D. B. Hoornbeek received 33 ; Louis A. Hoornbeek, 32 ; S. A. Hoornbeek received i, and one ballot was defective. No person having received a majority of the votes cast, there was no election of a trustee, and another ballot should have been taken. It has been repeatedly 'held by the courts of this State, that a canvassing board has no power to determine that votes returned as cast for one man were, in fact, intended for another person, bearing another and different, although smi- ilar, name, and has no power to count and allow such votes for such other person. It is clear the ballot, having upon it the letters " C. D. B." was defective, and t;7at the officers of the meeting had no authority of law to count the ballot lor Lewis D. B. Lloornbeek; neither had they authority to count the ballot cast for S. A. Hoornbeek to Louis A. Hoornbeek, nor for any other person than the one whose name was written thereon. In my opinion tlie appeal herein should be sustained. I do find and decide : That Louis D. B. Hoornbeek was not elected as a trustee of union free school district no. 2, town of Wawarsing, Ulster county, at the annual meeting of said district, held on August 22, 1893, and that no person was elected a trustee of said district at said meeting. That the appeal herein is sustained. It is ordered. That so much of the proceedings of the annual meeting of said union free school district no. 2, town of Wawarsing, Ulster county, held on August 22, 1893, as declared and decided that Lewis D. B. Hoornbeek was elected a trustee of said district, be, and the same hereby is, vacated and set aside. It is further ordered, That a special meeting of the qualified voters of said union free school district no. 2, town of Wawarsing, Ulster county, be forthwith called, under the provisions of school laws, for the purpose of electing a trustee for said district to fill the vacancy in the office of trustee, created by the failure of said district to elect a trustee at the annual meeting held therein on August 22, 1893. JUDICIAL decisions: elections 233 3844 In the matter of the appeal of Lewis S. Turner v. Charles A. Davis, trustee of school district no. 7. of the town of Mount Sinai, Suffolk county. An election of a trustee at a school meeting at which there were rival candidates, and no sufficient opportunit}- was afforded to get the expression of the voters, set aside and a new election ordered. Decided December 9, 1889 Draper, Superintendent The appellant, a voter in school district no. 7, of the town of Mount Sinai. county of Suffolk, appeals from the proceedings had at the last annual meeting held in said district, so far as they relate to the election of trustee. The facts, which are not disputed, are that both appellant and respondent were placed in nomination for trustee at the annual meeting. The chairman, a brother of respondent, put the question in the manner, " all those in favor of Charles A. Davis for trustee, say aye," and several responded, " all those opposed, say no," to which no one responded, and the chairman therefore declared Mr Davis elected. This manner of voting for district ofticers, when two persons are placed in nomination, almost invariably produces dissatisfaction and discord in school districts. As my predecessor. Judge Ruggles, observed in a case similar to this, such elections are irregular. A vote for rival candidates should be taken by ballot, calling the roll, by a division of the house, count, or some method by which the will of each individual voter shall be ascertained, a reasonable opportunity afforded for interposing challenges, and a fair expression of the voters secured. In the case before me, I do not consider there was a fair expression given — at most, but few of those present voted, and it would seem that a majority did not vote upon the question. I conclude that the election of respondent must be set aside, and a new election ordered. The appeal is sustained. The district clerk is hereby ordered and directed to give notice of a special meeting to elect a trustee within ten days from the date of this decision. 3647 In the matter of the appeal of John A. Strong v. joint district no. I, of the towns of Harrietstown, Franklin county, and of North Elba and St Armand, in Essex county. A person was chosen trustee, and because but few persons voted he asked that another election be had, in order, as he said, to determine the sense of all voters present. This was done and another was elected. Thereupon the person first chosen claimed the office under the election first held. Held, that he was estopped from setting up his claim. Decided December 2, 1887 Draper, Superintendent At the annual school meeting held in the district above named, a controversy arose in reference to the election of trustee, which it is sought to settle by means 234 THE UXIVERSITY OF THE STATE OF NEW YORK of this appeal. It seems that, after action upon the report of the trustee, it was moved and carried that John A. Strong, the appellant, be elected trustee for the ensuing year. Upon this motion, but a small portion of the persons present voted, and Mr Strong stated in substance, that he preferred that there should be another vote taken and have an expression of the sentiments of the district, and, at his instance, the action was rescinded. It was then agreed to take a vote by ballot. The statements of the different parties disagree as to the understand- ing of the meeting touching the ballot which was taken. The appellant insists that it was a ballot to determine the election of a trustee. Others say that it was agreed that the voters present should signify by a secret vote, whether or not they would have Strong for trustee. The result of the vote seems to support the latter claim, for, of the 17 votes which were in the box, 5 were for Strong, 8 were marked " no," 2 were marked " against," and 2 were blank. Following this, it was moved and carried that the meeting proceed to ballot for trustee. A ballot was taken and 15 votes were cast, of which A. S. Wright received 11 and John Strong 4. Mr Strong now claims that he was elected by acclamation when the meeting first voted by the uplifted hand, and again by rising, upon the motion to elect him trustee. This claim can not be sustained. Whether he was elected at that lime or not is immaterial, for he waived any right which he might have gained to the office. It was at his instance that the meeting proceeded to determine the matter in another way. The appellant also claims that he was elected upon the first written ballot taken. This claim would undoubtedly be sustained if there was sufficient reason for believing that it was the purpose of the meeting to elect a trustee upon that ballot, but the proofs do not sustain such a position. The fact that the meeting had just been voting aye and no upon a motion that Strong be trustee, and the fact that, when the written ballot was taken, 5 votes were for Strong and 10 indicated the opposition of that number of persons to him, while they did not vote for another person, sustain the claim that it was understood that that ballot was taken for the purpose of determining whether or not Strong should be elected trustee, and not w^ho should be chosen if he was not. The proceedings are somew^hat irregular. The records are not complete, but I feel bound to sustain the manifest will of the majority of the voters present in the district meeting, as it is clearly indicated by the several votes which were taken, and particularly by the last one, in which Mr Wright received 11 votes and Mr Strong 4. The appeal is, therefore, dismissed. JUDICIAL DECISIONS : ELECTIONS 235 4261 In the matter of the appeal of James C. Dillon v. the election of trustees of union free school district no. 2, town of Newtown, Queens county, May 31, 1894. Where at a school district meeting district officers are elected it is the duty of the inspectors of election, after the polls shall be closed, to count the ballots found in the ballot box without unfolding them except so far as to ascertain that each ballot is single, and by comparing the ballots found in the box with the number shown by the poll list to have been deposited therein. If the ballots found in the box shall be more than the number of ballots shown to have been deposited therein, such ballots shall all be replaced without being unfolded in the box from which they were taken and one of the inspectors shall, without seeing the same, publicly draw out as many ballots as shall be equal to said excess, and without unfolding them place them in some place apart from the other ballots. If two or more ballots shall be found in the ballot box so folded together as to present the appearance of a single ballot, they shall be destroyed if the whole number of ballots in such ballot box exceeds the whole number of ballots shown by the poll list to have been deposited therein, and not otherwise. Decided July 25, 1894 Crooker, Superintendent The appellant in the above entitled matter appeals from the action and decision of the officers of an adjourned school district meeting held on May 31, 1894, in school district no. 2, town of Newtown, Queens county, to consider the question of the establishment of a union free school therein, that one C. H. George was elected a trustee or member of the board of education of said district. The following facts appear to be established: That on May 24, 1894, a duly called special m.eeting of the inhabitants qualified to vote, of school district no. 2, of the town of Newtown, Queens county, was held at the schoolhouse in Corona in said town, to act upon the proposition for the establishment of a union free school therein; that a resolution for the establishment of a union free school in said district was unanimously adopted; that it was voted that the board of education of such union free school district consist of five members, and thereupon the meeting adjourned to May 31, 1894; that on May 31, 1894, said meeting convened pursuant to adjournment and it was voted that one of said trustees or members of said board of education serve for one year, two for two years, and two for three years ; that four tellers or inspectors of election were chosen and the meeting proceeded to the election by ballot of said five trustees or members of the board of education, all of said five trustees being voted for at once on one ballot, but designating the term of office of each class respectively; that after the polls were closed a canvass of the votes was made by the inspectors, and it was found that the poll list had 355 names recorded of persons who had voted, and the votes in the ballot box were counted without opening any ballot that was folded, and zvithont unfolding any of said ballots so far as to ascertain that each ballot zuas single, and the number of said ballots was 355, thus agreeing with the number of names upon the poll list ; that 236 THE UXIVERSITY OF THE STATE OF NEW YORK said inspectors then proceeded to unfold the ballots and canvass the same, when they found two ballots so folded together as to present the appearance of a single ballot, and they decided that said ballot was fraudulent and ought not to be counted and did not count the same; that said tw^o ballots so folded as one had thereon and on each the name of the appellant herein as a trustee for the term of three years; that the result of the said election, so far as related to the election of two trustees for the term of three years as ascertained and declared by said inspectors and the chairman of said meeting, was as follows : That C. F. Schwartz received 207 votes and was elected, and that the appellant herein. J. C. Dillon, received 172 votes, and C. H. George, 173 votes, with certain votes for sundry persons, and that said C. H. George was elected. By chapter 680 of the Laws of 1892, being "An act in relation to the elec- tions, constituting chapter 6 of the general laws," article 5, section 114, relating to the canvass of votes by inspectors, it is enacted : As soon as the polls of an election are closed . . . the inspectors of election thereat shall publicly canvass and estimate the votes and not adjourn or postpone the canvass until it shall be fully completed. They shall commence by comparing the two poll lists with each other, correcting any mistakes therein, and by counting the ballots found in the ballot boxes without unfolding them, except so far as to ascertain that each ballot is single, and by comparing the ballots found in each box with the number shown by the poll lists to have been deposited therein. If the ballots found in any box shall be more than the number of ballots so shown to have been deposited therein, such ballots shall all be replaced, zvithout being unfolded, in the box from which they were taken, and one of the inspectors or canvassers shall, without seeing the same, publicly draw out as many ballots as shall be equal to such excess and. zvithout unfolding them, deposit them in the box for unvoted ballots. // two or more ballots shall be found in a ballot box, so folded together as to present the appearance of a single ballot, they shall be destroyed, if the zvhole number of ballots in such ballot box exceeds the whole number of ballots shown by the poll lists to have been deposited therein, and not otherzvise.'' I hold that the foregoing provisions of law relative to the canvass of votes by inspectors at elections in the State should govern the canvass of votes by inspectors or tellers at elections held in the school districts in the State. It is clear that the inspectors at the school meeting in school district no. 2. town of Newtown, held on May 31, 1894. in the canvass of votes cast for mem- bers of the board of education, did not follow the provisions of the law above cited. There was one ballot box and poll list. In counting the ballots found in the box, to compare the number therein with the names contained on the poll list, the inspectors shoidd have unfolded such ballot so far as to ascertain that each ballot zvas single. This they did not do. Had they done this, they would have ascertained the fact of the two ballots folded together as one, and on separating them, and then counting the ballots, they would have ascertained that there were 356 ballots, which would have been an excess of one over the number of voters shown upon the poll list, and it would then have been their duty to replace all JUDICIAL decisions: elections 237 of the ballots in the box, and one of the inspectors, without seeing the same, should have publicly drawn out one ballot, which ballot should have been destroyed. The action of the inspectors in treating the two ballots found folded together as one, as fraudulent or defective, and rejecting them, was not lawful, and hence there was no legal or valid election of one member of said board of education for three years, and said C. H. George was not duly or legally elected a member of the board of education for said district for the term of three years from the first Tuesday of August, 1894, nor for any term of time. Neither Dillon nor George could be legally elected a trustee unless one of them received a majority of the whole number of votes cast. There were 355 votes cast, of which 178 is a majority, and neither of them received that number of votes. The election of Mr Sandford for one year, Messrs Howard and Weed for two years and Mr Schwartz for three years is not in any manner affected by the action of inspectors in rejecting the two ballots. There is no proof whatever that said inspectors, or either of them, in reject- ing said two ballots containing the name of the appellant, did so knowingly or wilfully, nor that they did so in order to defeat the election of the appellant as trustee; nor is there any proof that said inspectors, or either of them, was or is inimical or hostile to the appellant. I am satisfied that said inspectors, in the canvass of said ballots, acted in good faith. I find and decide that C. H. George was not elected a trustee or member of the board of education for the term of three years at said meeting of the inhab- itants qualified to vote in school district no. 2, town of Newtown, Queens county, on May 31, 1894, and that but one person, to wit, Mr Schwartz, was legally elected at said meeting as such trustee for the term of three years ; and that but four of the five members which it was voted at the meeting, held on May 24, 1894, the board of education of said district should consist of, have been legally elected. The appeal herein is sustained. 3662 In the matter of the appeal of Suel Chaddock and others, from the proceedings of the annual school meeting, held August 30, 1887, in school district no. 3, town of LeRoy, Genesee county. In an election for trustee it was found that the ballots overran the number of qualified electors present by two. Thereupon two ballots were withdrawn. Afterward it was found that one blank ballot was cast and this was thrown out and one of the two withdrawn was put in its place. A candidate was then declared elected by a majority of one. Held, that the proceedings were irregular and a new election must be ordered. Decided January 24, 1888 Draper, Superintendent This is an appeal from the annual election of trustee in school district no. 3, town of LeRoy, Genesee county, and recites as the grounds thereof the following : 238 THE UXIVERSITV OF THE STATE OF NEW YORK 1 That when a ballot was taken it was discovered that the votes cast were in excess of the number of names upon the poll list; that thereupon two ballots were withdrawn from the pile of ballots cast and that subsequently one ballot remaining was found to be a blank, when one of the two ballots withdrawn was replaced and the blank thrown out and then the vote gave one Albert Anderson, a majority of one vote for trustee and he was declared elected. 2 That said Anderson was not a qualified voter at said annual meeting and therefore ineligible to the office of trustee. 3 That one person voted who was not a qualified voter. No answer has been interi)osed and in deciding this appeal I do not consider it necessary to go into the second or third grounds of appeal. The proceedings of the meeting in first withdrawing two ballots from those which had been voted, then replacing one for a blank ballot found, can not be upheld. The election of Anderson is held to be void and it is hereby ordered that a special meeting be called within fifteen days from the date of this decision to fill the vacancy existing in the office of trustee. 4410 In the matter of the appeal of Michael Dippold and others, from proceedings of a school meeting held on August 7, 1895, i" district no. 3, city of Kingston, Ulster county, in the election of school district officers. Where at the annual election of school district officers in a common school district having more than 300 pupils therein, the trustees, as inspectors of election, appointed one Powers, a qualified voter of the district, to take the votes from the voters and deposit such votes in the ballot box, no other power or duty intrusted to said inspectors by law being delegated, or given to, or exercised by said Powers. Held, that such appoint- ment was an irregularity on the part of such inspectors, which is not approved by this Department, but does not warrant the setting aside of said election. Irregularities, mistakes or omissions on the part of election officers will not vitiate the election or defeat the will of the electors as shown by their votes. Decided December 18, 1895 Brinnier & Newcomb, attorneys for appellants G. D. B. Hasbrouck, attorney for respondents Skinner, Superintendent The appellants in the above-entitled matter appeal from the election of offi- cers of school district no. 3, city of Kingston, at a meeting held in said district on August 7, 1895, but from an examination of the appeal and the statements contained in the affidavits annexed thereto, it is in fact an appeal from the elec- tion of Henry Beck as a trustee of said district. The grounds upon which the appeal is brought, in substance, are, that the trustees of the district, although present, did not act as inspectors of such elec- JUDICIAL DECISIONS : ELECTIONS 239 tion. nor did they designate any one of their number to act as chairman or to receive the votes cast; that they did not act as inspectors and receive the votes as required by statute, nor lawfully appoint or designate any other person to act as inspector and receive the votes; that one Henry Powers, the principal of the school in said district, unlawfully acted as an inspector and unlawfully received and rejected votes; that said Powers refused to receive the votes of persons duly qualified to vote, and refused to permit persons offering to vote to make the declaration under the law, and threw ballots to the number at least of from forty to sixty, handed him by legal voters, upon the floor, refusing to deposit such votes in the ballot box; that at least seventy-five to one hundred illegal votes were received and counted for Henry Beck, who was unlawfully and fraud- ulently declared elected as trustee. The affidavits of five persons other than the appellants in support of some of the allegations contained in the appeal, and the affidavits of forty persons, each of whom alleges that he or she was a qualified voter in said district and who ofi^ered to vote and was not permitted to vote or swear in the vote, are annexed to the appeal. Trustees Beck and Weiss, two of the three trustees of said district, with sixty-eight qualified voters of the said district, have filed answer to said appeal, and to which answer are annexed the affidavits of Martin J. Sweeney, Henry Powers, George M. Zellmar and seventeen others, qualified voters of the district, in support of the statements contained in said answer. The proofs filed herein establish the following facts : That an election of a trustee, clerk, and collector of school district no. 3, city of Kingston, Ulster county, was held on August 7, 1895. between the hours of 12 o'clock noon and 4 o'clock p. m. ; that Messrs Beck, Weiss and Mulholland, then trustees of said district, and George M. Zellmar, then district clerk, assem- bled at the place designated for holding said election just prior to 12 o'clock noon, and said Trustee \\'eiss was selected as chairman of the board of inspectors of election; that said trustees or a majority of them, acting as such inspectors of election, appointed Henry Powers, a qualified voter of said district, to assist them in said election by receiving the ballots from the voters and depositing the same in the ballot box provided by the said trustees; that at 12 o'clock noon, the said trustees, or a majority of them, being present and acting as inspectors of said election, and the district clerk being present, opened the poll of said election and received the votes, the said Powers receiving the votes of each voter and depositing the same in the ballot box, under the instruction of the said trus- tees as such inspectors of election, the district clerk recording the name of each person whose vote was received until 4 o'clock p. m., when the poll was closed and said inspectors of election proceeded to canvass the votes cast, first count- ing the ballots to find if they tallied with the number of names recorded by the clerk; that the whole number of votes cast was y-})!^ ^"^ the poll list kept by the district clerk contained the names of y^J persons as having voted; that Henry Beck received 429 votes for trustee for three years and Alichael Dippold 240 THE UNIVERSITY OF THE STATE OF NEW YORK received 308 votes, and the result of the ballot was announced by the said inspectors of election, and the result of such ballot and election as announced by said inspectors of election was recorded by the district clerk. It also appears that said trustees, or a majority of them, acting as inspectors of election, decided all questions arising at said election relative to the qualifica- tions of voters, and as to whether any vote should be received or refused, and as to all other questions which arose, and that said Powers took no part what- ever therein, but simply received such votes as said inspectors directed them to be received and deposited such votes in the ballot box. The burden is upon the appellants to sustain the allegations in their appeal by a preponderance of proof. The answer and affidavits annexed to the appeal deny that said Powers refused to receive the vote of any person or refused to permit persons whose votes were challenged to make the declaration required by the school law, or threw any ballot of any person whose vote was received, upon the floor, except under the direction of said inspectors of election. The proofs on the part of the respondents deny that said Powers said in substance, " that he was running the meeting to suit himself." The forty affidavits annexed to appeal of persons who allege that their votes were rejected were verified the latter part of August 1895, but not one of them alleges that he or she was a qualified voter in said district on August 7th. Neither does any one of them state the facts relative to his or her alleged qualifications as a voter so that it can be ascertained whether he or she possessed on August 7, 1895, ai^y oi^e or more of the qualifications required by the school law. Four- teen of these affiants state that they are taxpayers in the district, twelve that they are householders in the district, seven that they have children who attend school, but do not state that such children have attended school for eight weeks during the year prior to said election. The affidavits of Sweeney and Powers, annexed to the answer, which affidavits are not answered, show that the names of those claiming to be " taxpayers or freeholders " are not, nor is either of them, upon the tax lists of said districts for the years 1894 and 1895. The affi- davit of Powers shows, from an examination of the school register for the year preceding the election, that none of the persons claiming to vote by reason of sending children to school in the district had any child or children of his or her own, or residing with him or her, who attended the school in said district for the period of eight weeks within one year previous to said election. Admitting that each of these forty persons were qualified voters and each had voted for Dippold, still Beck would have been elected by eighty-one majority. The allegation in the appeal, that from seventy-five to one hundred illegal votes were received and counted for Henry Beck is indefinite and uncertain. The appeal does not give the name of any one of the seventy-five or one hundred that it is alleged voted illegally, nor do the appellants show by evidence the lack of qualifications of any one or all of said seventy-five to one hundred, in such terms as necessarily to exclude every presumption that such persons could not be qualified to vote under the provisions of the school law. This allegation is not supported by any evidence whatever. JUDICIAL decisions: elections 241 The rule is well settled that an election will not be vitiated by illegal votes unless a different result would have been produced by excluding such votes. To warrant setting aside an election, it must appear affirmatively that the successful ticket received a number of illegal votes which, if rejected, would have brought it down to a minority. The election in said school district on August 7, 1895, was held under the provisions of section 15, article i, title 7, of the Consolidated School Law of 1S94. Such section provides who shall be inspectors of election. It does not permit, neither does it prohibit, such inspectors from appointing a person simply to perform the mechanical act of receiving votes from persons whom the inspectors have decided are entitled to vote, and depositing such votes in the ballot box. The trustees or inspectors of election, it seems, expected from the interest taken in said election that a large vote would be polled, and in order to enable them to act upon questions that might arise relative to the election and the qualifications of voters, they appointed Powers, a qualified voter of the district, to take the votes from the voters and deposit such votes in the ballot box. No other power or duty intrusted to said inspectors by law was delegated or given to or exercised by said Powers. It was an irregularity on the part of said inspectors which I do not approve, but one which I do not think warrants me in setting aside the election. Irregularities, mistakes or omissions on the part of election officers will not vitiate an election, or defeat the will of the electors as shown by their votes. The appellants have failed to sustain their appeal by a preponderance of proof and the appeal should be dismissed. Appeal dismissed. 4053 In the matter of the appeal of John H. Innes, Frederick Mark and others v. school district no. 1 1 of the town of Newtown, in the county of Queens. It is the business of school meetings and of presiding officers thereof, to undertake to ascertain the intent of the electors and give expression of their ballot as they intended. When one Joseph B. Johnson was nominated as one of two trustees to be elected at an annual meeting, and there was no pretense that any other person by the name of Johnson was a candidate or voted for at the meeting, votes cast for " Mr Johnson " and " Johnson " should be counted for Joseph B. Johnson. Decided January 12, 1892 Draper, Superintendent The school district above named is under the operation of a special act of the Legislature, being chapter 535 of the Laws of 1879. This act provides that the district shall hold its annual school meeting on the second Wednesday of October each year. Pursuant to this act the district held the annual meeting on the 14th day of October 1891, and proceeded to elect a trustee to succeed 242 THE UNIVERSITY OF THE STATE OE NEW YORK Edward H. Weber, whose term of office had expired. Edward H. Weber and Joseph B. Johnson were duly nominated for the position and nominations were declared closed. The meeting then proceeded to ballot and the result 'was announced as follows: Votes Edward H. Weber 51 Joseph B. Johnson 40 Mr Johnson ; i^ Johnson -, Bernard Becker 2 Charles Klosset i G. T. Bauman i O. H. Green i T. McGowan, j r i Defective 3 Upon the announcement of the result it was moved and seconded that the votes cast for Mr Johnson be counted for Joseph B. Johnson. This motion was declared out of order by the chair. An attempt was then made to secure another ballot and this was refused by the chair. The chairman then declared that Edward H. Weber was elected. From this action this appeal is taken. The respondent offers several objections which are technical if not frivolous. He insists that if the proceeding was to have been commenced at all, it must haye been commenced by Mr Johnson, and that the appellants here are not parties in interest. I think he is mistaken in this. Any elector in the district is sufficiently interested in such a matter to bring it before the State Department. Again, the respondent insists that there are over 300 children of school age in this district and that the election therein must be governed by the provisions of chapter 248 of the Laws of 1878 as amended. I think he is in error in this position also. The school district is operating under a special act and is specially exempted from the provisions of the general act by section 10 thereof. As a matter of fact, the district did not proceed under the provisions of the general act. If the contention of the respondent was to be upheld, it would be fatal to his claim that he was elected. I am of the opinion that it required a majority of all the legal votes cast to elect. I think the chair was in error in refusing to permit the house to pass upon the question as to whether the votes cast for " Mr Johnson " and for " Johnson " were not intended for Joseph B. Johnson. Indeed, I think that the chair would have been justified in so holding without the direction of the meeting, and in declaring Joseph B. Johnson elected. The 3 ballots which are returned as defective should not have been counted at all in determining the number which constituted a majority. Excluding these 3 votes, 58 votes constituted a majority. It is idle for the respondent to say that the 18 votes cast for " Mr Johnson " and " Johnson " were not intended for JUDICIAL decisions: elections , 243 Joseph B. Johnson, because there are one or two other persons in the district by the name of Johnson. There is no pretense that any other person by the name of Johnson was a candidate or was voted for at the meeting. Counting ihese ballots for Joseph B. Johnson, he received 58 votes and was elected. It is the business of school meetings and of presiding officers thereof to undertake to ascertain the intent of the electors and to give expression to their ballot as they intended. Upon the papers presented, I entertain no doubt but that a majority of the electors at this meeting who saw fit to vote for trustee, intended and attempted to vote for the election of Joseph B. Johnson. The appeal is therefore sustained and Mr Joseph B. Johnson is held to have been elected at the school meeting held in the above named district on the 14th day of October 1891. 4265 In the matter of the appeal of Joseph Holmes and William Hummiston from proceedings of the annual school meeting held in district no. 10, town of Stillwater, Saratoga county, on August 7, 1894, in the election of the officers of said district. Where at an annual school meeting the election of district officers was not by ballot but by a viva voce vote of those present and voting; that no suitable ballot box was provided by the trustees of the district for such election, nor were any inspectors of election appointed, and no poll list kept by the clerk of the meeting containing the names of persons whose votes were received; held, that such election was illegal and void, and a special meeting ordered for the election of such district officers. Decided September 24, 1894 Crooker, Superintendent The appellants in the above-entitled appeal state that at the annual school meeting held on the first Tuesday of August 1894, in school district no. 10, town of Stillwater, Saratoga county, one Jacob Snyder was placed in nomination for the office of trustee of said district and was declared elected ; that said election of said Snyder as trustee was not by ballot but by a viva voce vote of those present and voting; that no suitable ballot box at the election of the district officers of said district was provided by the trustee of said district, nor were any inspectors of election appointed; that none of the officers of said district were elected by ballot. A copy of the appeal herein was personally served upon the said Jacob Snyder on August 25, 1894, and said appeal, with proof of service of a copy thereof upon said Snyder, was received at this Department on August 28, 1894. No answer to said appeal having been received by me, the allegations contained in said appeal are deemed by me to be admitted. 244 THE UNIVERSITY OF THE STATE OF NEW YORK Under subdivision 4 of section 14, article i, title 7 of the Consolidated School Law of 1894, all district officers in the common school districts of this State must be elected by ballot. At such elections the trustee or trustees of such district shall provide a suitable ballot box. Two inspectors of election shall be appointed as the meeting shall determine, who shall receive the votes cast and canvass the same and announce the result of the ballot to the chairman of the meeting. A poll list containing the name of every person whose vote shall be received shall be kept by the clerk of the meeting. The ballots shall be written or printed, or partly written and partly printed, containing the name of the person voted for and designating the office for which each is voted. The chairman shall declare to the meeting the result of each ballot, as announced to him by the inspectors, and the persons having the majority of votes, respec- tively, for the several offices, shall be elected. Upon the facts stated in the appeal herein, it is clear that the officers of said school district were not, nor was either of them, elected pursuant to the provisions of the Consolidated School Law of 1894. The appeal herein is sustained. I do find and decide, that the said Jacob Snyder was not, nor was any one, legally elected as trustee of said school district no. 10, town of Stillwater, Sara- toga county, at the annual meeting of said district, held on the first Tuesday of August 1894, nor was any person legally elected as district clerk or collector of said district at said meeting. It is ordered. That so much of the action and proceedings of the annual meeting of said school district no. 10, town of Stillwater, Saratoga county, held on the first Tuesday of August 1894, had and taken in the election of the officers of said district, be, and the same are, and each of them is, hereby vacated and set aside as illegal and void. It is further ordered. That Wilson Wylie, a qualified voter in and of said school district no. 10, and who is now acting as clerk of said district under the assumption that he was elected such clerk at said annual meeting, be, and he hereby is, directed to forthwith call a special meeting of the inhabitants of said school district no. 10, town of Stillwater, Saratoga county, entitled to vote at school meetings in said district, in the manner prescribed in sections 2 and 6 of article i, title 7 of the Consolidated School Law of 1894, for the purpose of the election of a trustee, district clerk and collector of said district, said election to be conducted in the manner provided in subdivision 4 of section 14, article i, title 7 of the Consolidated School Law of 1894. It is further ordered. That said Jacob Snyder be, and he hereby is, enjoined and restrained from further acting as trustee of said district, and from doing any act as such trustee of said district. JUDICIAL DECISIONS : ELECTIONS 245 4379 In the matter of the appeal of John Midvihill from proceedings of annual school meeting held on August 6, 1895, in district no. 3, town of Campbell, Steuben county, in the election of a trustee. Where a ballot has been taken for a district officer and such vote canvassed by the inspectors of election and the result of the canvass announced showing that some one has received a majority of the votes cast, the power of the meeting in the election of such officer has been exhausted. Such ballot can not be reconsidered nor a recount had or the ballot impeached by the affidavits or statements that the canvass of the votes was not a correct one, or by the affidavits of persons that in such ballot they voted for a particular person for said office. Decided September 2.^. 1895 Francis E. Wood, attorney for appellant Skinner, Superintendent The appellant in the above-entitled matter appeals from so much of the proceedings had and taken in school district no. 3, town of Campbell, Steuben county, at the annual meeting held on August 6, 1895, as relates to the election of a trustee. It appears from the papers presented herein that the said annual meeting was duly organized by the choice of one Chase as chairman and John Wilcox, district clerk, acting as clerk; that John S. Curtis and Patrick Mulvihill were appointed inspectors of election; that the appellant and George D. Turnbull, the respondent, were nominated for trustee ; that a ballot was taken for trustee, the ballot cast being received by said inspectors and w^hen such ballot was closed, the votes were canvassed by said inspectors who reported the result of such ballot to the chairman of the meeting as follows : Whole number of votes cast 25, of which George D. Turnbull received 13 and John Mulvihill 11, and i blank : that said result was announced by the chairman to the meeting, and no objection relative thereto was made at the time such result was announced by the chair- man ; that the said meeting proceeded to elect other district officers and transact other business; that one Michael Lyon jr, who was not a voter in said school district, went to the table used by the inspectors of election and upon which several persons had written ballots for the various district officers who had been voted for, upon which also ballots were lying, and after some time passed in examining the said ballots, etc., lying upon said table, stated that there was a mistake and that the ballot for trustee was twelve for each of the candidates, and one blank; that upon the statement being so made by said Lyon the chair- man stated that a ballot having been had and the votes cast having been can- vassed and the result announced and recorded the meeting could not act thereon ; that no motion was made in regard to the matter of the election of trustee, either to reopen or reconsider the ballot or for a recount of the vote, or that anything be done in reference thereto, and the meeting adjourned. The appellant in his appeal alleges, upon information and belief, that twelve votes were actuallv cast for him for trustee, and that only twelve votes were 246 THE UNIVERSITY OF THE STATE OF NEW YORK cast for said Tnrnbull, and that the blank vote was cast and intended to be cast for him (the appellant) for trustee; that annexed to said appeal is an affidavit of twelve persons, including the appellant, who allege that each of them voted for the appellant for trustee, and an affidavit of Simon Mulvihill that he voted for the appellant. The respondent avers in his answer, upon information and belief that the persons named by him therein voted for him for trustee and the names of thir- teen persons, including his own, is given ; that also annexed to said answer are the affidavits of L. L. Chase, the chairman, and John Wilcox the clerk, of said meeting, averring that said answer is true, and also the affidavit of John S. Curtis, one of the inspectors of election at said meeting, averring that the affiant and Patrick Mulvihill were such inspectors of election and together canvassed the votes cast for trustee and both agreed in the result of the ballot as so can- vassed and announced by them as follows: Whole number of votes cast 25, of which Turnbull received 13, John Mulvihill 11 and blank i; that he knows of his own knowledge that such result as announced was correct; that there was no recanvass of said votes after such result was announced by the inspectors to the chairman ; that the facts stated in the answer by Turnbull of what occurred at the meeting are true. No affidavit by Patrick Mulvihill, the other inspector, in reply to the allegation contained in said affidavit of Curtis has been presented. There is also annexed to said answer the affidavit of nine qualified voters each of whom was present at said meeting, that the statement of facts as to what occurred at said meeting, contained in said answer, is true. The statement of the man, Lyon, is the only statement presented in conflict with the announcement of the inspectors of election of the result of the ballot had for trustee. Lyon does not state at what time he examined the ballot, and it appears by the affidavit of thirteen voters of the district verifying the state- ment of facts and of what took place at the meeting, contained in the answer of Turnbull, that Lyon did not go to the table on which the votes for trustee were canvassed and until the other officers of the district were elected and other ballots other than those for trustee were lying upon the table with other papers. Where a ballot has been taken for a district officer and such vote canvassed by the inspectors of election, and the result of the canvass announced, showing that some one has received a majority of the votes cast, the power of the meet- ing in the election of such officer has been exhausted. Such ballot can not be reconsidered nor a recount had, or the ballot impeached by the affidavits or statements of persons that the canvass of the votes was not a correct one, or by the affidavits of persons that in such ballot they voted for a particular person for said office. It is difficult to reconcile the affidavit of thirteen persons who swear they voted for iMulvihill. with the affidavit of Lyon who swears Mulvihill received but twelve votes. The burden is upon the appellant to sustain his appeal by a preponderance of proof and in this he has failed. The appeal herein is dismissed. JUDICIAL DECISIONS : ELECTIONS 247 4392 In the matter of the appeal of H. H. Wendell and others, from proceedings of annual school meeting held on August 6, 1895, in district no. 3, town of Herkimer, Herkimer county, in election of trustee. When at any school district meeting for the election of officers said meeting has voted to proceed to ballot for a trustee or other officer, votes cast for said officer having the name of some person thereon, but not having written thereon the name of the office for which the person is voted, said ballot is a legal ballot. The mere circumstance that improper votes are received at an election will not vitiate it. The fact must be shown affirmatively that a sufficient number of improper votes were received for the successful ticket to reduce it to a minority if they had been rejected; or the election must stand. A party knowing a person to be unqualified and permitting him or her to vote without chal- lenge will not be allowed on appeal to object to the proceedings of the meeting because said unqualified person participated therein. Decided October 12, 1895 W. C. Prescott, attorney for respondent Skinner, Superintendent The appellants in the above-entitled matter appeal from so much of the pro- ceedings of the annual school meeting, held in district no. 3, town of Herkimer, Herkimer county, had and taken in the election of a trustee, and from the elec- tion of Miss Kate Cot^n as trustee of said district, and allege that her election was illegal. The grounds, as alleged in the appeal, upon which the election of Miss Coffin as trustee is claimed not to have been legal, are, in substance, that illegal votes were cast for her, and she did not receive a majority of the votes of the qualified voters cast at such election ; that one Charles Ely was prevented from voting for the appellant, H. H. Wendell, who was one of the can.lidates for the office of trustee : that no notice was given of the closing of the polls, and that the ballots cast did not designate the office for which the persons written thereon respectively were voted for. The appeal is signed and verified by sixteen persons, seven of whom were not present at said annual school meeting, and annexed to the appeal are two affidavits in support of the allegations contained in said appeal. ]\Iiss Kate Coffin has answered said appeal, denying the allegations in the appeal that she did not receive a majority of the legal votes cast at said meeting for the office of trustee, and was not legally elected trustee of said district ; denying the allegation that one Charles Ely was prevented from voting for trustee at said meeting, and denying the allegation that no notice was given of the closing of the polls in the election of trustee. To her answer are annexed the affidavits of thirteen persons in support of the statements made in said answer. To said answer the appellants have made a reply. The following facts are established : That the annual school meeting in district no. 3, town of Herkimer, Her- kimer county, was held on August 6, 1S95,. and was duly organized by the 248 THE UNIVERSITY OF THE STATE OF NEW YORK election of George P. Gunn as chairman; C. W. Arnolds, districL clerk, acting as clerk; that Eddy J. Clark and John W. Coffin were duly appointed inspectors of election; that the appellant, H. H. Wendell, and respondent. Miss Kate Coffin, were each nominated for the office of trustee and a ballot for trustee was taken, said inspectors of election receiving a ballot from each of the persons offering to vote and the name of each person whose vote was received was recorded bv the district clerk upon the poll list kept by him ; that two persons offering to vote for trustee were challenged, namely, M. J. Richards and Alice Ely, each of whom made the declaration required by the school law, and the vote of each was received; that after the ballots of those desiring to vote were received the chairman asked if all had voted who desired, and hearing no response, declared the polls closed; that the votes cast were then canvassed by said inspectors of election, and the result, as announced to the meeting by the clerk at the request of the chairman, was as follows: Whole number cf votes cast, 25, of which Miss Kate Coffin received 15 and H. H. Wendell 10. It also appears that the ballots for trustee were written, and upon about three were the words " For Trustee, H. H. Wendell," but the words " For Trustee " were not upon the other twenty-two votes ; that upon said ballots were written respectively, '' Mr Wendel," " Mr Wendal," " j\Ir Windel," " Windell." " H. Windell," " Miss Kate Coffin," " Miss Cofffn," " K. Coffin," " Kate Coffin " and " Gate Coffin ; " that there were residing in said district at the time of said annual school meeting therein two persons by the name of Wendell, namely, Herman H. Wendell and Earl D. Wendell, and two unmarried ladies by the name of Coffin, namely, Kate Coffin and Emma Coffin, who are sisters, and Kate Coffin being the elder is known as Miss Cofhn. It is admitted by the respondent that Mrs Joseph Dudleston, Mrs J. A. Shaw, Mrs G. P. Gunn, Mrs Walter Davidson and Mrs Jennie Worden, whose votes were received for the office of trustee at said annual meeting, were not. nor was either of them, qualified to vote at said meeting; and it is established that Jennie Worden voted for the appellant, Wendell, and the four other ladies voted for the respondent. Kate Coffin. The appellants have failed to establish that Alice Ely, whose vote was challenged, but who made the declaration and voted, was not qualified to vote at said meeting. The appellants herein have failed to establish the allegation made by them that said Charles Ely was prevented from voting at said meeting. By subdivision 4, of section 14, article i, title 7, of the Consolidated School Law of 1894, it is enacted that the ballots for school district officers shall be written or printed or partly written and partly printed, containing the name of the person voted for and designating the office for which each is voted. The words " designating the office for which each is voted " applies when at a district meeting for the election of officers persons for more than one office are to be elected, i. e., for a trustee, district clerk, etc., and upon one ballot, and is not intended to apply in a case where a ballot is ordered for the election of a trustee. At the annual meeting in said district no. 3, Herkimer, a JUDICIAL DECISIONS : ELECTIONS 249 ballot was ordered for the election of a trustee and the voters present were informed and knew that only a trustee of the district was to be voted for, and no one was misled. A vote cast in such ballot having upon it the name of a person and without the words '' For Trustee " thereon, was a legal ballot under the school law. The votes cast were properly canvassed and counted for Miss Kate Coffin, and H. H. Wendell respectively for trustee. But two persons were put in nomination for trustee, to wit, said Aliss Kate Coffin and H. H. Wendell, and such persons were w'ell known to the voters present, and it was clearly the intention of each person who voted, to vote for the one or the other of the two persons nominated, and it was the duty of the inspectors of election in canvassing the votes cast to ascertain that intent and to count such ballots as such voters intended, whether the ballot had H. H. Wendell, Wendel or Mr Wendell, or Miss Kate Coffin, Kate Coffin, or Miss Coffin thereon. No one of the five persons who, it is admitted, voted at said meeting for trustee, and who, it is also admitted, were not qualified voters in the district, were challenged when ofifering to vote. This Department has held that "A party knowing a person to be unqualified and permitting him to vote without challenge will not be allowed to object to the proceedings of the meeting because said unqualified person participated in them." The Supreme Court of this State held, in ex parte Murphy and others, 7 Cowen 153, that the mere circumstance that improper votes are received at an election will not vitiate it. The fact should be shown affirmatively that a suffi- cient number of improper votes were received for the successful ticket, to reduce it to a minority if they had been rejected; or the election shall stand. The Court of Appeals in the People v. Pease, 27 N. Y., page 57, said : " It is a paradox to say that a vote can be given by one not a voter, and as it is the greatest number of votes which elects a candidate and gives title to the office, it follows logically that those ballots given or handed in by persons not voters are not votes and can not, therefore, be rightfully estimated or have any infiuence upon the result." Judge Andrews of the Court of Appeals said in the People ex rel. Frost v. Wilson, 62 N. Y., page 179: "The 43 votes cast by persons not registered were plainly illegal. If, however, they are taken from the vote of the defendant the result would not be changed, and for this reason the fact that they were illegally received is immaterial." It is conceded that 25 votes were received at said annual meeting for trustee, of which the apjoellant, Wendell, received 10 and the respondent. Coffin, received 15. It is admitted that 5 votes were received from persons not qualified voters at such meeting, i of which was for the appellant, Wendell, and 4 for the respondent. Coffin. The 5 illegal votes must be deducted from the 25 votes received, leav- ing 20 legal votes cast for trustee. Of said 5 illegal votes, i was for the appellant, Wendell, and 4 were for the respondent. Coffin. It follows, there- fore, of the 20 legal votes cast the respondent. Coffin, received 11 and the appellant, Wendell, 9, and that the respondent. Coffin, having received a majority of the legal votes cast was duly and legally elected trustee of said district. 250 THE UXIVERSITY OF THE STATE OF NEW YOKK Admitting for the purpose of argument only, that Miss Alice Ely, who voted for the respondent, Coffin, was not a qualified voter, the whole number of legal votes cast would be 19, of which the respondent, Coffin, received 10 and the appellant, Wendell, 9, giving a majority of i to the respondent. Coffin, who thereby was duly and legally elected trustee. The burden is upon the appellants herein to sustain their appeal bv a preponderance of proof, and in this they have failed. The appeal herein is dismissed. 4315 In the matter of the appeal of W. R. Harris and others from proceedings of annual school meeting in district no. 3, town of Southtield.. Richmond county, in election of trustees. In the election of school district officers the mere circumstance that improper votes were received will not vitiate the election. The fact must be shown affirmatively that a suffi- cient number of improper votes were received for the successful ticket to reduce it to a minority if they had been rejected; that a person believing or knowing a person offering to vote at a school meeting to be unqualitied and permitting him or her to vote without challenge, such person will not be allowed to object to the proceedings of such meeting upon appeal, because such unqualified person voted therein. That in appeals from the proceedings and decision of a school meeting on the ground that the same was secured by illegal votes, it is incumbent upon the appellants not only to allege the illegal voting or the disqualifications of certain persons, but to show by evi- dence the lack of qualifications in such terms as necessarily to exclude every presump- tion that the voter or voters could be qualified under either of the provisions of the section of the school law prescribing the qualifications of voters at the school district meetings in this State. Decided January 28, 1895 W. H. H. Ely, attorney for respondents Crooker, Superintendent This appeal is taken from the action of the annual school meeting, held on the first Tuesday of August 1894, in school district no. 3. town of Southfield, Richmond county, in the election of H. S. La Vaud. Elizabeth A. Britton and James Simpson as trustees of said district. The sole ground alleged in the appeal is that such election was secured by illegal votes. The pleadings and proofs are very voluminous, but much stated therein is not relevant to the question as to whether the election of the persons here- inbefore named as trustees of said school district was secured by illegal votes. Such pleadings and proofs have received careful examination. The burden is upon the appellants to establish their contention by a pre- ponderance of proof. JUDICIAL DECISIO^■S: ELECTIONS 2~,l In ex parte iMurphy and others, 7 Cowen 153, the Supreme Court of the State held that the mere circumstance that improper votes are received at an election, will not vitiate it. If this were otherwise, hardly an election in the State could be sustained. The fact should be shown affirmatively that a suffi- cient number of improper votes were received for the successful ticket to reduce it to a minority if they had been rejected; or the election shall stand. This Department has uniformly held in accordance with the decision of the court above stated, in appeals taken from the election of school district officers in the contention that such election was secured by illegal votes. This Department has uniformly held that a person believing or knowing a person offering to vote at a school meeting to be unqualified and permitting him or her to vote without challenge, will not be allowed to object to the proceedings of such meeting because such unqualified person participated therein. This Department has also uniformly held that in case of an appeal from the proceedings had and taken at a school meeting, on the ground that the same were secured by illegal votes, it is incumbent upon the appellant not only to allege the illegal voting or the disqualification of certain persons, but to show by evidence the lack of qualifications in such terms as necessarily to exclude every presumption that the votes or voters could be qualified under either of the provisions of the section of the school law prescribing the quali- fications of voters at the school district meetings in this State. The question for my determination, upon the papers presented is, have the appellants established by evidence the lack of qualifications of certain persons who voted at the annual meeting in said school district, in such terms as neces- sarih' to exclude every presumption that such persons could be qualified voters under either of the provisions contained in section 11, article i, title 7, of the Consolidated School Law of 1894. and that a sufficient number of votes cast by such unqualified persons in favor of the successful ticket were received to reduce said ticket to a minority if said improper votes had been, or should be, rejected. The proofs presented herein show that at said annual meeting three trustees were to be elected for the term of one, two and three years respectively ; that six persons were put in nomination for trustees, to wit: William R. Harris for three years, Thomas Smith for two years and John Smith for one year, and H. S. La Vaud for three years, Elizabeth A. Britton for two years and James Simpson for one year; that printed ballots were furnished to the voters, the ballot headed for La Vaud having also thereon a candidate for the office of clerk and collector respectively ; that it was decided to ballot first for trustees, and then for clerk and collector, which decision rendered it necessary for the supporters of La Vaud and others for trustees, to eliminate from their ballots the names thereon of the candidates for clerk and collector; that inspectors of election were appointed, a ballot for trustees was taken and a poll list kept containing the names of each person whose vote was received, on which poll list were recorded the names of 1 19 persons ; that upon a canvass of the ballots cast there 2^2 THE UNIVERSITY OF THE STATE OF NEW YORK were found ii8 single ballots, and 2 ballots folded together, each of which con- tained the names of Harris and Thomas and John Smith ; that upon 2 ballots were found respectively the names of James Simpson for trustee for one year and that of William E. Cruise for clerk and August Wenske for collector; that I of said ballots contained the name of Harris for trustee for three years. La \ and for trustee for two years and John Smith for one year; that another ballot contained only the names of Harris for trustee for three years and John Smith for trustee for one year; and another ballot contained only the name of Harris for trustee for three years ; that the 2 ballots found folded together were laid aside until 118 single ballots were canvassed and said 2 ballots, notwithstanding objections made, were allowed to and counted for Messrs Harris and Smith; that the result of the ballot was then announced, as follows : H. S. La Vaud, 60 votes; Airs Elizabeth A. Britton, 61 votes; James Simpson, 63 votes; William R. Llarris, 58 votes; Thomas Smith, 55 votes and John Smith, 55 votes; that it does not clearly appear what persons offering to vote at said meeting were challenged aside from the four persons noted upon the copy of the poll list attached to the appeal. The appellants allege in their appeal that '* upon investigation we believe that more than 10 votes cast for H. S. La Vaud and E. A. Britton and James Simp- son were voted by persons not having a legal right to vote at said meeting, hence should be stricken from the list and not counted," and then follow the names of eleven persons who voted, with allegations, stating the grounds upon which they claim that said persons were not qualified voters at said meeting. The appellants also allege, in papers filed by them subsequently to said appeal, that August Wenske, W. L. IMcCarthy and August P. M. Helmeyer, who voted at said meet- ing were not legal voters. The appellants do not show affirmatively that the votes cast by said persons were for the successful ticket for trustees at said meeting. The respondents in their answer to the appeal allege that nine persons who voted at said meeting were not legal voters, and state the grounds upon which said allegations are made. One of said nine persons, it is admitted by the appel- lants, was not a legal voter. I have grave doubts, upon the proofs presented, as to whether several of the eight other persons named were at said annual school meeting qualified voters in said district. But I am of the opinion that upon said proofs I can not find that the respondents have shown by evidence the lack of qualifications of said persons in such terms as necessarily to exclude every presumption that said persons could be qualified under some one of the provisions of section 11 of title 7 of the school law. I find that Mr and Mrs Reggonet, Richard King and Jacob Swain were not legal voters, nor was any one of them a legal voter, at said meeting; but the appellants have not shown affirmatively that their votes or the vote of any one of them was cast for the successful ticket for trustees- at said meeting. I find upon the admission of the appellants, that August Smultz, or Schmult, was not a qualified voter at said meeting, but that he voted at said meeting and JUDICIAL DECISIONS : ELECTIONS 253 for Harris, Smith and Smith for trustees, as appears by his affidavit, sworn to on December 12. 1894, which affidavit has been filed by the appellants in the appeal herein. I find that the two ballots folded together should have been destroyed by the inspectors, and it was error in counting said two ballots for Messrs Harris, Smith and Smith for trustees. It appears that 119 persons voted, and there were 120 votes in the box, and where two or more ballots shall be found in a ballot box folded together as to present the appearance of a single ballot, they shall be destroyed, if the whole number of ballots exceeds the whole number of ballots shown by the poll list to have been deposited therein. The appellants state in their appeal, "Aside from our interest in the school, the appeal is brought to put an end to illegal voting in the district, etc., etc." Under the provisions of the school law, any qualified voter in a school district has the right, at any school district meeting, to challenge the vote of any person ofiier- ing to vote, upon the ground that he or she is disqualified ; that upon such chal- lenge the chairman presiding at such meeting shall require such person to make the declaration required in section 12, article i, title 7 of the Consolidated School I.aw ; that if such person makes the declaration his or her vote must be received ; but if such person refuses to make the declaration then his or her vote shall be rejected. Under section 13, same article and title, any person who shall wilfully make a false declaration of his or her right to vote after such vote shall have been challenged, shall be deemed guilty of a misdemeanor. If, at the school meet- ing, the above provisions of the school law should be brought to the attention of the persons attending said meeting, and any person challenged shall make and file a false declaration, and such person be proceeded against and punished for the misdemeanor committed, that illegal voting in the district would be stopped. I find and decide that there must be deducted from the votes counted at said annual meeting for Harris, Smith and Smith, the two votes folded together, and also one vote cast by Smultz, or Schmult ; that William R. Harris received 55 votes, Thomas Smith 52 votes and John Smith 52 votes ; that H. S. La Vaud received 60 votes, Mrs Elizabeth A. Britton 61 votes, and James Simpson 63 votes, and that said La Vaud, Britton and Simpson were, and each of them was, duly elected trustees of said school district. Assuming for the purpose of argument that Mr and Mrs Regonnet, Richard King and Jacob Swain each voted for La Vaud, Britton and Simpson, it would not change the result of said election, for the reason that deducting the four votes as cast for La Vaud, Britton and Simpson, La Vaud received 56 votes, Mrs Britton 57 votes, and James Simpson 59 votes, as against 55 votes for Harris, 52 votes for Thomas Smith, and 52 votes for John Smith. The appellants have failed to establish their appeal herein and the appeal should be dismissed. Appeal dismissed. 254 THE UNIVERSITY OF THE STATE OF NEW YORK 4397 In the matter of the election of school district officers in school district no. 8, town of Hounsfield, Jefferson county. At an annual school meeting the several district officers were declared elected upon a vote for each taken by acclamation or viva voce and not by ballot. That the trustees elect, assuming that said election was not legal, called a special meeting of the district for the election of such district officers; that at such special election some person other than the one assumed to be elected at the annual meeting was elected trustee. Held, that at the annual meeting the district officers were elected by the form or color of an election and as such were entitled to perform the duties of their respective offices until by an order of the State Superintendent of Public Instruction such election was declared illegal and void. That the special meeting held in said district was illegal and void. That the election of said district officers was vacated and set aside, and a special meet- ing of the district called for the election of said officers, excepting for the office of librarian. That the trustee, under the school law, must appoint the librarian. Decided October i8, 1895 Skinner, Supenntendent In the above-entitled matter Levi Bowles and George W. Stetson each claim- ing- to have been legally elected trustee of school district no. 8, town of Houns- field, Jefferson county, have presented to me an agreed statement of facts, signed by them, as to the proceedings taken relative to the election of school officers in said district, and have submitted the same to me for my consideration and decision. The following is a statement of the facts as so agreed upon: On August 6, 1895, the annual school meeting was held in said school district no. 8, town of Hounsfield, Jefferson county. Jefferson Baker was elected chair- man and George H. Weaver acted as clerk ; a vote was taken by acclamation and the following named persons were declared elected as officers of said school district, namely. George H. Weaver district clerk, Samuel Hicks collector, Levi Bowles trustee, and Lester Lamson librarian ; that after the meeting had adjourned, Mr Bowles was informed by one or more electors of said district that the election of the said persons by acclamation, as such school district officers, was not a legal election, and that they should have been elected by ballot; that after considering the matter Mr Bowles announced that he thought the proper course to pursue was to call a special meeting of the district for the purpose of electing thereat by ballot the officers of the district for the school year and sug- gested to Mr Weaver, the clerk, that he call such special meeting; that such special meeting was called and held and at said meeting George W. Stetson was declared elected trustee by ballot ; that three ballots for trustee were had at such meeting each of which resulted as follows : first ballot, whole ntmiber of votes cast was 11, of which Levi Bowles received 3, William Dunbar 4 and George W. Stetson 4; second ballot, whole number of votes cast was 11, of which Levi Bowles received 2, William Dunbar 4 and George W. Stetson 5 ; third ballot. whole number of votes received was 11, of which William Dunbar received 4 and George W. vStetson 7 ; that at said special meeting the other district officers were JUDICIAL DECISIONS : ELECTIONS 255 not balloted for and no action was taken thereat to declare such other officers elected; that at the annual school meeting there was no dissenting vote against any of the candidates named. Levi Bowles claims to be de facto trustee of said district, and George W. Stetson claims that he is the lawfully elected trustee of said district. By section 14, of article i, title 7, of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894, the annual school meeting held in said school district had the power, and it was its duty, to appoint a chairman of the meeting and if the district clerk was absent, to appoint a clerk for the meeting; to elect a trustee, a district clerk and a collector ; that all such district officers should be elected by ballot ; that the trustee should have provided a suitable ballot box ; that two inspectors of election should have been appointed in such manner as the meeting determined, who should have received the votes cast, and canvassed the same, and announced the result to the chairman ; a poll list containing the name of every person whose vote was received should have been kept by the district clerk, or the clerk for the time of the meeting ; that such voters should have used ballots written or printed, or partly written and partly printed, containing the name of the person voted for, and if said meeting decides to vote for all of such officers upon one ballot, designating on said ballot the office for each person named on said ballot was voted for; that the chairman should have declared to the meeting the result of each ballot as announced to him by the inspectors, and the persons having the majority of the votes respectively, for the several offices, should have been elected. It appears, from said statement of facts, that said annual meeting complied with the provisions of law above cited in electing a chairman and having the district clerk act as clerk of the meeting; but in all other matters there was a total disregard of the said provisions. No ballot was had for any of the district officers and none of such district officers were legally elected. Said meeting had no legal authority to elect a librarian, as by the provisions of section 2, of title 13, of said Consolidated School Law of 1894, the trustee of the school dis- trict shall appoint a teacher of the school of the district as librarian of the school library. The only person authorized under the school law to render a decision as to whether a school district officer is or school district officers are legally elected is the State Superintendent of Public Instruction, and the matter can be brought to him for decision either by an appeal from the proceedings of the district meet- ing taken in such election, or by submitting the question to him for decision upon an agreed statement of facts, signed by the contesting parties. Mr Bowles had not, nor had any other officer or voter of said district, the legal authority to assume or decide that the election of district officers at said annual meeting was illegal, and to call a special meeting for the purpose of electing such district officers or any of them. The special meeting called and held after said annual meeting, for the purpose of electing officers of said district, was illegal, and all proceedings had and taken thereat were illegal and void. 256 THE UNIVERSITY OF THE STATE OF NEW YORK This Department has uniformly held that, when at a school district meeting, district officers are elected by the form or color of an election, but not in accord- ance with the provisions of the school law, the said officers so elected are de facto officers, and are authorized and empowered to perform all the duties imposed upon them respectively by law, until by an order of the State Superin- tendent of Public Instruction the election of said officers or any of them, is declared to be illegal and void. The persons elected to the respective district offices by the color or form of an election at said annual meeting, except the person elected librarian, became de facto officers, and all contracts made, or expenses incurred by them or any of them, authorized by law, are valid and a charge upon said district. As the special meeting held after the annual meeting was illegal and void, Mr Stetson, who claims to have been elected trustee at said meeting did not become by the action of said meeting a trustee either de facto or de jure, and hence had no authority whatever to do or perform any act as trustee of said district. It is ordered, That all action and proceedings had and taken at said special meeting held in said school district at which George W. Stetson claims to have been elected trustee of said district be, and the same are and each of them is, hereby vacated and set aside as illegal and void. It is further ordered, That all proceedings had and taken at the annual school meeting, held in said district, relating to the election of trustee, district clerk, collector and librarian, or of any of them be, and the same are, and each of them is, hereby vacated and set aside, as illegal and void. It is further ordered, That George H. Weaver, the district clerk of said school district for the school year of 1894-95 be, and he hereby is, authorized and directed to call a special meeting of the inhabitants of said district, qualified to vote at its school meetings for the purpose of electing a district clerk, a col- lector and a trustee of said district for the present school year; that he cause a notice of said special meeting to be served upon each of the qualified voters of said district; that the proceedings of said special meeting when convened shall be in accordance with section 14, article i, title 7, of the Consolidated School Law of 1894. 4414 In the matter of the appeal of Cassius B. Lynde from proceedings of annual school meeting held August 6, 1895, and special school meeting held August 31, 1895, in district no. 7, town of Antwerp, Jefferson county; and acts of Arthur Gleason as trustee. Where at an annual meeting in a common. school district in the election of a trustee thereof no person received a majority of the votes cast in the ballot taken for said office, but the chairman of the meeting declared the person receiving the highest number of votes elected trustee, and a special meeting of the district having been called upon the assump- JUDICIAL DECISIONS : ELECTIONS 2'^/ cion that there was no valid election of a trustee and which meeting assumed to elect a trustee ; held, that it was error on the part of the chairman of the meeting in declaring the person having a plurality of the votes only as elected trustee. That such meeting should have proceeded to ballot until some one received a majority of the votes cast. That such special meeting was null and void. That the tax list and assessment made and issued by the person claimed to have been elected trustee at such meeting be vacated and set aside, and that a special meeting of the district be called for the purpose of electing trustee and district clerk. Decided December i8, 1895 A. W. Orvis, attorney for appellant Skinner, Superintendent At the annual school meeting held on August 6, 1895, in school district no 7, town of Antwerp, Jefferson county, a ballot was taken for trustee of the dis- trict for the school year of 1895-96, and said ballot resulted as follows: whole number of voters cast 12, of which H. H. Kelsey received 6, Milo Paddock 3, and Frank Hicks 3, and said Kelsey was declared elected ; that a ballot was then taken for district clerk, which resulted as follows: whole number of votes cast 12, of which Arthur Gleason received 6, Frank Hicks 4, and George Wood 2, and said Gleason was declared elected ; that after such meeting James McRobbie, the trustee of the district for the school year 1894-95, delivered to said Kelsey the books and papers pertaining to said office of trustee; that a few days after said annual meeting, a special meeting of the inhabitants of the district was called for the evening of August 31, 1895, the notices for said meeting being given by Kelsey, the clerk of said district for the school year 1894-95, with the consent of said McRobbie; that at said meeting on August 31, 1895, ^ ballot was taken for trustee that resulted in Arthur Gleason receiving a majority of the votes cast; that a ballot was taken for district clerk that resulted in George Wood receiving a majority of the votes cast; that the said Gleason received from Kelsey the books and papers, and assumed to act as trustee of said district ; that on November 7, 1895, said Gleason delivered to the collector of said district a tax list, with the warrant, for the collection of the taxes assessed therein. The appellant herein has appealed from the tax list issued by said Gleason, assuming to act as trustee of said district. An answer by Gleason has been filed in which the material facts in the appeal are admitted. Subdivision 4, of section 14, article i, title 7, of the Consolidated School Law of 1894, enacts that in the election of school district officers the person hav- ing the majority of votes, respectively, for the several offices, shall be elected. It is the majority of the votes cast for a school officer that elects such officer, not the declaration of the chairman of the meeting. It is clear that at the annual school meeting in said district there was no election of a trustee or district clerk for said district. It was the duty of the 258 THE UNIVERSITY OF THE STATE OF NEW YORK meeting to have balloted until some one received a majority of the votes cast for trustee and clerk respectivelv. and the meeting having failed to do so, the trustee and district clerk in office at the time the said annual meeting convened respectively, continued to hold office until their successors should be elected or appointed. The special meeting held in said district on August 31, 1895, at which it is claimed said Gleason was elected trustee, and said Wood was elected dis- trict clerk, was illegal and void. There was no vacancy then existing either in the office of trustee or clerk of said district that a special meeting of the district could supply. I find and decide that said Arthur Gleason is not legally a trustee of said district, not having been legally elected to said office ; that for like reasons George Wood is not legally the district clerk of said district ; that the tax list and warrant issued by said Gleason is illegal and void ; that James McRobbie is the legal trustee of said district and that H. H. Kelsey is the legal clerk of said district. It also appears that said McRobbie, as trustee of said district, prior to August 6, 1895, employed one James O'Brien to teach the school in said district. I find and decide that said McRobbie, as such trustee of said district, had authority, under subdivision 9, of section 47, article 6, title 7, of the Consoli- dated School Law, to contract for the employment of said O'Brien as a teacher therein, if such employment was not for more than one year in advance; and that such contract is binding upon the successor or successors in office of said McRobbie and upon said district. As it appears, the cjualified voters of said district have been misled by the action of the chairman of said annual meeting, and the provisions of the school law, a special meeting of such district should be called for the purpose of elect- ing a trustee and district clerk of said district. The appeal herein is sustained. It is ordered, That the tax list and warrant made and delivered to the col- lector of said school district no. 7, town of Antwerp, Jefferson county, on or about November 7, 1895, t>y Arthur Gleason, assuming to act as trustee of said district, be, and they are, hereby vacated and set aside as illegal and void. It is further ordered. That the action and proceedings had and taken at special meeting of said district, held on August 31, 1895, be, and they are, hereby vacated and set aside as illegal and void. It is further ordered. That James McRobbie, trustee of said district, be, and he is, hereby authorized and directed to call a special meeting of said district for the purpose of electing a trustee and a district clerk of said district for the present school year. JUDICIAL decisions: elections 259 4IOI In the matter of the appeal of F. A. Button and others from the proceedings of the annual meeting held on August 2, 1892, in union free school district no. 9 of the town of Gainesville, Wyoming county. At a meeting in a union free school district in which the number of school children does not exceed 300, after the nomination of three persons for trustees for three years, a motion was made that the clerk be instructed to cast the ballot of the meeting for the three persons nominated for trustees. Such motion was put by the chairman, whereupon responses of " aye" were made, and thereupon the chairman called for the nays and responses of "nay" were made, and the motion was declared carried, and the ballot was cast by the clerk and the persons named in said ballot declared elected. Held, that there was no valid and legal election of trustees by said meeting; and that the trustees whose terms of office expired at such meeting held office until their successors were elected or appointed, and that there are no vacancies in the office of trustees, that a special meeting of the district can till. Decided September 22, 1892 Crooker, Superintendent This is an appeal from certain proceedings had and taken at the annual meeting held on August 2, 1892, in union free school district no. 9 of the town of Gainesville, Wyoming county. The appeal alleges improper and arbitrary decisions and action on the part of the chairman of the meeting, and his refusal to recognize and permit certain qualified voters to speak at such meetings ; and that the election of three trustees for said district was not valid or legal. The appeal is verified by fourteen of the voters of the district, but no copy of the proceedings had and taken at said meeting is contained in or annexed to said appeal. Milton R. Brown has filed an answer to said appeal, in which answer he denies the allegations contained in the appeal relative to decisions and actions of the chairman of the meeting and the refusal to recognize and permit qualified voters to speak at such meeting, and sets forth the proceedings had and taken at such meeting. x\nnexed to said answer are the affidavits of about thirty-two of the voters of the district as to the truth of the statements contained in the answer, and a certified copy of the proceedings had and taken at said meeting relative to the election of trustees. The appellants have failed to establish their allegations relative to the decisions and actions of the chairman, and his refusal to recognize and permit qualified voters to speak at said meeting. The facts clearly established by the papers presented upon the appeal rela- tive to the election of trustees for said district are as follows : That Mr M. R. Brown, the chairman of the meeting, stated that nomina- tions for candidates to fill vacancies in the board of education were in order; that one G. S. Skifif placed in nomination M. R. Brown, J. W. Bristol and William Canning for members of the board of education for the ensuing three years ; that, no other nominations being made, said Skiff moved that the clerk 26o THE UXTVERSITY OF THE STATE OF NEW YORK be instructed to cast the ballot of the meeting for M. R. Brown, J. W. Bristol and William Canning to be members of the board of education for the ensuing three years; that said motion was seconded by one John Hickey; that the chairman of said meeting put the said motion, saying, in substance, " All who are in favor of said motion, say ' aye,' " whereupon responses of " aye " were made ; the chairman then said, " Contrary, ' nay,' " whereupon responses of " nay " were made, and the chairman declared the motion carried ; that there- upon the clerk cast one ballot for M. R. Brown, J. W. Bristol and William Canning for members of the board of education for the ensuing three years ; that no other ballots were cast; that the chairman declared the persons so voted for elected; that thereupon a motion was made and seconded that the meeting adjourn, which motion was put and declared carried by the chairman, and said chairman declared said meeting adjourned. The only question to be decided in this appeal, upon the papers presented, is whether there was or there was not a valid and legal election of trustees or members of the board of education at the annual meeting held on August 2, 1892, in union free school district no. 9 of the town of Gainesville, Wyoming county. School district no. 9 of the town of Gainesville, Wyoming county, is a union free school district; its board of trustees or of education consists of seven members ; the terms of three of said members expired at the annual meet- ing of the district on the first Tuesday of August 1892 ; the terms of two members will expire on the first Tuesday of August 1894. In said district the number of children of school age does not exceed 300, and the provisions of chapter 248 of the Laws of 1878 in relation to the election of officers in certain school districts do not apply; but under the school laws said district must hold its annual meeting on the first Tuesday of August in each year, and elect trustees in place of persons whose terms of office expire at the time of such annual meeting. Such election must be by ballot. The qualifications necessary to be possessed by persons to entitle them to vote at any school meeting in said dis- trict are defined in the school law, and a majority of the votes of those present and voting at the meeting who are qualified to vote, is requisite to elect such trustees. Every person duly qualified to vote at any school meeting held in said dis- trict, present at said annual meeting on August 2, 1892, had, under the school laws of this State, the right to vote by ballot for whom he or she desired, for three persons as trustees in place of the persons whose term of office as trustees expired at such meeting, and such voter can not be deprived of such right by the action of the district meeting, either directly or indirectly. Persons who were qualified voters at said meeting were deprived of their legal right to vote by the act of said meeting in the attempted election of three trustees of said district by the ballot of the clerk, cast, upon a motion adopted by an aye and no vote, on the decision of the chairman of the meeting that such motion was adopted. JUDICIAL DECISIONS I ELECTIONS 261 If the method of electing district officers pursued at said meeting of said district should be allowed at all, it should only be allowed where the method is the unanimous wish of the qualified voters of the district present at said meeting. The fact that voters present at said meeting voted " no " upon the motion requesting the clerk to cast a ballot for the three persons whose names were presented to the meeting for trustees, shows that it was not the unanimous wish of the voters. It is not shown in the appeal papers how many of the voters voted " aye " nor how many voted " no," nor is it shown whether or not all those present and voting " aye " or " no " were qualified voters. The motion was declared adopted by the chairman of the meeting, it seeming to him that a majority voted " aye" and that the " noes " were in the minority. The legal method of electing members of the board of trustees or board of education in union free school districts is by ballot by the qualified voters of the district, presented to and received by the tellers, duly appointed by the meeting, and the name of each voter as she or he votes to be recorded by the clerks or secretaries of the meeting. A reasonable time should be given for taking the vote. After the polls are closed the votes should be canvassed and result recorded and announced and such result duly certified to by the board of education. No declaration by the chairman of who is elected is required. It is not the declaration of a chairman, but the fact that a person or persons received a majority of the legal votes cast, which constitutes an election. The method and proceedings relative to the election of trustees or members of the board of education which were had and taken at said meeting are con- trary to the letter and spirit of the school law governing such elections in union free school districts ; resulted in depriving the qualified voters of the district present at the meeting of the right of expressing his or her choice for trustees by his or her ballot, and can not be sustained. I do decide and determine : That no valid and legal election of trustees or members of the board of education of union free school district no. 9 of the town of Gainesville. Wyoming county, was had at the annual meeting of said district held on August 2, 1892 ; that all proceedings had or taken at said meeting relative to the election of trustees are void. There having been no valid and legal election of trustees or members of the board of education in said district at its annual meeting, and under section 25 of title 7 of the school law the trustees whose several terms expired at said annual meeting hold office until their successors are elected or appointed, there are no vacancies in the office of trustees that a special meeting of the district can fill. So much of said appeal herein as is taken from the action and proceedings of said annual meeting relative to the election of trustees or members of the board of education is sustained; as to all other matters contained in said appeal, the said appeal is dismissed. 262 THE U^'lVERSlTy OF THE STATE UF NEW VURK 4281 III the matter of the appeal of Michael Mitchell from proceedings of annual school meeting in district no. 11, town of Annsville, Oneida county. All school district officers must be elected by ballot in the manner prescribed by section 14, article i, title 7 of the Consolidated School Law of 1894, and the persons having the majority of votes respccti\cly for the several offices shall be elected. Decided October 19, 1894 Silas L. Snyder, attorney for appellant P. H. Fitzgerald, attorney for respondent Crooker, Superintendent The appellant in the above-entitled matter appeals from the proceedings of the annual school meeting, held on the first Tuesday of August 1894, in school district no. 11, town of Annsville, Oneida county, on the ground that such proceedings were irregular and in violation of the school law of this State. The appeal alleges that no inspectors of election were appointed to receive and canvass the votes and announce the result of the ballot to the chairman ; that only a partial poll list of the names of the persons who voted was kept; that the chairman of the meeting nominated a candidate for the office of trustee, received the votes cast, canvassed the same and announced the result of the ballot; that persons voted who were not qualified voters in the district. An answer by Harry W. White to the appeal has been received, and sundry affidavits in support of the appeal and answer have been received. There is some conflict in the affidavits filed as to the number of ballots cast for the office of trustee, and the qualification of certain persons who voted for trustee at said annual meeting. The following allegations contained in the appeal are not denied by the respondent, namely: that the annual meeting of school district no. 11, town of Annsville. Oneida county, was held on August 7, 1894, at the schoolhouse in said district at 7.30 p. in. ; that Benjamin Ballard was elected chairman and William Stedman, clerk; that the chairman nominated Harry W. White for the office of trustee, and James Duffy and William Stedman were placed in nomination for said office; that no inspectors of election were appointed or elected, but the chairman of the meeting received the ballots cast for trustee, canvassed said ballots and announced the result to the meeting; that the clerk of the meeting kept a poll list; that the whole number of persons residing in the district claiming to be qualified voters in said district are 33 and that 16 persons claiming to be qualified voters were present at said meeting. The appellant alleges in his appeal that 16 ballots were cast for trustee, and upon the canvass of the ballots by the chairman it was discovered that the number of ballots exceeded the number of names on the poll list by one, there being 16 ballots and but 15 names on the poll list (the appellant's name not appearing upon said poll list) whereupon the chairman cast out a ballot and declared Harry W. White duly elected, he having received 8 votes; that appel- lant voted at said meeting for William Stedman as trustee. JUDICIAL decisions: ei.eltioxs 263 In support of these allegations the appellant filed his own affidavit, in which he states he voted at said meeting for said Stedman and was the third person who voted; that after the voting was over the chairman counted the votes and said there were 16 votes and asked the clerk how many names there were on the poll list and the clerk replied 15; and Ballard, the chairman, said he would have to throw one out. and did take up a vote from the table and threw it on the floor at his feet; that the deponent stood close to said chairman, almost touching him. He also files the affidavits of four other persons who were present at said meeting who each swear they saw the appellant vote at said meeting; three of whom swear that the chairman of the meeting received the vote of the appellant. He also files the affidavit of the clerk of the meeting, that after the voting was concluded he (the affiant) heard the chairman say there were 16 votes cast, and said chairman asked deponent how many names were on the poll list and deponent counted the names and informed said chairman there were 15, and the appellant's name was not among them. He also files the affidavit of three other persons present at the meeting, each of whom swears that he heard the chairman, who counted the ballots, declare that there were 16 votes cast, and also heard the clerk say there were only 15 names on the poll list. The respondent, White, alleges in his answer to the appeal that the poll list at said meeting contained the names of 15 persons as having voted for trustee, the name of the appellant not appearing therein ; that at the close of the polls the names on the poll list were counted and also the number of ballots cast and that both corresponded, each being 15; that the respondent received 8 of the 15 votes and was declared elected. Annexed to said answer and in sup- port thereof is the affidavit of the respondent and six other persons in which it is alleged that the ballots were counted and found to be 15 aiul the names on the poll list counted and found to be 15; that no ballot was eliminated, thrown away or destroyed; that none of said deponents remember having seen the appellant vote at said meeting ; that they verily believe that if the appellant had voted at said meeting they would have seen and remembered it. The respondent also files in support of his answer the affidavit of three lads of the age of 11. 14 and 16 years respectively, who each swears he was present at said meeting; that there were 15 votes cast at said meeting, and there were only 15 votes; that there were 15 names on the poll list, and that the names on the poll Hst and the number of votes cast at the meeting correspond; that in the presence of each deponent the votes were counted by Ballard and found to be 15. Both the appellant and respondent allege that certain persons voted at said meeting who were not qualified voters. \\'hen such allegations are made it is incumbent upon the party making the allegations to show by evidence the lack of such qualifications in such terms as necessarily to exclude every pre- sumption that person or persons could be qualified under either of the heads stated in section 11, article i, title 7 of the Consolidated School Law. Both parties to this appeal have failed in this regard. A party knowing, or having good reason to believe, a person to be unqualified, and permitting him to vote without challenge, will not be allowed to object to the proceedings of the meet- ""ihg because such unquahfied person participated therein. 264 THE UNIVERSITY OF THE STATE OF NEW YORK From the uncontroverted facts established in this appeal it is clear that the election of a trustee at the school meeting, held on August 7, 1894, in dis- trict no. II, Annsville, was not in conformity with the provisions of subdivision 4 of section 14, article i, title 7 of the Consolidated School Law. It does not appear affirmatively that any ballot box was furnished; no inspectors of election were chosen or appointed. The chairman of the meeting, in contravention at least of the proprieties, nominated a candidate for trustee; he assumed the duties of inspectors of election and received the ballots cast; canvassing the same and declaring the result. The main questions presented by this appeal for decision are : first, How many ballots were cast at said meeting for the office of trustee?; and, second. Did any person receive a majority of the votes cast for the office of trustee? It is conceded by the respondent that there were fifteen votes cast, and it is claimed by the appellant that there were sixteen votes cast. The appellant swears positively that he voted for Stedman for trustee, and was the third person who voted ; one Cornelius Mitchell swears he saw the appellant vote for trustee. Hall, Downey and Corcoran each swear they saw appellant vote, and Ballard (the chairman) received such vote. In answer to this proof on the part of the appellant, the respondent. White, and six other persons, in a joint affidavit, one of the affiants being Ballard (the chairman), say " that none of them remember having seen Michael Mitchell vote at said meeting." Five persons swear positively to a fact, to wit, that the appellant voted for trustee at said meeting; and seven persons swear that none of them remember having seen the appellant vote. The appellant, the clerk, Stedman, and three other persons swear that the chairman, after counting the ballots, said there were 16, and asked the clerk how many names were on the poll list, to which the clerk replied 15; the appellant swears positively that he was standing close to the chairman and almost touching him; he saw the chairman, after receiving said reply from the clerk, take up a vote from the table and throw it on the floor at his (the chairman's) feet. I am of the opinion that it is established herein by a preponderance of proof, that the appellant herein voted at said meeting for William Stedman for trustee ; that the appellant handed his said ballot to the chairman of the meet- ing, who received said ballot ; that said chairman failed to give the name of the appellant to the clerk for entry upon the poll list; that 16 ballots were cast for the office of trustee at said meeting and said 16 votes should have been canvassed and the result of said canvass announced to said meeting. As to the second proposition, I am of the opinion also, that no one received a majority of the votes cast at said meeting for the office of trustee. There having been 16 votes cast a majority of said vote is 9. The respondent herein received 8, and the remaining 8 votes cast were given for either Stedman or Dufify. Therefore, no one was legally elected trustee of said district at said meeting. The ap])eal herein is sustained. JUDICIAL DECISIONS : ELECTIONS 265 I find and decide, That at the annual school meeting, held on August 7, 1894, in district no. 11, town of Annsville, Oneida county, Harry W. White, the respondent herein, was not, nor was any person, legally elected a trustee of said district. It is ordered, That the trustee of said school district no. 11, town of Anns- ville, Oneida county, in office on August i, 1894, be, and he is, hereby author- ized and directed forthwith to call a special meeting of the inhabitants of said district qualified to vote at its school meetings, for the purpose of electing a trustee of said district, the last annual meeting of said district having failed to elect a trustee. That notice of said special meeting be served upon said inhabitants in the manner prescribed in section 2, article i, title 7 of the Con- solidated School Law of 1894; and that the proceedings of said special meeting when assembled, in organizing and in the election of said trustee, shall be in accordance with the provisions of section 14, article i, title 7 of said Consoli- dated School Law of 1894. 4881 In the matter of the appeal of Charles H. Simmons and others from proceedings of annual meeting held August 7, 1900, in school district no. 6, Springfield, Otsego county, relating to the election of district officers. Under the Consolidated School Law of 1804 all school district officers must be elected by ballot; at such election the trustee shall provide a suitable ballot box; two inspectors of election shall be appointed in such manner as the meeting shall determine, who shall receive the votes cast and canvass the same, and announce the result of the ballot to the chairman; a poll list, containing the name of every person whose vote shall be received shall be kept by the district clerk or the clerk for the time of the meeting; the ballots shall be written or printed, or partly written and partly printed, containing the name of the person voted for and designating the office for which each is voted; the chairman shall declare to the meeting the result of each ballot as announced to him by the secretary, and the persons having the majority of votes respectively, for the several offices, shall be elected. Said law also exacts that in all propositions arising at school district meetings, involving the expenditure of money or authorizing the levy of a tax or taxes, the vote thereon shall be by ballot, or ascertained by taking and recording the ayes and noes of such qualified voters, present and voting at such district meeting. Taking and recording the ayes and noes means that the clerk of the meeting shall record the name of each person whose vote is received and set opposite to each name whether such person votes aye or no. No person can vote at any school district meeting unless he or she possesses the requisite qualifications as prescribed in section 11 of article i, title 7 of said Consolidated School Law of 1894. Decided September 22, 1900 Skinner, Superintendent This is an appeal from the proceedings of the annual meeting held August 7, 1900, in school district 6, Springfield, Otsego county. The appellants allege as the grounds for bringing their appeal, that no inspectors of election were appointed in such manner as the meeting should 266 TPIE university of the state of new YORK determine, who should receive the votes cast and canvass the same, and announce the result of the ballot to the chairman; that no ballot was had for a district clerk or a collector; that the vote upon the appropriation of money for school purposes or the levy of a tax was not taken by ballot, or ascertained by taking and recording the ayes and noes of the qualified voters attending and voting at such annual meeting. An answer has been made to the appeal. The following facts are established- by the proofs filed herein: That the annual meeting was held in school district 6, Springfield, Otsego county, August 7, 1900, and George Eckerson was elected chairman and George W. McRorie, the district clerk, acted as clerk; that the proceedings of the last meeting were read and accepted ; that the report of the trustee was read and accepted ; that a motion was adopted that they proceed to ballot for trustee ; that upon the suggestion of one S. M. Ingalls, no motion being made or any vote taken in that regard, the chairman and clerk acted as inspectors of election, the clerk keeping a poll list containing the names of the persons whose votes were received for trustee ; that the trustee, not having provided a ballot box, a hat was used in which the ballots cast for trustee wxre deposited by the chair- man, w4io received such ballots from the persons voting; that the poll list kept by the clerk contained the names of 25 persons whose votes had been received, but by the count made of the votes in the hat there were found to be 26 votes cast; that a motion was made and seconded that one ballot be withdrawn, to which said Ingalls objected, and upon his suggestion the names upon the poll list were called by the clerk, and thereupon Charles H. Simmons, one of the appel- lants, declared that he had voted, and Simmons' name was entered by the clerk upon the poll list; that the votes in the hat were then canvassed by the chairman and clerk, and the result of the count reported as follows : Whole number of votes cast, 26, of which S. M. Ingalls received 17, J. L. McKellip received 7, and Henry C. Sheldon received 2 : that G. W. McRorie was elected district clerk by a viva voce vote ; that A. T. McRorie was elected collector by a viva voco vote ; that upon a motion made and seconded, and adopted by a viva voce vote, the sum of $40 was ordered to be raised by tax for wood and other expenses, and upon a like motion and vote the further sum of $17.98 was directed to be raised by tax to pay a note given for the purchase of a globe. In subdivision 4 of section 14 of article i, title 7 of the Consolidated School Law of 1894, chapter 556 of the Laws of i8q4, it is, among other things, enacted that all district officers shall be elected by ballot: that at elections of district officers the trustee shall provide a suitable ballot box ; that two inspectors of election shall be appointed in such manner as the meeting shall determine, who shall receive the votes cast, and canvass the same, and announce the result of the ballot to the chairman: that a poll list containing the name of every person whose vote shall be received shall be kept by the district clerk, or the clerk for the time of the meeting ; the ballots shall be written or printed, or partly written and partly printed, containing the name of the person voted for and designat- JUDICIAL DECISIONS : ELECTIONS 26/ ing the office for which each is voted; that the chairman shall declare to the meeting the result of each ballot, as announced to him by the inspectors, and the persons having the majority of votes respectively, for the several offices, shall be elected. In subdivision i8 of section 14, article i, title 7, of said Consolidated School Law of 1894, it is enacted that in all propositions arising at said district meet- ings, involving the expenditure of money or authorizing the levy of a tax or taxes, the vote thereon shall he by ballot or ascertained by taking and recording the ayes and noes of such qualified voters present and voting at such district meetings. Taking and recording the ayes and noes means that the clerk of the meet- ing shall record the name of each person whose vote is received and set opposite to each name whether such person votes aye or no. The provisions above cited have been the law since June 50, i8p4, and it is time that school district meetings should be conducted in accordance with said provisions. The proceedings with reference to the election of district officers and authorizing the levy of taxes taken at the annual meeting in school district 6, .Npringtield, Otsego county, with the exception of keeping a poll list by the clerk in the ballot taken for trustee, were not as required by the school law. The trustee failed to provide a suitable ballot box; the meeting failed to appoint two inspectors of election, and the chairman and clerk assumed, zvith- out any authority of laiv or vote of the meeting, but upon the suggestion of the respondent, Ingalls, to act as such inspectors. The ballots cast for trustee exceeded the number of names of persons recorded by the clerk upon the poll list kept by him, by one; that instead of placing all the votes in the hat and draw- ing out one ballot and destroying it and then proceeding to canvass the votes remaining, as was proposed by a motion made and seconded, but wdiich was not put to vote, on the objection of said Ingalls, upon the suggestion of said Ingalls the clerk called the names upon the poll list and each person so called responded, when Simmons, one of the appellants herein, stated that he had voted, and thereupon his name was added to the poll list, and the canvass of the votes was announced by the chairman. Neither the district clerk nor the collector was elected by ballot, and the vote authorizing the levy of a tax was not taken by ballot or ascertained by the clerk recording the name of each person who voted and setting opposite to each whether such person voted aye or no. This Department has held that wdiere the trustee or trustees of a district have failed to provide a ballot box, the use of a hat for the reception of ballots will not of itself invalidate an election. It is alleged by the appellants that Mrs Carrie Smith, the wife of Fred W. Smith, who at the time of said annual meeting was a citizen of the United States, upwards of 21 years of age and who with her husband had resided in such school district for more than 30 days prior to such meeting, and wdio had residing- with them four children of school age, some one or more of whom 268 THE UXIVERSITY OF THE STATE OF NEW YORK had attended the school in such district for at least eight weeks during the school year ending July 31, 1900, offered to vote, but her vote was rejected by the chairman upon the opinion expressed by the respondent Ingalls that she was not a qualified voter in the district. Said Ingalls in his answer admits that the statements made by Mrs Smith as to her qualifications as a voter are true, but denies that she offered to vote. He, however, admits that he stated to the meeting that in his (Ingalls') opinion she was not a qualified voter. Under section 11 of article i, title 7 of the Consolidated School Law of 1S94, and the uniform rulings of this Department, Mrs Smith was a qualified voter in said district at said meeting. The appeal herein is sustained. It is ordered: That all proceedings taken at said annual meeting, held on August 7, 1900, in school district 6, town of Springfield, Otsego county, subsequent to the acceptance of the report of the trustee of the district for the school years 1899- 1900, be, and the same are, hereby vacated and set aside. It is further ordered : That Henry C. Sheldon, without unnecessary delay, call a special meeting of the inhabitants of school district 6, Springfield, Otsego county, qualified to vote at school meetings therein, for the purpose of electing a trustee, a clerk and a collector of said district, and for considering and acting upon the ques- tion of the appropriation of money, and the levy of a tax for school purposes for the present school year; that the notice of such special meeting be given in the manner required by sections 2 and 6 of article i, title 7, of the Consolidated School Law of 1894; that in the election of such district officers the proceedings taken shall conform to the provisions contained in, and the methods prescribed in, subdivision 4 of section 14, article i, title 7, of the Consolidated School Law of 1894, relating to the election of school district officers, that the vote appro- priating money or authorizing the levy of a tax for school purposes, must be made in the manner required by subdivision 18 of section 14, article i, title 7, of the Consolidated School Law of 1894. 3448 The candidate for collector was not eligible. It not appearing that knowledge of his dis- qualification was brought' home to the electors, the opposing candidate can not be declared elected, and a new election must be ordered. Decided October 22, 1885 Ruggles, Superintendent At the annual school meeting in district no. 3, Philipstown, Putnam county. upon a ballot for the election of district collector, James S. Mcllravy received 86 votes and Thomas Smythe received 79. The appeal is brought to set aside the election of Mcllravy upon the ground that at the time of the election he was not JUDICIAL DECISIONS : ELECTIONS 269 a qualified voter at school meeting in the district. The allegation of the appel- lant, that the respondent did not at the time of said election possess any of the qualifications necessary to make him a qualified voter at such election, is not suc- cessfully controverted by the respondent, who alleges that he was a qualified voter solely upon the ground that he owned upwards of $50 worth of personal prop- erty liable to taxation for school purposes. This is not a legal qualification. The statute provides that a resident of the district, twenty-one years of age " who owns any personal property assessed on the last preceding assessment roll of the town, exceeding fifty dollars in value, exclusive of such as is exempt from execution," is a qualified voter. r\IcHravy not having been so assessed was, therefore, disqualified to hold the oftice of collector. It is a well-settled rule of law that had the disqualification been known to a sufticient number of electors to constitute a majority for Mcllravy, and had they, notwithstanding this knowledge, cast their ballots for him, their votes would have been a nullity, and it would follow that Smythe, if duly qualified, must be declared the legally elected collector of the district. But there is no proof that the disqualification of Mcllravy for the ofiice of collector was known to any of the electors prior to the election, nor that any elector, before voting, received notice that Mcllravy was disqualified. Knowledge of the disqualification not having been brought home to the electors who voted for IMcIlravy, it only remains for me to decide that there was not a legal election of collector on the 26th day of August last in said district. A new election ordered. Upon evidence tending to show that illegal ballots were cast at an election for officers of a district, it will not be assumed that the illegal votes were cast for the successful candidate. Decided February 26, 1869 Weaver, Superintendent At an annual meeting the result of the first ballot for trustee was declared to be 80 votes cast, 50 for Casey, and 30 for Bierce. Upon the ballot taken immediately thereafter for a second trustee, there being two to elect, the result was 55 ballots cast, of which 50 were for Wilson, 3 for Casey and 2 for Smith. The same number of persons was in the room at the taking of each of these ballots and the conclusion is reached that upon the first ballot, 25 votes in excess of the voters were cast or counted. The Superintendent says : " No charge is made and no proof is given that any such votes were cast for the persons declared elected, and it is a notable cir- cumstance that upon each balloting the successful candidate received just 50 votes. Under these circumstances I can not assume that illegal votes were cast for the person who received the highest number on the first ballot. 7 Cow. 153 clearly lays down the law appHcable to the facts of this case. ' To warrant setting aside 2/0 THE UNIVERSITY OF THE STATE OF NEW YORK the election it must appear affirmatively that the successful ticket received a num- ber of improper votes which if rejected would have brought it down to a minority. The mere circumstance that improper votes were received will not vitiate an election.' " 4407 In the matter of the appeal of Charles W. Dutchcr from proceedings of annual school meeting held on August 6, 1895, in union free school district no. 3, town of East Chester, Westchester county. Where at an annual school meeting in a union free school district a vote is cast upon each of certain resolutions involving the expenditure of money or authorizing the levy of tax or taxes by the secretary or some other person, under a motion adopted by the meeting upon a viva voce vote, whether such motion is declared to be adopted unani- mously or not, it is not a vote upon such propositions or resolutions as is required by the provisions of the school law, and upon such action and proceedings will be vacated and set aside. The fact that the votes of persons not qualified were received at a school meeting in any ballot taken thereat will not vitiate such ballot; but to warrant setting aside said ballot it must appear affirmatively that the resolution balloted for received a sufficient number of improper votes for it to reduce such vote to a minority if they had been rejected, otherwise the vote adopting the resolution would stand. It is incumbent upon the party appealing, not only to allege the illegal voting or the dis- qualification of persons who voted upon such resolution, but to show by evidence the lack of qualification in such terms as necessarily to exclude every presumption that such voters could not be qualified under either of the heads stated in the sections of the school law, describing the qualifications of voters at school meetings in the respective school districts of the State. Decided December 2, 1895 William P. Fiero, attorney for appellant Jared Sand ford, attorney for respondents Skinner, Superintendent The appellant in the above-entitled matter appeals from the proceedings of the annual school meeting, held on Atigust 6, 1895, in union free school district no. 3, town of East Chester, Westchester cotmty, first, in the election of W. F. Jefifers as a trustee, on the ground that his election was not in accordance with the provisions of the school law. Second, in voting to appropriate the sum of $25,000 for the purchase of a new schoolhouse site and the erection of a new schoolhouse in Waverly-on-the-Hill, same to be raised in annual instalments, on the ground that persons not qualified voted upon said proposition. Third, in voting to appropriate $1500 for the building of an addition to school building no. 2, Upper Tuckahoe, and in appropriating $5000 for a site and new school building in the vicinity of the Harlem Railroad depot, on the ground that the votes thereon were not taken by ballot or ascertained by taking and recording the ayes and noes of the voters attending and voting; that the new sites voted JUDICIAL decisions: elections 271 for were not described by metes and bounds ; that the board of trustees failed to cause to be pubHshed an account of moneys received and expended, as required by section 18, article 4, title 8, of the Consolidated School Law. Annexed to the appeal and in support of the allegations therein are the affidavits of two persons who allege that the statements in said appeal, are, from the recollection of the affiants of the occurrences and proceedings at said meet- ing, true. The five persons constituting the board of education of said school district have answered said appeal, and annexed thereto are the affidavits of Matthew Horan, the chairman of said annual school meeting and four other persons in support of said answer; that also annexed to said answer and forming a part thereof, is annexed a copy of the proceedings of said annual school meeting as recorded in the records of said district certified by the clerk of the board of education of said district. From such appeal and answer the following facts are established : That at said annual meeting Matthew Horan was elected chairman and that two persons were appointed inspectors of election; that William Rickard and Walter F. Jeffers were placed in nomination for the office of trustee to succeed William Rickard, whose term of office expired at the time of said meeting; that Rickards declined the office and no other nominations being made a motion was adopted that the secretary cast one ballot for said Jeffers for trustee; that said secretary thereupon cast one ballot for said Jeffers for trustee for the term of three years, and the result of the ballot being announced the chairman declared said Jeffers elected as such trustee ; that a resolution was submitted to the meet- ing that there be appropriated the sum of .'^25,000 to be levied and raised by tax on the taxable property within school district no. 3, town of East Chester, for the purchase of a new site in Waverly-on-the-Hill, and for erecting, completing and furnishing a new school building therein ; and that said sum be raised by annual instalments, the last instalment to be paid in the year 1916, and a vote thereon was taken by ballot, the result thereof, as declared, being as follows: . Whole number of votes cast 129, of which 89 were for the resolution and 40 against the resolution; that a resolution was adopted that the board of trustees of said district be authorized and empowered to purchase a new site on which to erect a new schoolhouse, and that we recommend the selection for said site the following described lot or premises, to wit, 200 feet front on the old White Plains road adjoining and north of Matthew Horan's property, and 500 feet deep, known as the Morgan property; that a resolution was adopted that $1500 be raised by tax, in annual instalments, the last instalment to be paid in the year 1916 for the purpose of building an addition to schoolhouse no. 2, Upper Tucka- hoe, and that the vote thereon was taken by the secretary casting one ballot for the resolution, under a resolution to that effect adopted by the meeting; that a resolution was offered to raise by tax the sum of $5000 in annual instalments, the last instalment to be paid in the year 19 16, for the purchase of a site in the vicinity of the Harlem Railroad depot, and for the erecting, completing and 272 THE UNINERSITY OF THE STATE OF NEW YORK furnishing thereon of a new school building, said site to be thereafter designated ; that the appellant herein moved to increase the amount to $10,000, and one Alulvy moved to amend the amendment that only the amount advertised be voted on, which was adopted, and the vote upon said resolution was taken by the secretary casting one ballot for the resolution, under a resolution to that effect adopted by the meeting; that a resolution was adopted that the board of trustees of said district be authorized and empowered to purchase a new site on which to erect a new schoolhouse in the vicinity of the Harlem Railroad depot. It appears that two persons were put in nomination for the office of trustee of the district for three years, and one of them declined to be a candidate, thus leaving but one person in nomination before the meeting. The appellant alleges that after the declination of Rickard one R. T. Young was attempting to place in nomination another person for trustee, but was prevented by the summary action of the meeting. After the declination of Rickard, there being but one person put in nomination, a motion was made and unanimously adopted, by a viva voce vote, that the secretary be directed to cast one ballot for Jeft'ers (the only nominee before the meeting) and the secretary cast such ballot and the result of the ballot was announced. This Department has held, in some special cases, in which it was indisput- ably established that it was the unanimous wish of the meeting that a certain person nominated for a district office should be elected, that a vote cast by the clerk, or some other designated person for the meeting, should be sustained. I do not, however, approve of such method of electing district officers, and in my opinion such method is not a compliance with the provisions of the school law, in the election of school district officers. Under said law, a ballot for each officer should be had, and if after the ballot has commenced it appears all present are favorable to the election of the person or persons being voted for, and no other voter present desires to vote, the ballot may be closed and the votes cast be can- vassed and the result announced. In this appeal I sustain the action of the meet- ing in the election of Jeft'ers, as it is not affirmatively shown that any qualified voter present was opposed to such election or desired a ballot. No other voter of the district has appealed from such election, and the appellant does not allege that he was opposed to Jeft'ers, or to the motion that the secretary cast the ballot for Jeffers. Upon the proofs presented I am of the opinion that the resolutions alleged to have been passed at said meeting raising by tax the sum of $1500 and S5000 respectively, were not, nor was either of them, passed in accordance with the provisions of the school law. All propositions arising at a school meeting, involving the expenditure of money or authorizing the levy of a tax or taxes in one sum or by instalments the vote thereon shall be by ballot, or ascertained by taking and recording the ayes and noes of such qualified voters attending and voting at such meetings. A vote cast for such resolutions, or either of them, by the secretary or any other person, under a motion adopted by the meeting upon a viva voce vote, whether such motion is declared to have been adopted unanimously or not, is not a vote upon such propositions or resolutions as is required by the provisions of the school law. JUDICIAL DECISIONS : ELECTIONS 273 Under the school law the designation of a site or sites must be made by the district meeting. Such meeting can not delegate the selection or designation of such sites to the board of trustees. Such designation must be made at a district meeting and by a written resolution or resolutions, containing a description thereof by metes and bounds, and such resolution must receive a majority of the votes of the qualified voters present and voting at such meeting, to be ascertained by taking and recording the ayes and noes. The action of said annual meeting rela- tive to new school sites at Waverly-on-the-Hill and the Harlem Railroad depot was not a legal designation of school sites, and such action can only be held to be an expression of opinion of the voters present at said meeting in relation thereto. It is clear that it will require the further action of a district meeting, in accordance with the provisions of the school law, to designate new sites in each of said localities. The appellant alleges that the report of the trustees of said district, required by section i8, article 4, title 8, of the Consolidated School Law of 1894, was not published. Whether such report was or was not published is not material as to the legality of the annual meeting, or the validity of the pro- ceedings of said meeting. The only other ground of appeal herein remaining for consideration is, that in the vote of said meeting appropriating the sum of $25,000, to be levied and raised by tax for the purchase of a new site in Waverly-on-the-Hill and for erecting, completing and furnishing a new school building thereon, the votes of persons not qualified were received. The appellant alleges, in substance, that the persons favoring the purchase of said new site and the erecting of such new schoolhouse, " packed and crowded said school meeting, as the appellant is reliably informed and believes, and from an examination of the alleged voters at said meeting he is satisfied, with nonresidents of said district and with 74 voters out of a total of 129 voting at said meeting who were not then and there legally entitled to vote thereat upon the question of bonding aforesaid or otherwise." The respondents deny this allegation, and allege that the persons who voted at said meeting were residents of said district and entitled to vote upon all matters presented thereat upon which a vote was required. The burden is upon the appellant to sustain his appeal by a preponderance of proof. This the appellant has failed to do with regard to his allegation that the votes of persons not qualified to vote were received. The fact that the votes of persons not qualified were received in the ballot had upon said resolution will not vitiate such ballot. To warrant setting aside said ballot, it must appear afiirmatively that said resolution received a sufficient number of improper votes for it to reduce such vote to a minority if they had ■ been rejected; or otherwise the vote adopting the resolution stands. It is incum- bent upon the appellant in this appeal, not only to allege the illegal voting, or the disqualification of persons who voted upon such resolution, but to show by evidence the lack of qualifications in such terms as necessarily to exclude every presumption that such voters could not be qualified under either of the heads stated in the section of the school law prescribing the qualifications of _ voters at school meetings in said district. 274 THE UNIVERSITY OF THE STATE OF NEW YORK No evidence is produced by the appellant showing that any one of the 129 persons who voted upon said resolution was not qualified to vote thereon, and hence has failed to establish affirmatively, that said resolution received a suffi- cient (or any) number of improper votes for it to reduce such vote to a minority for such resolution if such improper votes, if any, had been rejected. I find and decide, That so much of the appeal herein as is taken from the action and proceedings of the said annual meeting, held in said district as relates to the appropriation of $1500 for the addition to a school building in Upper Tuckahoe, and the appropriation of $5000 for a site and new school building in the vicinity of the Harlem Railroad depot, and as relates to two sites, is sus- tained; and as to all other matters, the appeal herein is dismissed. It is ordered, That the action and proceedings had and taken at the annual school meeting, held August 6, 1895, in union free school district no. 3, town of East Chester, Westchester county, appropriating $1500 for an addition to school building no. 2, Upper Tuckahoe. and the appropriating of $5000 for a site and the erection of a new school building in the vicinity of the Harlem Railroad depot, be, and the same are, and each of them is, vacated and set aside. 4930 In the matter of the appeal of Kenner G. Gifford and J. X. Mumpton from jiro- ceedings of special meeting held November 9, 1900, in union free school dis- trict no. 7, Checktowaga, Erie county. In an appeal from the election of school district officers the appellant must not only allcc/c the disqualifications of persons whose votes were received, but must show by evidence the lack of qualifications of such persons in such terms as necessarily to exclude every presumption that they were qualified to vote. Under the school law every person of full age who has resided in a school district for a period of thirty days preceding an annual or special meeting held therein, and a citizen of the United States, who owns or hires, or is in possession under a contract of pur- chase of real property in the district liable to taxation for school purposes, is entitled to vote for school district officers, and upon all matters brought before the school meeting. The tax law of the State defines the term " real property " to include the land itself, above and under water, all buildings and other articles and structures, sub- structures and superstructures erected upon or above, or affixed to, the same. The school law does not define the quantity of real property necessary to be owned, hired, or in the possession under a contract of purchase, subject to taxation for school pur- poses in the district, of a person to entitle him or her to vote, provided he or she possesses the necessary qualifications of residence, age and citizenship. Such real property may consist of a small parcel of land, or a tract of many acres, or of a room, or a flat in a building, or a dwelling house, or a block of buildings, and the rent may be payable in work, money, taxes or improvements. Decided February 28, 1901 Skinner, Superintendent This is an appeal from the proceedings of a special meeting, held on Novem- ber 9, 1900, in union free school district 7, Cheektowaga, Erie county, in the election of Eugene J. McGuire as a trustee of the district. JUDICIAL DECISIONS : ELECTIONS 275 The appellants allege, in substance, as the grounds for bringing their appeal, that they feel and believe that there were at least 30 votes cast by men not entitled to vote; that they challenged voters until they saw that each person challenged would make the declaration required by the Consolidated School Law ; that they name 24 persons whose votes were received, none of whom, from the best knowledge and belief of the appellants, was a qualified voter under the school law. 'Annexed to the appeal is a copy of the proceedings of said special meet- ing, verified by the district clerk who acted as clerk of such special meeting. An answer to the appeal herein has been made by a committee appointed at a special meeting held in sUch district February i, 1901, to consider such appeal, which answer, upon the information and belief of the respondents therein, denies each and all of the allegations made by the appellants in the appeal. It appears that a special meeting was held the evening of November 8, 1900, in said union free school district 7, Cheektowaga, Erie county, for the purpose of electing a trustee of such district for the term of three years from the first Tuesday of August 1900; that the meeting was duly organized by the election of a chairman, the clerk of the district acting as clerk of the meeting, and the appointment of two inspectors of election ; that Eugene J. McGuire and Kenner G. Gifford were each nominated as candidates for the office of trustee; that a ballot was thereupon taken for a trustee, and the poll being closed and the inspectors of election having canvassed the vote cast, announced to the chairman the result of the election, as follows: whole number of votes cast 159, of which Eugene J. McGuire received 85, Kenner G. Gifford received 73 and Jacob B. Williams received i ; that the chairman of the meeting then announced that Eugene J. McGuire was elected trustee of the district for the term of three years from August 1900, and the meeting adjourned. It also appears that during the ballot taken for trustee, only five persons ofifering to vote were challenged, and each of said persons made the declaration required by the Consolidated School Law, and their votes respectively were received; but it does not appear for whom such persons, or either of them, voted, nor is there any evidence presented that such persons were not, or that either of them was, not qualified, under the school law, to vote at such meeting. Under the provisions of section 12, article i, title 7 of the Consolidated School Law of 1894, any legal voter present at a school district meeting has the right to challenge any person ofifering to vote. Neither the chairman nor the inhabitants assembled at the meeting can act as judges of any person's quali- fications. All that lies in their power is to make the challenge and accept the vote if the person makes the declaration, or reject it if he or she refuses. Section 13, article i, title 7 of such law provides that any person who shall wilfully make a false declaration of his or her right to vote at any school meet- ing, after his or her right to vote has been challenged, shall be guilty of a misdemeanor. This Department has uniformly held that any legal voter present at a school district meeting, and knowing or having reason to believe, that any person or 276 THE UNIVERSITY OF THE STATE OF NEW YORK persons offering to vote thereat, is or are, not a legal voter or voters, and per- mitting such person or persons to vote without challenge, will not be allowed to object to the proceedings taken at svsch meeting because such unqualified person or persons participated in such proceedings. The rule is well settled that the proceedings taken at a school meeting will not be vitiated by illegal votes unless a different result would have been produced by excluding such votes. It lies upon the party objecting to show that fact, even if the nature of the proceedings (as in the case of a vote by ballot) is such as to deprive him of the power. For aught that appears in the proofs filed herein the ballots cast by the person claimed by the appellants not to have been qualified voters were for Gifford, the minority candidate. To warrant setting aside an election it must appear affirmatively that the successful ticket received a number of illegal votes which, if rejected, would have brought it down to a minority. It is incumbent in case of appeal from the election of school district officers, for the appellant not only to allege the illegal voting, or the disqualification of certain persons whose votes were received, but to show hy evidence the lack of qualification of such persons in such terms as necessarily to exclude every pre- sumption that such persons could be qualified under the provisions of the school law prescribing the qualifications necessary to be possessed by persons to entitle them to vote at school district meetings. Under the provisions of section 8, article 2, title 8 of the Consolidated School Law of 1894, it is enacted that every person of full age, residing in any union free school district, and who has resided therein for a period of thirty days next preceding any annual or special meeting held therein, and a citizen of the United States, who ozvns or hires or is in possession under a contract of purchase of real property in such school district liable to taxation for school purposes, is entitled to vote at any school meeting held in said district. The tax law of this state defines the term " real property " to include the land itself above and under water, all buildings and other articles and structures, substructures and superstructures erected upon, under or above, or affixed to the same. The school law does not define or declare the quantity of real property necessary to be owned, hired or to be in the possession of a person under a con- ■ tract to purchase, subject to taxation for school purposes to entitle such person to vote at a school district meeting, provided he or she possesses the necessary qualifications of citizenship, age and residence. Such real property may con- sist of a small parcel of land or a tract of many acres, or of a room, or a flat in a building, or of a dwelling house, or a block of buildings, and the rent may be payable in work, money, taxes or improvements. The appellants herein have failed to establish their appeal herein by com- petent evidence, and their appeal must be dismissed. The appeal herein is dismissed. JUDICIAL DECISIONS : ELECTIONS 277 4885 In the matter of the appeal of WilHam Skutt, Edward M. A^aii Densen and William Clark from proceedings of annual meeting held August 7, 1900, in school district no. 16, Elbridge, Onondaga county. In the election of school district officers the chairman and clerk of the meeting can not legally act as inspectors of election; but two qualified voters of the district must be appointed as such inspectors, in such manner as the meeting shall determine. When the trustee has failed to provide a suitable ballot box, the use of a hat in which to deposit the votes cast will not of itself vitiate an election. When the meeting decides to vote for a district officer separately, as for example, for trustee, a ballot with the name of a person thereon, without the designation " for trustee" will be legal. Decided September 29, 1900 J. C. McLaughlin, attorney for appellant Barton C. Meays, attorney for respondent Skinner, Superintendent This is an appeal from the proceedings of the annual meeting held August 7, 1900, in school district 16, Elbridge, Onondaga county, upon the grounds that such proceedings were not in accordance with the provisions of the Consolidated School Law of 1894, and the acts amendatory thereof. In subdivision 4 of section 14 article i title 7 of the Consolidated School Law of 1894, it is enacted that all school district officers shall be elected by ballot; that at such elections the trustees shall provide a suitable ballot box; that two inspectors of election shall be appointed in such manner as the meet- ing shall determine, who shall receive the votes cast, and canvass the same, and announce the result of the ballot to the chairman ; that a poll list containing the name of every person whose vote shall be received, shall be kept by the district clerk, or the clerk for the time of the meeting; that the ballot shall be written or printed or partly written and partly printed, containing the name of the per- son voted for and designating the office which each is voted for; that the chair- man shall declare to the meeting the result of each ballot, as announced to him by the inspectors, and the persons having a majority of the votes, respectively, for the several offices, shall be elected. In subdivision 18 of section 14, article i, title 7 of said Consolidated School Law of 1894, it is enacted, that in all propositions arising at district meet- ings, involving the expenditure of money or authorizing the levy of a tax or taxes, the vote thereon shall be by ballot, or ascertained by taking and recording the ayes and noes of such qualified voters attending and voting at such district meetings. This Department has uniformly held that ascertaining a vote by taking and recording the ayes and noes means that the clerk of the meeting shall record the name of each person whose vote is received, and by setting opposite to each name whether such person voted aye or no. This Department has uniformly held that under the provisions contained in subdivision 4 of section 14 of article i title 7 of said Consolidated School 2/8 THE UNIVERSITY OF THE STATE OF NEW YORK Law, above referred to, when the trustee has failed to provide a suitable ballot box, the use of a hat for a ballot box will not of itself vitiate the election; that in the election of district officers the ballots may have names for all of said offi- cers, or each officer may be voted for separately ; that when the meeting decides to vote for a district office separately, as for example for trustee, a ballot with the name of the person thereon, without the designation " for trustee " will be legal, and that two inspectors of election to receive and canvass the vote cast, must be elected or appointed by the meeting; that the chairman and clerk can not act as such inspectors, or receive or canvass the votes cast in any ballot taken at any school meeting. Frank Spaulding has filed an answer to the appeal herein, and to such answer the appellants have filed a reply. The following facts are established by the ])leadings and affidavits filed herein : The annual meeting in school district i6, Elbridge. Onondaga county, was held August 7, 1900. and John W. Barnett was elected chairman, and John D. Cory acted as clerk; that two inspectors of election to receive the votes cast in any ballot or ballots had and taken at the meeting, canvass the same and announce the result of each ballot to the chairman, were not appointed by the meeting; that the chairman and clerk acted as inspectors of election and the clerk received the votes cast in all ballots taken at such meeting, and canvassed the same and announced the result to the chairman who announced such result to the meet- ing ; that no poll list containing the name of each person whose vote was received in the ballot for trustee was kept by the clerk ; that a ballot was taken for trus- tee, such ballots being received by the clerk and deposited in a hat, the trustee not having provided a suitable ballot box to receive such ballots; that 17 ballots were declared by the clerk to have been cast for trustee, of which 9 were said to have been for Frank Spaulding and 8 for William Skutt, and the chairman announced such result to the meeting, and declared Spaulding elected trustee. It does not affirmatively appear that any ballot was taken for district clerk; that the clerk on a vote of the meeting, cast one ballot for Ed. Van Deusen for col- lector, and the chairman declared A^an Deusen elected for collector; that the vote, appropriating the sum of $80 for teachers' wages, $20 for contingent expenses, $15 for fuel and 50 cents to reimburse the collector for United States revenue stamp, was not ascertained by taking and recording the ayes and noes of the persons voting thereon, but such vote was taken viva voce. The respondent alleges " that no inspectors of election were appointed at such meeting because the meeting and each voter waived such requirement, no one asking for the appointment of tellers, and no objection was made to the method or the result." This claim is not tenable, for the reason that the meet- ing in the aggregate or the individual voters thereof could not waive the require- ment of the school law in regard to the appointment of such inspectors of election. The appeal herein is sustained. JUDICIAL decisions: elections 279 It is ordered: That all the proceedings taken at the annual meeting held August 7, 1900, in school district 16, Elbridge, Onondaga county, except the election of John W. Barnett as chairman, and the acceptance of the report of the outgoing trustee, be, and the same are, hereby vacated and set aside. It is further ordered : That William Skutt, without unnecessary delay, call a special meeting of the inhabitants of school district 16. Elbridge, Onondaga county, qualified to vote at school meetings therein, for the purpose of electing a trustee, a clerk and collector of such district, and for considering and acting upon the question of the appropriation of money and the levy of a tax for school purposes for the present school year of 1900-01. That the notice of such special meeting be given in the manner required by sections 2 and 6 of article i title 7 of the Con- solidated School Law of 1894; that in the election of such district officers the proceedings taken shall conform to the provisions contained in, and the methods prescribed in subdivision 4 of section 14. article i, title 7, of the Consolidated School Law of 1894. relating to the election of school district officers; that the vote appropriating money or authorizing the levy of a tax for school purposes, must be made in the manner required by subdivision 18 of section 14 article i title 7 of the Consolidated School Law of 1894. 4366 In the matter of the appeal of Elvin A. Barrett from proceedings of annual school meeting held on August 6, 1895, in district no. 12, town of Alabama, Genesee county. Where at an annual school meeting a motion is made and adopted that the meeting proceed to ballot for a trustee, and such ballot was taken, and on a canvass of the ballots it was found that on some of the ballots the words " For trustee " were not written, and the chairman of the meeting rejected said ballots as being illegal; held, that the ballots were legal and the rulings and decision of the chairman vacated and set aside. Decided September 20, 1895 Tyrrell & Ballard, attorneys for appellant Skinner, Superintendent The appellant in the above-entitled matter appeals from the action and proceedings of the annual school meeting, held on August 6. 1895, in district no. 12, town of Alabama, Genesee county, in the election of a trustee. George Daniels, who claims to have been elected trustee at said meeting, has filed an answer to the appeal. The following facts are established: that the annual school meeting in and for said district no. 12, Alabama, was held on August 6. 1895; that said meeting was organized by the choice of a chairman and clerk, and two tellers 28o THE UNIVERSITY OF THE STATE OF NEW YORK or inspectors of election were appointed; that after the reading of the reports of the trustee and collector, a motion was made and adopted that an informal ballot be taken for trustee of the district, and such informal ballot was taken which resulted, as announced, as follows: whole number of votes cast 2)7^ of which E. R. Greene received i8, George Daniels ii, Hale Wright 5, Theron Ames 2 and Mrs E. A. Barrett i ; that a motion was then made and adopted that the meeting proceed to ballot for a trustee and such ballot was taken and the result thereof, as announced, was as follows: whole number of votes cast 39, of which E. R. Greene received 18, George Daniels 11, Hale Wright 9 and Theron Ames i ; that after the announcement of the result of said ballot it was claimed that as 24 of the ballots cast did not have thereon the name of the office for which the person or persons whose name or names were written thereon were voted for, to wit, " For trustee," that such ballots were illegal and therefore the chairman of said meeting declared said 24 ballots so received and cast were illegal, and stated that of the legal votes cast the whole number was fifteen of which George Daniels received 11 and Hale Wright 4, and that said George Daniels was elected trustee; that a motion was then made and seconded and put by the chairman to the meeting, that another ballot be taken for trustee and declared by the chairman to be carried, but no other or further ballot w^as taken for trustee and the meeting adjourned. It does not appear that any poll list was kept or that any ballot box was provided in accordance with the provisions of section 14, article i, title 7, of the Consolidated School Law. It is not claimed that any person not a qualified voter of the district voted at such m.eeting. It is clear that the chairman of said meeting had no legal right to reject the twenty-four votes cast, for the reason that said ballots did not have thereon the words " For trustee." The provisions of subdivision 4, section 14, article i, title 7, of the Consolidated School Law of 1894, requiring that ballots for school district officers shall designate the office for which each is voted, applies to ballots for more than one office, namely, for trustee, district clerk, etc., and not to ballots cast for a single office, namely, that of trustee, as was the motion adopted at said district meeting. The ballot taken at said meeting in which the whole number of votes cast was 39 was for the office of trustee, and a ballot so cast, having the name of a person was a legal ballot for that person for the office of trustee of said district. It follows, therefore, that the decision of the chairman that but 15 legal votes for trustee were cast and that George Daniels having received 11 votes was elected trustee of the district, was without authority of law. From the facts established in the appeal herein I find and decide that the annual school meeting, held in said district no. 5, town of Alabama, Genesee county, on August 6, 1895, failed to elect a trustee for said district for the present school year; that the decision of the chairman of said school meeting, rejecting 24 of the ballots cast at said meeting as illegal ballots, was illegal and void; that the decisions of the chairman of said meeting that but 15 legal ballots JUDICIAL decisions: elections 281 for trustee were received and that George Daniels, having received 11 of the said 15 votes, was elected trustee of said district were, and each of them was, illegal and void; that said George Daniels was not, by the form or color of an election, elected trustee of said district at said annual meeting; that there was no legal election of a trustee of said school district at said annual meet- ing and that the trustee of said district in office on August 6, 1895, hold over as trustee of said district until his successor in office shall be legally elected or appointed; that there is no vacancy in the office of trustee of said district which can be supplied at a special meeting of said district. The appeal herein is sustained. It is ordered, That the rulings or decisions made by the chairman of the annual school meeting, held on August 6, 1895, in district no. 12, town of Ala- bama, Genesee county, in rejecting 24 of the 39 ballots cast for trustee of said district at said meeting is illegal, that but 15 legal ballots for trustee were cast and that George Daniels was elected trustee of said district are, and each of them, is illegal and void, and they are, and each of them is, vacated and set aside. 4371 In the matter of the appeal of William M. Chapman from proceedings of annual school meeting held on August 6, 1895, in district no. 2, town of Catherine, Schuyler countv. When at an annual school meeting in a common school district a ballot has been had for a trustee of the district, and such ballot has been canvassed and the result announced by which it appears that one of the candidates voted for had received a majority of the votes cast; held, that the power of said meeting in the election of a trustee was exhausted, and said meeting had no legal power or authority to recanvass the ballots cast upon such formal ballot, nor to reconsider said ballot, nor to take another ballot for trustee. Decided September 20, 1895 Skinner, Superintendent The appeal in the above entitled matter is taken from the proceedings of the annual school meeting held on August 6, 1895, in school district no. 2, town of Catherine, Schuyler county. John Pelham and others have answered said appeal. It appears from said appeal and answer that the annual school meeting in said district was held on August 6, 1895, and that Owen Gardner was chosen chairman and James Woodard, clerk ; that one William Larue was appointed an inspector of election ; that the report of the trustee was read and accepted; that the chairman announced that the election of a trustee was in order and upon a motion made and adopted the meeting proceeded to an informal ballot for trustee ; that there- upon said inspector of election passed around the room and collected the ballots and after counting them announced that 22 votes were cast, of which William M. Chapman received 11 and John Pelham ii ; that a motion was then adopted 282 THE UNIVERSITY OF THE STATE OF NEW YORK that the meeting proceed to a formal ballot for trustee, and such ballot was had in like manner as the informal ballot; that the result of the ballot, announced by the chairman as received from the inspector, was that 23 votes were cast of which William M. Chapman (the appellant herein) received 12 and John Pelham 11, and the said Chapman thereupon accepted said office of trustee; that the meeting then ballotted in like manner for collector and John Pelham was announced as having received a majority of the votes cast; that in canvassing the votes for collector the chairman and clerck acted with said inspector, Larue, pursuant to a vote of the meeting; that a motion was then adopted that the votes cast upon the second (formal) ballot for trustee be recounted by the chairman, clerk and inspector of election, which recount was had and the result announced that the total vote was 19, of which William Chapman received 9 and John Pelham 10; that a motion was then adopted that the ballot for trustee be reconsidered and a new ballot for trustee be taken ; that said new ballot was taken in like manner as the previous ballots and the votes so received were canvassed by the inspector of election, chairman and clerk and the result thereof announced as follows: Whole num- ber 18, of which John Pelham received 13 and William M. Chapman 5, and said Pelham was declared elected trustee of the district; that after said announce- ment said Pelham declined to accept the office of collector to which he had been I^reviously elected, and thereupon said meeting elected John Woodard as col- lector ; that after the transaction of other business the meeting adjourned. It appears that no poll list was kept containing the names of the voters whose votes were received ; but it is not claimed that any but persons duly qualified voted in the election of such district officers. School district officers and voters should, in the election of officers, comply strictlv with the provisions of section 14, article i, title 7, of the Consolidated School Law of 1894, and prevent contentions from arising in such districts, like those present in the appeal herein. I find and decide that the method had and taken at the annual meeting in said district no. 2, town of Catherine, in the formal ballot for trustee was a suffi- cient compliance with the provisions of the school law and that the appellant herein. William M. Chapman, was legally elected trustee of said district, he having received a majority of the votes cast; that upon such election the power of said meeting in the election of a trustee was exhausted, and said meeting had no legal power or authority to recount the ballots cast upon said formal ballot, nor to reconsider said formal ballot, nor to take another ballot for trustee ; that all proceedings taken at said meeting after said formal ballot was taken and the result thereof announced relative to said ballot or any ballot for the office of trustee was illegal and void and must be set aside. The appeal herein is sustained. It is ordered. That all proceedings had and taken at said annual meeting, held in said school district no. 2, town of Catherine, .Schuyler county, relating in any manner to the election of a trustee of said district, after said formal ballot for trustee was taken and the result thereof announced be, and the same are, and each of them is, vacated and set aside as illegal and void. JUDICIAL DECISIUXS: ELECTIONS 283 371I In the matter of the appeal of WilHani H. Gardner v. school district no. 6, town of North Salem. Westchester county. A person receiving a majority of the votes cast for the office of trustee will be held to have waived his right to the office by participating without a protest in a second ballot, upon which another was chosen as trustee. Decided October i, 1888 Draper, Superintendent The appellant alleges that, at the election for trustee held at the annual meeting in school district no. 6 of the town of North Salem, Westchester county, a vote was taken with the following result: Martin Todd 10, Leander Mead 11. The respondent alleges that one vote was also cast upon this ballot for Isaac C. Wright, but I do not consider the variance in the allegations of the parties in reference to this one vote as very material. After the result of the ballot was announced, one William McCoy alleged that he had not voted and that he was entitled to do so, whereupon the clerk ordered another ballot to be taken. This second ballot resulted as follows: Leander Mead 12, Martin Todd 13, and Mr Todd was thereupon declared elected. The appellant now claims that Mead was elected on the first ballot, and that the meeting had no right to proceed to a second ballot. The respective parties now allege that persons voted against them who were not lawfully entitled to vote. It is claimed that challenges were interposed at the time of taking the second ballot, which were disregarded by the chair, and that the persons challenged were allowed to vote without making the declara- tion required by law in such cases. The clerk's minutes of the meeting are not found in the papers, and no proof is offered beyond the bare allegations of the parties. This being so, I am obliged to disregard this phase of the matter. If Mr Mead received a majority of the votes cast on the first ballot he was un- doubtedly entitled to the office of trustee in consequence, unless he waived his right under said ballot. If it appeared in the papers that he or his friends inter- posed objections to the taking of a second ballot, and had insisted upon their rights under the first one, I should feel bound to sustain him ; but the papers clearly indicate that the second ballot was taken by mutual consent and agree- ment in the meeting with a view to allaying feeling and straightening out a confused state of affairs. This being done, the parties are bound to abide by the result. They could not proceed to the taking of a second ballot and avail themselves of the benefit of it if they succeeded, and, at the same time repudiate the consequences of it if they failed. For these considerations, I have arrived at the conclusion that the appeal must be dismissed. 284 THE UXIVEKSITY OF THE STATE UE NEW YUKK 3713 In the matter of the appeal of Peter H. Keller v. school district no. 5, town of Roseboom, county of Otsego. A person chosen trustee will be held to have waived his right to the office liy consenting to the taking of a second ballot upon which ballot another was elected to the office. Decided October i, 1888 Draper, Superintendent At the annual meeting held August 28th, 1886, in district no. 5 of the town of Roseboom, county of Otsego, the appellant and one Clark Sisum were candi- dates for the office of trustee. A ballot was taken, which was announced as follows : Keller 7 votes and Sisum 6 votes. The chairman then stated that he had not voted, and insisted upon doing so, and voted for Mr Sisum, which made the votes of the two men a tie. Another ballot was taken, which resulted in Mr Keller's getting 6 votes and Mr Sisum 8, and Mr Sisum was declared elected. Mr Keller appeals from this action, and contends that he was elected upon the first ballot. The chairman had the right to vote with the others when the ballot was taken. He had no right to vote after the ballot was closed and the result announced. I should hold that Mr Keller was elected upon the first ballot and entitled to the office of trustee but for the fact that he states in his appeal that he consented to the taking of the second ballot. If he did so. he is bound to abide the result of that ballot. His act must be held to waive any rights which he acquired under the first ballot The appeal is therefore dismissed. 3736 In the matter of the appeal of F. S. Houscknecht v. Daniel T. Bennett, trustee of school district no. 4, towns of Alden, Erie county, Darien, Genesee county, and Bennington, W'yoming county. A person who claims to have been elected trustee upon a ballot about which there is a dispute, who acquiesced and participated in subsequent ballots and until another person was chosen for the office will be deemed to have waived his right to the office. Decided November 28, 1888 Draper, Superintendent This is an appeal from the action of the annual meeting, held in district no. 4, of the towns of Alden, Erie county, Darien, Genesee county, and Benning- ton, Wyoming county, in electing a trustee. The appellant alleges that, at that meeting he was duly elected to the office of trustee upon a vote taken by ballot, the result of which was 10 for the appellant, one for A. C. Nichols, and 7 for Daniel Bennett. It further api)ears that no declaration of an election was made by the chairman, and that a second ballot, which resulted in no election, was JUDICIAL DECISIOXS : ELECTIONS 285 taken, and thereupon, a third ballot was taken, which resulted in the election of the respondent, and he was so declared by the chair. The respondent avers that the first ballot was informal, and that after the vote on tlie third ballot, and the declaration of his election as trustee, the appel- lant, who had held the office of trustee the preceding year, gave the key of the schoolhouse to the respondent and notified him that the trustee's book was at one place, and that by calling at his residence he could have the code at any time. This appeal was not taken until long after thirty days after the meeting was held, and no excuse is shown for this delay. Ordinarily, I should dismiss this appeal upon this ground, but in order to settle any misunderstanding, I shall determine the case upon its merits. It is not claimed b}- the appellant that, after the first ballot was taken and the second ballot was about to be proceeded with, any objection thereto was made by liim' or any of his supporters. On the other hand, it is averred by the respond- ent and his witnesses that no objection was made to the taking of a second and third ballot, or to the declaration of the chairman that the respondent was elected, and from the evidence before me it v/ould appear that the appellant and his supporters participated in the second and third ballots, and. as it appears from the pleadings, acquiesced in the result. In view of these facts, I have concluded to dismiss the appeal and to hold that the respondent was duly elected trustee of the above-mentioned district at the annual school meeting aforesaid. EQUALIZATION OF VALUES 3490 Apportionment of railroad property; jurisdiction of Superintendent over assessors; pioper basis of apportionment. Decided March 31, 1886 Morrison, Superintendent The appeal is taken in behalf of district no. 6, Hamburg, Erie county, from the action of the assessors of said town, in apportioning the property of the Lake Shore and Michigan Southern Railroad between the different school districts of said town. It appears that there are nine and twenty-nine one-hundredths miles of track belonging to said company in the said town of Hamburg, of which 379 feet, about two acres in area, belongs to district no. 6. Included in the above 379 feet of track is an immense and costly culvert, one of the largest in the country, which cost, it is alleged, about $200,000. The total valuation of the railroad in Ham- burg, as appraised by the assessors for the present year, is $340,000, and in said assessors' apportionment to the district in question, the sum of $2625, giving as their reason that said district is only entitled to its proportion of a mile. The appellants claim, and with seeming justice, that the proportion of the assessment to which district no. 6 is entitled should range from $30,000 to $40,000. It appears that in 1881 an appeal was taken from the action of the assessors of that year, in apportioning only $10,200 to said district no. 6, the assessors then claiming, as they do now, that the district is only entitled to its proportion of a mile of valuation ; that the amount of railroad property in the town should be regarded as a unit, and that the district is only entitled to that proportion of the assessment which the length of the railroad in the district bears to the total length of the railroad in the town. The Superintendent, in 1881, did not agree with this view of the case, but sustained the appeal and directed a new apportionment to be made by the assessors. The fact that the Superintendent passed upon this question as early as 1881, renders it unnecessary for me to discuss the point raised by the respondents, that the Superintendent is without jurisdiction in the case. The acts of the assessors proceeding within the statute are judicial and not ministerial. But the conclusive character of their act is only while they confine themselves within the statute. It is admitted in this case that the assessment was not based upon the actual valtte of the railroad property in the school district, but was based upon the theory that one mile of railroad was equal in value to any other value. By [286I JUDICIAL decisions: equalization of values 287 adopting this plan of apportionment, the assessors failed to confine themselves within the statute, which provides that it shall be their duty to apportion the value of the property of each and every railroad company, as appears on the assessment list, among the several school districts in their town in which any portion of said property is situated, giving to each of said districts their proper proportion, according to the proportion that the value of said property in each of said districts bears to the value of the ivholc thereof in said town. It may be that interference, at this late day, with an apportionment which has already gone into effect in eight districts of the town, would create confusion which would impair rather than protect the interests of the schools. I am, therefore, induced, though very reluctantly, to abstain from according the relief sought by the appellants in this instance ; but the assessors of the town of Hamburg are directed, within ten days after notice to them of the filing of this decision, to meet and again apportion the valuation of the property of every railroad company " as appears on the assessment list among the several school districts of their town in which any portion of said property is situated, giving to each of said districts their proper proportion according to the proportion that the " actual value of said property in each of said districts bears to the actual value of the whole thereof in said town, in accordance with the provisions of section i, chapter 694 of the Laws of 1867; and that hereafter in the assessment and collection of taxes in any of the school districts of the town, the apportion- ment then made shall be followed by local school authorities until the comple- tion of the next annual assessment. 5446 In the matter of the appeal of James T. Morris, Clarence C. Donelson and Edwin Morton for relief from excessive taxation upon that part of the real property of union free school district no. i, lying in the town of Greenburgh, as compared with that lying in the town of White Plains. Equalization of taxes by supervisors A determination of the supervisors of towns, a portion of which is included in a school district, is not binding upon the board of educa- tion of such district unless made as required by law. It is not sufficient for the super- visors to state in their order that a specified reduction should be made upon the assess- ment of real property of one of the towns. The order of the supervisors is fatally defective unless it determines the relative proportion of taxes that ought to be assessed upon the real property of the parts of such district lying in different towns. Decided May 13, 1910 Draper, Com missioner This appeal was filed in this office January 5, 1910, having been served on the president of the board of education of union free school district no. i, town of Greenburgh, county of Westchester, on January 4, 1910. The appellants allege that some time in April 1909 they appeared before the board of education of such district and requested that some action be taken to 288 THE UNIVERSITY OF THE STATE OF NEW YORK secure an adjustment of the assessment of school taxes between the portions of the districts lying respectively in the towns of White Plains and Greenburgh. The board of education passed a resolution directing notice to be given to the supervisors of such towns to meet at the office of the supervisor of White Plains April 30, 1909, " to proceed to inquire and determine whether the valuation of real property upon the assessment rolls of the towns of White Plains and Greenburgh are substantially just as compared with each other, so far as union free school district no. i of the town of White Plains is concerned, and if ascertained not to be so, that they shall determine the relative proportion of taxes that ought to be assessed upon the real property of the parts of such district lying in said towns of White Plains and Greenburgh." A certificate signed by the supervisors of these towns is attached to the petition which states that they met on the day specified in the notice, namely, April 30, 1909, and that " it was agreed that in order to equalize the taxes for school purposes upon the real property lying in the respective towns, a reduction should be made upon the assessment of the real property made by the town of Greenburgh of 22 per cent as shown by the table of equalization and assessments, 1908, board of supervisors." It does not appear that the board of education was ever informed of this determination or that copies were filed in the town clerks' office or the office of the district clerk. The appellants complain of the board's action in failing to conform its assessments to the determination of the supervisors. If the de1;ermination of the supervisors was properly made and was duly brought to the board's atten- tion, it was their duty to make their assessment in accordance therewith. The certificate attached to the papers shows that a legal determination was not made by the supervisors of the towns. It is not sufficient to state that a specified " reduction should be made upon the assessment of the real property " of one of the towns. The supervisors, in such a proceeding, must determine " the relative proportion of taxes that ought to be assessed upon the real property of the parts of such district lying in different towns." In this case the super- visors of White Plains and Greenburgh should have stated in their order the portion of the taxes to be collected in the entire district, which should be assessed upon the real property in each town. In making such determination the supervisors must ascertain the actual value of the real property in the school district situated in the town of White Plains, and the actual value of the real property in such district in the town of Greenburgh. After deducting the tax to be paid in the district on account of personal property assessments, the bal- ance is to be assessed upon the real property in the part of the district in each town, in the proportion that the actual value of the real property in such part of the town bears to the actual value of the real property in the entire district. It is evident that the supervisors failed to observe any of these rules in making their determination. For this reason this appeal must be dismissed. It is evident from the certificate of the two supervisors above referred to, that the valuation of real property upon the assessment rolls is not " substan- JUDICIAL decisions: equalization of values 289 tially just as compared with each other," within the meaning of section 414 of the Education Law of 1910 (former Education Law, § 384). The appellants, as taxpayers of the town of Greenburgh in such district, are entitled to the privi- leges conferred by such section. They may serve upon the supervisors of the two towns the notice required, and such supervisors may then be compelled by a legal proceeding in court, if need be, to determine as to the relative valuation of real property in the parts of the towns constituting the joint district. The statute relative to the equalization of real property values in joint district has been in force since the Consolidated School Law of 1864. The practice thereunder is well established. There must be a substantial compliance therewith. For the method of computation and the procedure, reference may be made to the Code of Public Instruction of 1887, pages 380-82. When the relative proportion of taxes to be assessed upon the real property of the parts of this district lying in the towns of White Plains and Greenburgh has been legally ascertained the board of education of such district may be compelled by a proper proceeding to comply with the determination of the supervisors. The appeal herein is dismissed. 3550 William N. Callender from the action of the trustees of joint school district no. I, towns of Greenbush and East Greenbush, Rensselaer cotmty, N. Y., in levying and apportioning a school tax upon an illegal valuation of real property in said district. EQUALIZATION OF VALUES IN JOINT DISTRICTS Supervisors have no power to change the values as fixed in the town assessment rolls. Their duty is to determine what proportion of a school district tax sha'A be paid by each town forming a joint district, so that relatively each shall pay the same. Trustees, in preparing a tax list, iiiiist use the last town assessment roll after correction by assessors. Decided December 24, 1886 Draper, Superintendent This is an appeal by William N. Callender, a taxpayer of the town of East Greenbush. Rensselaer county, N. Y., a portion of which town forms a part of joint school district no. i, towns of East Greenbush and the village of Greenbush, which is a portion of the town of Greenbush, in the county aforesaid, from the action of the supervisors of the said towns in assuming to change the assessed valuations of property from the valuations placed thereon by the respective town assessors, and from the action of the trustees of said district in using as a basis of valuations of real property the tax roll of the assessors of the town of East Greenbush for the year 1885, as altered by said supervisors, instead of the assessors' last roll, which was filed in 1886, and asking to have said assessment and the apportionment of school taxes for said district thereon and the warrant dated December 2, 1886, which accompanies it, set aside, and 10 290 THE UNIVERSITY OF THE STATE OF NEW YORK the receiver of taxes of the village of Greenbush enjoined and stayed from enforcing the collection thereof. The errors alleged as above set forth are sub- stantially admitted by the trustees, who appear as respondents herein. For the errors assigned, this appeal is sustained. The supervisors and trustees in preparing the tax list, should have used the last assessment rolls of the towns, after correction by the assessors, as the basis of valuation for the tax list. This, it appears, they did not do. The supervisors of the towns composing this district had no authority under the law (§ 69, title 7, ch. 555 of the Laws of 1864), to change the valuation of any piece of real property appearing in said tax list as they assumed to do. Their duty under the law was simply to determine the basis upon which the respective town assessors had proceeded in determining values for their assess- ment, and if found not to be ratably the same, to determine what proportion of a school tax to be collected should be apportioned to each town. Having failed so to do, their action was manifestly irregular and illegal, and can not be sustained. I, therefore, sustain the appeal and set aside the action of the supervisors in changing the assessed valuations, and the apportionment of taxes by the trus- tees made thereon, and the tax list upon which such apportionment was made. The receiver of taxes of the village of Greenbush is perpetually stayed and enjoined from the collection of the tax as at present apportioned; and said receiver of taxes is hereby ordered and directed to refund all sums which may have been collected by virtue of the aforesaid warrant upon said tax list to the persons from whom the same were collected. 3763 In the matter of the equalization of the assessments in school district no. Ii, of the towns of Middleburgh and Broome, in the county of Schoharie, In a school district composed of parts of more than one town the equalization of assess- ments for school purposes by supervisors will be set aside when it appears that the supervisors merely rode through the district and listened to interested parties, and then made their equalization by the vote of two of three supervisors, and it also appears from the town assessment rolls, and the affidavits of the assessors and others that the valuations fixed by the assessors were substantially just as compared with each other, and that the real property of each town was assessed at its full value. The evidence of sworn officers, chosen with special reference to the particular duty of determining values, will be given more weight than the unofficial declaration of residents of a neighborhood. Decided February 16, 1889 Engle and Getter, attorneys for appellants W. H. Albro, attorney for respondents Draper, Superintendent School district no. 11, of the towns of Middleburgh and Broome, is situated partly in each of said towns. That part of the district in the town of Broome JUDICIAL decisions: equalization of values 291 contains 1183 acres and that part of the town of Middleburgh 1416 acres. There is a Httle dispute about the entire accuracy of these figures, but they are suffi- ciently correct for present purposes, certainly. In December 1888, the super- visors of the towns met, upon application as provided by statute, for the purpose of inquiring whether the valuations of real property upon the assessment rolls of the two towns were substantially correct as compared with each other. Being unable to agree, they called in the supervisor of the adjoining town of Schoharie. After riding through the district and hearing what several interested parties had to say, the third supervisor joined with the supervisor of the town of Middle- burgh, and on the 26th day of January 1889, made an order declaring that the assessments in the two towns were not just as compared with each other, and directing that one-half of the school taxes should be levied upon the 1183 acres in one town and the other one-half upon the 1416 acres in the other town. F'rom this determination this appeal is taken. The affidavits submitted are many and long, but I have read and considered them as carefully as I am able. There is no question about which opinions will more widely differ, or none upon which sworn statements can more easily be procured, than upon the values of real property. I have found it the safer course to rely upon the valuations fixed by the assessors, who are officers chosen with special reference to the par- ticular duty of determining values, and wdio are sworn to perform their work fairly and justly, than upon the unofficial declaration of residents of the neigh- borhood. There certainly must be a very clear and overwhelming case pre- sented to impeach the facts set forth in the assessment rolls, or they must be given full faith and credence. In the present case, the assessment rolls of the two towns purport respectively to assess the real property of each at full value. Outside of the rolls, the assessors in each town swear that they did so. It is clear to me that the determination of the supervisors upon a casual observance of the lands, in the winter season, as against the assessment rolls and the affi- davits of the assessors, is scarcely to be relied upon, and particularly so, when they only assume to find the differences in the values as compared with each other so very slight as in this case. There is no pretense that competent proof was presented to the supervisors, outside of their inspection, to establish the fact. It is a material fact, moreover, that the assessment rolls of Middleburgh, the town favored by the majority of the supervisors, for the year 1888, show a not inconsiderable reduction in values over the year 1887. Taking all the circumstances together, I am unable to. find any sufficient ground for the supervisors finding that the valuations fixed by the respective town assessors were not substantially just, as compared with each other. If there was not, then they had nothing farther to do. If their determination of that fact can not be upheld, then their subsequent proceedings must fall to the ground. The appeal is sustained, and until the making of new assessment rolls, the trustees of the district will use the values fixed in the last assessment rolls of the towns after revision, in levying school taxes. 292 THE UNIVERSITY OF THE STATE OF NEW YORK 4358 In the matter of the appeal of C. R. Bowen of school district no. 6, Almond and Hornellsville, v. Nelson Ayers, Dwight Bardeen and Thomas Burrows, as assessors of town of Hornellsville, Steuben county. When town assessors, under the provisions of chapter 694 of the Laws of 1867 and the amendments thereof, apportion the valuation of property of any railroad, telegraph, telephone and pipe line company as appears on the assessment roll of the town among the several school districts in the town, make such apportionment upon a diflFerent rule or basis than that specified in said chapter, an appeal to the State Superintendent of Public Instruction may be taken, and he has jurisdiction of such assessors, and may set aside their action and direct a new apportionment to be made by them in the manner directed in said chapter. When, however, said assessors proceed within the provisions of said chapter, their acts are judicial. Decided July g, 1895 Near & Rathbun, attorneys for respondents Skinner, Superintendent The above-named appellant, as a qualified voter in school district no. 6, Almond and Hornellsville, appeals froin the assessment and decision of the above-named respondents as assessors of the town of Hornellsville, made in September 1894, in apportioning the valuation of the property of the New York, Lake Erie and Western Railroad as it appeared on the last assessment roll of the town of Hornellsville, in school district no. 6, Almond and Hornellsville, situated in said district in said town of Hornellsville, in the sum of $7000, under the provisions of section i, of chapter 694, of the Laws of 1867, as amended by section i, of chapter 414, Laws of 1884, upon the grounds, as alleged in the appeal, that said respondents as such assessors did not give, in such apportion- ment, to said school district no. 6, its proper portion according to the proportion that the value of said property of said railroad in each of school districts lying in the town of Hornellsville bears to the value of the whole thereof, in said town, as required by section i, of said chapter 694, Laws of 1867, and the amendments thereof, but that said assessors made such apportionment upon the establishment by them of a unit of value of said railroad at a certain sum per rod, and appor- tioned the valuation of said railroad in said town as it appeared upon their town assessment roll, among the several school districts in said town, including said district no. 6, Almond and Hornellsville, in accordance with the number of rods in length of said railroad in said school districts respectively at the miit of value per rod as so established by them ; that is, in effect, that the amount or assessed value of the property of said railroad within said town, should be regarded as a unit, and that said school district no. 6, Almond and Hornellsville, is only entitled to that proportion of such assessed value which the length of the railroad in that part of said district situate in the town of Hornellsville bears to the total length of the said railroad in said town; the theory of the assessors being that any rod or mile of said railroad in the town of Hornellsville was equal in value to any other rod or mile thereof. JUDICIAL DECISIONS : EQUALIZATION OF VALUES 293 The appeal herein was filed on October 9, 1894. An answer was received October 16, 1894, and not being properly verified was returned to respondents for proper verification. On October 27th, a reply of the appellant to said answer was received. On ■March 8, 1895, upon taking up the appeal herein for examina- tion and decision, no answer was found and the respondents w^ere written to inquiring what had become of said answer, and it was ascertained that it was lost, and respondents had permission to file an answer in place of the one lost, which they did on 3,Iarch 23, 1895. On iVpril 12, 1895, the appellant filed a reply to said answer, and on June 25th additional aftidavits in support of the answer were filed. The only papers which I can consider in deciding this appeal are the appeal, answer received March 23, 1895, the reply thereto received April 12, 1895, 'i^d the additional affidavits of respondents received June 25, 1895. The answer filed October 16, 1894, was never returned to me by respondents. The reply of the appellant to the lost answer can not be considered. It appears from the papers presented to me that the respondents in making up the assessment roll of the town of Hornellsville in August 1894, assessed and valued the property of said New York, Lake Erie and Western Railroad within the town of Hornellsville at the aggregate sum of $175,000; that on Sep- tember 15, 1894, said respondents filed in the office of the town clerk of Hor- nellsville a certificate of apportionment of the valuation of the property of the several railroad, telegraph, telephone and water companies, as appeared on the assessment list or roll of said town of Hornellsville for the year 1894, among the several school districts of said town in which any portion of said property is situated, and that from said certificate it appears that the apportionment made by said assessors of the property of the said New York, Lake Erie and Western Railroad, as aforesaid, upon said assessment roll of said town to said school district no. 6, Almond and Hornellsville, for that portion of said railroad situate in said district, was the sum of $7000. Aside from the statements contained in the appeal the appellant has not furnished any aftidavits or other proof sustaining the allegations made by him as to the methods adopted by said assessors in making the apportionment of valuation of said New York, Lake Erie and Western Railroad to said school district no. 6. The respondents in their answer deny the most of the allegations contained in the appeal, and they deny that they regard the amount of railroad in the town as a unit and give each district only that proportion of the assessment which the length of the track in the district bears to the total length of the road in the town; they deny that they have admitted to the appellant or any other person that the apportionment appealed from is not based upon the actual value of the road, but upon the length of it. The respondents allege that in appor- tioning the valuation of said railroad as appeared on the assessment roll of said town of Hornellsville in 1894, among the several school districts of said town in which any portion of said railroad property was situate, they gave to each of said districts including said district no. 6, their proper portion according to the 294 THE UXIVERSITY OF THE STATE OF NEW YORK proportion that the value of the property in each of said districts bears to the value of the whole of said railroad property in said town. The appellant alleged that the respondents did not apportion the property of the New York, Lake Erie and Western Railroad as valued and assessed on the assessment roll of 1894, among the school districts in said town, in accord- ance with the provisions of section i, chapter 694, of the Laws of 1867. The respondents explicitly deny said allegations of the appellant, and specifically aver that such apportionment was made strictly in accordance with the provisions of the law as above cited. The onus is upon the appellant to sustain his appeal by a preponderance of proof, and in this he has failed. The Department has held that when town assessors, under the provisions of section i, chapter 694, Laws of 1867, make the apportionment to school dis- tricts referred to therein upon a different rule or basis than that specified therein, that upon appeal to the State Superintendent of Public Instruction from such action and decision he has jurisdiction of said assessors, and may set aside their action and direct a new apportionment to be made by them in the manner directed in said section i ; that the acts of town assessors proceeding within the said chapter 694 are judicial ; the conclusive character of their act, however, is only while they confine themselves within the statute. In the appeal herein the appellant has failed to show that the respondents, in making the apportionment, did not confine themselves within the statute, but went outside of it and acted upon a rule or method adopted by them, ignoring the provisions of said statute. In my opinion the appeal herein must be dismissed. Appeal dismissed. LIBRARY Decided September 17, 1839 Spencer, Superinicndent That part of the district hbrary purchased with money raised by tax upon the district may be sold. Trustees may exchange old library books for new ones. Decided April 20, 1854 Randall, Deputy Superintendent Trustees of districts may legally exchange old books belonging to the dis- trict library for new, paying the difference, if any, in price from the library money. In regard to exchanging library books. Decided September 8, 1854 Rice, Superintendent No objection might be raised, if a district so determine by unanimous vote, to the exchanging of books in a library for others more appropriate to the wants of the people. That part of district library which was purchased by a tax on property of district belongs to district, and may be disposed of by its voters as they shall direct. But that part bought with public money belongs to the State, and the district can not sell it. Decided November 23, 1865 Rice, Superintendent That part of the district library which had been purchased by a tax upon the property of the district belongs unqualifiedly to the district, and may be disposed of by the voters thereof as they may see fit to direct. But in that which has been purchased with the public money apportioned to the district it has only a qualified property. This portion of the library really belongs to the State, and the district is the bailee and not the owner of it. As such bailee it has no power to sell or otherwise dispose of the library. [295] MEETINGS 5151 In the matter of the appeal of Clinton Muclge and Glen Stone from proceedings of school meeting held in and for school district no. 9, town of Lima, Livingston county. In conducting school district meetings a wide latitude must be accorded officers in the enforcement of parliamentary rules. A refusal or neglect on the part of the trustee to call a special meeting of the voters of a district as required under subdivision 4 of section 13 of title 5 of the Consolidated School Law is a wilful violation of the school law. When a schoolhouse has been regularh^ condemned by the school commissioner the district has not the legal right to vote a tax for repairs or equipments of any character to such building. The expenses incurred by a trustee in his wilful determination to evade the provisions of the law are not a legitimate charge upon the district and a meeting of the district can not legally authorize the payment of the bills therefor. A trustee is barred by the Penal Code from making a contract with his minor son who is not emancipated, to act as janitor. Decided November 17, 1904 Albert H. Stearns, attorney for appellants George W. Atwell, attorney for respondent Draper, Coimnissioner The appellants request the Department to declare illegal the proceedings of the annual school meeting of school district no. 9, town of Lima, held on the second day of August 1904, and especially to declare illegal the action of such meeting in voting certain appropriations which will hereafter be specifically enumerated and considered. It is alleged by the appellants that the school meeting was disorderly and that the chairman of the meeting was arbitrary and unfair in his rulings and that such meeting was not conducted in the manner provided by the Consoli- dated School Law and in accordance with the usual parliamentary practices of such bodies. Patrick Hendrick, the sole trustee, by direction of a special meeting of said district, has filed an answer to this appeal. He states in his answer that the meeting was held in the town hall in said district and that such hall has a seat- mg capacity for not more than 150 persons, but that more than 250 persons were in attendance at the meeting. He also claims that the meeting was as orderly as could be expected under the conditions, and that such meeting was regularly and legally conducted. In proof of this a certified copy of the pro- ceedings of such meeting is offered. [296] JUDICIAL DECISIONS : MEETINGS 297 It is clearly true that the meeting was somewhat disorderly, that many irregularities occurred, and that parliamentary practices were not carefully observed. In conducting school district meetings a wide latitude must be accorded officers in the enforcement of parliamentary rules. The appellants have failed to satisfy me that the disorder or irregularities were sufficiently grave to war- rant the setting aside of all the proceedings of the meeting on the ground that material rights of electors were denied or that the proceedings do not reflect the will of the majority of the voters attempting to participate. The annual meeting in question voted appropriations for the following pur- poses: $500 for heating apparatus, $93.50 for professional services to George W. Atwell, $20 to School Commissioner McXinch, $165.80 for professional services to George W. Atwell $53.04 to reimburse Trustee Hendrick, $54 to Alartin Hendrick for janitor services. On the 21 st of March 1904, Scott L. McXinch, the school commissioner having jurisdiction over school district no. 9, town of Lima, regularly issued an order condemning the schoolhouse in said school district and providing that such order should take efifect June i, 1904. No appeal from such order of the school commissioner has been brought. In issuing such order the school commissioner showed that the total resident population of children between 5 and 18 years of age was 191 and that the number of resident children between the ages of 8 and 16, or those children coming within the provisions of the compulsory education law was 130. Such order of the school commissioner also showed that the school- house in such district had seating capacity for only 60 pupils and that such build- ing v.as unfit for use and not worth repairing. Although the order of the school commissioner was issued March 31, 1904, it did not take efifect until June i, 1904, thus allowing the school district ample time to make the necessary arrangements for the erection of a new building. Under subdivision 4 of section 13, title 5 of the Consolidated School Law, it was the duty of Trustee Hendrick, immediately upon receiving the order of School Commissioner McNinch, condemning the schoolhouse of that district, to call a special meeting of the legal voters of the district to consider the question of building a new schoolhouse. If the district failed or refused to vote the neces- sary tax to build such schoolhouse within thirty days from the date of such meet- ing, it was then the duty of said Trustee Hendrick to contract for the building of such schoolhouse and to levy a tax for the same. A refusal or negelect on his part to call a meeting of the voters of the district for such purpose is a wilful violation of the school law. As the school building of the district was regularly condemned by the school commissioner, such district had not the power to vote a tax for repairs or equipments of any character to such building. The action of the annual meeting of such district in voting $500 for a system of heating was not within the power of such district and was, therefore, illegal. The said annual meeting held in 1904 voted to pay the Atwell bill of $93.50. This bill was for professional services of said Atwell in defending appeal no. 5049 before the Department of Public Instruction and known as the Bates appeal. 29S THE UXlVEKSirV OF THE STATE OF NEW YORK The district at a special meeting held June 9, 1903, authorized the payment of this bill, but Warren I. Johnson brought appeal no. 5140 to the Department of Public Instruction to set aside the action of the district in voting to pay sucli bill. The State Superintendent of Public Instruction, in a decision rendered March 30, 1904, sustained such appeal. It is claimed by the respondents in the appeal under consideration that the State Superintendent of Public Instruction sustained the Johnson appeal on the technical ground that the vote authorizing the payment of the Atwell bill of $93.50 was at a special meeting of the district called for another purpose and that the notice of such special meeting did not state that one of the questions to come before the meeting was the consideration of the Atwell bill. This is true, but it is also true that in his opinion on such Johnson appeal the State Superintendent of Public Instruction expressly held, as pointed out in appellant's brief: " Mr Atwell, who is employed by Mr Hen- drick to answer the Bates appeal, was the attorney for Trustee Sylvester in the appeal of Ferris and others and when employed by Hendrick knew that the acts of Hendrick appealed from were contrary to the decisions of the Department and that Hendrick had no valid or legal defense to such appeal." " In my opinion Mr Atwell has no legal claim against school district no. 9, town of Lima, for any services performed by him for Hendrick in the appeal of Alfred K. Bates. Such claim is for services performed for Hendrick personally, Hendrick knowing that the acts performed by him as trustee were in violation of the rulings and decisions of this Department." The decision of the State Department on that question was " final and con- clusive and not subject to question or review in any place or court whatever," under subdivision 7 of section i, title 15 of the Consolidated School Law. The district, therefore, had no legal power to authorize the payment of such bill at its annual meeting in 1904. The special meeting of June 9, 1903, also authorized the payment of the McNinch bill of $20. The Johnson appeal also requested the Department of Public Instruction to set aside the action of the meeting in authorizing the pay- ment of such bill and the State Superintendent of Public Instruction, in his decision of March 30. 1904, did set aside such action of the district meeting and in so doing held that the McNinch bill was not a proper charge against the school district. The district, therefore, had no legal power to authorize the payment of the McNinch bill of $20 at its annual meeting in 1904. A change in the administration of this Department has taken place since the decision in the Johnson appeal was rendered. In view of such fact, I have care- fully examined the pleadings in that appeal and am satisfied that the decision th.erein is based on sound legal principles and on a wise administration of school district affairs. The Atwell bill of $165.80 is for professional services in three cases, namely: $50 for defending the Johnson appeal, $88 for defending the Miner appeal, and $27.80 for services rendered in an action entitled " Supreme Court, Nora O'Connor v. Patrick Hendrick as Trustee etc." JUDICIAL decisions: meetings 299 This Department has held that the Atwell bill in the Bates appeal was not a proper charge against the district. Atwell's defense in the Johnson appeal was to establish the claim that his bill in the Bates appeal was a proper charge against the district. If Atwell's claim in the Bates appeal was not legally chargeable to the district, his bill for services in an unsuccessful endeavor to give vahdity to such claim is certainly not chargeable to the district. The Miner appeal for which Atwell claims $88 became necessary because of the action of Trustee Hendrick in refusing to comply with certain decisions and orders of the State Superintendent of Public Instruction. The conditions, therefore, under which Atwell rendered services in the Miner appeal are similar to those of the Bates appeal and his bill for such services is not a proper and legal claim against the district. If the bills of Atwell for services in the Bates and Miner appeals are not a valid claim against the district, then the bill for his services in the " O'Connor v. Hendrick " case in the Supreme Coiirt is not a claim chargeable to the district. The services rendered in this case were in defense of the wrongful and illegal acts of Trustee Hendrick. It was the persistent and intentional refusal of Trustee Hendrick to comply with what he knew to be the school law of this State and withwhat he knew to be the orders and decisions of the Department which led to bring the Bates, the Johnson, and the Miner appeals and subsequently to the O'Connor v. Hendrick case in the Supreme Court. The expenses incurred by him in his wilful detei- mination to evade the provisions of the law are not a legitimate charge upon ihe district and the action of the annual meeting in authorizing the payment of the Atwell bill of .$165.80 was, therefore, illegal. It also follows that the district meeting had not the legal power to vote to reimburse Trustee Hendrick to the amount of $53.04 for costs rendered by the Appellate Division against Hendrick in the appeal of the motion to intervene by Miner and others. The said annual meeting also voted to pay a bill of $54 to ^Martin Hendrick for services as janitor and for taking care of the furnace. ]\Iartin Hendrick is the minor son of Trustee Hendrick. Section 473 of the Penal Code prohibits a trustee of a school district from being directly or indirectly interested in any contract made by him as trustee. It is clear that he is interested in a contract with his minor son. Trustee Hendrick claims that such son has been emancipated. It is a well-settled principle of law that emancipation is a question of fact to be determined from circumstances and from the conduct of interested parties. It can not be presumed but must be established by positive proof. In my opinion the respondent has not produced sufficient evidence to establish an emancipation. He was, therefore, barred by the Penal Code from making such contract with his minor son and under such circumstances the bill of $54 to Martin Hendrick is not legally chargeable to said district and the annual meeting could not authorize its payment. The appellants also request that the action of the said annual meeting in authorizing Hendrick to employ counsel to defend the appeal of Killips v. Hen- drick be set aside. It is agreed by the appellants and the respondents that the 30O THE UNIVERSITY OF THE STATE OF NEW YORK motion on the question was adopted by a viva voce vote. Subdivision i8 of section 14, title 7 of the Consohdated School Law provides that all propositions at school district meetings involving the expenditure of money or authorizing the levy of a tax, the vote thereon shall be by ballot or by taking and recording the ayes and noes of the qualified voters present and voting at such meetings. A motion to employ counsel to defend an appeal involves an expenditure of money and could not legally be adopted by a viva voce vote. This district has the numerical and financial strength to maintain a good school provided its forces were wisely and harmoniously directed. It is to be regretted that such is not the case. I decide, That the annual school meeting of district no. 9, town of Lima, county of Livingston, did not possess legal authority to authorize the expenditure of $500 for installing a system of heating in the condemned schoolhouse of such school district, and that such annual meeting did not possess legal power to vote appropriations for the payment of the Atwell bill of $93.50, the McNinch bill of $20, the Atwell bill of $165.80, the bill of $53.04 to reimburse Trustee Ilendrick and the bill of Martin LIendric1< of $54 for janitor services and that such bills are not properly or legally cliargeable to the said school district. I also decide that the action of said school district in voting by viva voce to authorize Trustee Hendrick to obtain counsel to defend the Killips appeal was illegal and no appropriation of the district's funds can be made thereon. It is ordered, That Patrick Hendrick as trustee of school district no. 9, town of Lima, Livingston county, and his successor or successors in office, are hereby enjoined and restrained from making any expenditure for the installation of a heating system in the condemned schoolhouse of said district and from making any other repairs to said condemned school building and is also hereby enjoined and restrained from paying the bill of George W. Atwell for $93.50, the bill of School Commissioner McXinch for $20 and the bill of George W. Atwell for $165.80, the bill of $53.04 to reimburse Trustee Hendrick and the bill of Martin Hendrick of $54 for janitor services or any part or portion of each or any of such bills. It is further ordered. That ihe said Patrick Hendrick, trustee of school district no. 9, town of Lima, Livingston county, shall refund and pay to such district any and all of such amounts paid by his direction or order from the funds of the said di.strict no. 9, town of Lima, which are hereinbefore declared to be improper and illegal charges against said district. So much of the appeal herein as relates to the action of the annual meeting of said district no. 9, town of Lima, in voting appropriations of $500 for heating apparatus, of $93.50 to pay the bill of George W. Atwell, of $20 to pay the bill of School Commissioner McNinch, of $165.80 to pay the bill of George W. Atwell, of $53.04 to reimburse Trustee Hendrick, of $54 to pay Martin Hendrick for janitor services, and the vote by which Trustee Hendrick was authorized to employ counsel to defend the Killips appeal, is sustained. JUDICIAL decisions: meetings 301 5153 In the matter of the appeal of J. E. Curtiss from the action of the board of education of school district no. i, town of Elba, Genesee county, in adopt- ing textbooks. A board of education should have some definite system for calling special meetings and for the transaction of its business. The proper authority to serve the notice of a special meeting of a board of education is the clerk of that body unless the board has regularly designated some other person. It is not proper for a board of education to designate some one not a resident of the district to call its meetings. Decided December 2, 1904 Wood & Dunham, attorneys for respondents Draper, Commissioner The papers in this appeal show that at a meeting of the board of education of district no. I, Elba, Genesee county, on the 23d day of August 1904, such board authorized a change in certain textbooks to be used in the school of such district. Another meeting of this board was held on September 6, 1904, and a change was again authorized in textbooks on the same subjects. Another change was authorized in textbooks on the same subjects at a meeting of said board on the 24th day of September 1904. None of these meetings of this board of education appears to have been regularly held. In some cases all members of the board were not notified of the meetings. In other cases the notices of such meetings were served by a person not a resident of the district. In fact all of these meetings appear to have been held on the solicitation of representatives of certain publishers of textbooks and the notices of the meetings of the board in most cases were served by one of these representatives although not a resi- dent of the district. These representatives of pubhshing houses may have shown much business enterprise, but the board of education has undoubtedly extended them a privilege beyond the courtesy to which they are entitled. A board of education should have some definite system for calling special meetings and for the transaction of its business. The proper authority to serve the notice of a special meeting of a board of education is the clerk of that body unless the board has regularly designated some other person. It is not proper for a board to designate some one not a resident of the district to call its meetings. If some definite system for calling meetings of a board is not adopted how shall its members know when a meeting is properly called? It appears that this board of education adopted a resolution on September 9. 1902, providing that the clerk of the board be empowered to call special meeting's when necessary, although the respondent claims the proof of such action is insufficient. The respondent also claims that if such resolution was adopted in 1902 it is not binding upon the present board. Any rule or by-law not in conflict with the law adopted by a board of education in 1902 to govern or regulate the business transactions of that body is binding upon successive 302 THE UNIVERSITY OF THE STATE OF NEW YORK boards until revoked or modified. The adoption of textbooks by a board of education is an important matter and will not be looked upon lightly by this Department. All proceedings in relation thereto must conform to the pro- visions of the school law. A failure to notify all members of a board of educa- tion of a meeting to consider the adoption of textbooks or the transaction of other business will be regarded as sufficient reason for setting aside the action of a board when the matter is presented to this Department upon appeal. In the adoption of textbooks a board of education should be governed by a desire to put in the possession of the children and teachers of its school the best text- books to be procured, to the end that the greatest educational results possible may be achieved. In adopting textbooks a board of education should not be influenced by a proposition from publishers or their representatives to donate books to a certain value for the district library on the condition that the books are adopted. Textbooks should be selected upon their merits and then not changed except for decisive reasons. Books for the library should be selected because of their special fitness for that purpose. It is unnecessary to enter into a discussion of the evils resulting from the frequent changing of textbooks. They are generally recognized. The school law provides that when a textbook has been adopted in a union free school dis- trict it shall not be changed within a period of five years except by a three- fourths vote of the board of education of such district. See article 2, title 15 of the Consolidated School Law. In view of the irregularities in calling the meetings of said board of educa- tion in question in this appeal it must be held that such meetings were not prop- erly called and therefore not legal meetings. The appeal herein is sustained. It is ordered. That the action of the board of education of school district no. I, town of Elba, Genesee county, in the adoption of textbooks at its meetings, held on the 23d day of August 1904. the 6th day of September 1904, the 24th dav of September 1904, and the 19th day of October 1904, be, and the same hereby is, declared illegal and void. 5430 In the matter of the appeal of William Davidson from the proceedings of a special school meeting in district no. 6, Marathon, Cortland county. Regularity of annual meeting must be determined by the Commissioner of Education on appeal. Where it is alleged that an annual meeting was irregularly conducted, the trustees are not authorized to set aside such meeting and call a special meeting to transact the business which should have been transacted at the annual meeting. The Commissioner of Education is vested with exclusive authority to determine whether or not the officers declared elected at an annual meeting were legally elected and whether the proceedings thereof were legally conducted. The officers declared elected JUDICIAL decisions: meetings 303 at such meeting are to be deemed the officers of the district until their election is set aside on appeal duly brought as provided in the law and rules of practice relating to appeals. Decided December 29, 1909 L. R. Chase, attorney for appellants Draper, Commissioner This appeal concerns the legality of a special meeting held in district no. 6, town of Marathon, county of Cortland, on the 28th day of August 1909. Such meeting was called by a notice signed by two of the three trustees of the district for the purpose of transacting the business of the annual meeting. At such special meeting Fred Alexander was elected trustee, W. F. Brown was elected collector, David Wallace was elected clerk, and Earnest Maricle was elected treas- urer. Certain appropriations were made at such meeting and a contract was let to furnish wood to the district. The appellant, William Davidson, appeals from the actions of such special meeting, and alleges in his petition that the annual meeting was regularly held in such district on August 3, 1909 and that the proceedings thereof were legally conducted. The appellant was elected as trustee at such meeting, and W. F. Brown was elected collector. David Wallace, clerk, and Frank Gardner, treasurer. An appropriation of $500 was made at such annual meeting for the payment of teachers' wages, $60 for the purchase of wood during the ensuing school year for school purposes, and $100 for the payment of janitor's services and incidentals. The two members of the board of trustees who took upon themselves to issue the call for the special meeting to transact the business of the annual meeting, have not answered the allegations of the petition. There is nothing in the record which indicates in what respect the actions and proceedings of the annual meeting were irregular or illegal. A certified copy of the minutes of the annual meeting is attached to the petition. Such minutes do not specify whether the ofticers were elected by ballot or by acclamation, nor do they state how the votes upon the appropriations were taken. It is probable that the respondent trustees assumed that the proceedings of the annual meeting were illegally con- ducted and concluded that they had the right to call another meeting to elect district officers and transact the business of the annual meeting. It has been frequently decided upon appeals that the Commissioner of Education is vested with the exclusive authority to determine whether the officers declared elected at an annual meeting were legally elected and whether the proceedings thereof were legally conducted. The officers so declared elected are to be deemed the officers of the district until their election is set aside on an appeal duly brought as provided in the law and rules of practice relating to appeals. Until such time the official acts of such officers are valid and binding upon the district. The appropriations alleged to have been made at an annual meeting are deemed legally made unless it is decided on an appeal that they were unlawfully voted. It must therefore be held in this case that the officers elected at the annual meeting are the officers of this district, and that the appropriations made at 304 THE UNIVERSITY OF THE STATE OF NEW YORK such meeting are legal and binding upon the district. The special meeting held in such district August 28, 1909, was illegal and the acts and proceedings thereof were of no effect. The appeal is sustained. It is hereby ordered, That the special meeting held in district no. 6, town of ]\Iarathon, county of Cortland, on August 28, 1909 be, and the same is hereby declared to be, illegal, and all the proceedings thereof are hereby set aside and declared of no effect; and It is hereby further ordered, That \\'illiam Davidson be one of the three trustees of such district, and that other officers of such district elected at the annual meeting be the officers of such district, to the exclusion of those persons declared elected as such officers at the special meeting held August 28, 1909. 5434 In the matter of the appeal of Alwin E. Powell and \\'illiam C. Elmendorf from the proceedings of special meeting in school district no. 3, Hurley, Ulster county Appropriations for legal expenses. Appropriations to paj- the expenses of an action which may be brought against a district and to provide for the expenses of the trustee in taking a trip to Albany to look after the welfare of the district, are not authorized where it is apparent that no action on appeal has been brought by or against the district. Subdivision 15, section 96 of the Education Law of 1909 does not authorize a resolution voting a tax to pay expenses which may be incurred in defending a suit or appeal which has not yet been commenced. Decided February 14, 1910 Alilton O. Auchmoody, attorney for appellants Charles F. Prescott, attorney for respondent Draper, Commissioner The appellants appeal from the proceedings of a special meeting held in district no. 3. town of Hurley, county of Ulster, on the 17th day of September 1909, and from the tax list and warrant issued by the trustee of said district^ based upon certain resolutions adopted at such meeting. It is insisted by the appellants that the meeting was illegally held, since the notices calling such meeting were not served as required by law. The respondent trustee admits that the notices of the meeting were not served on the appellants, but states that they were posted in three conspicuous places in the district ten days before the meeting was held. This is not sufficient to constitute legal notice of the meeting, unless a resolution had been adopted at some annual meeting prescribing that such method of giving notice of a special meeting should be followed. It does not appear from the papers in the case whether or not such a resolution had been adopted. It is not necessary to determine the question of the suffi- ciency of the notice in rendering a decision on this appeal. The minutes of the meeting show that three resolutions were adopted, all of which are attacked by the appellants. The first resolution appropriated Sioa JUDICIAL DECISIONS : MEETINGS 305 to be " raised by taxes to defend any action which may come against said district." The second resolution directed a ]\Ir Bundy to employ a lawyer to defend the district at a cost not to exceed $15. The third resolution directed the trustee, Charles Prescott " to go to Albany to look after the welfare of said district no. 3 and that he may take with him w'hom he may deem necessary and that said district shall pay his and their expenses." It is apparent that the appropriation of $100 was to cover all the expenses incurred under these reso- lutions including the expenses of the proposed trip to Albany. It was apparently contemplated that an action or appeal might be brought by or against the district wdiich would make it advisable for the trustee to go to Albany in behalf of the district. At the time the appropriation was made no action or appeal was pend- ing either against the district or any of its ofificers. There is nothing in the peti- tion or answer which shows the purpose of the proposed trip to Albany, or how the interests of the district were to be thereby promoted. Subdivision 15 of section 96 of the Education Law authorizes a district meeting to vote a tax '" to pay the reasonable expenses incurred by district officers in defending suits or appeals brought against them for their official acts, or in prosecuting suits or appeals by direction of the district against other parties." This provision does not authorize a resolution voting a tax to pay expenses which may be incurred in prosecuting or defending a suit or appeal w^hich has not yet been commenced. There is no other provision of the Edu- cation Law which authorizes a tax to pay expenses to be incurred in a threat- ened suit or appeal by or against the district or its officers. It must therefore be held that the resolution voting a tax of $100 " to defend any action which may come against said district " was illegal. The tax list and warrant issued by the trustee for the collection of such tax was invalid, and the taxes collected thereunder were illegally paid. The appeal herein is sustained. 3765 In the matter of the appeal of James Riley v. Evan O. Prichard, trustee of joint school district no. 5, towns of Deerfield, Oneida county, and Schuyler, Herkimer county. A trustee in a school district in which the schoolhouse had been destroyed by fire, and who had received insurance money thereon and who neglected for a considerable time to respect a petition of the inhabitants requesting the calling of a special meeting to act upon the question of building a new schoolhouse, held remiss in his duty. The district clerk directed to call a special meeting for the consideration of the question above referred to. Decided February 21, 1889 Jones & Townsend, attorneys for appellant Draper, Superintendent This appeal is taken by a resident taxpayer of joint district no. 5, towns "o-f Deerfield. Oneida county, and Schuyler, Herkimer county, from the refusal 300 THE UNIVERSITY OF THE STATZ OF NEW YORK of the respondent, a trustee of said district, to call a special meeting of the inhabitants upon the request of a reasonable number of electors, for the purpose of providing for the rebuilding of a schoolhouse in said district, which was destroyed by fire on the i8th day of October 1888. The property so destroyed was insured for the sum of $200, which amount was, on the nth day of December 1888, paid over by the insurance company to the said trustee, who still retains said amount. A majority of the taxpayers in said district, on the 21st day of December 1888, joined in a petition requesting said trustee to call a special meeting as above stated. The appeal was duly served upon the respondent on the 25th day of Janu- ary 1889, and although more than ten days have elapsed, no answer thereto has been received. It appears from the pleadings of the appellant that the weather has been favorable for holding a district meeting and for proceeding to build a schoolhouse, and the only obstacle in the way has been the refusal of the trustee to respect the petition of the voters. I conclude, therefore, to sustain the appeal, and hereby order and direct the district clerk, Mr Milton Dainard, upon receipt of a copy of this order, to give notice for a special meeting of the district to consider the questions proposed in the petition above referred to. 5147 In the matter of the appeal of Philip Best, Crawford Rockefeller, ArLliur Rockefeller and Edward Rockefeller jr, qualified voters in school district no. 5, town of Germantown, Columbia county, N. Y., from the proceedings of a special school meeting alleged to have been held in said district. The failure to hold a district meeting or to properly adjourn it terminated the meeting and had the same force and effect upon the meeting as an adjournment without date would have. Decided October 25, 1904 Draper, Commissioner The object of this appeal is to set aside the action of a special meeting of the district held September 7, 1904. in school district no. 5, town of Germantown, Columbia county, on the ground that notice of such meeting was not given in accordance with the provisions of the Consolidated School Law. The parties to this appeal are agreed upon the essential facts relating to this point. It is, therefore, unnecessary to enter into a discussion of the other questions involved. The trustee of this district called a special meeting to be held on August 27, 1904. for the purpose of raising the sum of $500 for repairs to the schoolhouse. It is claimed by the appellants that several legal voters of the district did not receive notice of the meeting and that the notices which were given were not given in the form and by the method prescribed in sections 2 and 6 of title 7 of the Consolidated School Law. The technicalities raised on this question are not sufficient in themselves to cause this Department to hold that the meet- ing was not legally called. The meeting was held on August 27lh, but regularly JUDICIAL DECISIONS : MEETINGS 307 adjourned until Saturday evening, September 3, 1904. The appellants show, and it is admitted by the respondents, that Saturday evening, September 3, 1904, was a stormy evening and no meeting was held. None of the officers of the meeting or district, or any of the qualified voters of the district appeared at such meeting. The schoolhouse was not even opened. The failure to hold such meeting or to properly adjourn it terminated the meeting and had the same force and efifect upon the meeting as an adjournment without date would have had. It was not proper, or lawful to convene such meeting again under the original call for the meeting of August 27th. The only way by which a meeting could have been held after September 3, 1904, was by the trustee issu- ing another call for such meeting and causing due notice of the same to be served on all the legal voters of the district in accordance with the provisions of sections 2 and 6 of title 7 of the Consolidated School Law. The action of the trustee in telling the voters of the district whom he met that a special meeting would be held on September 7, 1904, and directing others to spread such informa- tion throughout the district was not a proper or legal method of convening the voters of the district in a special meeting. The desire of the district to maintain suitable school buildings and to make proper repairs is commendable. Meetings for commendable purposes must, however, be called and held as the law directs. It will be necessary to issue a new call. Decision. The meeting of September 7, 1904, in district no. 5, town of Germantown, Columbia county, was not a legal meeting of the district, and all business transacted at such meeting was irregular and without legal effect. The appeal herein is sustained. 5300 In the matter of the petition of voters of school district no. 4, town of Windsor, for the removal of Bert E. Brown as trustee of said district. Notice of an adjourned annual meeting is not required when such meeting is adjourned for less than thirty days. An adjourned annual meeting may transact any business which might legally be trans- acted at an annual meeting. The practice of a trustee in drawing district funds from the collector and holding the same for the purchase of incidentals as needed is not founded upon any legal right or upon proper business methods. The procedure contemplated is that such purchases shall be paid by order of the trustee upon the collector of the district. A trustee will not be removed for pursuing the established custom in vogue in the district for several years, even if such custom is contrary to the statutes, when the act does not proceed from a wilful intent and no wrong or injustice is perpetrated. Decided January 3, 1907 H. S. Williams, attorney for petitioners U. C. Lyons, attorney for respondent Draper, Commissioner The petitioners herein allege that the respondent was not legally elected ';to the office of trustee. They also allege that he drew orders upon the collector 3o8 THE UXIVERSITY OF THE STATE OF NEW YORK payable to himself to the amount of $25 and that he did not use such money for the purposes for which it was collected. It is further alleged that he did not require the collector to give a bond before putting the tax list in his hands. It was stormy on the evening on which the annual meeting occurred and the trustee and one other resident of the district were the only persons present. The annual meeting was adjourned for one week. The respondents claim that the notices of such adjourned meeting were posted in conspicuous places in the district. One of these was at the creamery where many of the residents of the district drove daily with milk. Personal notice was given many residents of the district and many were notified by telephone. The adjournment of such meeting was talked over by the residents of the district as they met during the week and appears to have been generally known. The meeting was adjourned for only one week and the law does not require notice to be given of a meeting adjourned for a period less than thirty days. It is claimed by petitioners that such meeting was a special meeting and that legal notice thereof was not given. The clerk entered upon the records that it was an adjourned annual meeting and it appears that the meeting was generally regarded as an adjourned annual meeting. The trustee made his report; officers were elected for the ensuing A-ear and the other business of an annual meeting transacted. No objection was raised by anybody. The proceedings appear to have been regular. No objection has been raised since the election until now — four months after the meeting occurred and after the trustee had acted for that period of time. If there had been irregularities in such election a proceeding to set it aside should have been instituted within thirty days from the date on which it occurred. Some of the petitioners were also present at the meeting and participated in the election. Under all conditions such persons are barred from raising objec- tion now. The meeting must therefore be regarded as having been legally held and respondent as having been legally chosen trustee. On September 17th. respondent issued a tax list for $191.85. This tax was raised for the following purposes: teachers' wages $160, fuel $16.50, to pay balance due teacher of last year $9, other expenses $6.33. The respondent should have required the collector to give bond in double the amount to be col- lected with acceptable sureties before placing the tax list and warrant in his hands for collection. He failed to do this. He alleges that he did not require such bond because it had not been the custom of former trustees to require it and states that he previously served as collector in the district and did not give bonds. The right of a collector to proceed with the collection of taxes without giving bond was questioned by certain residents of the district. The respondent thereupon directed the collector to give bonds as the law provides. The collector refused to give such bonds. Thereupon the trustee very properly declared the office of collector vacant and filled such vacancy by appointment. Under the law he had full authority and under the circumstances it was his duty to take such action. The new collector gave a bond and the retiring collector turned over to him the funds of the district which were in his possession. The con- duct of respondent in this whole proceeding appears to have been that of an JUDICIAL decisions: meetings 309 honest man and an official who wanted to do right, and to conform to the law according to his best understanding of it. Respondent acknowledges that he drew an order of $5 on the collector, payable to himself. He states that it has been the practice of trustees in pre- vious years, as a matter of convenience, to draw such a sum as was necessary to purchase small supplies from time to time and to make a detailed report of such expenditures to the annual meeting. This is not denied by petitioners. The sum of $6.33 was raised by the trustee for the purchase of such supplies. The practice of the trustee drawing district funds from the collector and holding them for purchase of incidentals as needed is not founded upon any legal right or upon proper business methods. Where the amount is small such method will undoubtedly serve as a convenience, but the plan may lead to abuses and mis- understandings. A trustee should therefore adhere to the procedure contem- plated by the law and when such purchases are made, pay for them by order upon the collector of the district. In this particular case respondent should pay to the collector of the district any unexpended portion of the $5 in question and should make an accounting to the annual meeting of the portion which he has expended, submitting vouchers therefor. Respondent also admits that he drew an order upon the collector for $20 payable to himself. He claims that this money was drawn for the purchase of blackboards, repairs to windows, etc., but that the school commissioner had made an order relative to the size of the blackboard which had caused a delay in placing it in the school and that he has paid the $20 to the present collector of the district. The trustee should purchase the blackboard and pay for the same by order upon the collector. It involves more labor but it is the usual and proper method in dealing with public funds. The procedure of respondent may have been somewhat irregular but not altogether unusual. It is not shown that there was any intentional act com- mitted with a wrongful purpose. The petitioners simply claim that the method pursued by the trustee, although it appears to be the usual one for this district, is unauthorized. They do not allege a wilful intent on the part of the petitioner to wrong the district or improperly expend its funds. Pursuing the established custom in vogue in the district for several years, even if such custom is unau- thorized is not in itself sufficient ground for removal. There must be some wrong or injustice done or some wilful act to warrant such action. None is shown in this case and on the moving papers this proceeding should be dis- missed. It is charged that respondent has contracted to supply wood to the district. He had a right to make such contract. He did not as trustee purchase from himself wood for the district. The district at the annual meeting usually lets a contract for wood to the lowest bidder. It pursued the same course this year. Respondent was the lowest bidder and the annual meeting awarded him the contract. It appears that this proceeding is instigated as the result of a district ^quarrel over repairing the schoolhouse. The school commissioner has endeavored 3 JO THE UXIVERSITY OF THE STATE OF NEW YORK to get this district to make proper repairs to its buildings. The annual meeting took no action. A special meeting was held thereafter and certain repairs authorized, which in the judgment of the school commissioner were insufficient. The matter was reported officially to this Department. School Commissioner Hurlburt came to the Department and agreed with the Third Assistant Com- missioner upon the repairs which should be made. The school commissioner made an order accordingly on the 3d day of November and directed certain repairs at an expense not to exceed $200. It then became the duty of the trustee to make such repairs irrespective of any action taken at the special meeting of the district. The trustee did undertake to make such repairs. Certain residents of the district were opposed to the repairs which the commissioner ordered. It appears that some of the petitioners in this proceeding called at the schoolhouse and insisted that respondent should stop work on such repairs and make those only which the district had authorized. They claimed so many irregularities in the procedure that the trustee ceased work to ascertain definitely what his duty in the matter was. It also appears that thereafter certain residents of the district entered the schoolhouse and made, so far as possible, the repairs voted at the special meeting. The school commissioner had requested this Department to send an inspector to examine the building and it appears to have been the desire of those opposed to the repairs ordered by the commissioner to make the repairs voted by the special meeting before an inspector from the Department arrived. Without further delay the trustee should proceed to make such repairs as the order of the school commissioner, made on the 3d day of November last, directed. He may utilize so far as possible any material supplied by residents of the district and any repairs which have already been made. He may not only expend the $200 directed in the order of the school commissioner but he may on his own motion expend an additional sum of $50 if necessary. The school commissioner is hereby directed to report to this Department within the next thirty days the progress being made in such repairs. If the school commissioner has made an improper order and petitioners are aggrieved the law afifords them adequate remedy for relief. The petition herein is dismissed. 5287 Roland W. Pattee and others from an assessment levied by school district no. 10, town of Greece, county of ]\Ionroe. In certain instances the judgment of the voters of a district as to the necessity of erecting an iron fence around the school ground is conclusive. Decided October 22, 1906 Draper, Commissioner The annual meeting of school district no. 10, town of Greece, county of Monroe, held August 7, 1906, voted an appropriation of $1000 for the erection of an iron fence around the school grounds. An appeal from such action was JUDICIAL decisions: meetings 311 filed at this Department September 29, 1906, and a petition for a restraining order filed with such appeal. The order was granted October loth. The answer made by the trustee of the district shows that William Patterson, one of the appellants, was at the annual meeting and voted in favor of the appropriation. This being the case, Mr Patterson is estopped from raising an objection. Respondent also claims that the appeal is brought too late as the action com- plained of took place at the annual meeting held August 7, 1906, and that the appeal was not brought until September 29th, or more than thirty days after the appropriation was voted. The answer also shows that the annual meeting appointed a committee of three taxpayers to let the contract to the lowest bidder and that such contract was let on August 22d for the sum of $685.49 or more than $300 less than voted. It also appears that the fence is nearly completed and that the district through its action has created a district liability. The district is a wealthy one having an assessed valuation of more than $378,000. It also appears that large corporate interests are heavily assessed in this district and that the expenditure for this purpose will not result in a burdensome tax upon the individual taxpayers of the district. It also appears that the schoolhouse is located on Charlotte boulevard, the most prominent thor- oughfare out of Rochester and leading direct to Lake Ontario. For this reason it is claimed that the children are exposed to the dangers of automobiles, electric cars and all kinds of moving vehicles. Under all the conditions I think the question was one on which the judgment of the voters of the annual meeting should be conclusive. It also appears that the vote in favor of erecting such fence was almost unanimous. I must therefore hold that sufficient irre^rularities do not exist to warrant my interference and that it was clearly within the dis- cretion of the meeting to make the appropriation authorized. The appeal herein is sustained. It is ordered. That the restraining orders made by me on the loth day of October in this proceeding be. and the same hereby are, vacated. 5190 In the matter of the appeal of David H. Allen from the proceedings of a special school meeting held in school district no. 12, town of Yates, Orleans county, on April 6, 1905. That a majority of the voters of a district are willing to assume an improper and illegal claim against the district does not confer the power or right to do so. A small minority might be unwilling to assume such illegal and improper claims and in the administration of school affairs and the interpretation of school laws a minority must be given full protection. Decided July 10, 1905 Ryan & Skinner, attorneys for appellants Edward Posson, attorney for respondent Draper, Commissioner This appeal grows out of a controversy in this district which originated at the annual meeting in 1903, and a special meeting held August 11, 1903. Charles 312 THE UXIVERSITY OF THE STATE OF NEW YORK Houseman was elected trustee at the annual meeting in August 1903. It was alleged that he refused to serve and that he publicly declared he would not serve. At a special meeting held August 11, 1903, RoUin T. Bayne was elected trustee. Each of these men claimed to be the legally chosen trustee of the district. The said Bayne and one Morrison brought an appeal to this Department for the purpose of establishing Bayne's title to the office of trustee. The State Superin- tendent of Public Instruction dismissed the appeal and decided Houseman to be the trustee of the district. Bayne and Morrison employed Harry Cooper as attorney to prepare the papers in such appeal. At the annual meeting in 1904 Bayne was elected trustee. He directed a special meeting of the district to be called for September 6, 1904, to authorize the payment of a claim of $30 presented by Cooper for services in the appeal brought by Bayne and Morrison. Such special meeting directed the payment of Cooper's bill for these services. Charles Houseman and David H. Allen appealed from the action of the special meeting in auditing the claims of Harry Cooper and of the annual meeting in auditing certain other claims against the district. Edward Posson. an attorney, was em.ploved by Trustee Bayne in defending such appeal. In decision no. 5163, rendered January 10, 1905, this Department held as follows: "The appeal of Bayne and Morrison in 1903 was not authorized by the district. It was not brought to subserve or protect any interest or right of the district. It was brought through the influence of Bayne to establish his title to the office of trustee. The decision shows him to have been in error. There are no legal grounds or principles of equity upon which Bayne and IJorrison can properly ask the district to pay the expenses of an appeal brought to gratify their personal desires. Such expenses are not a legal charge against the district and the district meeting could not legally vote to pay such expenses." This Department also issued an order restraining Trustee Bayne or his successors in office from paying to Cooper or any other person the $30 claimed for services or any portion thereof. Bayne called a special meeting of the district April 6, 1905, and that meeting authorized the payment of a bill of $55 to Edward Posson for professional serA'ices in defending the appeal of Houseman and Allen from the action of the district meeting in auditing the Cooper claim. As shown above, this Department held that the Cooper claim was not a district liability. If the claim of Cooper for his sersdces to Ba3me and Morrison was not a district obligation the claim of $55 in question, presented by Posson for services in an attempt to compel the district to pay an unjust claim is certainly not chargeable to the district. The special meeting of April 6, 1905 in authorizing the payment of $55 to Edward Posson for professional services in defending the appeal brought by Houseman and Allen exceeded its authority. The following principle laid down in deciding that appeal applies to the appeal under consideration: "That a majority of the voters of the district were willing to assume such expense does not confer the power to do so. A small minority might be unwilling to assume such illegal and JUDICIAL decisions: meetings 313 improper charges and in the administration of school affairs and the interpre- tation of school laws a minority must be given full protection." It is claimed by respondents that questions other than the Cooper claim were involved in the appeal of Houseman and Allen. This is true. However, the principal question involved in that appeal was the Cooper claim. It may well be doubted whether such appeal would have been brought had it not been for the action of the district meeting in authorizing the payment of Cooper's bill. The appellant herein alleges that Posson's bill of $55 is excessive for the services rendered. He also alleges that an understanding has been reached by which Cooper's claim of $30 is to be paid out of the $55 provided it is paid to Posson. The proof on this point is not conclusive but is sufficient to lead to the belief that such is the case. However, this is unimportant as the services of Posson were not to protect or defend the interests of the district and not charge- al)le thereto. The appeal herein is sustained. It is ordered, That RoUin T. Bayne, the trustee of district no. 12, town of Yates, Orleans county, and his successor or successors in office, be, and they are, hereby enjoined and restrained from paying to Edward Posson or any other person from the funds of said district no. 12, town of Yates, the sum of $55 or any portion tliereof, for legal services rendered by the said Edward Posson in the appeal of Charles Houseman and David H. Allen from the proceedings of the annual school meeting held on August 2, 1904. and a special meeting held September 6, 1904, in said school district, and decided by this Department January 10, 1905; that if said Rollin T. Bayne had already paid the said $55 or any portion thereof to the said Edward Posson or to any other person, he shall refund the same to district no. 12, town of Yates, Orleans county, on or before July 20, 1905. It is also ordered, That the said school district no. 12, town of Yates, Orleans county, be, and it hereby is, enjoined and restrained from authorizing the payment of any amount whatever, or raising any tax therefor, to Edward Posson or any other person for the services rendered by said Posson in defend- ing this appeal. 3304 Reimbursing the collector's bondsmen for money lost by the collector The district can not vote a tax to reimburse the bondsmen of a collector for moneys lost by the collector and paid by them. Decided January 16, 1884 Ruggles, Superintendent At the annual meeting in October 1882, Robert J. Martin was elected col- lector of the district, and he duly qualified by giving his bond with F. J. Heath and George D. Bement as sureties. The collector thereafter collected certain jmoneys upon a tax list and warrant duly placed in his hands, which moneys were 314 THE UNIVERSITY OF THE STATE OF NEW YORK deposited by the collector with F. J. Heath, one of his bondsmen. Eight hundred and seventy-five dollars of this money was deposited by the said Heath in the bank of William C. Moore in the village of Victor, and in the name of Heath. On the 25th of November, $165 of this money was withdrawn from the bank to pay an order in favor of R. A. Kneeland. On or about the i8th of December 1882, the bank suspended payment, and the said Moore made a general assign- ment for the benefit of his creditors, and his assets are now in the hands of his assignee unsettled. Since the failure of the bank whenever the collector received orders for moneys from the trustees, he brought them to Messrs Heath and Bement, his bondsmen, and they furnished the money to pay them, and continued to do so until the sum of $710 had been paid by them. The annual meeting held October 9, 1883, adopted the following resolution : kesolved, That the trustees of school district no. i, raise the sum of $710 in addition to the sum already voted to be raised for the ordinary expenses; the said sum of $710 to be paid to George D. Bement and Frank J. Heath, bondsmen for Robert J. Martin, collector of said district, to reimburse them for money lost by said collector by the failure of Moore's bank, in the village of V^ictor, December 19, 1882." The trustees issued a tax list with the amount included. The appeal is taken from the action of the meeting adopting the resolution, and asking that all proceedings thereunder .be restrained. It does not appear from the evidence in this case that the bondsmen did anything more or less than would be legally required of them by their bond, and I know of no principle, either in law or in equity, which would justify a tax, the purpose of which is to relieve the bondsmen and the collector from the obligations they have assumed. The action of the annual meeting is set aside, and the issuing of a tax list and warrant for the $710 restrained. 5192 In the matter of the appeal of L. A. Havens and C. Southard from the acts and proceedings of a special school meeting of the inhabitants of school district no. 12, tovv'n of North Hempstead, Nassau county, held on the 27th day of March 1905. This Department will not interfere with the action of a district meeting where such action appears to have been legal and regular and when good cause is not shown to demand such action. Decided July 15, 1905 George B. Stoddard, attorney for appellants John Lyon, attorney for respondents. Draper, Commissioner A special meeting of district no. 12, North Hempstead, Nassau county, held on the 27t-h day of March 1905, voted an appropriation of $8000 for the erection JUDICIAL decisions: meetings 315 of a new sclioolhouse and directed the trustees to issue bonds for that amount and providing that the last instalment of such bonds shall be payable in 1925. The appellants allege several irregularities of procedure. They allege that the vote by which this appropriation was made and authorizing the issuance of bonds, was not made in accordance with the provisions of law governing the same. Subdivision 18 of section 14 of title 7 of the Consolidated School Law provides that the v^ote on all propositions at school district meetings involving an expenditure of money shall be by ballot or by taking and recording the ayes and noes. Section 18 of title 7 provides that the vote on a proposition to raise by instalments appropriations for the erection of a school building shall be by taking and recording the ayes and noes. The certified records of the proceedings of the meeting in question show that such meeting adopted a resolution providing for an appropriation of S8000 to be raised in 16 annual instalments. The method by which the vote was taken was as follows: Each voter came to the desk at which the clerk and chairman were seated and stated that he voted aye or no. The clerk entered the name of each voter as he came to the desk and if he voted " aye " the figure " i " was placed opposite his name and in a column having " ayes " at its. head. If a voter voted " no " the figure " i " was placed opposite his name and in a column having " noes " at its head. After all persons had voted the clerk counted the several marks in the column headed " aye " and recorded the number as the number voting " aye." The clerk entered a record in the same manner for those voting " no." Appellants object to this method of taking the ayes and noes. Their objection is not valid. The records clearly show who voted and how each voter voted on the resolution. It was a full and complete compliance with the law. Appellants also claim that inspectors or tellers were not appointed and that the recording of the names of those voting was done by John Lyon who was not a resident of the district. There was no necessity for appointing tellers or inspectors. The vote on the question before the meeting was not taken by ballot. The vote on such questions was taken by the " ayes " and " noes " and the clerk of the district was the proper person to keep a record of the names of the voters and the record of how each person voted. The pleadings show that the clerk of the district was present and discharged* his duty in this respect. It appears that for a portion of the time while the voting was occurring John Lyon who sat at the side of the clerk entered on the records the names of some of the voters. The clerk had a lame wrist and Mr. Lyon did the work to relieve said clerk. The entering which he did was under the immediate direction and supervision of the district clerk. A practice of this kind is not to be encouraged. If the clerk was physically unable to perform such work he should have so stated to the meeting and have permitted that body to select a suitable person to assist him. It was not proper to permit ]\Ir Lyon to do such work, but it is not an irregularity sufficient to set aside the action of the meeting providing the other proceedings were regular. It is also claimed by appellants that the schoolhouse is not centrally located ^nd will thus operate a hardship upon a portion of the residents of the district. 3l6 THE UXIVERSITY OF THE STATE OF NEW YORK The schoolhouse is to be erected on the old site. The proof offered by appellants on this point is not sufficient. The respondents contend that the schoolhouse is centrally located and easily accessible from all parts of the district. The principal object of this appeal appears to be for the purpose of pre- venting a bond issue. A portion of this district desires to be formed into a new district or transferred into an adjoining district. A school district having an outstandin.g bonded indebtedness can not be divided. If appellants could prevent a bond issue those favoring a division of the present district would institute proceedings for the erection of a new district or to be transferred to an adjoining district. Vacating the action of the meeting in question would not enable appellants to accomplish the result desired. These bonds have already been sold and the purchasers of such bonds have an interest and claim which they could undoubtedly enforce in the courts. If valid reasons existed for preventing the district from issuing bonds appellants should have filed a petition for an order restraining the trustees of the district from issuing such bonds. A petition for this relief was not filed. The necessity of a new schoolhouse is not denied. The proceedings appealed from appear to have been proper and legal in every respect. There does not appear to be any good cause which demands action from this Department. The appeal herein is dismissed. 5i38 In the matter of the appeal of certain residents of union free school district no. I, town of Hadley, Saratoga county, and town of Luzerne, Warren county, from the decision of a meeting of the electors of said district in selecting a schoolhouse site. This Department has uniformly refused to interfere with the action of a district meeting legally and regularly taken unless it is clearly shown that such action is detrimental to educational interests or imposes a hardship upon a resident of tlie district requiring relief through the action of this Department. Decided June 13, 1905 William T. Moore, attorney for appellants Frank Gick, attorney for respondents Draper, Coiniuissioncr At a special meeting of union free school district no. i, towns of Hadley and Luzerne, regularly held on the 26th day of September 1904, the voters of such district legally designated a new site for the schoolhouse. Such site is known as the Riverv-iew site. This appeal is brought for the purpose of setting aside the action of tbe district in selecting such site. Rule 5 of the Rules of Practice Relating to JUDICIAL DECISIONS I MEETINGS 317 Appeals to the Conunissioner of Education provides. " Such original appeal and all papers etc. annexed thereto with proof of service of copies, as required by rules 3 and 4, must be sent to the Education Department within thirty days after the making of the decision or the performance of the act complained of or within that time after the knowledge of the cause of complaint came to the appellant, or some satisfactory excuse must be rendered in the appeal for the delay." The acts herein complained of occurred nearly nine months ago. Appel- lants have had knowledge of such acts since their occurrence. No excuse is given for failing to bring this appeal within the time prescribed by the rule above quoted. This itself is sufficient ground for dismissing the appeal. See decision of this Department rendered March 3, 1905, in Henderson v. the Board of Education of New York City. The grounds on which appellants ask that the action of this district in selecting the site in question be set aside are that such site is unsafe for school purposes and that the price paid is exorbitant. The burden of proof on these questions rests upon the appellants. They must sustain affirmatively their allega- tions in this respect. This they have failed to do. This Department has uniformly refused to interfere with the action of a district meeting legally and regularly taken unless it is clearly shown that such action is detrimental to educational interests or imposes a hardship upon a resident of the district requir- ing relief through the action of this Department. These conditions are not shown to exist in this case. The appeal herein is dismissed. 5208 In the matter of the appeal of William Hulse et al. from the action of the annual meeting of school district no. i, town of Islip, Suffolk county, in the election of trustees and in increasing the number of members of the board of education. An annual meeting will be set aside when the proceedings are characterized by confusion and irregularities. An annual meeting of a union free school district whose boundaries do not coincide with the boundaries of an incorporated village or city can not change the number of its trustees unless the notice of such meeting states that the proposition to change the number of trustees will be voted upon at such meeting. Decided October 24, 1905 W. H. Robbins, attorney for appellants Ackerley & Miles, attorneys for respondent Draper, Commissioner School district no. i of the town of Islip, Suffolk county, is a union free school district whose boundaries do not coincide with the boundaries of an 3l8 THE UNREKSITV OF THE STATE OF NEW YORK incorporated village or city. Section 31 of title 8 of the Consolidated School Law of 1894 as amended by chapter 463 of the Laws of 1903 provides that the number of trustees in a union free school district whose boundaries do not coincide with those of an incorporated village or city shall not be changed unless notice is given in the notice of the annual meeting that the proposition to change the number of trustees will be presented to the annual meeting for consideration. The pleadings herein show that the notice of the annual meeting did not contain any notice whatever of a proposition to be presented to such meeting to change the number of trustees. The annual meeting could not, therefore, legally increase the number of trustees in this district. It appears, however, that such action was taken at the annual meeting of the district on August i, 1905, and the number of trustees increased from five to nine. This action being illegal the election of four additional members was void. It appears that the term of office of Dr E. S. Moore expired at the time of the annual meeting. The chair announced that nominations were in order to fill this vacancy. Arthur Dominy was placed in nomination but before other nominations were made Mr Dominy moved that the number of members on the board be increased from five to nine. This motion was then considered and adopted. Three other nominations for trustee for a term of three years were then made as follows: W. A. Hulse, J. M. Howell and L. G. Homan. The chair announced that each voter could vote for three trustees for three years. It was not determined by the meeting that any one of these four nominees should be regarded as being the successor of Doctor Moore. It is to be presumed that one trustee was chosen to succeed Doctor Moore and two to fill additional offices created by the action of the annual meeting in vot- ing to increase the number of trustees. It is not shown that those at the meeting generally regarded Mr Dominy as being the trustee chosen to succeed Doctor ^loore. There does appear much doubt that such was the understanding. It is also impossible to determine which one of these nominees would have been chosen had there been but one trustee to be elected. The meeting then proceeded to nominations for trustees for two years. Several nominations were made. The four members of the board of education whose terms had not expired then presented their resignations. These resigna- tions were accepted. Three trustees were elected for two years and three for one year. It does not clearly appear which of these trustees w^ere chosen to fill the additional offices created or which were chosen to fill the vacancies caused by the resignation of the four members whose terms had not expired. It is contended by respondents that the Consolidated School Law distributed by the State Superintendent of Public Instruction in 1903 does not contain the amendment to section 31, title 8 of the Consolidated School Law made by chapter 463 of the Laws of 1903. requiring that notice shall be given of the intention to bring a proposition to increase the number of members on a board of education before the annual meeting. It is alleged that the board of educa- tion relied upon that law as distributed by the former Department of Public JUDICIAL decisions: meetings 319 Instruction for their guidance and that failure to give such notice should not therefore vitiate the proceedings of the annual meeting. This contention is not well founded. Neither the ignorance of the provisions of law on the part of a board of education nor the negligence or carelessness of Department officials is sufficient to excuse a school district meeting from fulfilling the requirements of the law. If the district meeting could be regarded as excusable from the law requiring the notice in question, other irregularities and illegal procedure occurred in the conduct of the annual meeting sufficient to warrant an order from this Department to vacate the proceedings of such meeting. Section 31 of title 8 of the Consolidated School Law, since its enactment in 1894, has provided that the vote authorizing an increase in the number of members on a board of education in a union free school district of this class shall be by taking and recording the ayes and noes. The proceedings of the annual meeting of this district do not show that the vote on such proposition was taken by this method. Such pro- ceedings show such vote to have been taken by ballot which was not a compliance with the provisions of law (See decision no. 4465 of the State Superintendent of Public Instruction, also, decision no. 4487). The same section of law also provides that when a district meeting shall elect such additional number it shall divide such number into three several classes, the first to hold office for one year; the second two years and the third three years. No such action was taken at this meeting. This is also sufficient ground for setting aside the election in question. (See decisions above cited.) The whole proceeding is characterized by confusion and irregularity. This is due to the illegal action of the meeting in voting to increase the number of trustees. The inhabitants of this district are entitled to have a board of trustees chosen in accordance with the provisions of law by a majority of the legal voters of the district. It is necessary to set aside the action of the annual meeting in voting to increase the number of trustees and in electing four additional, trus- tees. Since it is not clearly shown which of the trustees elected at the annual meeting were elected to fill these additional places created and which to fill vacancies, it appears for the interest of all concerned to set aside the entire election and direct the district to hold a special election for the purpose of elect- ing five trustees. This action will also afford the voters of the district an oppor- tunity to elect in a legal manner an entire new board of education. I decide, That the election of all trustees chosen at such meeting was illegal and therefore void ; that under the provisions of the Consolidated School Law and the decisions of this Department the trustees of a district or the members of a board of education hold office until their successors are legally elected or appointed; that as the election in question was illegal it operates as though an election had not been held and the trustees of the district at the time of the annual meeting are hold-over trustees except such as have resigned ; and that as all of such trustees or members of the board of education, except Dr E. S. Moore, resigned, the said Dr E. S. Moore is at the present time the only legal 320 THE UNIVERSITY OF THE STATE OF NEW YORK trustee or member of the board of education of said school district no. i, town of Ishp, Suffolk county. The appeal herein is sustained. It is ordered, That all proceedings taken at the annual meeting of union free school district no. I, town of Islip, Suffolk county, held August i, 1905, in relation to increasing the number of members of the board of education of said district be, and the same are, hereby vacated; that all proceedings of said annual meeting by which Arthur Dominy, John M. Howell, Leander G. Homan, William S. Downs, Fred C. Hendrickson, George W. Abrams, Clarence A. Wicks, George C. White and William H. \'ail are alleged to have been elected trustees or members of the board of education of said district be, and the same are, hereby vacated. It is further ordered. That Dr E. S. Moore, a trustee of said district, shall without unnecessary delay and in accordance with the provisions of section 10, title 8 of the Consolidated School Law, call a special meeting to elect one trustee for the remainder of the current school year and the ensuing two school years to fill a vacancy caused by the expiration of the term of office of Dr E. S. Moore, and to elect two trustees for the remainder of the current school year and the •ensuing school year to fill the two vacancies caused by the resignations of the two trustees whose terms would not have regularly expired until the annual meeting of 1907, and to elect two trustees for the remainder of the current school year to fill the two vacancies caused by the resignations of the two trustees whose terms would not have regularly expired until the annual meeting of 1906. 3910 In the matter of the appeal of John Van Buren, from the proceedings of the annual school meeting, held in district no. 12, of the town of Volney, county of Oswego. A chairman of a district meeting, if he is a qualiiied voter, is entitled to vote when a ballot is taken upon any question before the meeting. He has no right to vote after the result has been ascertained, for the purpose of breaking a tie vote. Decided September 23, 1890 ^lead, Stranahan & Spencer, attorneys for appellant Piper & Rice, attorneys for respondent Draper, Superintendent At the annual school election for trustee, held in district no. 12, of the town of Volney, Oswego county, the voting was by ballot. There were two candidates voted for. The ballot resulted in a tie vote whereupon the chair- man voted for one of the candidates, the respondent herein, and declared him elected. From this result this appeal is taken. The chairman of the meeting, if he was a qualified elector of the district, was entitled to one vote upon the JUDICIAL decisions: meetings 321 question, but that vote should have been cast when the vote was being received, and before the poll was closed, the ballots counted, and the result ascertained. Whether he voted at that time, and then again, to break the tie, does not appear, but in any event, his ballot or vote after the result was ascertained, was improper. It follows that there was no choice of trustee. The appeal is sustained. The district clerk will forthwith give notice of a special meeting to be held for the selection of a trustee. 3909 In the matter of the appeal of DeEtte Adsit from the proceedings of the annual school meeting, held in school district no. 5, towns of Hanover and Sheridan, county of Chautauqua. The Department must not be expected to grant relief to persons who, through their own neglect or indifference, do not attend school meetings until long after the hour designated. Decided September 22, 1890 Draper, Superintendent Appeal from the proceedings of the annual meeting, held August 5th, last, in school district no. 5, of the towns of Hanover and Sheridan in the county of Chautauqua. The appellant alleges that the custom in the district has been to hold the annual meeting at 8 o'clock p. m. ; that on this occasion the meeting was held at about 7 o'clock, in consequence of which but three voters were in attendance, and at which the respondent was chosen trustee, with the several other officers. Some evidence is presented of persons intending to be present at the meeting, that the meeting was held before 7.30 o'clock. The respondent shows by the affidavit of all three of the persons who participated in the meeting that the organization was not perfected until nearly 8 o'clock, and the meetisg was not concluded until after that hour. It does not appear that notice of the meeting w^as given. The law designates the hour, 7.30 o'clock p. m. Each side of the controversy presents a communication signed by about an equal number of alleged voters favoring one side or the other, the respondent, with those who actually attended the meeting, showing the greatest number. But this informal way of testing the question is not at all concluding. If I were convinced that any undue haste characterized the meeting, and it occurred before the legal "hour of meeting, I should sustain the appeal, but such does not seem to be the fact. Electors who do present themselves at school meetings upon time are not expected to be subjected to unnecessary delay to accommodate persons who are II 322 THE UNIVERSITY OF THE STATE OF NEW YORK SO dilatory or indiflcrent as to attend meetings more than a half hour after the designated time. Such persons come to the Department and expect relief for their own neglect. I do not fell warranted in granting it. The ap])eal is overruled. 3908 In the matter of the appeal of John R. Archibald and others v. school district no. 4, in the town of Portville, in the county of Cattaraugus. Failure to give public notice of the time and place ifor holding the annual school meeting would not vitiate the proceedings of the meeting. Decided September 18, i8yo Draper, Superintendent This appeal is brought to set aside the action of the last annual school meet- ing, on the ground of irregularity in proceedings. It is alleged that there was no sufficient notice given of the meeting, and that votes were cast for trustee and collector by persons who were not entitled to vote, and that the person elected collector of the district was not eligible to the office. As it was the annual school meeting, failure to give notice would not vitiate its proceedings. I have examined the papers, and find that the allegation that persons voted who were not entitled to vote, is not well sustained. It was alleged that eight persons not qualified to vote participated in the election of trustee. This certainly was not the fact. It is not shown that enough illegal votes were cast to change the result. It is admitted that the collector who was elected was not eligible to the office. There is not enough in the case to justify me in sustaining the appeal. It is dismissed. 3905 In the matter of the appeal of W. A. Cleveland v. the trustees of district no. 3, Middletown and Southfield, in the county of Richmond. Refusal of trustees to call a special meeting when requested, sustained, when it is made to appear that the trustees are acting in good faith, and no apparent benefit would come to the district by such meeting. Decided September 5, 1890 Draper, Superintendent A new schoolhouse is now in process of erection in the above-named dis- trict. The appellant is a builder by occupation, and with other builders sub- mitted proposals in July last for the construction of such building. He was not the lowest bidder and the contract was awarded to another. Since that time he has raised objections to the size and character of the school building to be JUDICIAL decisions: meetings 323 erected, and has demanded that a special meeting of the district be held to consider the matter. This appeal is from the refusal of the trustees to call a special meeting. This Department will ordinarily require trustees to call a special meeting in a school district, where there seems to be any general desire for such a meet- ing. Even where a respectable minority in the district makes known a desire for a special meeting it should be accorded, unless circumstances are such as to justify the belief that the persons demanding a meeting are not altogether disinterested or well disposed. It is true that the appellant in this case, with several others, requested that a meeting be called. Some of those who joined with him in this request have since withdrawn their request. At the annual school meeting, held August 6th, the appellant made a statement to the meeting, setting forth his complaint for grievances, but no action was taken. I have carefully examined the records of the proceedings of the trustees touching the work in hand. It seems to me that they have proceeded with due deliberation and much caution. The plans of the building were submitted to no less than six builders who presented proposals. Time was taken for investigating the business qualifications and financial standing of the lowest bidder. When satisfied of his responsibility the contract was awarded to the lowest bidder. I am unable to see why the trustees have not exercised every care in the discharge of their duties. The building is now in process of erection, except that a stay of proceedings, granted on the 4th day of August last, was granted. I find no sufficient ground for further interrupting the work of the trustees. Indeed, there would seem to be every reason why it should be facilitated. The appeal is dis- missed and the stay of proceedings heretofore granted is revoked and set aside. 3855 George E. Soper v. John H. Smith, sole trustee of school district no. 5, of the town of Smithtown, county of Suffolk. Appeal from the neglect or refusal of a trustee to call a special meeting of the electors of the district for the purpose of considering the advisability of building a new school- house, and, if deemed necessary, to consider a change of site upon request of a large number of inhabitants. No reason for such neglect or refusal appearing, appeal sus- tained, and district clerk ordered to give notice for meeting, as requested. Decided February 8, 1890 Draper, Superintendent This is an appeal by a resident elector of school district no. 5, of the town of Smithtown in the county of Suffolk, from the refusal of the trustee of said district to call a special district meeting upon the request of a large number of the inhabitants of said district, for the purpose of considering the advisability of building a new schoolhouse, and, if deemed necessary, to consider a change of site. The request, a copy of which I find among the appellant's papers, was 324 THE UXIVKKSITV OF THE STATE OF IsEW YORK served upon the trustee on the i6th day of September 1889. This appeal was taken by service of a copy of the same upon the trustee of said district on the 6th day of December 1889, and although sufficient time has elapsed for the trustee to answer the same, no answer has been received. I must, therefore, conclude that the grounds of appeal are truly stated, and that a special meeting of the inhabitants should have been called as prayed for by the petitioners. The appeal is sustained and the district clerk of district no. 5, of the town of Smithtown in the county of Suftolk, is hereby directed to give notice of a special meeting of the electors of the district, to consider the questions proposed in the petition above referred to within ten days from the service of a copy of this decision upon him. 4327 In the- matter of the appeal of Reuben Britten from proceedings of special meeting held on October 9, 1894, in school district no. 10. town of Still- water, Saratoga county. This Department, when asked to set aside proceedings of school meetings, will always inquire into the bans fides thereof. Were the things done, such as it was proper to do at said meeting? Has any one been misled, imposed upon or wronged? If mistakes and irregularities have occurred, will the greater hardship be imposed upon individuals bj' setting aside or sustaining such acts? Notices of special meetings in common school districts, unless any such district at its annual meeting shall, by resolution, prescribe some other method, is by reading said notice in the hearing of each inhabitant of the district qualified to vote at its meetings or in case of his or her absence from home, by leaving a copy thereof or so much thereof as relates to the time, place and object of the meeting, at the place of his or her abode at least five days before the day of the meeting. No district meeting shall be held illegal for want of a due notice to all persons qualified to vote thereat unless it shall appear that the omission to give such notice was wilful and fraudulent. Decided February 21, 1895 J. F. Terr)', attorney for appellant George B. Lawrence, attorney for respondent Crooker, Superin tendent The above-named appellant appeals from the proceedings of a special meet- ing held on October 9, 1894, in school district no. 10, town of Stillwater, Sara- toga county, upon the grounds in substance: That the notice of said meeting was not duly and legally given, and that said meeting could not legally elect a treasurer of said district. An answer to said appeal has been interposed by Joseph Holmes, who claims to have been elected as trustee of said district at such special meeting. The following facts are established. In August 1894. an appeal was brought by Joseph Holmes and another from the election of school district officers at JUDICIAL DECISIONS : MEETINGS 325 the annual school meeting held in said district on August 7, 1894, upon the ground that none of said officers were elected hy ballot as required by the school law, but were elected by a viva voce vote ; that no answer was made to the appeal, and on September 24, 1894, the appeal was sustained by me; that in and by my decision I held and decided that no one was legally elected at said annual meeting as trustee, district clerk or collector, and so much of the action and proceedings of said annual meeting had and taken in the election of district officers was vacated and set aside ; that in said decision I ordered Wilson Wylie, a qualihed voter in said district, and then acting clerk thereof, to forth- with call a special meeting of the inhabitants of said school district, entitled to vote at school meetings in said district, in the manner prescribed in sections 2 and 6 of article i, title 7, of the Consolidated School Law of 1894, for the purpose of electing a trustee, district clerk and collector of said district, said election to be conducted in the manner provided in subdivision 4 of section 14, article i, title 7, of the Consolidated School Law of 1894; that said decision was filed with said Wylie on October i, 1894, and on that date said Wylie posted in a conspicuous place in five public places in said school district a written notice, signed by him as acting clerk of said district, that a special meet- ing of the inhabitants of said district, qualified to vote at school meetings therein, would be held at the schoolhouse in said district on October 9, 1894, at 7.30 p. m., for the purpose of the election of a trustee, district clerk and collector of said district, that said Wylie did not notify every other inhabitant of said district qualified to vote at the meeting, by reading said notice of said meeting in his hearing, or in case of his absence from home, by leaving a copy thereof, or so much thereof as relates to the time, place and object of the meeting, at the place of his abode, at least six days before the time of the meeting ; but it is not alleged, nor does it appear, that the omission on the part of said Wylie, to so, as aforesaid, give notice of said special meeting, was wilful and fraudulent; that said special meeting was held on said October 9, 1894, at which there were present and voting two-thirds of the qualified voters of said district, and a trustee, district clerk and collector of said district were elected in the manner prescribed by section 14, article i, title 7 of the Consolidated School Law; that said special meeting went through the form of electing treasurer of said district, although the election of such treasurer was not specified in the notice of said special meeting as one of the purposes for which said meeting was called ; that the appellant herein was present at and took part in the proceedings of said special meeting. It is also established by the proofs herein that Joseph Holmes and Jacob Snyder were each candidates for the office of trustee of said district, and that both of them canvassed said district for support by the qualified voters thereof for said office; that said Holmes personally saw and consulted with every qualified voter in said district, except fifteen, in relation to said special meeting, the time and place when the said meeting was to be held, and the object and purpose of said meeting, and urged said voters to be present 326 THE UNIVERSITY OF THE STATE OF NEW YORK thereat; that of the fifteen persons that he did not see personally, seven of them were present and took part in the proceedings of said meeting; that of the remaining eight, at least three of them had notice of said meeting, but purposely absented themselves therefrom, and of the others, who were married women, the husband of each was present at such meeting; that the said \Vylie saw fully two-thirds of the qualified voters of said district prior to said meeting and personally informed them of the said meeting, the time when and the place where the same was to be held, and the object and purpose thereof, and also personally called the attention of many of them to the notice posted by him ; that the fact that a special meeting in said district was to be held and the purposes for which it was to be held was printed in a newspaper pub- lished in the village of Stillwater, about two and one-half miles from said school district. In the direction to Wylie to call a special meeting of said district no. 10 of Stillwater, as contained in my decision in appeal no. 4265, and in the manner prescribed in sections 2 and 6, of article i, title 7 of the Consolidated School Law of 1894, it was a direction that said notice be served in the manner pro- vided by the school law, and the citation of the sections, article and title, was to inform him where the law upon the subject could be found. Wylie in his affidavits stated that he was ignorant of the law. and was not in possession of a copy of the school laws. A copy of the Consolidated School Law of 1894 was printed in the appendix to volume 2 of my rejiort for 1894 and a copy of that report was sent to. and should have been in the possession of, the school district. Besides, he could have applied to this Department for information. Had he exercised due diligence to inform himself as to the law and his duties in the matter, the appeal herein would not have been taken. Under the provisions of the school law, the service of all notices of special meetings in common school districts, unless any such district at its annual meet- ing shall, by resolution, prescribe some other method, is by reading said notice in the hearing of each inhabitant of the district qualified to vote at the meeting, or in case of his or her absence from home, by leaving a copy thereof, or so much thereof as relates to the time, place and object of the meeting, at the place of his or her abode, at least five days before the day of the meeting. Said school law also contains the provision that the proceedings of no district meeting, annual or special, shall be held illegal for want of a due notice to all persons qualified to vote thereat unless it shall appear that the omission to give such notice was wilful and fraudulent. It is clear that the qualified voters of said school district did not receive due notice of said special meeting of October 9, 1894, under the school law ; but it is not claimed or proved that the omission to give such due notice was wilful and fraudulent. I am of the opinion, from the proofs established herein, that all of the qualified voters of said district had notice of said special meeting, and the pur- poses for which it was called, and that if any voter failed to attend said meeting it was for some other reason than that he or she had no notice thereof. Indeed, JUDICIAL decisions: meetings 327 the appellant herein has failed to show that a single voter of said district did not have notice of said meeting, his contention being that the notice of said meeting was not served in accordance with the provisions of the school law, and hence the meeting was illegal. It is clear that the appellant herein has not been injured by reason of a failure to serve notice of the meeting as required by the school law, as he was present at such meeting and took part in the proceedings. This Department, when asked to set aside the proceedings of school meet- ings, will always inquire into the bo)icc fides thereof. Were the things done such as it was proper to do? Has any one been misled, imposed upon or wronged? If mistakes and irregularities have occurred, -will the greater hard- ship be imposed upon individuals by setting aside or sustaining such acts? I find and decide that the contention of the appellant, that said special meeting was not legally held for the reason that the notice of said meeting was not served in the manner provided by the school law, is not tenable, it appearing that the omission to give such notice was not wilful and fraudulent, and it further appearing that all the qualified voters of said district received in some manner a notice thereof. The election at such special meeting of a treasurer of said district was clearly void, for two reasons: First, because in the notice of the meeting it was not stated therein that said meeting would be called upon to act relative to the election of a treasurer; and, second, that under the school law no school district can elect a treasurer of the district unless at the first meeting of the district after it shall have been formed, or at any subsequent annual meeting thereof, or at any special meeting duly called for that purpose, a resolution shall be adopted to elect such treasurer. It does not appear that any such resolution has been adopted. I find and decide, That the special meeting held on October 9, 1894, in school district no. 10, town of Stillwater, Saratoga county, was legally held; that the election at said special meeting of a trustee, district clerk and collector of said district was legal and valid; that the election at said special meeting of a treasurer of said district was illegal and void. The appeal herein is sustained as to so much thereof as appeals from the action and proceedings of said special meeting in the election of a treasurer of said district ; and that as to all other matters therein, said appeal is dismissed. 3810 In the matter of the appeal of Henry W. Wolf and others v. school district no. 4, town of Westfield, county of Richmond. Proceedings of a district school meeting will not be disturbed when regularly and fairly taken at the proper time only for the reason that absent voters did not attend at the time designated. 328 THE UXIVERSITi' OF THE STATE OF NEW YORK Appropriations of a district meeting set aside, the meeting having failed to indicate the purpose money was to be raised for. Decided September 21, 1889 Draper, Superintendent The appellants allege that the proceedings of the annual meeting in the above-named district were very irregularly taken. It seems that John J. \ aughan was elected trustee over the appellant Wolf by a vote of 14 to 9. Mr Wolf claims that there was not sufficient time afforded to permit the qualified voters of the district to vote. There were but 23 votes cast. The district is small. He admits that 15 or 20 minutes of time were occupied in taking the ballot. This would seem to be sufficient. There is no pretense that the meeting was held before the proper time. Residents of the district should have been on hand when the time arrived, if they desired to vote. It is not shown that any one desiring to vote was prevented from doing so. I think no sufficient ground appears to invalidate the election of Vaughan. There is a claim set forth in one of the affidavits presented that Vaughan is not eligible to the position of trustee, on the ground that his name does not appear upon the assessment rolls. But he may be eligible for other reasons, and it is not shown that he is not. The election of ISlr A'aughan must therefore be sustained. The appellants claim that the sum of $350 was appropriated at the annual meeting for general expenses of the district, without indicating precisely what it was to be used for. This is not denied by the respondents. If this allegation be true, the action of the meeting was irregular. Such action is therefore set aside, and the trustees are advised to call a special meeting for the purpose of acting upon estimates for the year's expenses. The appeal is dismissed so far as it relates to the election of a trustee, but sustained so far as it refers to the appropriation of $350, without indicating the specific purpose for which it is to be used. 3699 In the matter of the appeal of Samuel A. Childs v. the action of a joint meeting of residents of districts nos. 2 and 5, town of Scott, Cortland county. Proceedings of a district meeting involving important matters, marked by riotous conduct and consequent confusion, set aside. Decided July 24, 1888 Draper, Superintendent It appears that on the 25th of April 1888, a meeting was held in the town of Scott, Cortland county, at which were present numerous qualified electors of school districts nos. 2 and 5, of said town, for the purpose of taking action relative to the formation of a union free school district. The meeting was organized by the election of F. O. Burdick as chairman, and Jared E. Babcock and William N. Babcock as secretaries. The appellant states that immediately JUDICIAL DECISIONS : AIEETINGS 329 following the organization, the chairman announced that the meeting would pro- ceed to ballot upon the question, without giving any person an opportunity for an expression of opinion relative to the merits of the proposition. It is manifest that there was great disorder at the meeting. At one time during its progress, it was announced that there w^as great danger of the floor of the hall breaking do%vn. The appellant claims that, in consequence of this statement, thirty per- sons left the hall and that manv of them did not return. Two constables were called in to preserve the peace, and two persons were arrested by them. The respondents claim that the riotous conduct was on the part of the appel- lants ; that they precipitated turmoil and confusion upon the meeting for the purpose of breaking it up. The vote as declared by the chair was strongly in favor of establishing a union free school district, and it seems reasonably clear that the larger part of the persons present were in favor of that course. But I have determined, after considerable reflection upon the matter, to take that course which will necessitate another meeting. If I should uphold the proceedings which are appealed from, the result would unquestionably be that antagonisms in the district of the fiercest character would continue indefinitely. ]\Ioreover, an action of so much importance ought to be determined upon deliberately after full opportunity for discussion, and by the free and untram- meled judgment of the people interested. The people of these two districts ought to be sufficiently advanced in the ways of organized and civilized society to enable them to meet in a public gatherin-;, compare views, treat each other decently, although they may differ in opinion, and finally reach a conclusion through the vote of a majority of their number; and it would furthermore seem that, when that has been done, the minority must submit to the determination in good spirit. In the hope that such may be the case, I sustain the appeal. 3710 In the matter of the appeal of Thornton A. Niven v. school district no. t. town of Thompson, county of Sullivan. A district voted at its annual meeting to appropriate money for the purpose of adding instruction in vocal music to the school; held, the proceeding was regular and will not be set aside. The fact that many voters were not present at the meeting; held, to be no ground for setting aside the proceedings of an annual meeting. The law fixes the time and place for the annual meeting; those who attend can legally transact the business of the district. Decided October i, 1888. Draper, Superintendent At the annual school meeting held in district no. i of the town of Thomp- son, Sullivan county, in 1888, the following resolution was adopted: "Resolved, That an additional appropriation of $300 be added to the required appropriation for the purpose of adding instruction in vocal music to ilie school." 330 THE UXIVERSITY OF THE STATE OF NEW YORK The appellant objects to this resolution, and in his appeal raises the question whether a school district has the right to raise money by tax for the purpose specified in the resolution. He also alleges that, while there are more than 250 qualified electors in the district, there were not more than 25 or 30 present at the meeting at which the resolution was adopted, and insists that the majority of the people of the district are opposed to it. The law gives no direction as to what studies shall be pursued in the com- mon schools. It has always been left discretionary with the people of each dis- trict or with the trustees in each case. Of course, if it should be attempted to raise a tax for the purpose of employing teachers to teach branches of subjects incompatible with the work of the common schools, the Department would be obliged to hold that such action was irregular and could not be upheld. What- ever is done in the schools must be done with a view to subserving and pro- moting the general purposes for which the schools are operated. It is not possible for me to say that the teaching of vocal music is inconsistent with the general purposes of the schools. I am, therefore, of the opinion that the district had the legal right to take the action appealed from if it chose to do so. The fact that not one-tenth of the voters of the district were present, is of no conse- quence. The action was taken at the annual meeting, of which all had notice. No special notice of such action was required to be given in advance of the annual meeting. For these considerations I am obliged to dismiss the appeal. Where the clerk names a wrong hour in his notice of an annual meeting, and part of the inhabitants assemble at that hour and transact business, and part assemble at the hour of adjournment, and also transact business, both meetings may be set aside, and a new one ordered. Decided November 30, 1857 Van Dyck, Superintendent It appears that an annual meeting in 1856 adjourned to October 5, 1857, at 7 o'clock, and the same is so recorded. By error, the clerk in the written notices of the meeting named 6 o'clock as the hour. A part of the inhabitants met at that hour, and transacted the ordinary business; a part, relying upon the adjourn- ment, met at 7 o'clock, organized, and proceeded to business. The latter appeal from the action of the former. Held, that 7 o'clock was the proper hour for meeting, but, a part of the inhabitants having been misled by the written notices, no advantage should be taken of such an othcial error, to deprive a considerable number of the inhabitants of a voice in the regular proceedings. The proceedings of both meetings are therefor set aside, and the clerk of last year is directed to give notice of a new meeting within ten days after the receipt of this decision. JUDICIAL decisions: meetings 331 3726 In the matter of the appeal of Eugene H. Tiffany from the proceedings of a school district meeting held in district no. 8, town of Martinsburgh, county of Lewis, on the 5th day of June 1888. At the time and place designated in the call for a special school district meeting the inhab- itants assembled and after waiting a reasonable time for the presence of the trustee and district clerk, organized and adjourned, and many left for their homes, when later the officers of the district appeared and with those remaining organized and proceeded to transact business of importance to the district; held, that the action of the school meeting can not be upheld. Decided November 14, 1888 Draper, Superintendent This is an appeal brought by a legal voter of school district no. 8 of the town of Martinsburgh, county of Lewis, from the proceedings of a district meeting held under the following circumstances : The trustee of the district had given notice of a special meeting to consider a change of schoolhouse site, to be held on the 5th day of June 1888, at 7.30 o'clock p. m., at the schoolhouse in said district; that at the time mentioned in said notice, a large number of the inhabitants and voters of said district assem- bled at the place designated and remained until after 8 o'clock ; that neither the trustee nor the district clerk was then present; that, after 8 o'clock, the meeting was organized by the election of a chairman and a clerk pro tern., and subse- quently adjourned, and most of the inhabitants left the building and departed for their homes. Subsequent to such adjournment the trustee and district clerk appeared, and, with the persons who remained, proceeded to organize a meeting and transact business of considerable importance to the voters of the district. It is claimed and can not very well be denied, that, at the time the second meet- ing was organized, the trustee and the persons present were well aware of the previous meeting and of the adjournment, and that many of the voters had left the building. With this state of facts before me, I can not uphold the action of the second meeting. The appeal is sustained and the proceedings of the second district meeting held on the night of June 5, 1888, are set aside, and any action there taken is declared null and void. 3563 In the matter of the appeal of J. W. Rood v. John Latimer, as trustee of school district no. 16, town of Pomfret, Chautauqua county. A sole trustee should call a special meeting when requested by a reasonable number of the voters of his district, to consider plans for building etc., even after a site has been secured and plans adopted. Decided February 10, 1887 332 THE UXIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent This is an appeal by a taxpayer and resident of school district no. i6, town of Pomfret, Chautauqua county, N. Y., from the action of the sole trustee of • said district, in refusing to call a special meeting of the inhabitants when requested by a reasonable number of the same, for the purpose of considering a change of site and plans for building a schoolhouse in the district, and the manner of building the same. The trustee, answering the appeal, seeks to justify such refusal by the alle- gation that a site has already been purchased, a deed accepted and plans secured and adopted in pursuance of authority conferred by a meeting held in the district. My opinion is that the trustee should have granted the prayer of the peti- titioners and called a special meeting in accordance therewith. Of course, lia- bilities incurred by the trustee for the district in pursuance of such authority, can not now be evaded, but if a majority of the electors desire to give expression to their wishes as to the work still to be done, or if they desire to make changes which they can properly make, and are willing to pay the expense involved, they should be accorded that privilege. I sustain the appeal and order the trustee to call a special meeting of the inhabitants for the consideration of any question in relation to the building of a new schoolhouse not already disposed of. 3919 In the matter of the appeal of John Decker v. the Port Richmond union free school district. Annual meeting sustained which was held at the schoolhouse (the place designated by law), and at the established time, although some irregularity about the notice of the meeting is shown. It does not appear that a sufficient number of electors were misled by the notice, or that a sufficient number of illegal votes were cast to have affected the result. Decided October 20, 1890 Robert G. Scherer, Esq., attorney for appellant Draper, Superintendent This appeal is brought to set aside the action of the last annual school meet- ing in the district above named. Two reasons are alleged in stipport of the appeal. 1 It is said that the board of education caused a notice to be posted, that the annual meeting would be held at a place other than the schoolhouse, and within three or four days prior to the meeting changed this notice so as to pro- vide that the meeting should be at the schoolhouse. It is claimed that this fact misled voters. 2 It is alleged that persons were intimidated from voting by reason of announcements made at the meeting concerning the alteration of the district. JUDICIAL decisions: meetings 333 The same rule applies to this case as obtains in all similar cases. The law provided that the school meeting should be held at the schoolhouse. It was held there. It also provided that it should be held at a given time. It was held at that time. The presumptions are, therefore, in favor of the regularity of the proceedings. These presumptions must be overcome by positive proof on the part of the appellant before he can succeed in his appeal. He must show by affirmative evidence that a sufficient number of persons voted at the meeting who had no legal right to vote, or that a sufficient number of persons were mis- led as to their rights and refrained from voting, or stayed away from the meet- ing under a misapprehension, to have changed the result before he can succeed. There were 304 votes cast upon the election of the member of the board of education. The successful candidate received 162 votes. The next candidate received 73 votes. The appellant entirely fails to show a state of facts which would justify me in setting aside this election. Nothing appears in the proofs submitted by the appellant which is of sufficient consequence to invalidate the meeting. It therefore follows that the appeal must be dismissed. 3924 In the matter of the appeal of Patrick H. Ludlow v. Michael Bennett, trustee of school district no. 19, town of Watervliet, Albany county. Special school meeting called by a notice of but two days. Held, invalid. Proceeding taken thereat set aside. Decided November 13, 1890 Draper, Superintendent This appeal is taken by one of the members of the board of trustees of school district no. 19, of the town of Watervliet, county of Albany, from the action of Michael Bennett, another member of said board of trustees, in calling a special meeting of the electors of said district to fill a vacancy in said board, caused by the resignation of one James J. Peyton, to be held on September 30, 1890. The grounds upon which the appeal is based are : 1 That but twenty-four hours' notice was given of such meeting. 2 That the meeting was called by the said Michael Bennett without con- sultation with his remaining associate trustee. No answer has been interposed. The appeal must be sustained. At least five days' notice of a special meet- ing is necessary in order to comply with the statutory requirement. The calling of the meeting could only be legally directed by a majority of the trustees in meeting duly assembled. Any proceedings of the meeting held September 30, 1890, are therefore of no effect, and are hereby set aside. The appeal is sustained. 334 THE UNIVERSITY OF THE STATE OF NEW YORK 3925 In the matter of the appeal of P. Phelps and others from the proceedings of a special school meeting, held June 28, 1890, in school district no. 5, town of Camden, county of Oneida. Proceedings of a special school meeting in voting to rescind the action of a former meeting which had decided to postpone the building of a schoolhouse, will not be set aside because of a failure to state specifically in the notice of the last meeting that a propo- sition to rescind the vote of the previous meeting would be submitted. The object stated in the notice was "to take action on building the schoolhouse and to provide means to build the same." Held, to be in effect a proposition to rescind, and the vote to build adopted at the last meeting was a substantial rescindment of the vote to postpone building, passed at first meeting. Decided November 31, 1890 Alpha F. Orr, attorne}^ for appellants A. C. & E. C. Woodruff, attorneys for respondents Draper, Superintendent This appeal is taken by electors of school district no. 5, town of Camden, from the proceedings of a special meeting, held June 28, 1890. The appellants also ask for the removal of the trustee from office. The grounds of the appeal are, that at the said meeting, a vote taken at a previous meeting, to postpone the building of a new schoolhouse until fall, was rescinded without notice of such proposed action in the call for the meeting. It appears from the proofs sub- mitted, that the object of the meeting, as stated in the notice, was "to take action on building the schoolhouse and to provide means to build the same." The ground upon which the removal of the trustee is sought is that the trus- tee requested the district clerk to make a false record of the proceedings of the meeting in the clerk's book. At the meeting of June 28th, of which due notice had been given to the inhabitants, it appears that the action of the former meet- ing to defer action, in regard to building a new schoolhouse, was, by a unanimous vote, rescinded. It also appears that the meeting directed the trustee to proceed with the building of the new schoolhouse, and to advertise for proposals to do the work, and authorized him to levy a tax to raise the necessary amount to pay for the construction thereof. It also appears that the district clerk kept no record of the proceedings of the meeting, and prepared his minutes afterwards from memory, and that he omitted from such record some part of the proceed- ings; that the trustee who participated in the meeting and offered certain reso- lutions, supplied the clerk with a memorandum of the same, in order that he might perfect his minutes. It is contended by the appellants that, because of the fact that the notice for the special meeting of June 28th, did not state that the action of a former meet- ing at which it was decided to postpone building, would be reconsidered, that the vote to reconsider was in consequence illegal. This I can not hold because of the fact that the vote of the meeting directing the trustee to proceed with the JUDICIAL decisions: meetings 335 construction of the new building, and of which action due notice had been given, was in effect a rescinding of the action of the previous meeting. The evidence shows that the district was without a schoolhouse, and the action of the meeting of June 28th directing the construction of one, was justifiable, and should be upheld. I am not satisfied that the trustee of the district sought to induce the district clerk to insert in the proceedings of the district meeting, anything which should not have appeared therein, and in this position I am supported by the affidavit of the district clerk himself, which is submitted by respondent, and which is somewhat contradictory of his affidavit presented by the appellants. In view of the foregoing consideration, I dismiss the appeal. 3926 Plinny Phelps and others from the proceedings of the annual meeting held in school district no. 5, town of Camden, county of Oneida, August 5, 1890. Proceedings of annual meeting held at the place where the school had been taught, and where previous meetings of the district had been held. Sustained, although a district clerk, without authority, had posted notices for the meeting to be held elsewhere, in which latter place a few electors assembled, but transacted no business. Those as- sembled at the former place greatly exceeded the number of those at the latter, and were unanimous in the selection of officers and the transaction of business. It does not appear that the trustee and others who attended the meeting at the schoolhouse were cognizant of the clerk's notice. Decided November 21, 1890 Alpha F. Orr, attorney for appellants Davies & Johnson, attorneys for respondent Draper, Superintendent Appeal by electors of school district no. 5, town of Camden, county of Oneida, from the proceedings of the last annual school meeting. The grounds of the appeal are that the appellants were misled as to the place for the holding of the annual meeting, by a notice which the district clerk had posted. It appears from the evidence submitted that the schoolhouse had been destroyed by fire; that temporary quarters for the school had been hired by the trustee in order to complete the school year ; tha.t several school meetings had been held in such temporary quarters ; that, without any direction by the school trustee, the district clerk posted notices for the annual meeting at another place about a hundred yards distant from such temporary school building. It is claimed by the appellants, and denied by the trustee, that he knew that the said notice had been given. Thirteen of the voters of the district assembled at the place at which the school had been held, and at which previous meetings had been called, on the night designated for holding the annual meeting, and pro- ceeded to transact the business of the annual meeting. A smaller number met 336 THE UXIVERSITV OF THE STATE OF NEW YORK at the place designated in the notice of the district clerk, but it does not appear that they transacted any business, but proceeded to the building in which the other thirteen persons were transacting business. It is claimed by the appellants that they were present at the latter place about half-past 7 o'clock, and that the business had then been transacted, and the meeting was about to adjourn. It is claimed by the respondents that it was nearly 8 o'clock when they came to the meeting. Immediately after the adjournment and the retirement of the thirteen who had participated in the meeting, the pro- ceedings of which were unanimous, nine of the inhabitants who claim they were misled by the district clerk's notice, proceeded to organize a meeting and elect district officers. The law makes it the duty of the trustee of the district, when the schoolhouse can not be used for the purpose of holding a district meeting, to designate the l)lace therefor, and it would then become the duty of the district clerk to give notice accordingly. It does not appear that the trustee designated any place, but that the district clerk, upon his own motion, named a place in the notice, other than the place at which the school had been held, and in which previous meetings of the district had been held. I should not sustain the proceedings of the first meeting if it were made to appear to me that there was any division of sentiment in the action thereof ; or, if it appeared that a larger number of electors of the district constituted the second meeting. If this were the case, I should set aside the proceedings of the first meeting and order a new election; but it is clear to me that a majority of the electors who intended to participate in the annual meeting, participated in the first meeting. I conclude, therefore, to overrule the appeal, and sustain the action of the first meeting. The appeal is overruled. 3569 In the matter of the appeal of Henry Chambers v. H. K. Salisbury, school commissioner of Montgomery county. When the commissioners having jurisdiction over a joint district can not agree to make an alteration of the district, the State Superintendent will not interfere unless the pro- priety of the change is clearly manifest, and where a refusal to so order would neces- sarily work injustice. Where an inhabitant of a joint district is inequitably assessed, his remedy is not by an alteration of the district, but by the proceeding provided by section 69, title 7 of the Consolidated School Act, and then by an appeal if he considers he has not been equitably dealt with. Decided February 21, 1887 Draper, Superintendent The appellant owns and resides upon a farm lying in joint school district no. 9 of the towns of Root and Charleston, Montgomery county, and of the JUDICIAL decisions: MEEllNGS 337 town of Carlisle, Schoharie county. He desires to be set oft" from said district no. 9 and attached to district no. 6 of the town of Carlisle. The school com- missioners of Montgomery county and of the second district of Schoharie county, within whose commissioner districts the school districts which would be affected by the change are situated, met at the house of the appellant on the 21st day of September 1886, for the purpose of considering the matter. After such con- sideration, Commis^ioner Mann, of Schoharie county, announced himself as in favor of the proposed change, but Commissioner Salisbury, of Montgomery county, refused to join in an order making the same. From such refusal this appeal is taken. The alteration of a joint school district requires the approval of at least a majority of all of the school commissioners within whose districts the school districts to be affected are situated. The law leaves it to their discretion, and requires that their judgments shall concur in the wasdoni of the proposed change before it shall be made. This is intended as a check upon frequent change or changes for slight reasons. In a case where it appears that the commissioners met and deliberately considered a proposed change and disagreed as to the pro- priety of it, this Department will not order the change to be made except where the propriety of the change is clearly manifest, and where a refusal to so order would necessarily work injustice to an individual or injury to the school system. In this case the commissioners m.et upon the ground, heard the interested parties, examined the circumstances and configuration of the territory affected, deliber- ately considered the whole subject, and failed to agree as to the wisdom of the proposed alteration. The trustee of one of the districts aft'ected also refused to consent to the change. After such proceedings, with the opportunities thus afforded the commissioners for observation and for gathering the information upon which to act intelligently, and with an evident difference of opinion in the locality, a clear and strong case must be presented by the appellant in order to succeed in having the refusal of one of the commissioners overruled. In my opinion, such a case is not here presented. The real reason why the appellant desires the alteration appears to be the fact that he deems himself inequitably and unfairly taxed in joint district no. 9. He says he is assessed at a higher valuation per acre than any other farm in the district, although there are several farms no less valuable and some more so than his. If this is so the law provides a remedy. Section 69, title 7, of the Consolidated School Act, pro- vides a way for equalizing taxes in joint districts, and if the officers therein charged with the duty of correcting an unjust valuation refuse to aft'ord relief, this Department will do so. But the remedy for such a wrong does not lie in the alteration of school districts. The appellant urges in addition to this that his residence is nearer the schoolhouse in district no. 6 than in no. 9, and that the road to the schoolhouse in no. 9 is steep and frequently blockaded with snowdrifts in the winter; but as it appears that he has no children of school age, it would hardly seem that this is the real cause of complaint. The appeal is dismissed. 33^ THE UNIVEKSITV OF THE STATE OF NEW YORK 3564 Jn the iiiaticr of tlic appeal of Kdward L. Rikcr, l'"loyd Gates and Charles Eaton from the proceedings of a special school meeting held in district no. 3, town of Ontario, county of Wayne. The proceedings of a district mcctiiiy will not be set aside l)ccausc a numher of voters who knew of the meeting chose to absent themselves, nor because some who attended did not vole. The fact tiiat a list of voters was prepared and used at the meeting, which was incomplete, is no suflicient reason for setting aside the action taken, particularly when an oppor- tunity was pul)licly given to all voters whose names had been omitted from the list, to vote. Action of another district meeting, held six months previous to the appeal, can not now be questioned. Such action, if objected to, should have been appealed from within thirty days from the date thereof. Decided February 14, 1887 Draper, Superintendent This is an appeal by residents of district no. 3, town of Ontario, county of Wayne, from the proceedings of the special school meeting held September 11, 1886, in said district, and demanding that the same be set aside. The following are the groinids stated by the appellants : that the trustee presented a list of voters which was only a partial list ; that quite a number of voters did not attend the meeting because of the narrowness of the call ; that several who attended the meeting did not vote, for the reason that they considered the call not sufficiently broad to admit them to vote as they saw tit; that there was a bill of costs included in the supplementary report of the trustee, incurred by said trustee in some action or proceeding alTccting the flistrict. The respondent, the trustee and other resi- dents of the district, for answer to the appeal herein, allege: that the list of voters furnished by the trustee at such special meeting, were all that he could think of at the time and put those on the list, when the chairman announced that if any were present whose names had been omitted, they were now given an opportunity to vote; that if any voters of the district absented themselves from the meeting, it was jirobably due to the fact that the appellants had taken pains to inform them that no meeting would be held; that only two persons made this claim; that no exceptions were taken to the report of the former trustee when made at the special meeting ; that the costs and expenses referred to were incurred by the trustee while acting in accordance with a resolution of a special meeting held in March last. The following is the call for the special meeting, to which the appellants object: Notice By request of the supervisor of the town, I, the trustee of school district no. 3, order a special sch.ool meeting to be held in the schoolhouse, on Saturday even- ing, September 11, 1S86, at seven o'clock p. m., for the sole purpose of accepting the supplementary report of the trustee, Emmet Teats. John H. Albright Ontario, X. ]'., September 6, 1886 JUDICIAL decisions: meetings 339 An additional pleading has been filed by each side to this controversy, but the statements contained therein do not materially change the allegations above stated. After a careful examination of all the pleadings, affidavits and exhibits pre- sented, I do not discover any sufficient reason why the proceedings of this district meeting should be set aside. The fact that several parties who had notice of the meeting saw fit to absent themselves, will certainly be no good reason, par- ticularly as it is not claimed that these parties were kept away through any act of the respondents; nor is the fact that other residents of the district who attended the meeting and were entitled to vote thereat, declined to vote when they had an opportunity. The fact that a list was prepared by the trustee, which omitted some names of qualified voters, h not a sufficient ground to base a decision upon, setting aside the proceedings of a district meeting, particularly as the chairman of the meeting stated, after the list so prepared had been called, that, if any present had not voted, they then had an opportunity to vote. The only other point and the real secret of this appeal, as it appears to me, is the item presented by the former trustee of between twenty and thirty dollars for certain costs and disbursements incurred by said trustee in some proceeding relating to the school district. It is not claimed by the appellant and it does not appear from any papers before me. that this item of the trustee was disputed at the district meeting, and it does appear that the trustee was authorized by a vote of the district, held several months previous to this meeting, to defend a certain action which one Riker had brought against the trustee. It is claimed by the appellant that the meeting at which this resolution was passed was not properly called, a sufficient notice of the object thereof not having been given, but it is too late for me to pass upon that question now, as that meeting was held in March last, and it seems that the trustee acted in accordance with such resolution, and that no appeal was ever taken to this Department from the proceedings of that special meeting. The conclusion I have reached is, that the appellants have not shown suffi- cient facts which would justify me in setting aside the proceedings of the special meeting held in September last, and I, therefore, dismiss the appeal. 3560 In the matter of the appeal of Frederick C. Plank, and others, from the proceed- ings of a special school district meeting held in district no. 17, town of May- field, Fulton county, N. Y., November 9, 1886. Proceedings of a district meeting set aside, when it appears that service of notice of the meeting upon a majority of the voters was intentionally omitted, and in consequence but a minority attended the meeting and participated in its deliberations. Decided February 4, 1887 Draper, Superintendent This appeal is taken by residents and taxpayers of district no. 17, town of Mayfield. county of Fulton, from the action of a special district meeting in vot- ing to purchase new seats for the district school in said district. 340 THE UNIVERSITY OF THE STATE OF NEW YORK The grounds of the appeal are : That legal notice of the meeting was never given to a number of the legal voters in said district. That several received no notice whatever. That several received a verbal notice the day of the meeting, but the object of the special meeting was not stated to them. That the failure to give legal notice was wilful on the part of the trustee. No answer has been interposed by the trustee, although ample time has been allowed him to controvert the allegations of the appellants, if he chose to do so. It seems that i8 legal voters attended the meeting, of whom 12 favored the resolution to purchase new seats. A majority of the legal voters appear to be opposed to the purchase, on the ground that the present outfit is in good repair and suitable for the school. With these facts only before me, I am compelled to sustain the appeal. The statute prescribes the notice to be given and the manner of giving it. It is not customary to set aside the proceedings of special meetings on the ground of insufficiency of notice, where good faith is evident or it is shown that an honest endeavor was made to give notice to all, particularly not unless the meeting was closely divided upon a proposition and a sufficient number of legal voters were absent for want of notice to have changed the result. But, I do not think that the evidence before me shows sufficient efifort to notify all of the meeting, and the action taken thereat can not, under all the circumstances of the case, be upheld. The appeal is sustained. 3552 In the matter of the appeal of Alva T. Decker and others, from the proceedings of the annual school meeting held in school district no. 6, town of Sanford, Broome county, N. Y., August 31, 1886. Proceedings of a district meeting called to order at the appointed time, and conducted in an orderly manner, will not be disturbed because certain voters of the district who were aware that the meeting had been called to order, remained outside of the room for some time, and until the proceedings objected to had been concluded. Decided January 18S7 Draper, Superintendent This is an appeal taken by. residents and school district electors of district no. 6, town of Sanford, Broome county, N. Y., from the action of the annual district meeting held August 31, 1886, in the matter of the election of a trustee for said district. It is alleged as grounds for the appeal: I That the district has 18 voters; that at the annual meeting, notice was given that the meeting was open and ready to proceed to business, and that a majority of the voters were in-attc:i(lance (but not in the room) ; that the appel- lants went into the room in less than five minutes from the time the meeting was opened, with no knowledge of what had been done, and one of the appellants JUDICIAL DECISIONS I MEETINGS 341 then named a person for trustee, and was told by the chairman that one Benjamin H. Hobart had been elected by the votes of two or three persons. 2 That the chairman would not then entertain a motion to elect a trustee. 3 That said Benjamin H. Hobart is not a resident of the district or of the State of New York; that he owns no real estate, and sends no children to school; that appellants believe that said Hobart was declared elected trustee to insure the employment of a certain person as teacher, contrary to the wishes of a large majority of the district. The appeal bears twelve signatures, but is verified only by one of the ap])ellants. The respondents, including the said Benjamin F. Hobart and 14 other alleged voters of the district, answer the appellant's allegation; the answer on the part of the trustee being verified by him, and the answer on behalf of the residents and voters being verified by George L. Talmage, who was chairman of said meeting. The trustee denies that he is a nonresident of the district; alleges he owns real estate and personal property, and pays taxes in the district, and has children, but not large enough to attend school, and that he has employed a duly qualified teacher, who is conducting the school. The residents and voters answer that they were present at the meeting in question. That the meeting was called to order at 8.10 p. m. ; that a majority of the voters of the district were present; that the meeting was orderly, and a majority of those present voted; that Benjamin Hobart was unanimously elected trustee; that a good teacher has been employed, and is teaching a good school, and that a majority of the patrons are well satisfied with the trustee. It is singular that these contrary statements should, in several instances, be made by the same persons, but such is the fact. After a careful examination of the facts presented, I fail to discover any reason why the proceedings of the annual meeting should be disturbed or set aside. The meeting was not called before the usual hour of meeting, and appel- lants admit they knew the meeting had been called to order, and yet delayed to go into the room until considerable business had been done and a trustee chosen. The charge that the person chosen trustee is not a resident and a voter, is sufficiently answered by the verified answer of the trustee. The appeal is overruled. 4000 In the matter of the appeal of William H. Huntley and others v. school district no. 6 of the town of Williamstown, in the county of Oswego. Proceedings of an alleged annual school meeting set aside where a long established custom in the district for calling the people to assemble had been purposely and intentionally omitted, thus enabling a very small minority of those intending to be present at the meeting to assemble and transact the business of the annual meeting. Decided September 14, 1891 -V E. Dixson. Esq.. attorney for the respondents 342 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent The purpose of lliis appeal is to set aside the proceedings of an alleged annual school meeting in the district above named, on the 4th day of August last. The appellants allege that it has been the invariable custom in the district for a great many years, to ring the schoolhouse bell in order to call residents to special and annual school meetings, but that this was not done at the time of the last annual school meeting; that a few interested parties assembled together promptly at the time fixed by law for the meeting, and that in five or ten minutes hastened through the forms of an annual meeting, receiving and acting upon the report of the trustees, voting moneys for the next year, and electing trustees. It is alleged and not denied, that not more than 5 or 6 persons were present at the time of these proceedings; that the great majority of the people of the dis- trict relied upon the bell being rung, and many did not go to the meeting at all because it was not done; that others went to the number of 15 or 20 at least, to find that the proceedings had been hurried through. It is shown that there are some 95 voters in the district, 60 of whom petition me to order a new meeting, and allege that they were improperly and unfairly prevented from expressing their wishes at the annual meeting. The respondents answer and present very technical and some frivolous reasons why the appeal should not be entertained; They allege that the law requires no notice of an annual meeting to be posted, and that it does not require the bell to be rung. They say that the meeting was held at the time fixed by law and that others should have been present at that time if they wished to participate in the meeting. The only dispute between the parties, as revealed by their affidavits, is in relation to the precise time at which the meeting was called. The appellants put it earlier than the respondents. There can be no doubt upon the papers presented, that because of the circumstances set forth by the appellants, the majority of people who desired to attend and participate in the school meeting, were prevented from doing so. The respondents say that it was their own fault ; that they were bound to know the law and to be on time. This may be true, generally speaking, yet it seems conclusive upon the papers presented, that the will of the majority of the district has been thwarted by sharp practice on the part of a few who saw fit to ignore a well-settled custom in the district, in order to promote their own purposes. I think that the law intends that the State Superintendent shall interfere in such a case, when presented to him, and I am confident that in giving the district another opportunity to hold an annual meet- ing, so that all who wish may be present and participate therein, I shall promote the best educational interests of the locality. The appeal is therefore sustained, the action of the said meeting is held to be void and of no effect, and the clerk will post notices of a special annual meeting to be held not less than ten days nor more than twenty days from the date thereof. JUDICIAL decisions: meetings 343 3991 In the matter of the appeal of William H. Graham and others v. school district no. 3, of the town of Mount Pleasant, in the county of Westchester. Certain proceedings in the nature of an annual meeting set aside where it is claimed that a majority of the electors of the district were misled as to the hour of meeting by the notices posted, and in consequence were not in attendance while the business was bemg transacted by a few specially interested persons. Special meeting ordered. Decided August 31, 1891 Draper, Superintendent This appeal is brought for the purpose of setting aside certain proceedings in the nature of an annual school meeting in the district above named, on the 4th day of August last. It is alleged on one side, that a portion of the notices posted called for a meeting at 8 o'clock. On the other side, it is alleged that all of the notices called the meeting at 7 o'clock. It is admitted on both sides that there was no action at the previous annual meeting fixing an hour for the next meeting. The law provides that in such cases the meeting shall be held at 7.30 o'clock. It is claimed by the appellant that a majority of electors in the district were misled as to the time of meeting, supposing that it would be in the neighbor- hood of 8 o'clock, and that a few specially interested persons assembled at 7.30 o'clock, or earlier, and rushed the business of the meeting through before the electors arrived ; and that many arrived at 8 o'clock to find that the annual busi- ness of the district had been transacted. I think the appellants make out a pretty strong case, sufficiently strong at least to justify me in setting aside the proceedings appealed from, and ordering another meeting, of which ample notice shall be given. The best educational interests of the district require that the substantial electors of the district shall have no good ground for feeling that they have been subjected to a trick, or intentionally misled. The appeal is therefore sustained, and notices will be issued by the district clerk for a special meeting to be held at a time and place therein mentioned, for the purpose of transacting all the business of the annual meeting. Notices of such meeting must be posted in the district for at least ten days. 3953 In the matter of the appeal of Charles C. Bagg and others v. union free school district no. 5, town of De Witt, county of Onondaga. At a special district school meeting, an additional sum of money was voted to complete a new schoolhouse. The vote upon the question was close, it prevailing only by five majority. Unsatisfactory and contradictory evidence is offered to the effect that illegal votes were cast for the proposition. Held, that the proof not being satisfactory, the action of the meeting is sustained. Decided January 8, iSgi Hoyt, Beach, Hancock & Devine, attorneys for appellants "^J. B. Brooks, attorney for respondent. 344 THE UNIVEKSITY OF THE STATE OF NEW YORK Draper, Superintendent On the i6th day of June 1890, the inhabitants of the district above named voted to erect a new schoolhouse in said district, and to issue bonds of the district for the sum of $17,000 for that purpose. The respondents issued said bonds and by the sale thereof reahzed their face value. On the i8th day of November 1890, a special meeting of the district was held for the purpose of voting to raise the further sum of $10,000 in order to complete the new school- house, upon a plan adopted at a special meeting held August 19th. The vote to raise the additional $10,000 was close, there being 165 votes cast in all, of which 85 were in favor of the proposition, and 80 against it. The appellants seek to overturn the action of this special meeting by means of this appeal. Different reasons are assigned for this, the only material one being that ten persons who are named, voted in favor of the proposition, when they were not qualified to vote at school meetings in the district. It turns out upon more complete investigation, that two who voted against the proposition were not entitled to vote, and it likewise turns out that several of the others who are named were entitled to vote. The proofs do not sustain the allegation that enough illegal votes were cast in favor of the proposition to have changed the result. The appellants state that other illegal votes were cast in favor of it by the persons they name, but this "allegation is too general to put the respondents to the necessity of answer- ing it. It is made to appear in the papers, that just prior to the holding of the meeting referred to, a circular was published and distributed in the district, promising work to residents in case they would vote the proposition through. The members of the board swear that they had no knowledge of the authorship, and that they themselves were in no wise responsible for the publication. It is shown that the respondents have procured and paid for a site, and that a district meeting has adopted plans for a new schoolhouse, and that the common under- standing in the district was that the new schoolhouse would cost considerably more than the sum 'appropriated for it. Sufficient ground is not shown for setting aside the action of the meeting of November 19th. That meeting was more largely attended than school meetings ordinarily are, and while the vote objected to was close, there is not sufficient proof that the majority in favor of the proposition was illegal. I have been asked to send the matter to the school commissioner for the purpose of taking testimony, and have considered what I ought to do lu^on that request. The pleadings do not leave much at issue between the parties, and I can see no sufficient ground for granting the reciucst, certainly not, when I con- sider the delay which will be involved, the expense which will be occasioned, and the ill-feeling which will inevitably be engendered by a contest over irrele- vant matters before the school commissioner. In view of these considerations, I must dismiss the appeal, and revoke the stay of proceedings heretofore granted herein. JUDICIAL decisions: meetings 345 3593 In the matter of the appeal of Smith Ovitt v. school district no. 4, of the towii of Day. Saratoga county. Proceedings of an annual meeting vacated and set aside for the reason that the meeting was disorderly and disgraceful. Decided December 10, 1887 Draper, Superintendent This appeal is brought to set aside the proceedings of an alleged annual school meeting in district no. 4, of the town of Day, Saratoga county, held on the 30th day of August 1887. The papers are exceedingly irregular and poorly prepared, but they are sufficient to show that the proceedings at the alleged ^xhool meeting were disgraceful in the extreme. The meeting was called to order at between 7 and 8 o'clock in the evening, and was characterized by a bitter quarrel until ii o'clock, when a motion was adopted that the district be annulled. Upon this, probably about half of the persons present went away, and upon going locked the door to the schoolhouse upon the outside. Those who were left in the building remained until 3 or 4 o'clock in the morning, and in the meantime assumed to transact the business of the annual meeting, by electing a trustee and directing repairs to the schoolhouse. It is not necessary further to specify the details, except to say that the papers show the whole proceedings from first to last to have been utterly disgraceful to the district. I will not give the sanction of this Department to a district meeting char- acterized by such proceedings, and I hereby set aside and declare it to be null. The district clerk will call a special meeting of the district, to be held not more than fifteen days from the date hereof, for the purpose of transacting the busi- ness which should have been done at the annual meeting. If repairs have been made to the schoolhouse which have not yet been paid for, the meeting will make provision for defraying such expenses. 3655 In the-, matter of the appeal of William F. Andrews, from the proceedings of a special meeting held in school district no. 16, town of Denmark. Lewis county, February 9, 1887. A district meeting may adjourn from time to time and may transact any business at an adjourned meeting which it could have done at the first meeting held under the call. When there was some question as to the regularity of an adjournment, the transac- tions of the adjourned meeting were upheld upon it appearing clearly that the voters of the district very generally attended, and that the action taken was supported by a large majority. Decided April 22; 1887 Draper, Superintendent This is an appeal taken by an elector of school district no. 16. town of Den- mark, Lewis county, from the action of a school meeting which voted to change a schoolhouse site and construct thereon a new schoolhouse. 346 THE UNIVERSITY OF THE STATE OF NEW YORK The grounds of appeal alleged by appellant are that the meeting was an adjourned one, and that at the previous meeting, when the adjournment was agreed upon, no hour or place was designated, and no time or place recorded upon the clerk's minutes, and that consequently the adjournment was without day and the adjourned meeting was illegal. The respondent, the trustee, for answer to the appeal, alleges the fact to be that the time and place of adjournment were agreed upon and duly entered in the minutes, and that the time and place of the meeting was well understood by the voters, and that the proposed meeting was the subject of much talk in the district prior thereto. It appears that there was a full attendance of legal voters present at the meeting and a large majority voted in favor of the change. It is conceded by the appellants that a majority of the legal voters favor the change, but claimed that, of the tax-paying portion, the division is nearly equal. It does not appear that any voter opposed to the change was misled as to the time and place of meeting, and in view of all the facts I must decline to find that the meeting of February 9th was illegal. The appeal is dismissed. 3841 In the matter of the appeal of Lyman A. Colson v. Calvin S. Edwards, trustee of school district no. 6, town of Edinburgh, Saratoga county. Proceedings of an annual meeting will not be disturbed upon an appeal because notice thereof was not given. The statute fixes the time and place for the same. Nor for the reason that a delay of fifteen minutes occurred in organizing the meeting; nor because the person who acted as chairman was a nonvoter; nor because the person elected to a district office is obnoxious to voters; nor because illegal votes were received, unless it is made to appear that they were cast for the successful candidate, and in a sufficient number to give him a majority, and this, appellant must show by competent proof. Decided December 9, 1889 Draper, Superintendent The appellant preceded the respondent as trustee of school district no. 6, town of Edinburgh, Saratoga county, his term of office having expired x\ugust 6th last. He now appeals from the proceedings of the annual meeting and the election of respondent, upon the following grounds, namely : 1 That legal notice of the meeting was not given. 2 The district clerk was absent and the meeting was not called to order until long after 7.30 p. m. 3 The chairman of the meeting was not a voter; he was under age. JUDICIAL decisions: meetings 347 4 Illegal votes were received and counted. 5 A full and fair expression of the voters present was not allowed. 6 The respondent is obnoxious to a large majority of the inhabitants and voters of the district. From the pleadings of the respective parties, it appears that the appellant, the outgoing trustee, called the meeting to order. A nonvoter was chosen chair- man. Appellant and respondent were rival candidates for trustee. The chair appointed a representative of each candidate as tellers. A ballot was taken and i6 votes were cast. The tellers announced ii for respondent and 5 for appellant. In answer to appellant's grounds of appeal, respondent avers that due notice of the meeting was given by appellant's direction ; that any delay in calling the meeting to order appellant was responsible for, as he performed that duty; that the organization was effected about 7.45 p. m. He admits that the chairman was a minor, but made an efficient and fair presiding officer. He does not deny that illegal votes were cast, but attempts to excuse this by precedent in the dis- trict. He denies all the other charges. The first and last objection stated as grounds of appeal are not tenable. The statute fixes the time for holding annual meetings in school districts, and failure to give notice does not render the proceedings thereat void. A person may be obnoxious to a majority of the people and yet be a legal school officer. The delay of fifteen minutes in calling the meeting to order is not an un- usual occurrence at school meetings. The chairman being no voter and not having attempted to vote, furnishes no sufficient ground to set aside the proceedings of the meeting. I believe persons voted who were not qualified to do so, but appellant seems to claim one such voter, James Jones, whom he alleges was not a qualified voter. The respondent insists that one Edwards, also claimed by appellant, was no more qualified than Jones. The proofs before me do not satisfy me that an opportunity for a full and fair expression of the legal voters present was not afforded. The appellant claims 6 votes were cast for him, including a vote by Jones, whom he alleges was not a voter, and one by Edwards, who respondent avers was not. He men- tions the names of three other persons who voted who were not legal voters, and as he does not claim their votes, they may have voted for respondent. As- suming then, that of the 11 ballots found for respondent, 3 were illegal ones, respondent would then have 8 remaining, and as appellant claims but 6 for him- self, a clear majority is left respondent which would be increased by deducting Jones' and Edwards' votes from appellant's score. I fail to see any substantial reason why I should disturb the result of this election. The appeal is overruled. 3^8 THE UMXEKSITY OF THE STATE OF NEW VORK 3741 In the matter of the appeal of Oliver II. White and other legal voters of school district no. 11. of the town of East Bloomtield, county of Ontario, from the proceedings of the annual meeting held in and for said district on the 28th day of August 1888. Proceedings of an annual school district meeting set aside, when it appears that a large number of legal voters were unable to gain admisaion to the meeting and participate therein. Decided Decemlier 15, 18S8 Draper, Superintendent The appellants, to the numher of 23, allege that they are taxable inhabitants and legal voters in school district no. ii, of the town of East Bloomtield, county of Ontario; that the annual meeting was designated to be held at the school- house on the 28th day of August last, at 7 o'clock p. m. ; that at the time the schoolhouse was opened by the trustee, the approaches thereto were so crowded with persons that legal voters, including many of the appellants, were unable to gain access to the room in which the meeting was to be held ; that a large number of persons w^ho had gained access to the room proceeded with great haste to organize the meeting and select different district officers by acclama- tion ; that the appellants had no opportunity of voting at that meeting ; and that, if they had been able to secure admission to the schoolroom, they would have voted for other candidates than those declared elected by the person called to the chair. The respondents allege that the meeting was not called until 20 minutes after 7 o'clock, and that the proceedings were regularly conducted and different officers elected, admitting that all but the librarian were elected by acclamation. The respondents deny that the appellants were prevented from entering the school building and participating in the meeting if they had so desired. They allege that the meeting was regularly conducted without undue haste, and that district officers were regularly elected. The allegations and proofs of the respective parties are contradictory, and 1 do not reach a conclusion without some misgivings. But the fact is apparent that a large number of legal voters of the district did not get into the school building and participate in the election of officers, and there is a difference of opinion between the appellants and respondents as to whom the officers of the district should be. Every legal voter of a school district should, if he desires to do so, have an opportunity to participate in district meetings and vote for persons of his choice to fill the several school offices. In order that an election, in the result of which all may acquiesce, may be had in this district, I have concluded to set aside the proceedings of the last annual meeting, and do hereby order and direct that a special meeting be held on the 28th day of December 1888, at the schoolhouse in said district, at 7.30 o'clock p. m. ; that said meeting be called to order bv JUDICIAL decisions: meetings 349 A. C. Aldridge Esq., school commissioner of the second district of Ontario county and that the election he conducted by ballot. At that meeting I hereby direct the officers of the district whose terms expired at the last annual meeting, to make their annual reports. The trustee of said district, whose term of office would have expired on the 28th day of August 1888, had his successor been legally elected, is hereby ordered, within five days after notice to him of the filing of this decision, to call a special meeting of the legal voters in the manner prescribed by law, for the purpose of electing district officers and receiving the reports of district officers. 3740 In the matter of the appeals of John H. Albright v. district no. 3. Ontario, Wayne county, and Henry P. Brewer, trustee of said district. Where it appears that although a district contracted for wood by the cord, but with the understanding that a cord should be 4 feet high, 8 feet long, and the length of the stick should be 2 feet, as required for the stove, and this dimension was shown to be the customary requirement of the district, and the price to be paid therefor sustains such an understanding, the contract will be upheld. Decided December 14, 1S88 Draper, Superintendent Two appeals are taken by John H. Albright, a resident of school district no. 3, of the town of Ontario, Wayne county; one from the proceedings of a district meeting allowing a claim of $20 for fuel and authorizing a tax to be levied therefor, and one from the action of the trustee including such item of $20 in a tax levy. The ground of the appeal is that the item is for eight cords of wood alleged to have been furnished, when, in fact, but one-half of the quantity was fur- nished. A further ground is, that in 18S7, a tax of $10 was collected to pay for the wood. As near as I am able to judge, there is no merit in this appeal. The con- tract to furnish the wood was let to the lowest bidder; to furnish wood 2 feel long, ready for the stove, and that it has been the custom for many years, in this and other districts, to consider wood cut as required for use a cord when the load is 4 feet high, 8 feet long and the length of the stick, required in this case, 2 feet. The contract to furnish the wood was let upon this understanding, and was so furnished, and the price, $2.50 per cord, would sustain such theory. There is no allegation that the contractor has ever been paid for the wood. A claim therefor now exists against the district. The district meeting has ratified the charge and ordered tax to pay it. The action of the district meeting and of the trustees in levying a tax to pay for the wood is sustained, and the appeals are dismissed. 350 THE UNIVERSITY OF THE STATE OF NEW YOKK 4406 In the matter of the appeal of William Middlemist from proceedings of annual school meeting held on August 6, 1895, in district no. 10, town of Andes, Delaware county. Tlie hour for holding the annual and special school meetings must be strictlj- observed. No legal authority exists for iiolding such meeting before the hour designated by the school law, or by or in the notice of the meeting served, and no legal obligation rests upon the qualified voters who may have assembled at the proper hour to wait for others before organizing and commencing proceedings. When it is established by the weight of evidence presented that the annual school meeting was organized and much of its busi- ness transacted before the hour of 7.30 in the evening, the action and proceedings of said meeting will be vacated and set aside as illegal and void. Decided November 25, 1895 Wagner & Fisher, attorneys for appellant E, E. Conlon, attorney for respondents Skinner, Superintendent This appeal is taken from the proceedings of the annual school meeting held on August 6, i of which Joseph Quinlan received 137, William J. Edwards 54, James T. Ellets 46, D. J. Donovan 30, and 6 scattering, and the chairman declared said Quinlan elected district clerk. There is no contention between the appellants and respondents as to the action and proceedings of said meeting upon authorizing the levy of a tax for the items contained in the statement of the board of education for school pur- poses, or upon the proposition to increase the members of said board and the election of the members thereof, or in the election of the district clerk. The papers in the appeal herein call for my decision upon the following matters : 1 Did said annual school meeting legally authorize the board of education to levy a tax for the items reported necessary to be raised by tax for school purposes, or any of said items? 2 Did said annual school meeting legally adopt a proposition or resolution increasing the number of members of the board of education thereof from five members to nine members? 3 Did said annual school meeting legally elect said six persons, or any of them, as members of said board of education? JUDICIAL decisions: meetings 371 4 Did said annual school meeting legally elect Joseph Quinlan as district clerk? In section 18, article 4, title 8, of the Consolidated School Law of 1894, it is enacted that it shall be the duty of the board of education, at the annual meet- ing of the district, besides any other report or statement required by law, to present a detailed statement in writing of the amount of money which shall be required for the ensuing year for school purposes, exclusive of public moneys, specifying the several purposes for which it will be required, and the amount for each. By section 19, article 4, title 8, of the Consolidated School Law of 1894, it is enacted that after the presentation of such statem.ent the question shall be taken upon voting the necessary taxes to meet the estimated expenditures, and when demanded by any voter present, the question shall be taken upon each item separately, and the inhabitants may increase the amount of any estimated expenditure, or reduce the same, except for teachers' wages and the ordmary contingent expenses of the school or schools. In section 10, article 2, title 8, of the Consolidated School Law of 1894, it is enacted that in union free school districts other than those whose limits cor- respond with an incorporated city or village, on all propositions arising at the meetings thereof involving the expenditure of money, or authorizing the levy of a tax or taxes in one sum, or by instalments, the vote thereon shall be taken by ballot, or ascertained by taking and recording the ayes and noes of such quali- fied voters attending and voting at such meetings. The board of education presented to said annual meeting the statement required by section 18. article 4, title 8, of the Consolidated School Law, and thereupon it was the duty of the qualified voters attending such meeting to vote the necessary taxes to meet such expenditures, by ballot, or by the clerk or secre- tary of the meeting taking and recording the name of each qualified voter present and voting and setting opposite the name of each such person voting whether he or she voted aye or no. Such vote could have been taken upon the aggregate sum of the items in the statement, or, when demanded by any voter present, the vote could be taken upon each item separately. The method prescribed by the school law% as above quoted, was not pursued at said annual meeting. A ballot was taken upon the item of $13,000 for teachers' salaries, and after 66 votes had been received a vote theretofore taken to vote upon each item separately was rescinded and a motion instructing the clerk to cast a ballot for or against each item as read, was adopted by a viva voce vote, or a vote taken by acclamation, and thereupon the items were read over and the clerk cast one ballot for each item. It is clear that said proceedings were not in accordance with the provisions of the school law. Under the school law every qualified voter present at said meeting had the right to cast his individual ballot upon the question of author- izing a tax for the items contained in the statement of the board of education, jor to have his or her name recorded and the fact set opposite to said name whether he or she voted aye or no. The chairman or any other ofticer of the meeting had not, nor had the voters present by a majority vote or otherwise, the 2;j2 THE UNIVERSITY OF THE STATE OF NEW YORK lawful authority to deprive anv qualified voter of such right. The hallots cast by the clerk for such items were not a compliance with the provisions of the school law. 1 decide that the action and proceedings of said annual meeting relative to authorizing the levy of a tax or taxes for the items contained in said state- ment of the board of education re(|uired for school purposes, were illegal and void. That upon an ajipeal to me from any tax levied by the board of education under and pursuant to such proceedings, said tax would be set aside as illegal and void and not authorized under the provisions of the school law. In section 13, article 5, title 8, of the Consolidated School Law of 1894, it is enacted that at any annual meeting held in any union free school district whose limits do not correspond to those of an incorporated village or city, the qualified voters may determine by a majority vote of such voters present and voting, to be ascertained by taking and recording the ayes and noes, to increase or diminish the number of members of the board of education of such district. If such board shall consist of less than nine members, and such meeting shall determine to increase the number, such meeting shall elect such additional number so deter- mined upon, the first to hold office one year, the second two years, and the third three years. The proceedings to increase or diminish the number of members of the board of education of union free school districts whose limits do not correspond to those of any incorporated village or city, are provided by statute and the statute must be strictly complied with. Such proceedings must be taken at an annual meeting, and the proposition must be determined by a majority vote of the quali- fied voters of the district present and voting, and such vote must be ascertained by taking and recording the ayes and noes, that is. the clerk of the meeting must record the name of each qualified voter who vo::es upon the proposition, and must set opposite to the name of such voter whether he or she votes aye or no upon such proposition. It is not claimed, and the facts established do not show, that, in the proceed- ings had and taken at said annual meeting, the vote upon the proposition to increase the number of the members of the board of education of the district was ascertained in the manner provided by the school law as above quoted. A motion was made and seconded that the number of members of the board of education be increased to seven ; that thereupon motion was made and seconded that such motion be amended by increasing said number to nine; that the vote upon such amendment was taken by dividing the house and the amendment declared adopted; that the vote upon the motion thus amended was not adopted by a majority of the voters present and voting thereon, ascertained by taking and recording the ayes and noes, but was declared adopted by a viva voce vote, or by acclamation. The said proceedings were not in accordance with the pro- visions of the school law. Under the provisions of the school law every quali- fied voter of the district present at such annual meeting had the right to vote upon said proposition, and it was the duty of the officers of said meeting to JUDICIAL decisions: meetings 373 ascertain such vote by taking and recording the name of each quaHtied voter who voted thereon, and setting opposite to each name so recorded whether such person voted aye or no. I decide that the action and proceedings of said annual meeting relative to, and upon, the proposition to increase the number of members of the board of education of said district were illegal and void, and that no increase of the num- ber of members of said beard of education was legally made; but the number of members of said board remains as originally established, namely, to consist of five members. Under the school law, members of the board of education of union free school districts must be elected by ballot, and receive a majority of the votes cast for each of said members, respectively. At the annual meeting in said district no. 3, Castleton, it is claimed by the respondents herein that six members of the board of education were elected and by ballot, namely, two for one year, two for two years, and two for three years ; that the persons so claimed to have been elected were put in nomination at said meeting and the nominations being closed, and no other persons being nominated, a motion was made and adopted by a vote of the meeting, taken viva voce, or by acclamation, that the secretar}^ of the meeting be instructed to cast a vote for each of the persons so nominated ; that thereupon the secretary did cast such ballot for said persons, and that said persons were declared elected by the chairman of the meeting. The records of this Department show that at the meetings held at which a. union free school was established the number of persons fixed upon for members of the board of education was five, and that John J. Santry was elected a member for the term of one year from the first Tuesday of August 1895, Thomas H. Harper and Charles D. Freeman for two years from the first Tuesday of August 1895, and John Seaton and John J. Travers for three years from the first Tuesday of August 1895. If since the election of the aforesaid persons as members of said board of education and prior to said annual meeting of the district, none of them has removed, died or resigned, said annual meeting had no legal authority to elect but one member of said board for a term of three years, in place of Santry, whose term expired on the first Tuesday of August 1896. If any mem- ber or members of said board have vacated liis or their ofiice, and such vacancy or vacancies have been supplied by the board, the annual meeting had authority to elect a person or persons for the balance of the unexpired term or terms of those removing, resigning or dying. It does not appear from the papers filed in this appeal whether or not said annual meeting had authority to elect more than one member of said board, namely, in the place of Santry. As stated above, I have decided that the proposition to increase the number of members of said board from five to nine was not legally adopted, and hence the election or attempted election of four additional members of the board by said annual meeting was illegal and void. Admitting for the purpose of argument only, that the proposition to increase the board to nine members was legally adopted, and that there were two vacancies 374 THE UNIVERSITY OF THE STATE OF NEW YORK to be filled in the five members, the election of the six persons was not in accord- ance with the provision of the school law. At said annual meeting, after the proposition to increase the number of members of the board of education was declared by the chairman to have been adopted, the chairman stated that the nominations for trustees were in order and thereupon six persons were nominated, two to hold two, two to hold one, and two to hold three years ; that no other nominations being made, on motion, the chair- man declared the nominations closed ; that a motion was then adopted by a viva voce vote or acclamation, that the secretary cast one ballot for the six persons so nominated, which was done, and said persons declared elected, etc., etc. The nomination of persons for school district ofikers at meetings at which any such officers are to be elected is not recognized in the school law, and its breach is more to be honored than its observance. Such nominations have no binding effect upon the qualified voters of the district who can vote lor whom they desire for such offices regardless of such nominations ; and such nomina- tions furnish no evidence that a majority of the qualified voters present, or any considerable number of them, desire the election of the persons so nominated, or would vote for them upon the ballot which the school law requires shall be taken. On the contrary, the voters may have come to the meeting prepared with ballots containing names of persons either partially or entirely different from those put in nomination at the meeting. The contention that as no other than the six persons nominated could be voted for and that the failure of the meeting to put in nomination other persons, was proof that said persons were acceptable to the voters present or a majority of them, is untenable. The wishes of a majority of the voters present and voting could only be determined by a canvass of the ballots cast, and every qualified voter present had the legal right to vote and to have such vote received and counted. The method taken at said annual meeting in the election of members of the board of education by which the secretary of the meeting, pursuant to a motion adopted by a viva voce vote, cast one ballot for the six persons nominated at the meeting, is not approved and is not deemed to be an election of such persons as such members by ballot, as required by the provisions of the school law. The school law nowhere authorizes the voters at a school district meeting to delegate to any one the power to elect such officers, or any of them, by directing any person to cast a ballot for such officers, thereby depriving all other voters of their right to vote for such officers. I decide that the action and proceedings of said annual meeting relative to, and had and taken in, the election of trustees or members of the board of educa- tion of said district were illegal and void; and that the six persons declared by the chairman of the meeting to have been elected as such members were not, nor was either or any of them, legally elected, nor was any person at such meeting legally elected a member of the board of trustees or board of education of said district. Under the provisions of section 7, article i, title 8 of the Consolidated School JUDICIAL decisions: meetings 375 Law, said district, at its annual meeting, had authority to elect a clerk of said district, who should also act as clerk of the board of education of the district, and that such clerk shall be elected by ballot and must receive a majority of the votes of the qualified voters of the district present and voting. At said annual meeting a ballot was duly taken for clerk of the district and Joseph Quinlan received a majority of the votes of the qualified voters of the district present and voting for clerk of said district. No proof is presented herein of the ineligi- bility of said Quinlan. I decide that said Joseph Quinlan was duly elected clerk of said district at said annual meeting. The said annual meeting of said district, held on August 4, 1896, adjourned sine die. As I decide, upon the appeal herein, that the action and proceedings of said meeting relative to authorizing the levy of a tax for the sum or sums stated by the board of education of the district as necessary to be raised for school purposes were illegal and void, a special meeting of the inhabitants of the dis- trict, qualified to vote at school meetings therein, should be held for the purpose of acting upon the question of authorizing the levy of such tax or taxes. As I decide that the action and proceedings had and taken at said annual meeting of said district upon the proposition to increase the number of mem- bers of the board of education of said district were illegal and void, and, as under the provisions of the school law, a proposition to increase or diminish the mem- bers of said board can only be taken at an annual meeting of said district, and the annual meeting of said district for the school year commencing August i, 1896, having been held and adjourned sine die, no action or proceedings relative to increasing or diminishing the number of members of said board of said district can be legally had or taken until the annual school meeting, held in said district for the school year, commencing August i, 1897. Upon the adjournment sine die of said annual school meeting, held on August 4, 1896, the board of education of said district consisted of at least three members, and possibly four, and as I decide that six persons, claimed to be elected members of said board, were not, nor was either or any of them, legally elected as such members of the board of trustees of the district, the special meet- ing of the district, Colled to vote upon the question of the levy of a tax or taxes, should also elect a member or members of the board of education of the district to fill the vacancy or vacancies existing therein at the time said annual meeting adjourned sine die, to the end that said board shall consist of five members. The appeal herein is sustained as to all matters, except that from the elec- tion of Joseph Quinlan as clerk of the district, and to such election said appeal is dismissed, and his election is sustained. It is ordered. That all action and proceedings had and taken at the annual school meeting, held on August 4, 1896, in union free school district no. 3, town of Castleton, Richmond county, relative to the following matters, namely : author- izing the levy of a tax for the support of the schools of said district for the 27^ THE UNIVERSITY OF THE STATE OF NEW YORK school year coniniencing August i, 1896, as contained in the statement of the board of education of said district, presented to and read at said annual meet- ing ; all action and proceedings had and taken upon the proposition to increase the number of members of the board of education of said district from five mem- bers to nine members; all action and proceedings had and taken in the election or alleged election of George Sheridan, jr, Michael J. Smith. Dr J. J. Van Rensselaer, Charles Schneider, James McNally and Timothy P. Hurley, or either of them, as trustees or members of the board of education of said district, be, and each and all of said actions and proceedings of said annual meeting herein specified, is and are, vacated and set aside as illegal and void, and altogether held for naught. It is further ordered, That the trustees or board of education of said union free school district no. 3 of Castleton, Richmond county, without unnecessary delay, call a special meeting of the inhabitants of said district, qualified to vote at school meetings in said district, said notice to be given in the manner pre- scribed by section 10, article 2, and section 13, article 3, title 8, of the Consoli- dated School Law of 1894, and the amendments thereof, for the purpose of acting upon the statement presented by the board of education of said district to the annual meeting of said district held on August 4, 1896, of the sum or sums required to be raised by a tax or taxes for the support of the schools of said district, for the school year commencing August i, 1896, and also to elect one or more trustees or members of the board of education of said district to fill any and all vacancies existing in said board, to the end that said board shall consist of five members. 4497 In the matter of the appeal of W. D. Griffin v. Henry L. Lounsbury and Samuel D. Peterson, trustees of school district no. 17. town of Cortlandt, West- chester county. It is the duty of the trustees of a school district to call a special meeting of the district when requested to do so by a respectable number of the qualified voters of the district for a legitimate object. While the occasion for a special meeting must be of enough importance to warrant the trustees in assembling the inhabitants, on the other hand the trustees should not refuse or neglect to call a special meeting when the interests of the district plainly demand it, or when petitioned by a respectable number of the inhabitants. Decided October 2;^, 1S96 Skinner, Superintendent On August 24, 1896, a petition signed by twenty-five residents, taxpayers and voters of school district no. 17, town of Cortlandt, Westchester county, addressed to the school trustees of school district no. 17, town of Cortlandt, Westchester county, requesting said trustees to call a special school meeting JUDICIAL decisions: meetings 377 within the next ten days, for the purpose of taking into consideration the selec- tion of a school house site, and the building of a schoolhouse thereon, and all things necessary for the carrying out of the same, was presented to said Henry L, Lounsbury and Samuel D. Peterson, trustees of said school district. That said Lounsbury was willing to call said meeting, but said Peterson opposed the calling of said meeting. That on September 24, 1895, no special meeting of said district having been called by said trustees pursuant to the prayer of said peti- tioners, W. D. Griffin, a resident taxpayer and voter in said school district, and one of said petitioners, appealed from the refusal of said trustees to call said meeting. The appeal herein alleges that the schoolhouse and grounds in said district are in a deplorable condition for the accommodation of school children and for school purposes, and that a large majority of the taxpayers in the school district are desirous of having a new schoolhouse and better accommodations. That there are but two trustees acting in said district. No answer has been made to the appeal herein, and under the rulings of this Department the facts alleged in said appeal are deemed admitted by the said trustees, Lounsbury and Peterson. This Department has uniformly held that it is the duty of the trustees of a school district to call a special meeting of the district when requested to do so by a respectable number of the qualified voters of the district foi- a legitimate cfjject. While the occasion for a special meeting must be of enough importance to warrant the trustees in assembling the inhabitants, on the other hand the trustees should not neglect or refuse to call a special meeting when the interests of the district plainly demand it, or when petitioned by a respectable number of the inhabitants. The appeal herein shows that the interests of said district plainly demand that said special meeting petitioned for should be called, and that said trustees have been petitioned for said special meeting by a respectable number of the inhabitants. The appeal herein is sustained. It is ordered, That Henry L. Lounsbury and Samuel D. Peterson, trustees of school district no. 17, town of Cortlandt, Westchester county, without unneces- sary delay, call a special meeting of the inhabitants of said school district qualified to vote at school meetings therein, for the purpose of taking into consideration and acting upon the proposition of changing the schoolhouse site and designating a new schoolhouse site, and directing its purchase and authorizing the levy of a tax to pay for said site; and also take into consideration the erection of a new^ schoolhouse upon the present school site or upon a new site, and to authorize the construction of a new schoolhouse, and the levy of a tax or taxes in one sum or in equal annual instalments, to pay for the erection of such new school- house. 3/8 THE UNIVERSITY OF THE STATE OF NEW YORK 4504 In the matter of the appeal of Thomas H. IMadi-ran, Thomas S. Ryan and Nicholas J. Mahoney from proceedings of annual school meeting held on August 4, 1896, in union free school district no. 10, towns of Half Moon and Stillwater, Saratoga county; and from district election held August 5. t8o6. When at an annual school meeting it became impossible to transact the business of the meeting by reason of the noise and disorder existing; held, that the declaration of the chairman adjourning the meeting was proper; that after such adjournment by the chairman the powers of the meeting were exhausted, and neither the chairman of the meeting nor any other person or persons could legally reconvene said annual meeting or organize a new meeting, and that all proceedings taken by the persons remaining in the building after such adjournment and after the chairman, clerk and other persons left the hall and building, were illegal and void; that election of trustees and clerk of the district, held on the Wednesday following the annual meeting, not being an adjourn- ment of the annual meeting nor a special meeting duly called and held, was illegal and void. Decided October 31, 1896 O. Warner, attorney for appellants J. F. Terry, attorney for respondents Skinner, Superintendent The appeal is taken from the action of the annual school meeting held August 4, 1896, in union free school district no. 10, of the towns of Half Moon and Stillwater, Saratoga county ; and from an alleged election of two trustees of said district and a clerk of said district, held on August 5, 1896, in said district, and the declaration that Edgar Holmes and W. B. Neilson were elected as tru.s- tees. and Herbert R. Baker clerk ; and from the decision of the board of educa- tion recognizing said Holmes, Neilson and Baker as such trustees and clerk, and refusing to recognize the appellants as such trustees and clerk. \\'ith the appeal herein, the joint affidavit of the appellants and eight other persons, in support of the allegations contained in the appeal, was filed. Messrs Daniel E. La Dow and others, claiming to be members of the board of education of said district, have filed an answer to the appeal, and with such answer have filed the joint affidavit of the respondents and sixty or more qualified voters of the district in support of the allegations contained in the answer. The main contentions of the respondents are that, at the time the chainnan of said annual meeting adjourned said meeting, the noise and disorder was of such a character as to render it impossible to transact any business; and that the action of the meeting upon the resolution to postpone the election of trustees and clerk until Wednesday, the day following said meeting, and the amendment thereof that said election be then held, and to reconsider its action upon holding such election on W'ednesday, were in efifect and equivalent to an affirmative majority vote and determination of said meeting to hold such election on Wednes- day, the next following day after said meeting. JUDICIAL bECISIONS: MEETINGS 379 The following facts are established : That the annual school meeting of union free school district no. 10, towns of Half Moon and Stillwater, Saratoga county, was held on the evening of August 4, 1896, and was duly organized by the choice of Herbert O. Bailey as chairman, Herbert R. Baker, the clerk of the district, acting as clerk of the meeting; that after the reading and adoption of reports of school officers and voting appropriations for the ensuing year, the chairman announced that the next business in order was the election of two trustees and a clerk of the district, and thereupon a motion was made that such election be held on Wednesday, the next following day, which motion was amended to the effect that such elec- tion be then held; that objection was taken to the amendment, that it should be declared not in order, as the election must then be held unless the meeting should determine that it should be held on Wednesday, or, in other words, that vote in favor of the original motion would determine that the election would be held on Wednesday and a vote against the motion would require the election to then be held, and therefore the amendment was not in order and should not be entertained ; that the chairman entertained the amendment and directed that all persons in favor of the amendment should take the east side of the hall, and those opposed, the west side, and the chairman appointed two tellers to count the per- sons on the east side and two other tellers to count the persons on the west side of the hall ; that the tellers on the west side proceeded to count the persons on that side of the hall, and completed said count without trouble, interference or delay ; that the tellers on the east side, after making several unsuccessful attempts to count the persons on that side, informed the chainiian that many persons on said east side were standing on the floor and on chairs, and others moving about, and that it was impossible to count the persons unless they were seated and in order; that the chairman requested said persons to take their seats and to keep quiet and in order, but that but few complied with such request, but continued to stand and move about, and persons having been counted by the tellers moved ahead of the tellers and were again counted ; that there were in said hall at the time of said count many persons not qualified to vote at said meeting who were counted by the tellers ; that by reason of the noise and disorder prevailing among the persons on the east side of said hall, and the crowding and pushing of the persons moving about it was impossible for the tellers to make an approximately correct account of such persons ; that the tellers of the persons on the east side of the hall reported to the chairman the number of persons to be 508, and the tellers on the west side reported to the chairman the number of persons to be 302. the result of the vote upon said amendment being 508 in favor and 302 against ; that upon the announcement of the result by the vote upon such am.end- ment the chairman then stated the question was upon said motion amended, and requested those in favor to say aye and the response of aye was made on the east side, and thereupon those opposed were requested to say no, and the response -qf no was made on the west side, and the chairman declared that the motion as amended was lost; that upon said declaration of the chairman the persons on the west side cheered and those on the east side screeched and hissed, and fists 3S0 THE UNIVERSITY OF THE STATE OF NEW YORK were shaken at the chairman and threats made to throw him from the platform; that order was partly restored and a motion was made to adjourn, whereupon shouting and yelling ensued which continued for some time, when the motion was put by the chairman and declared lost, which declaration was followed by shrieks, yells and groans; that after some effort the chairman succeeded in restoring partial order, and stated in substance that it was impossible to transact any business on account of the noise and disorder; that he was unable to tell who addressed him or what they said, or in all cases to determine the result of a vote, and that if order was not maintained he would adjourn the meeting of his own motion, which statement was received with hisses, shaking of fists and threats to throw the chairman from the platform and to elect another chairman in his place ; that a motion was then made that the vote on the motion as amended in relation to the time for holding the election be reconsidered, which motion was put by the chairman and declared lost, and thereupon another scene of noise, confusion and disorder occurred, increasing- in volume and virulence ; vile epithets were applied to some of the persons and to the chairman ; several persons rushed upon the platform shouting and demanding that another chairman be chosen, several persons shaking their fists in the face of the chairman, and threatening two members of the board of education with personal violence; that after this scene of disorder had continued for a period of five to ten minutes, the chairman stated to those present, in substance : " It is impossible to transact any further business at this meeting on account of the noise and disorder, and I therefore declare this meeting adjourned ", that upon said adjournment of said meeting the president of the board of education announced to the persons present that the election for trustees and district clerk would be held the next following day at the school building in said district from 12 o'clock noon until 4 o'clock in the afternoon, and thereupon the chairman and clerk of the meeting and the persons on the west side of the hall left the hall and did not return that night; that after the persons so as aforesaid left said hall the persons remaining therein organized by electing a chairman and clerk and choosing inspectors of election and pro- ceeded to ballot for two trustees and a clerk for said district, such balloting being held open until 10 o'clock p. m. ; that the ballots received were canvassed by said inspectors and the result announced by them as follows : Whole num- ber of votes cast 245, of which the appellants, Thomas H. Madigan and Thomas S. Ryan, received 245 votes for the office of trustee, and the appellant, Nicholas J. Mahoney, received 245 for district clerk, and thereupon said meeting adjourned; that on the day following said annual school meeting, to wit, on Wednesday. August 5, 1896, a meeting or election was held in said school building, conducted by the board of education of said district as inspectors of election, for the elec- tion of two trustees of said district and for a district clerk ; that the polls of said election opened at 12 o'clock noon and closed at 4 o'clock in the afternoon of said day; that at said election 550 ballots were cast by an equal number of qualified voters of said district, and of said ballots cast. Edgar Holmes and Willie B. Neilson each received for trustee 548 votes, and Thomas H. Madigan and Thomas JUDICIAL decisions: meetings 3S1 S. Ryan each received for trustee, 2 votes, and that Herbert R. Baker received for district clerk 54S votes, and Nicholas J. Alahoney received 2 votes ; that at the organization of said board of education, on August 11, 1896, the said Holmes and Neilson were recognized and received as members of said board and said Baker as district clerk, and ever since have acted as such, and that said Aladigan and Ryan, who claimed to have been elected trustees, and said Mahoney, who claimed to have been elected district clerk, on August 4, 1896, were not received nor recognized by said board as such trustees and clerk. It further appears that besides the qualified voters in the hall in the school building on the evening of August 4, 1896, there were outside of said building a large number of qualified voters of the district, a majority of whom were women, all of whom were assembled for the purpose of attending and voting at the election of district officers if such election had been held. It is not shown how many qualified voters there were residing in said dis- trict on August 4, 1896. I assume that said union free school district no. 10 is one whose limits do not correspond to those of an incorporated village or city, and that the number of children of school age in said district exceeds 300. It was the duty of the qualified voters of said district at its annual meeting held on August 4, 1896, to elect the trustees and district clerk, unless said meet- ing, after transacting the other business required by the school law, legally adjourned said meeting to a day named for the purpose of completing its busi- ness and electing its district officers, or, under the provisions of section 14, article 3, title 8, of the Consolidated School Law of 1894, the qualified voters of such district, by a vote of a majority of those present and voting at any annual meeting, or any duly called special meeting, to be ascertained by taking and recording the ayes and noes, determined that the election of the members of the board of education and clerk of said district shall be held on the Wednesday next following the day designated by law for holding the annual meeting. It is clear that w^hen the annual meeting of said district was adjourned by the chairman it was not adjourned to a day certain, but sine die. It is not shown that the voters of said district at any annual meeting, or at any duly called special meeting, ever determined under the said provisions of section 14, article 3, title 8, of the Consolidated School Law of 1894, above cited, that the election of the members of the board of education and district clerk shall be held on the Wednesday next following the day designated by law for holding the annual meeting therein. The disgraceful and riotous manner in which persons attending said annual meeting acted authorized the chairman of said meeting to adjourn the same. After such adjournment of said annual meeting by the chairman, the powers of said meeting were exhausted, and neither the chairman of said meeting nor any other person or persons, could reconvene said annual meeting or organize anew the annual meeting of the district, and all proceedings to that end taken by the persons remaining in said school building -a,fter said adjournment and after the chairman, clerk and other persons left the hall and building were illegal and void. 382 THE UNIVERSITY OF THE STATE OF NEW YORK 1 decide: i The chairman of said annual school meeting, held in said district on August 4. 1896, in adjourning said meeting acted properly, and his action is sustained. 2 That the alleged meeting organized and held in said school building in said district on August 4, 1896, after the annual school meeting had been adjourned and the chairman, clerk and others had left the hall and building, was neither the annual meeting nor a special meeting duly called, and was illegal and void; that all proceedings had and taken thereat were illegal and void. 3 That the appellants Thomas H. Madigan and Thomas H. Ryan were not legally elected as trustees of said school district, and that the appellant Nicholas J. Mahoney was not legally elected district clerk of said district. 4 That the meeting or election held in said district on Wednesday, August 5, 1896, not being an adjournment of the annual meeting nor a special meeting duly called and held, was not duly and legally called or held, and that Edgar Holmes and Willie B. Neilson were not legally elected trustees of said district, and that Herbert R. Baker was not legally elected district clerk of said district. The appeal herein is sustained as to so much thereof as is taken from the election of ]\Iessrs Holmes and Neilson as trustee of the district, and said Baker as district clerk, and dismissed as to all other matters. It is ordered. That all proceedings had and taken at the alleged annual school meeting held in said school district on August 4, 1896, after the adjourn- ment of the annual school meeting held therein on said date, by the chairman, be, and the same are, and each of them is, vacated and set aside as illegal and void. It is further ordered. That all proceedings had and taken at the alleged meeting or election held in said district on Wednesday, August 5, 1896, be, and the same are, and each of them is, vacated and set aside as illegal and void. It is further ordered. That the board of education of union free school dis- trict no. 10, towns of Half Moon and Stillwater, Saratoga county, without unnecessary delay, call a special meeting of the inhabitants of said district qualified to vote at school meetings therein for the purpose of electing two trus- tees of said district, and a district clerk of said district, in place of the two trustees and of said district clerk, whose respective terms of office expired on August 4, 1896. 3513 Alonzo B. Wright, appellant, v. Edward Bleeker, A. C. Graham. Robert A\'illcts, R. S. ]Munson, I. J. Merritt, composing the board of education, and Thomas A. Harris. S. DeWitt Smith and David R. Fowler, inspectors of election, district no. 3, town of Flushing. Notice of a special district school meeting; what is srfficicnt. District organized under special acts of the Legislature subject to supervision by State Superintendent of Public Instruction. JUDICIAL decisions: meetings 383 To appropriate money for the improvement of a school building, the vote need not be by ballot, unless the statute specihcally requires it. In such a case, although the vote is taken by ballot, chapter 366, Laws of 1880, known as the " uniform ballot act," does not apply. Quaere, whether said act is applicable to any school district election. Vote by ballot at school meetings, when necessary. Decided August 4, 1886 Draper, Superintendent School district no. 3 of the town of Flushing is subject to the operation of a special act of the Legislature, being chapter 638 of the Laws of 1857, as amended by chapter 367 of the Laws of 1873, and chapter 559 of the Laws of 1875, and chapter 434 of the Laws of 1885. A special school meeting was held in said district on Monday, the 12th day of July, 1886, pursuant to the following notice: Notice. — A special school meeting of the electors of school district no'. 3, town of Flushing, is hereby called on Monday, July 12, 1886, between the hours of two o'clock and seven, p. m., at the village hall, Whitestone, with a view of submitting plans, specifica- tions and cost for the enlargement of the present school building in said district. (Signed) Edward Bleeker, President D. R. Fowler, Clerk Whitestone, June 30, 1886 At such meeting the plans and specifications and proposed cost for the enlargement of the school building in said district were submitted to the electors, and election held with a view to determine whether or not said electors would appropriate the sum of $7500 to meet the expense of said improvement, and whether or not bonds should be issued for the purpose of raising the said sum. The vote was taken by ballot, printed ballots being used different in color and in size. The polls remained open from two in the afternoon until seven in the evening, and the voting was supervised, and the count made by three inspectors of election appointed by the board of education for that purpose. The inspectors of election reported at the conclusion of the voting that 124 ballots had been cast, of which loi were in favor of appropriating the sum named, 3 against such appropriation, 6 in favor of issuing bonds and 13 against the same, with I blank ballot. From this action the appellant appeals to the Superintendent of Public Instruction upon the following grounds : 1 That the call for such meeting did not. as the notice shows, refer to the statute or authority by which such call could be or was made, and did not fully and fairly set forth the object, intent and purpose of the election or special meeting. 2 That the ballots used, as shown by such report, w^ere illegal and void inas- much as they did not conform to the provisions of chapter 366 of the Laws of 1880. 3 That at the closing of the polls the inspectors did not openly and before the meeting declare the result of such election, but reported to the president of the board, who, in that capacity, announced and declared the result. 384 THE UXIVEKSITV OF THE STx\TE OF XEW YORK 4 Tliat only 124 votes were cast and that there were over 300 legal voters in the district, and that, therefore, the loi votes cast in favor of the appropria- tion did not show the sentiment of the majority of the voters in the district in favor thereof. 5 That said election was held pursuant to a special statute, and hence is without the jurisdiction of the State Superintendent of Public Instruction. 6 It is insisted that if the Superintendent holds that such election is within his jurisdiction and supervision, he must determine whether the election was legal or illegal, whether or not the result was binding upon the district, and in the event of finding that it is not binding, then he must decide that no other election can be held in said district for a similar purpose within the ensuing six months. In consequence of the foregoing objections, the Superintendent is prayed to set aside such election and declare the results thereof illegal and of no effect. The board of education was proceeding in this matter under section ii of chapter 434 of the Laws of 1885, which provides as follows : " Whenever the said board of education shall deem it necessary to erect one or more schoolhouses in said district, or to enlarge the schoo'house or schoolhouses, or to purchase sites or lots for said buildings, in said district, before they shall proceed to levy any tax for the same, they shall prepare an estimate and plan showing the location proposed, cost of ground and plans and estimated cost of buildings ; and shall submit the same to the electors of said district at its annual meeting, or at a special meeting to be called for that purpose; and if a majority of the electors voting at such election shall vote in favor of the same, then the said board of education may proceed to acquire title to such sites or lots, and to erect or enlarge said schoolhouse or schoolhouses in the manner proposed in said estimate and plan." This section did not require that the notice of the special meeting should refer to the statute or authority by which such call could be made. It only required that before proceeding to levy any tax for such purpose, the board should prepare an estimate and plan showing the location proposed, cost of ground and plans and estimated cost of improvement, and that they should sub- mit the same to the electors at an annual or special meeting. Section 12 of the original act provides that notices of special meetings shall be posted in eight or more public places and published in a county paper at least one week previous to such meeting. There is no suggestion that the provisions of the statute relative to the posting and publishing of said notice were not literally complied with, and I am of the opinion that the requirements of the law in relation to the notice of the proposed action were satisfied. The appellant objects, secondly, to the ballot on the ground that the provisions of chapter 366 of the Laws of 1880. commonly known as the "uniform ballot act," were not observed. The first section of this act is as follows : " Section t At all elections hereafter held within the limits of this State for the purpose of enabling electors to choose by ballot an officer or of^cers under the laws of this State, or of the L^nited States, or to pass upon any amendment, JUDICIAL decisions: meetings 385 law or public act, or proposition submitted to tbe electors, to vote by ballot under any law, each and all ballots used at any such election shall be upon plain white printing paper, and without any impression, device, mark or other peculiarity whatsoever upon or about them to distinguish one ballot from another in appear- ance, except the names of the several candidates; and they shall be printed in plain black ink." It is conceded by the respondents that the ballots used were not in compli- ance with the provisions of this act. They varied in color, in size, they were without the prescribed captions, and they were not printed in the prescribed size of type. Whether or not it was the intention of the Legislature that the provisions of the "uniform ballot act" should apply to elections held at school meetings, is a question which is by no means free from doubt. It is not necessary to determine that question, however, in order to dispose of the present case. Section I of the " uniform ballot act," above set forth, limits the operation of that act, and to cases where an ot^cer is to be elected or an act or proposition to be determined, is " submitted to the electors to vote by ballot under any lazv." There is nothing in the provisions of the statutes governing this meeting which required that the question here at issue should be determined by ballot. It was only required of the board of education that they " shall submit the same to the electors of said district at an annual or at a special meeting to be called for that purpose." It is true that section 3 of the special act, as amended, does provide that " all elections shall be by ballot," but this unquestionably refers to elections for members of the board of education, and I can see no requirement of the statute which necessitated the taking of the vote in this instance by ballot, however proper and perhaps desirable that it should be done in that way. Furthermore, if the "uniform ballot act" does apply to school meetings, and if the law had required that the vote in the present case should have been taken by ballot, and if said law as to uniformity of ballots had not been observed, the result would not. on that account, have been rendered void. Any person who knowingly or wilfully violates or attempts to violate the statute relating to uni- formity of ballots would be subject to a fine or imprisonment; but there is noth- ing in the law which would have set aside the results of an election held in vio- lation of its provisions. The objection that the result of the balloting was not announced by the inspectors, but rather by the president of the board of educa- tion, has no force. They canvassed tl#e vote, made and signed the certificate of the result, and passed it to the president of the board, who announced the result in their presence and at the proper time ; and the act must be deemed to have been their own act. The fourth objection of the appellant, namely, that there were not a majority of all the votes in the district cast in favor of the improve- ment, and that, consequently, the sentiment of the district is not shown to have favored the same, is likewise without force. All had notice and should have attejided, and the votes of those who did attend preponderated heavily in favor of the expenditure. The fifth objection, that the question is not within the juris- 13 386 THE UNIVEKSITV OF THE STATE OF NEW YORK diction of the Superintendent of Public Instruction, can not be sustained. It was undoubtedly the intention of the Legislature to permit tliis district to operate its schools upon a system peculiarly its own ; but to concede that it was thereby removed from the suj)ervision of the State authorities would be destructive ot the educational system of the State. In view of the foregoing considerations the appeal must be dismissed. 3534 Warren J. Alfred and others v. the trustees, etc., of school district no. 5, town of Waverly, Franklin county. This Department, when asked to set aside the proceedings of a school meeting will always inquire into the bonac fides thereof. A notice to " taxable inhabitants," while irregular, will not be considered sufficient ground to set aside the business of an important special meeting, unless it is made to appear that some one has been misled by it. Bad spelling in a notice of a meeting will not invalidate the proceedings thereof. Failure to give notice of a meeting to every person entitled thereto will be excused unless done wilfully, or it appears that the failure prevented such persons from attending, and their attendance would have changed a declared result. No one is bound by tb.e trustee's announcement of what qualities a school district voter, particularly as no one was deterred from participating in a meeting thereby. Decided November 10, 1886 Draper, Superintendent This is an appeal from the action of a special meeting of district no. 5, town of Waverly, Franklin county, held on the 14th day of November 1885, in voting to build a new schoolhouse and levy a tax to pay for the same, and from the action of the trustee and collector in levying and collecting such tax. It seems that a special meeting was first called to be held on the 31st day of October 1885, at I o'clock in the afternoon, which was not called to order until about 4.30 o'clock, and then, without any material action, was adjourned to meet on the 14th day of November 1885, at 6 o'clock, p. m., and at the latter time the meeting reconvened and voted to purchase a site and build a schoolhouse. It was resolved to let the work to the lowest bidder, and bids were received at this meeting, the lowest of which was by one Frank Trim, for the sum of $405. The work was let to him and a tax ordered levied for the amount. Mr Trim went on and erected the building, the trustee accepted it, and the tax was levied and the collector was engaged in raising the sum when, about the ist of June 1886, this appeal was brought. The appellants allege various irregularities. They say the special meeting of October 31st had no jurisdiction, and that consequently an adjourned meet- ing thereof had none; that the notice of such meeting was defective, as it was a notice only to " taxable inhabitants," while others were entitled to vote at school meetings, and that it contained misspelled words and some abbreviations ; that such notice was not served upon persons entitled to notice, as the law provides ; that while the meeting was called at i p. m.. it did not convene until 4.30 p. m.. JUDICIAL decisions: meetings 387 and that some persons left in the meantime, and that when the meeting did con- vene the trustee announced that only real estate owners and taxpayers could vote, etc. There are other objections urged, but these are the essential ones, and if they are not availing, none set up can be. This Department when asked to set aside the acts of school meetings or school officers always inquires into the honae fides of such acts. Were the things done such as it was proper to do? Did they undertake to do them properly according to such knowledge as they had? Has any one been imposed upon or wronged? If irregularities have occurred, will the greater hardship be imposed upon individuals and greater help be given to the cause of education by setting aside or sustaining such acts? In the present case there is absence of proof of bad faith. The notice of the special meeting should have called all legal voters of the district rather than " taxable inhabitants," but there is no proof that anybody was misled by it. Indeed the appellants, nearly if not quite all of them, attended the meeting. There was some bad spelling in the notice, but to hold that this invalidated it would be so far reaching in its consequences that the result would be appalling. The notice may not have been served on every person entitled to notice as it should have been, but it does not appear that this was wilful, or that any were without actual notice. There is absence of evidence that the meeting was held without the knowledge of persons who desired to be present, unless in a single instance which is too isolated to be of weight. If this person had been present the result would not have been changed. If the trustee did announce his legal opinion as to who could vote, no one was bound by it. It does not seem to have deterred any person entitled to vote from doing so. The adjournment from October 31st to November 14th seems to have been regular. It indicates deliberation and absence of any purpose to deceive. But other facts are to be taken into consideration. The district had no schoolhouse, and sorely stood in need of one. The undertaking to erect one was commendable. The building had been erected before the appeal was taken. To set aside the acts pursuant to which it has been constructed would be to deprive the builder of his pay, or to throw the expense upon a portion only of the district, and then they would have on their hands a building which would not be the district schoolhouse. I have not lost sight of the fact that there are separate settlements in this school district, and that the location of a school in either one does not meet the convenience of the other. But this fact can not be allowed to have much weight in the determination of the pending case. Perhaps it would be well if the two settlements were separated into two school districts, which, should the population continue to increase, might appropriately be done after a schoolhouse shall have been erected at the other settlement. It seems that a school is now being sus- tained there. If this is to be continued, a house is needed. If this should be etected, the tax should be borne by both settlements, as in the present case. In view of the foregoing considerations, I feel compelled to dismiss the appeal, and discontinue the stay of proceedings heretofore issued by me herein. 388 THE UMVKKSITV OF THE STATE OF NEW YORK 3539 Cyrus Collins and others, from the action and proceedings of the annual school meeting held August 31, 1886, in district no. 8, town of Whitehall, Wash- ington county. Proceedinjrs of an annual meeting will be set aside, and a special meeting will be ordered when it seems that the trustee who called it to order arbitrarily prevented it from selecting whomsoever it would for presiding officer, and where the proceedings are shown to have been so turbulent and disorderly as to prevent a free expression of the will of the legal voters present. Decided November 20, 1886 Draper, Superintendent This is an appeal by Cyrus Collins and others, residents and taxpayers in school district no. 8, town of Whitehall, Washington county. New York, from the proceedings of the annual school meeting held in said district August 31, 1886. The appellants' allegations are substantially as follows : That the meeting was called to order by the trustee whose term of office would expire by the election of a successor at such annual meeting; that said person nominated his brother for chairman; that many persons not qualified to vote at school district meetings were in attendance at said annual meeting; that duly qualified voters demanded that the house be divided to ascertain who were qualified voters before a vote for chairman was taken; that this was refused by the trustee, who called for the " ayes " on the selection of the chairman, but did not call for " noes," and thereupon declared his brother elected chairman ; that this action precipitated great confusion, tumult and disorder, and that it became impossible to secure an intelligent vote in consequence; that Charles Chapman was nominated for trustee, and the nomination was seconded, and the chair refused to put the nomination to a vote; that subsequently the nomination of the present incuinbent was made for trustee, and amidst confusion and excite- ment, the chair took a vote by ayes and noes, and declared him elected ; that appeals from the decision of the chair, calls for a ballot and for a division of the house were disregarded and not heeded; that in the exciteinent the district clerk, who was engaged in keeping the minutes of the meeting, abandoned his post, and left the meeting; that before the close of the ineeting at least two-thirds of the taxpayers, voters in said district, withdrew. The respondent, Warner MacFarran, answers and alleges as defects in the appellants' case, as presented, that appellants ask for no specific relief ; that because of the allegations of appellant the appeal should be dismissed; that there is no allegation that illegal votes were cast at the meeting, nor did any unquali- fied persons take part in the proceedings of the meeting; that there is no allega- tion that respondent did not receive a majority of the votes of legal voters of the district present at the meeting; that respondent was properly declared elected trustee; that there is no allegation that the confusion was created by friends of JUDICIAL decisions: meetings 389 the chairman and respondent ; that it is the practice of the Department of PubHc Instruction to dismiss appeals when allegations of appellant are vague and uncertain; that there is no allegation of any grievance or injury whatever; that certain of the appellants are not taxpayers, although some of them are. The respondent admits that he called the annual school meeting to order, but denies that he nominated his brother, Seth MacFarran, for chairman, but avers that a legal voter did, and that the nomination was duly seconded, and that respondent put the nomination to a vote; that he called for the ayes, and that there seemed to be an almost unanimous response ; that he then called " contrary," and there being no negative votes, he declared Seth MacFarran elected chairman. He denies that there was a call for a division of the house at the time stated, as alleged by appellants, and that such demand was not made until after the election of chairman and trustee ; he denies that any other person than himself was nominated for trustee at said meeting. He claims that on the vote by ayes and noes, the ayes had a decided majority, and he was declared elected; and that certain of the appellants made the disturbance by walking, shouting and calling for a division of the meeting on chairman, trustee and clerk ; that soon after certain of the appellants left, and order was restored ; that the confusion had become so great that the respondent, although he attempted to do so, could not read his report as trustee until said parties had left the meeting; that as respondent is informed and believes, none but legal voters took part in the meeting; that the proceedings were regular and in order, except as interrupted by the appellants. Respondent asks that the appeal be dismissed. This appeal presents a state of affairs which should never exist at any school meeting. It is surprising that orderly school meetings can not be held, particularly as the principal ofificers to be elected are chosen to fill positions of trust and without compensation. From all the statements before me on this appeal, I find many direct contradictions. On the side of the appellants I have the sworn statements of thirteen persons. On the other side, the sworn state- ment of the acting trustee and of the person, the validity of whose election and acts are questioned by this appeal. But I do not allow this single fact to determine the case. It is clear from the statements on both sides, that the annual meeting was disorderly ; that no vote was taken by which a fair decision could be arrived at, either by ballot, division of the meeting or by a roll call of the legal voters. The respondent called the meeting to order, and if he and his friends were in such an undoubted majority as he avers, it would at least have been wise (as some opposition was manifested) to have taken such a vote as would have shown the sense of the meeting clearly and beyond dispute. If the respondent and the other officers who are alleged to have been elected are the choice of the voters entitled to vote at school meetings, they can establish the fact at another meeting called for that distinct purpose. A school meeting, held under the circumstances as above set forth, should not be upheld. 390 THE LXIVlikSlTY OF THE STATE OF NEW YORK I, tlRTcforc, set aside the i)rocceclings of said annual meeting, and direct that a special meeting he held to transact the business of the annual meeting, within fifteen days from the date of this order, and that the last acting district clerk shall proceed to give the notices of such meeting, as provided by law. It is further directed that School Commissioner William H. Cook, of com- missioner district no. 2, of Washington county, attend such meeting, call the meeting to order and preside until a chairman is elected. 4201 In the matter of the appeal of Nathan Johnson and Theodore D. Rich, from proceedings of a special meeting held on July 5, 1893, in union free school district no. r, town of East Chester, Westchester county. Where a special meeting of a district, duly called, was held, meeting duly organized, a motion was made to adjourn sine die, such special meeting, under the call of the trustees had been duly held and no legal meeting of the inhabitants of the district could be held except in pursuance of a legal call therefor as required by the school law. IJoards of education of union free school districts have no authority, under the school law, to decide whether or not the special meeting or the annual meeting of their respective school districts had been legally conducted or not, nor whether or not the proceedings thereof, furnished to them Iiy the clerk or secretary of the meeting are correct, or whether the action and proceedings had and taken at said meetings are legal or not. 'Ihe power to deci;le such matters is given l)y the school laws only to the Superintendent of Pul)lic Instruction in an appeal taken from the action and proceed- ings of such meetings. Decided November 16, 1893 Herbert D. Lent, attorney for appellants Stephen J. Stihvell, attorney for respondents Crooker, Superintendent The above-named appellants, two of the members of the board of educa- tion of union free school district no. i, town of LZast Chester, Westchester county, appeal from the action and i)roceedings of an alleged special meeting helil in said district on July 5, 1893, at which it was claimed it was voted to raise $8000 for the purchase of a site and the building of a new schoolhouse thereon, and the bonding of said district therefor. Also, from the action of the majority of the board of education of said district in refusing to record the proceedings of a special meeting duly held in said district on said July 5, i8<>3, and in recording the proceedings of said alleged special meeting; also, from the refusal of said board to record the proceedings of the annual meeting of said district, held on August 22, 1893. An answer to the appeal has been filed by Messrs Roedel, Tolles, Reid and Yale, four of the members of said board. From the papers presented upon said appeal, it appears that a special meet- ing of the legal voters of union free school district no. i, town of East Chester, JUDICIAL decisions: meetings 391 to be held at the primary schoolhouse, Garden avenue, between Fourth and Fifth streets, Mount Vernon, on Wednesday, July 5, 1893, at 7 o'clock, p. m., for the purpose of appropriating the sum of $8000 for the purchase of a site and the erection of a suitable schoolhouse thereon, in the upper end of the dis- trict, and making provision for the payment of said sum, was duly called by the board of education of said district. That at the time and place above mentioned a large number of the inhabitants of said district assembled, and said meeting was called to order by Nathan Johnson, president of the board of education, who, on motion of John H. Davis, was elected chairman of the meeting, and William F. Johnson was elected secretary; that the chairman stated the call for the meeting, and after some discussion a motion was made and adopted that the meeting adjourn sine die, and thereupon a large number of persons left the room. That after the adjournment of said meeting and such persons had left the room, those remaining in the room organized a meeting by the elec- tion of S. J. Stilwell as chairman and J. M. Reid, clerk; that a resolution, stating in substance that a meeting had been legally called for the purpose of raising funds for the purchase of a site and the erection of a schoolhouse in the district, and whereas a certain number of persons forcibly entered the schoolhouse, and in a violent and boisterous manner, interfered with the object for which the meeting was called, and whereas said body of people have declared the meeting adjourned sine die, without legally organizing the same; therefore, be it resolved, that we now proceed to organize the meeting in accordance with said call, was then adopted ; that two tellers were appointed and a resolution was made and seconded that, in accordance with the call for this meeting, an appropriation of $8000 be made for the purchase of a site and the erection of a schoolhouse thereon, in this section, appropriation to be obtained at once by the issue of interest-bearing bonds of the district, a portion of which, not exceeding $1000, to be retired each } ear until the whole sum is paid, and that we now proceed to a ballot, which was adopted; that a ballot was had at which 59 votes were cast, of which 55 were for the resolution and 4 against; that a motion was adopted that the poll list and ballots be kept under seal by the secretary of the meeting for future reference, and that the minutes of the meeting be signed by the chairman and secretary and forwarded to the board of education, and thereupon the meeting adjourned. That at a special meeting of the board of education held on July 25, 1893, the proceedings of the two meetings held on. July 5, 1893, duly signed by the chairman and clerk of the respective meetings were presented and said board, by a vote of 4 to i, adopted a resolution that the minutes of the meeting at which Mr Stilwell was chairman be received and approved as minutes of said meeting, the board deeming said meeting to be the regular and lawful meeting held in response to the call for a special meeting to be held on said July 5, 1893, ^^^ the minutes of the meeting at which Nathan Johnson was chairman and W. F. Johnson was secretary were, as the clerk of .5aid board states in his fetter, under date of July 26, 1893, to W. F. Johnson, ''ignored." That said board refused by a majority vote to enter the minutes 392 Till-: iNixKKsnv of nil-; siatk of new mikk of the annual school meeting, held in said district on August 22, 1893, as signed by the chairman and secretary of tlie meeting, upon the minute book of the dis- trict, for tlie reason that they were incomplete and were improper. That no appeal has been taken from the action and proceedings had and taken at the s|)ecial meeting of said district, held July 5, 1893, at which Nathan Johnson was chairman, and W. I"". Johnson was secretary. The allegations in the appeal relative to the proceedings at the special meet- ing held on July 5. 1893. at which Nathan Johnson was chairman, are supported by a copy uf the miiuites of the meeting, signed by tlie chairman and secretary, and the affidavits of nine ciualified voters who were present at said meeting. Each of said aftiants states that said meeting was duly organized at the time and place appointed, and was properly conducted, and that the minutes of the meeting are a true record of the proceedings of said meeting. The respondents allege in their answer that a certain number of persons forcibly entered the schoolhouse antl in a violent and boisterous manner inter- fered with th.c ol)ject for which the meeting was called; as soon as said boisterous persons could be gotten from the meeting the secretary of the board called the meeting to order, etc. The respondents allege as grounds of the invalidity of the first meeting that no secretary was elected or tellers appointed, neither was any call read nor any vote taken on said call. Three of the respondents, Messrs Roc'.lel, Toiles and Reid, deny that they were present at said first meeting, and therefore can not know of their own knowledjre, whether their allegations are true. Annexed to the answer and in support thereof, are the affidavits of James M. Reid and George S. Yale, each of whom avers that he was present at the first meeting. Mr Reid admits that a chairman was elected and that a motion was made to adjourn sine die. and that said meeting adjourned; he alleges no secretary was elected, no minutes taken, no tellers appointed, and no call read; no discussion was had relative to the raising of funds; and that everybody was shouting and that his request to be heard was refused. Mr Yale alleges that the meeting was not duly organized and Vv'as illegally conducted ; but does not aver that the meeting was boisterous or noisy. He avers no minutes were taken, no tellers apj)ointed, no call read ; but admits a chairman was elected and a motion made to adjourn sine die, which was adopted. The allegations contained in the appeal, that said board of education refused to record the proeeec'.ings of the meeting held on July 5, 1893. at which Nathan Joh.ison was chairman, and W. F. Johnson secretary, and the minutes of the annual school meeting, held on August 22, 1893. are admitted by the respondents. I am clearly of opinion that the appellants have, by a preponderance of proof, established that the meeting held in said district on July 5, 1893, of which S. J. Stilwell was chairman and James M. Reid, secretary, was not a valid and legal meeting of the voters of said district.. At the time and place named in the call issued and served by the board of education, a large number of the inhabitants assembled; the appellants say "between 100 and 150, and JUDICIAL decisions: meetings 393 all the room could hold," and respondents do not controvert said statement. The hour of holding the meeting must be strictly observed and there is no allegation that anything was done prior to the hour at which the meeting was called. No authority exists for holding the meeting before the designated hour, and no legal objection rests upon the inhabitants who may have assembled at such time to wait for others before organizing and commencing the proceedings. The duty to call a meeting to order is not enjoined upon any particular person, and any voter of the district may do this. Nathan Johnson called the meeting to order and he had the legal right to do so. The school law directs that such dis- trict meetings shall appoint a chairman, and such district meeting has the legal right to elect their chairman. Nathan Johnson was duly elected chair- man, and the meeting, having authority, elected W. F. Johnson as secretary. As soon as a chairman and secretary of the meeting were elected said meeting was duly organized and was in a position to transact any business pertaining to the matter for which the meeting was called to act upon. It was not neces- sary to the legality of the meeting that the call by virtue of which the inhabit- ants had assembled, should be read. It must be assumed that the board of education had given legal notice of the meeting and the objects for which it was called, and the inhabitants present were fully informed thereof ; but it is established by a preponderance of proof that the chairman stated the call for the meeting. There being no provisions of law nor code of rules to regulate the proceedings of district meetings ; that must be held to be in order to which a majority consents. The office of the chairman is to facilitate the ascertaining of the wishes of the majority. If their determination is illegal the remedy is by appeal. It appears that some discussion wac had relative to the business stated in the call, but that no motion or resolution relating thereto was made, but that a motion to adjourn sine die was made and upon a vote taken thereon was adopted and thereupon the said meeting was declared adjourned sine die. It is the duty of a chairman to put every question to vote which is made and seconded. A motion for adjournment takes precedence of all others. Suth motion, however, can not be received after another question is actually put and while the meeting is engaged in voting upon it; but in such case the vote must be concluded and tlie result announced. No allegation is made or proof pre- sented that, when the motion was made to adjourn, another question had been put, nor that the meeting was engaged in voting upon it. The special meeting, under the call of the board of education, having been duly held, organized and adjourned sine die, no legal meeting of the inhabitants of the district could be held except in pursuance of legal call therefor, as required by the school laws. In refusing to record the proceedings of said special meeting of July 5, 1893, and the proceedings of the annual meeting, held on August 22, 1893, upon the records of the district, the said board of education acted without authority •of law and in violation of its duty. No authority is given by the school law to boards of education to decide whether or not the special meeting or the annual 394 THE UNIVERSITY OF THE STATE OF XE\V YORK meeting, of their respective school districts, liave hcen legally conducted or not ; nor wlicthcr or not the proceedings thereof, furnished to them by the clerk or secretary of the meetings, are correct or not, or whether the action and proceedings had and taken at said meetings, are legal or not. Neither district meetings nor district officers have any authority, under the school laws, to decide or declare that a special or annual meeting was not legally held, nor that the action and proceedings had and taken at such meetings are irregu- lar, incorrect or illegal. The power to decide such matters is given, by the school laws, only to the Superintendent of Public Instruction, in an appeal taken from the action and proceedings of such meetings. It was the plain duty of the board of education of district no. i of East Chester to have directed the record of the proceedings of the special meeting held July 5, 1893, P''^" sented to it by Mr W. V Johnson, the secretary of said meeting, and also the proceedings of the annual meeting held on August 22, 1893. The respondents ask that the appeal herein be dismissed on the ground that it was not brought until more than sixty days after the performance of the acts complained of, or the appellants had knowledge of said acts, and allege that the board of trustees have been misled, and has allowed the board to obligate the school district by the purchase of property, etc.. etc.. which was not done until after the time for an appeal had expired. Assuming, for the sake of argument, that the alleged meeting of which Mr Stilwell was chairman was legal, no action was had and taken that author- ized the board of trustees to purchase, or to contract for the purchase, of any property whatever without further action of the qualied voters of the district, duly and legally assembled. Such alleged meeting voted an appropriation of $8000 be made, for the purciiase of a site and the erection of a schoolhouse thereon, in that section, appropriation to be obtained, etc. Under the school laws the authority to designate a school site is given only to the qualified voters of the district in meeting assembled, and the said district can not delegate the power to select and designate such site to the trustees, or a committee, or any person or persons. No site was designated at such alleged meeting, and hence the trustees had no authority in law to purchase, or contract to purchase, a site, and. hence, had no authority in law to contract for the erection of a school- house anywhere in said district, at least until a site had been legally designated. If said trustees have entered into contracts for the purchase of a site or the erection of a schoolhouse. the district is in no wise bound by such action, and hence the delay in bringing this appeal in no way affects the district. The ai)pellants allege " that the reason the appeal was not taken before was an error of judgment on the part of the appellants and their advisors." The alleged meeting of which Mr Stilwell was chairman was so clearly illegal and void, and the action of the trustees, or a majority of them, in refusing to permit the proceedings of the special meeting of July 5, 1893, and the annual meeting of August 22, 1893. to be recorded in the records of the district, was so clearly a violation of duty on tlie part of said trustees, that the appellants might well JUDICIAL decisions: meetings 395 have believed that, upon reflection and consideration, the said trustees would agree with the appellants, and reverse their action. In such judgment the appel- lants erred. The appellants have rendered a satisfactory excuse for their delay- in bringing the appeal. The appeal herein is sustained. I do find and decide that the meeting held on July 5, 1893, in union free school district no. i, town of East Chester, Westchester county, of which meeting S. J. Stilwell was chairman and J. M. Reid was secretary, and alleged to be the special meeting of said district, held under the call of the board of education of said district, issued by said direction of said board at its regular monthly meeting, held on June i, 1893, was not a legal valid special meeting of said district. That the action and proceedings alleged to have been had and taken at said meeting are, and each of them is, illegal, invalid and void, as the action and proceedings of a legal and valid called and held special meeting of said district. It is ordered that the action and proceedings of said meeting be and they are hereby vacated, set aside and altogether held for naught, as the action and proceedings of a legally called and held special meeting of said district. It is further ordered that the board of education of union free school dis- trict no. I, town of East Chester, Westchester county, forthwith cause to be recorded in the records of said district the minutes of proceedings of a special school meeting of said district, held on July 5, 1893, of which meeting Nathan Johnson was chairman and William F. Johnson was secretary, and which said minutes were duly delivered to said board ; and that said board also forthwith cause to be recorded in the records of said district the minutes of proceedings of the annual meeting of said district, held on August 22, 1893, of which meeting Nathan Johnson was chairman and W. E. Hayward was secretary, and which said minutes were duly delivered to said board. 4204 In the matter of the appeal of Albion Norris Fellows from action and decision of David Fox and Theodore F. Clay, trustees of school district no. 3. town of Ramapo, Rockland county, and from proceedings of a special meeting of said district, held September 19, 1893. Where, in a school district at the annual meeting, a trustee and other district officers were elected and the business of the annual meeting transacted, and after said meeting the trustees of the district learned that there were over 300 children of school age reported in the district, and a special meeting was called for the election of district officers, trustees assuming that the election of officers at the annual meeting was invalid, and at such special meeting a person other than the one elected trustee at the annual meeting was elected trustee. Held, that said trustees had no power, under the school laws, to hold and declare the election of the trustee at the annual meeting as illegal and void, and that so much of the special meeting as related to the election of a trustee be vacated and set aside as illegal, invalid and void. Decided November 24, 1893 2^Ui THE UNIVERSITY OF THE STATE OF NEW YORK Cruokcr, Supcr'mtcndcnl The above-named appellant ajipeals from the action and decision of Messrs l-'ox and Clay, two trustees of school district no. 3. town of Ramapo, coimty of Rockland, in refusing to recognize the appellant as a duly elected trustee of said district, and in refusing to permit him to act as such trustee; and also from the proceedings of a special meeting of said district held therein on September 19, 1893. An answer has been made by said I'^ox and Clay to said appeal. It appears that an annual meeting of said district was held on the fourth Tuesday of August 1893, to wit, August 22, 1893; that at said meeting the business of the annual meeting was transacted; that the appellant was duly elected a trustee of said district, in place of James M. Cookson, whose term of office as a trustee of said district expired on said fourth Tuesday of August 1893, 38 votes having been cast, of which the appellant received 20, and said meeting adjourned; that at two meetings of said trustees, held shortly after said annual meeting, of each of which meetings the appellant received notice from the clerk of the district. The appellant attended at the first of said meet- ings and the rcsi)ondents expressed doubts as to the legality of the appellant's election as a trustee ; that at the second of said meetings the respondents still refused to recognize the ai)pellant as a trustee, and thereupon called a special meeting to be held in said district on Tuesday, September 19, 1893, at 7.30 p. m., for the purpose of electing a trustee in place of James Cookson, and appropriating the sum of $2500 to meet the expenses for maintaining the school during the current year. That said special meeting was held on said September '9. 1893, and II. C. Wanamaker was elected chairman; that Peter D. Johnson and the appellant herein were nominated for trustee; that a ballot was taken, 107 votes being cast, of which said Johnson received 66 and the appellant 41 ; that an appropriation of $24CX3 was voted by ballot, the whole number of votes cast being 33, of which 29 were in favor and 4 against the appropriation; that thereupon the meeting adjourned. That on September 25, 1893, a meeting of said trustees was held at which the appellant was jiresent and made formal effort to obtain recognition by the respondents as a trustee of said district, which was refused, and that said Peter D. Johnson was recognized by the respondents as such trustee. No appeal has been taken from the action and proceedings had and taken at the annual meeting of -^aid district, held on the fourth 'iuesday of August 1893. The respondents allege that after the annual meeting in said district, on August 22, i8«>3. it was discovered by them that there had been over 300 chil- dren of school age reported, and that the meeting for the election of district officers had been held upon an improper day. and that they thereupon concluded that the election for officers which had taken place was void ; that the respond- ents, acting upon the advice of the school commissioner of the commissioner district in which the said school district is situate, ordered the calling of the JUDICIAL decisions: meetings 397 said special meeting that was held on September 19, 1893, as hereinbefore stated. The respondents deny the claim of the appellant that the meeting at which he was elected a trustee was a lawful meeting for the election of district officers; and allege that the meeting for that purpose should have been held on the last Wednesday next following the last Tuesday of August, " as demanded by the Code of Public Instruction of the State of New York, at section of chapter 248 of the said code." They further state that the mistake was made inadvertently, and that they, on finding out said mistake, proceeded in good faith, and the advice of said school commissioner, to remedy the same by calling a special meeting for the purpose expressed by them. From the papers presented in this appeal, it is clear that the respondents, as trustees of said school district, have acted under a misapprehension of their powers and duties as such trustees, under the laws of the State relating to com- mon schools, and under a misapprehension of the laws of the State in force at the time of the two meetings mentioned in said appeal papers, relating to the election of school district officers. Trustees of school districts have no power, under the school laws, to set aside or invalidate the proceedings of a district meeting upon the assumption by them that such proceedings are or were illegal and void. The respondents herein had no power to hold or declare the election of a trustee at the annual meeting of said district, held on August 22, 1893, as illegal and void; nor that the election of said trustee was had upon the wrong day; nor to set aside or invalidate the proceedings of said meeting in such election, nor to call a special meeting to elect a trustee upon the assumption that the election at said annual meeting was invalid and void. The respondents as such trustees have acted, in the matters stated in the appeal papers, under a misapprehension of the laws of the State in force in the time said annual and special meetings were held, relative to the election of dis- trict officers. Under the school laws in force on July i, 1893, the annual meeting of each school district (except where the Legislature by a special act has desig- nated a different day) shall be held on the fourth Tuesday of August in each year, and to choose one or three trustees, as hereinafter stated, a district clerk, collector etc. In districts that have three trustees, one trustee shall be elected at each annual meeting to fill the office of the outgoing trustee. (See sections 16 and 27 of title 7 of the Consolidated School Laws of 1864, and the amend- ments thereof.) By chapter 248, of the Laws of 1878, and acts amendatory thereof, in force on July I, 1893. being "An act in relation to the election of officers in certain school districts " (said chapter not forming any part of the Consolidated School Laws of 1864) it is enacted: " Section i. In all school districts in this State in which the number of children of school age exceeds 300, as shown by the last ^annual report of the trustees to the school commissioner, all district officers, except the treasurer and collector of union free school districts, shall be elected 398 THE UMVKKMM t'F THE STATK OV NKW YORK by ballot." This section remains the same as when adopted on May 13, 1878. It has always been the law that trustees of union free school districts should be elected by ballot. Since April 29, 1893, it has been the law that all district officers in common school districts shall be elected by ballot. (See section 5, chapter 500, I^aws of 1893.) When the annual school meeting was held in district no. 3, town of Ramapo. on August 22, 1893, assuming that the trustees of the dis- trict and the (|ualilied voters thereof had knowledge that the number of children of school age in the district exceeded 300, the method of electing one of its district officers, namely, a trustee, required by section i, above quoted, was complied with, that is, he was elected by ballot. Section 2 of said chapter 248 of the Laws of 1878, as amended by section II of chapter 245 of the Laws of 1889, and as said section has stood since May 6, i8«^^. provides such election (that is, district officers in school districts where the number of children of school age exceeds 300) shall be held on the Wednes- day next following the first Tuesday in August in each year (not on the Wednes- day next following the last Tuesday of August, as assumed by the respondents), between the hours of 12 o'clock midday and 4 o'clock in the afternoon, at the principal schoolhousc in the district, or at such other suitable place as the trustees may designate. When the place of holding such election is other than at the principal schoolhousc, the trustees shall give notice thereof, etc. The trustees may. by a resolution, extend the time of holding the election from 4 o'clock until sunset. Section 3 of said chapter provides that the trustees or board of education, or such of them as may be present, shall act as inspectors of election, and immediately after the close of the polls shall proceed to canvass the votes and declare the result; if any such district shall have but one trustee, the district clerk shall be associated with him as inspector; if a majority of the trusteeii shall not be present at the time of opening the polls, those in attendance may appoint any of the legal voters present to act as inspectors in place of the absent trustees; if none of the trustees shall be present at the time for opening the polls, the legal voters may choose those of their number to act as inspectors. Section 4 enacts, that the trustees shall, at the expense of the district, provide a suitable ballot box, in which the ballots shall be deposited as they are received; such ballots shall contain the names of the persons voted for, and shall desig- nate the office for which each one is voted, and the ballots may be either written or printed, or partly written and partly printed. Section 5 enacts that the dis- trict clerk or clerk of the board of education shall attend the election, and record in a book to be provided for that purpose, the name of each elector as he deposits his ballot ; the method of counting the ballots, etc. Section 6 provides for the challenging of voters and states the declaration to be made by a voter so challenged, etc. Section 7 enacts that disputes concerning the validity of any such election, etc., shall be referred to the Superintendent of Public Instruc- tion, whose decision shall be final, and authorizes such Superintendent, in his discretion, to order a new election. Section 8 enacts that the persons having the highest number of votes respectively for the several offices shall be declared JUDICIAL decisions: meetings 399 elected, and in the case of a tie, how a decision shall be made. Section 9 enacts that the annual meeting, in the several districts, shall be held as now provided by law, for the purpose of transacting all business, except the election of officers. In the enactment of said chapter 248 of the Laws of 1878, the intent of the l-egislature seems to have been to provide to school districts having more than 300 children of school age a method of holding elections for their school oflicers on the next day after their annual meeting, and that a plurality of votes should elect. The Legislature, assuming that in said districts the number of qualified voters residing therein would be largely in excess of those residing in the ordinary districts, containing a less number of children, and that the ordinary business of the annual meeting and election of officers could not be disposed of between 7.30 p. m. and a proper hour of adjournment; and that a full repre- sentation of the district could be had in the selection of district officers by keeping the polls of said election open for at least four hours during the day following such annual meeting than could be obtained in the time usually allowed for a ballot at the annual meeting. At the time of the enactment of said chapter 248, common school districts were not required to elect their district ofticers by ballot. Last winter the Consolidated School Law of 1S64 was amended, re- quiring such election to be by ballot. As now, all school districts, whether common or union free school districts, are required to elect their district officers by ballot, and said districts, in the absence of specific enactments as to the method of taking such ballots or the length of time the polls may be open, can adopt its own method in that regard, and if unable to finish the transaction of its business at the annual meeting can adjourn to the next day or any subsequent day, the provisions contained in said chapter 248 do not seem to be necessary, as the intent of the Legislature, in its enactment, can be carried out under the provisions of the Consolidated School Act of 1864 as amended and now in force. The time of holding the annual meetings in the school districts having been fixed last winter on the fourth Tuesday of August in lieu of the first Tues- day, it was by inadvertence that section 2 of said chapter 248 of the Laws of 1878 was not also amended by inserting the fourth instead of the first Tuesday of August, therein. It is apparent that the special meeting held in said district on September 19, 1893, was not an election of school district officers, nor were the action and proceedings then and there had and taken under and in accordance with the pro- visions contained in said chapter 248 of the Laws of 1878 and the amendments thereto. The meeting or election was not held on the day named in section 2 of said chapter 248. and there does not appear to be any provision in said chapter for an election on any other day than the one named therein; there was no attempt to elect any school district officers ihereat, except a trustee; the trustees did not act as inspectors of election, nor were the polls of said election kept open from 12 o'clock midday until 4 o'clock in the afternoon ; business was transacted that should have been transacted at the annual meeting. As the respondents allege that they did not discover, until after the annual meeting of the district, that the number of children of school age in the district 400 THE UMVliKSlTY OF Tllli STATK (»l XliU VDKK exceeded 300, and it does not appear tliat the voters of the district had such knowl- edge, the (hstrict could not, if it desired, avail itself of the provisions contained in said cha])ter 248 of the Laws of 1878 until the next annual meeting of the district after such knowledge was discovered. I find and decide that as no appeal has been taken from the said annual meeting, held in said district on August 22, 1893, ^'^'^t said meeting was a legal and valid meeting, and that the action and proceedings had and taken at said meeting are. and each of them is, legal and valid. That the respondents, as trustees of said district, had no legal authority lo hold, declare or decide that the election of ajjpcllant as a trustee of said district, at said annual meeting of said district, was either illegal, invalid or void. That the action and proceedings had and taken at said special meeting of said district, held on September 19, 1893. so far as they relate to the eleclicm of a trustee, arc, and each of them is, invalid and void. The appeal herein is sustained. It is ordered that the action and proceedings had and taken at a special meeting of school ilistrict no. 3. town of Ramapo. county of Rockland, on Sep- tember J 9, 1893, so far as they relate to the election of a trustee of said district, are. and each of tliLUi is. hereby vacated and set aside as illegal, invalid and void. It is further ordered that the resjjondcnls herein, as trustees of school dis- trict no. 3, town of Ramapo, county of Rockland, be, and they are, hereby directed to recogm'ze the apjKdlant herein. Albion Norris Fellows, as the legally elected trustee of said district and as duly elected as such trustee in place of James H. Cookson, whose term of oflice expired on August 22, 1893. 4240 \\\ the matter nf the api)cal of Elias Bryant v. school district no. 3. Mount I'leasant, Westchester county. Where four resolutions are sul.initted to a meeting of a school district, the first directing the hoard of education to purchase a new schoolhouse site, the second empowering the board to build a new schoolhouse on said site at a cost not to exceed $4500, the third that an amount of $6000 he raised by tax, payable in ten annual instalments, and the fourth empowering the sale of the present schoolhouse and site, and said four resolu- tions are voted not separately, but in gross and by vive voce vote. Held, that the action of the meeting was illegal and invalid. Decided April 24, i8<74 W. H. H. Ely, attorney for appellant L. T. Yale, attorney fur respondent Crooker, Snpcr'xnicndcnt This is an apjieal from the action and decision of a special meeting of school district no. 3, town of Mount Pleasant, held on March 4, 1893, in the alleged adop- tion of four resolutions, as follows: JUDICIAL decisions: liketings 401 Resolved, That the board of education be empowered and instructed to purchase a new school site as follows: A tract of land on the south corner of Dayton and Highland avenues, with a frontage of 125 feet on Highland avenue and 262 feet on Dayton avenue, containing two-thirds of an acre, more or less, and to pay for the same the price of $1500. Resolved, That the board of education be further empowered and instructed to build a new schoolhouse upon said site, according to such plans and specifi- cations as the said board may approve, at a cost not to exceed $4500. Resolved, That the amount of $6000 required for the foregoing purposes be raised by taxation in ten annual instalments of $600 each. Resolved, That the board of education is hereby empowered to sell the present schoolhouse and site for an amount not less than $1500, said amount to be disposed of as may be determined by the annual meeting of the district next succeeding such sale. The appeal is supported by the affidavit of the appellant and a large number of voters in said school district. The appellant alleges several grounds of appeal, the principal ones being that the vote was taken upon the four resolutions together and by a viva voce vote. The respondent has answered the appeal, and which answer is supported by the affidavit of the clerk of the district, and a copy of the proceedings of said special meeting as kept by the secretary thereof. It appears that on or about February 9, 1893, a call for a special meeting of said district, to be held on March 4, 1893, was made and signed by four of the members of the board of education, to act upon the resolutions hereinbefore stated, and which notice was duly and legally given to the voters of said district ; that about sixty persons assembled at the time and place named in said notice and organized by the election of a chairman, the clerk of the district acting as secretary; that the call for the meeting was read, whereupon statements were made, both for and against the resolutions set forth in the call for the meeting, by persons present; that a motion was made that the resolutions as read be adopted, and the chairman asked if the motion referred to one or all of such resolutions, and the reply was made that the motion referred to all of the reso- lutions as read ; that the chairman then put the motion by stating : " You have heard the motion. All in favor say aye," upon which there was a response of " aye," and upon the chairman calling for the noes there was no response ; that a Mr Acker thereupon handed a paper to the secretary of the meeting which the secretary handed to the chairman, and while the chairman was examining the paper a motion was made that the meeting adjourn, which motion was put by the chairman and declared by him as carried and the meeting adjourned. In the affidavits presented by the appellant it is alleged that there were no statements made upon the matters embraced in the resolutions; that the vote taken at the meeting was not that the resolutions be adopted, but that " the call be adopted as read " ; that no " nay " vote was asked for by the chairman. I am of the opinion that motion voted upon was that the resolutions as read b'e adopted. It clearly appears that the resolutions were not voted upon sepa- rately, but in gross, and that the vote was a viva voce one. The first resolution 402 Till". LM\1.KM1V l>i' 111!. .^lATK OF NEW YORK was one changing the site and designating a new site, and directing its purchase by the board of education. Section 20, title 7 of the school law requires that the site of the schoolhouse " shall not be changed unless a majority of all the legal voters of said district, present and voting, to be ascertained by taking and recording the ayes and noes, at a sjiecial meeting called for this purpose, shall be in favor of such new site." The intention of the statute is to preserve the record, not merely of the majority, but of those who constituted the majority of the legal voters of the district who were present and took part in the proceedings ; the names of the voters, as well as the way they voted, must be recorded. This Department has held that the provisions of section 20, title 7, above cited, apply to action taken to change a site in a union free school district. Aside from action to change a schoolhouse site, the voters at a meeting in a union free school district, may determine the method of voting upon questions coming before the meeting. This Department does not favor a viva voce vote upon any important question, and especially any question involving the expendi- ture of money or authorizing a tax. At a school meeting in any school district none but qualified voters should be permitted to participate in any manner in the deliberations had, and upon all important question the vote should be taken either by ballot or ascertained by taking and recording the ayes and noes. The adoption by the meeting of the four resolutions, namely, one changing a school site and designating a new site ; one authorizing the construction of a new schoolhouse ; one authorizing a tax of $6000, and one authorizing the sale of the school site and house in gross, and the failure to have such meeting pass upon each resolution separately was improper and such action was invalid and void. The appeal herein is sustained. It is ordered. That so much of the action and proceedings of a special meet- ing, held on March 4, i district no. 2, town of Greenburgh, county of Westchester. A manufacturing corporation in which a member of a board of education was a stock- holder and also an officer, entered into a contract with the district. The officer's removal from the office of trustee is sought because of the contract. Held, that it is doubtful 430 THE UNIVERSITY OF THE STATE OF NEW YORK if the case at l)ar is one wiiicli comes within the provisions of section 473 of the Penal Code, which forliids any school ofticcr from becoming voluitlarily interested in a contract etc. Appeals not promptly taken, except when tlie delay may for satisfactory reasons be excused, will not be entertained. Decided January 23, i8yi Charles K. Davidson, attorney for applicant L. T. Yale, attorney for respondent Draper, Siipcrinlciidoit William A. Bnrnliain is president of tlie board of education in the district above named, and treasurer of, and a stockholder in a corporation known as " Lord's Horticultural Manufacturintj Company." This being so, the board of education in the year 1889, entered into a contract with said corporation for heating apparatus in one of the schoolhouses under its charge, for the sum of $500. The apparatus was supplied and paid for. The petitioners now think that the relations of Mr Ijurnham to the board of education, and to the manu- facturing company, were such as to make it unlawful for the one to enter into a contract with the other, and that having permitted this to be done, ask that he should be removed from office therefor. By an amendment to section 473 of tlie Penal Code made in 1888, it was provided that any school t>rticer " who is authorized to make any contract in his official capacity, who voluntarily becomes interested individually in such con- tract, directly or indirectly, is guilty of a misdemeanor." Whether the act complained of comes within the scope of this statute is somewhat doubtful. It would be a very stringent rule which would prohibit a manufacturing corporation from entering into a contract with a board of education because one of its stockholders was a member of such board, and I think it may well be questioned whether in that event, such stockholder would be deemed to " become voluntarily interested indirectly " in such contract. But whatever conclusion might be finally arrived at upon that question, I am free to say that there are circumstances surroimding the matter which I should take into consideration. It is now many months since the transactions complained of occurred. The time far bringing the matter before the Depart- ment has expired. The contract for heating apparatus was let only after an open competition therefor. Four bids were presented besides the one from Lord's Manufacturing Company. That was the lowest. It is in proof that the company derived little or no profit from the contract. There is no pretense that there was any unfair advantage given to the company in letting the contract, or that the work was not well and satisfactorily performed. It is developed that there is considerable ill-feeling in the district, and that it has extended to the members of the board, and it is very manifest that it is in consequence of this unfortunate ill will that the present application has been made. For these considerations, I conclude that the application should be denied. JUDICIAL decisions: officers 431 3951 In the matter of the appeal of William A. Douglass and others v. school district no. 2, town of Hunter, county of Greene. Expenses of a district collector, incurred by him defending an action brought against him in his official capacity, should be allowed him, when a bill therefor itemized and verified is presented to a district meeting. A charge for the collector's personal services, how- ever, can not be allowed. A note given to tlie collector l)y the trustee for such expenses, without authority of a district meeting, is invalid as a district obligation. Decided December 30, 1890 C. M. Cartwright, attorney for appellant Draper, Supcrintenden t This is an appeal from the action of a special meeting held in the district above named on the 27th day of October 1890, allowing and appropriating the sum of $48.75, in payment of a claim of Luman M. Coles for services and expenses as collector of said district, in defending an action brought against him as such collector. This district has unfortunately been involved in considerable controversy. The matter here in dispute has been the subject of contention for some time. It was passed over the annual meeting, when it should have been attended to. A special meeting was called for the purpose of acting upon it. Mr Coles pre- sented a bill to the special meeting. This bill included an item of $45, being the amount of a note given to him by the trustees of the district, a year or two since, in settlement of his claim, together with interest on the amount of said note. The district voted to pay the claim by a vote of 28 to 15. The appellants raise all possible objections to this action. Many of their objections are frivolous. In one position, however, they are entirely correct. The note in question was never authorized by the district. Indeed, it had no authority to authorize such a note. It was invalid as a district obligation. The district was entitled to have a complete itemized statement of Mr Coles' claim presented to it for action. This was not done. Mr Coles should be reimbursed for all expenses which he incurred in the liti- gation referred to. He can not be paid for any services rendered. He should make a bill plainly indicating what payments he has made, and if he has received moneys from any source in consequence of such litigation, he should credit the same upon his bill. The balance ought to be paid by the district. The matter may readily be presented at the next special or general meeting in the district, but the action of the special meeting in this connection, can not be upheld. The appeal is therefore sustained. 43-' TrIE U.MVEKSITV OF THE STATE OE NEW YORK 3578 In Ibc matter of the appeal of Ilenrv 11. lirazcc v. Jolin W. Hogeboom, trustee of school district no. i, of the town of I'lenhcim, county of Schoharie. A person elected trustee of a school district can not then be challenged as to his eligibility to hold the oflice and required to be sworn and show his qualifications. A challenge is proper only at the time a person olt'crs his vote. Decided March 25, 1887 Draper. Stipcrintcndcnt This is an appeal by Henry IT. Rrazce, a resident of school district no. i, of the town of rilcnheini, Schoharie county, New York, against Johi; W. Hoge- boom. who has assumed the oflice of trustee of said district by reason of the action of the annUvil meeting held in said district August 31, 1886. 'J'he alleged grounds of appeal are as follows : 'J'hat at the annual school meeting held in said district, the appellant was voted for for trustee; that he received a majority of all the votes cast for said ofifice; that the chairman of the meeting declared said Brazee elected trustee; that subse(|uently, some electors at said school meeting objected to the election of Brazee and challenged his right to hold the office ; that the chairman thereupon requested said Brazee to be sworn as to his qualifications to hold said office ; that said Brazee declined to be sworn or make any statement at that time; that the chairman thereupon declared that said Brazee was not eligible and directed the meeting to proceed to elect a trustee and that thereupon a ballot was taken and John W. Hogeboom was declared elected trustee for the ensuing year and assumed the duties of the office. The respondents deny that the appellant was elected; they deny that the vote was even counted upon the first formal ballot for trustee and allege that Brazee is not qualified to hold the office of trustee. In order to arrive at the facts of the case, the matter was referred to School Commissioner Le- Grand Van Tuyl for the purpose of taking the evidence of the witnesses for the respective parties. From the evidence so taken and returned to me, I find the facts are as follows : 1 That the appellant received a majority of all the votes cast at said annual meeting for the office of trustee. 2 That the chairman of said meeting duly declared appellant elected trustee. 3 That the right of said Brazee to hold the office of trustee was challenged by voters at that meeting and that said Brazee refused to be sworn and to state his qualifications. 4 That subsequently John W. Hogeboom, the respondent, was voted for and received a majority of the votes cast at said meeting for trustee. The only question, then, which arises in this case, is whether Mr Brazee's refusal to be sworn as to his qualifications to hold the ofifice of trustee after his election would disqualify him. It does not appear from the pleadings, or from the examinations of the witnesses before the commissioner, that the right JUDICIAL decisions: officers 433 of the appellant to vote was questioned. It does not appear that any challenge was offered when he attempted to vote at said meeting. It does appear that he voted repeatedly without any objection being interposed. In fact, he voted after the chair had decided that he was not qualified to hold the office of trustee. It is provided by section 13, title 7 of the general school laws, that any person offering to vote at school meetings may be challenged as unqualified by any legal voter, and that the chairman presiding at such meeting, shall require such person offering to vote to make a declaration of his qualifications to vote and every person making such declaration shall be permitted to vote, and if he refuses, his vote shall be rejected. By the next section, it is provided that any person who shall make, a false declaration of his right to vote shall be guilty of a misdemeanor, and that any person not qualified to vote, who votes at such meeting, shall forfeit five dollars, to be sued for by the supervisor of the town. There is no provision of law which authorizes a challenge of a person, except when he attempts to vote. It appears from the evidence in this case that the right of Mr Brazee to vote was not challenged at any time. The challenge, if any, was made as to his cjualifications to hold the office of trustee, and then, after his election as trustee. The appellant refused to comply with the request of the chairman of the meeting to be sworn, and denied his right to recjuire him to do so. I am of the opinion that the chairman of the meeting did not possess the right of inquiring into the qualifications of the appellant to hold the office of trustee in this manner. The appellant in claiming the office of trustee by this appeal must show, in addition to the fact that he was duly elected, that he was and is qualified to hold the office. It very clearly appears from the evidence taken before the commissioner that he possesses the necessary qualifications. It appears that he is over 21 years of age and a resident of the district in question and that he rents real estate in the district and did at the time of the annual meeting, and that he was and is a duly qualified voter in said district and therefore eligible to hold the office of trustee. The appeal is sustained and the appellant declared to be the trustee of the district. 4340 In the matter of the appeal of Azariah J. Hathaway v. George N. Luther, trustee of school district no. 6, town of Otego, Otsego county. Where an action is brought in the courts against a collector of a school district for his official acts in the levy and sale of property the school district has authority to vote a tax to pay such collector for the reasonable expenses incurred by liim in defendisjg said suit. Decided March 15, 1895 F. D. Shumway, attorney for respondent Crooker, Superintendent The appellant herein appeals from the proceedings of a special meeting held in school district no. 6, town of Otego, Otsego county, on November i, 434 THE UNUKUSnV OF lllli STATE OF NEW YORK 1894, and from a tax list and assessment made and issued by George N. Luther as trustee of said district. The said trustee has answered said appeal. From the i)apers presented it appears: That during the school year com- mencing .\ugust I. iSy^. one Lavelle Lent was the collector in school district no. 6, town of Otego, Otsego county ; that on October i r, 1893, the then trustee of said district issued and delivered to said collector a tax list and warrant, in which tax list the appellant herein was taxed and assessed for the sum of $10.45: that said appellant refused to pay said tax and said collector levied upon two cows, the property of the appellant, and subsequently sold one of said cows for $15, which amount covered said tax of $10.45 '^"d the fees and expenses of the col- lector and the other cow was returned to the appellant; that in the month of November 1893, the appellant commenced an action in justices' court against said Lent for the conversion of said cows, which action was defended by said Lent and in such tlefense said Lent employed counsel, and which action was decided in favor of said Lent ; that on the same day of the decision of the afore- said action the appellant commenced a second action before another justice against said Lent for the like cause of action, in which action said Lent employed counsel, and said action was decided in favor of said Lent; that on the same day that said second action was decided appellant brought a third action for like cause as the first two, in which action said Lent employed counsel and defended and was successful in such defense. That the aggregate sum expended by said Lent in defending said three actions was $47.80; that in November i8<>4» the respondent called a special meeting of said district to be held on Novem- ber ]6, 1894, for the purpose of considering the payment by the district of the legal and other expenses of said ]>ent in defending said three actions brought against him by the appellant herein ; that every qualified voter in said district, including the appellant herein, was duly and legally notified of the time and place of said special meeting and the business to be transacted thereat; that at said special meeting a motion or resolution was duly adopted unanimously, said vote thereon being taken by ballot, to pay said Lent said sum of $47.80, and that the sum be levied by tax upon said district; that on December 18, 1894, the respondent duly issued his tax list and warrant for the collection of said sum of $47.80, which sum has been collected including the tax levied in said tax list against the appellant herein, and said tax list and warrant duly returned, and the amount so collected paid over to said Lent. The appeal herein was brought on January 14, 1894. Under section 14, of article i, title 7, of the Consolidated School Law, the qualified voters of any school district assembled at a meeting, duly called and held, have the authority to vote a tax to pay the reasonable expenses incurred by district officers in defending suits or appeals brought against them for their official acts. It is clear that the aforesaid three actions brought by the appellant herein against said Lent were, and each of them was, brought against him for his official acts as collector of the district, and the district had authority to vote JUDICIAL decisions: officers 435 the tax to pay Lent for reasonable expenses incurred by him in defending said suits. The appellant herein, having failed to establish his appeal said appeal should be dismissed. Appeal dismissed. 3793 In the matter of the appeal of James S. Howard and others v. union free school district no. 2, of the town of Westport, county of Essex. In a union free school district having a board of education of nine members, five of whom resigned for the obvious purpose of defeating the expressed will of the voters in select- ing a schoolhouse site, the remaining members of the board, four in number, fill the vacancies caused by such resignations, and the board so newly organized continue to exercise the functions of a legal board ; held, not to be violative of the authority and the policy of the law for such four remaining members of the board to exercise the func- tions of such board, and that the four members of the board exercised a power which the statutes confer, and which it was to the interests of the district to have them exercise. They exercised it only so far as was necessary to maintain school administration in the district uninterruptedly. The persons appointed to fill vacancies in the board were, if not officers de jure, such de facto. They had color of title to their offices at least. Their acts, taken in conformity with the directions of a district meeting, are binding upon the district. Decided July 29, 1889 Anthony B. Ross, attorney for appellant Matthew Kale, attorney for respondent Draper, Superintendent A special meeting of the electors of the above-named district was held on the 1 6th day of February 1889, at which it was resolved to build a new house at a cost not to exceed $5000, and to purchase a new site therefor, which was designated. At an adjourned meeting held April 20th the vote designating a site was rescinded, and another site selected. At another adjourned meeting held May 4th it was voted that the title to the last site selected was unsatis- factory, and that the new building be erected upon the site heretofore in use by the district. At a meeting held May i8th it was voted not to build on the old site, and still another new site was designated. At an adjourned meeting held June ist it was voted to rescind the action taken at the last preceding meeting, and build upon the same lot previously designated for a new site by the meeting held April 20th, and which is known as the " Pollard " lot. At the meeting held June ist a communication was read, signed by live of the nine members of the board of education, resigning their places upon the board. At a meeting of the four remaining members of the board held June 3d, they first "elected one new member to fill one of the vacancies, and after he had joined them, the five chose four more to fill the remaining vacancies. At the same 436 THE UNIVERSITY OF THE STATE OF NEW YORK meeting aiul another held the following day, a deed was i)rocured of the site last designated by the district meeting, and the members of the board thus con- stituted, gave their note for the purchase price, being the sum of $1200. ]*"rom the action of the district meeting designating the " Pollard " lot, and from the action of the board in purchasing the same, this appeal is taken. I find no allegation that the proceedings of the several district meetings were not regularly taken, and in the manner prescribed by the statute. It is said that they were not all well attended by the people of the district. In view of the frequency with which they were held, this is not surprising, but it does not invalidate the lawful action of those who did attend. It is said that the site last determined upon is not suitable for a school site. Thi^ is as strongly disputed. It seems more than likely that if it were on tlie other side of a creek which divides the village, the differing opinions as to its suitableness would be exactly reversed. There has evidently been enough of discussion and disj)Ute over the matter. It seems to have been regularly desig- nated as a new school site by a majority of the electors who chose to attend a meeting, competent to act upon the matter. This being so, there is no such preponderant proof of unsuitableness as to warrant me in interfering with that action on that account. But the appellants say that the site last designated has not been purchased, by reason of the fact that the hoard, assuming to make the purchase, was not a board, and was powerless to bind the district. They contend that, after the resignations of five members, the remaining four, being less than a majority of the whole number, had no power to exercise any of the functions of the board, even that of filling the vacant places. Acting upon the theory that th.e vacancies created by the resignations have not been legally filled, the appellants have heretofore applied to the school com- missioner to fill the same, which he has undertaken to do, and for some reason which does not appear, has reappointed the five members who resigned. In the meantime, it appears that the four original members of the board, with the others appointed by them, have exercised control over the new site which they have assumed to purchase; have made some changes thereupon, and have employed an architect, procured plans and taken other steps toward the erection of the new building. The question raised by the appellants as to the right of less than a majority of the whole number of the board of trustees in a union free school district to fill vacancies occasioned by the resignations of the majority, is a new and grave one. It is the policy of the school law to guard against any exigency which will cause a break or work a failure in the administration of the school system, and it is likewise its policy to provide officers for administering that system through the agency of the district itself, or of other district officers. Thus, in an ordinary school district, it provides that a vacancy in the office of trustee may be filled by appointment by the school commissioner. The district may act at any time JUDICIAL DECISIONS : OFFICERS 437 within the thirty da3^s, and it is the poHcy of the law to have it act, if it will. In a union free school district, vacancies may be iilled by the board. If not filled by the board for thirty days, then the school commissioner may appoint. The school commissioner can not act for thirty days. It is the policy of the law to have the board appoint, if it will. If the four members could not appoint to fill the vacancies in the present case, then they could exercise no other func- tion of the board, and there could be no exercise of any of the powers of the board for the space of thirty days, except in the event of a special election being ordered by the State Sviperintendent. If this theory be sound, then there might be entire failure of school administration in the district for a time, and neither a district meeting nor any officer or representative of the district could cure the difficulty. It is provided by the Consolidated School Act of 1864, in regard to the trustees of common schools, that while there is one vacancy in the office of trustee, the two trustees have all the powers and are subject to all the duties and liabilities of the three, and while there are two such vacancies, the trustee in office shall have all the powers and be subject to all the duties and habilities of the three as though he were a sole trustee. It is true that this clause relates to the trustees of an ordinary school dis- trict, but it is provided in title 9 of the act relating to union free schools, that the members of a board of education of a union free school shall " Possess all the powers and privileges and be subject to all the duties in respect to the schools, or the common school departments in any union free school in said districts, which the trustees of common schools now possess or are subject, not inconsistent with the provisions of this title." The statute provides that a board of education in a union free school dis- trict shall consist of not less than three nor more than nine persons. It is therefore not violative of the authority and the policy of the law for four persons to exercise the functions of such a board. I conclude, accordingly, that the four trustees in the present case exercised a power which the statutes confer, and which it was to the interest of the district to have them exercise, and it would seem that they exercised it only so far as was necessary to maintain school administration in the district uninterruptedly. If there were any doubt, as I think there is not, about persons named by the remaining members of the board being trustees de jure, there would seem to be none about their being such de facto. They have had color of title to their offices at least, and have acted as such, and been recognized. Their acts, taken in conformity with the directions of the district meeting, would be binding upon the district. Arriving at this conclusion, it is unnecessary to consider other questions raised on the argument. The appeal must be dismissed. 43«^ THE UNIVEKSITV OF THE STATE Ul- NEW YORK 4192 In the matter of the petition of John E. Casey for the removal of Adelbert Case as clerk of school district no. 6, town of North Norwich, Chenango county. Wliere, upon application to a district clerk by a qualified voter of the district for permission to examine the minutes of the annual school meeting of the district, the clerk refused to permit such voter to examine such minutes, using vulgar and profane language in expressing such refusal, held tliat the ckrk was guilty of a wilful viulalion of duty and an order made for his removal. Decided November 2, 1893 \\ . J I. .'^ullixan, attorney for petitioner Crooker, Snpcriiitciidoit This is a i)roceeding in the nature of an appeal for the removal of one Adelbert Case as clerk of school district no. 6, town of North Norwich, Che- nango county, for wilful violation and neglect of duty. A petition of John E. Casey, a resident and taxpayer in said school dis- trict, duly verified on September 16, 1893, settiiig forth certain charges against said Case with specifications of the facts to establish such charges, and having aime.xed thereto the affidavits of said Casey, of one Perry Hunt in support thereof, and a notice addressed to said Case that said petition and affidavits would be presented to me at Albany and application thereupon be made to remove said Case from his said office of clerk of said district, and requiring said Case to transmit his answer to said application duly verified, to this Department within ten days after service of said notice, petition and application, or the charges contained therein would be deemed admitted, with proof of service of coi)ies of said petition, afiklavits and notice upon said Case on September 19, 1893, were filed in this Department on September 23, 1893. No answer to said petition etc., has been received or filed, and the allegations contained in said petition etc.. are considered as admitted as true by the said Case. The alle- gations contained in said petition etc., so considered admitted as true, are as follows : That the said Adelbert Case was, in August and September 1893, the duly elected and qualified clerk of school district no. 6, town of North Norwich, Chenango county; that on or about August 28, 1893, about 9 o'clock in the forenoon of that day, John E. Casey and Perry Hunt, each of whoin was a resident, voter and taxpayer of said school district, went to the premises of said Adelbert Case, the clerk of said school district, and asked permission of said Case, to look at the minutes of the school meeting of said district, held on August 22, 1893, and the said Case, in wilful violation of his duty as such clerk, refused to permit said Casey and Hunt to look at and inspect .such minutes, using vulgar and profane language in expressing such refusal. That on the eleventh day of September 1893, at about 9 o'clock in tlie forenoon, said Casey and Hunt went to the house of said Case and said Casey then and there requested said Case to allow him to inspect the minutes of said school meeting of said JUDICIAL DECISIONS : OFFICERS 439 district held on August 22, 1893, and also asked for a copy of said minutes; that said Case told said Casey that he would not let him see the mnmtes, and to get right ofif from his premises, or he would slash him right down with a corn knife, which said Case then held in his hand. Said Case further told said Casey to get right off from his premises and to keep off, and that he would not furnish him with a copy of said minutes. The clerk of a school district is a school officer, and his principal duties are defined in section 37 of title 7 of the school law. His duty is to record the proceedings of his district in a book to be provided for that purpose by the district, etc., etc. ; to keep and preserve all records, books and papers belonging to his office and to deliver the same to his successor, and a refusal or neglect so to do subjects him to the forfeit of fifty dollars for the benefit of the district, to be recovered by the trustees. The proceedings, records, books and papers in possession of saidj clerk are the property of the district, and not the individual property of the clerk. It is the duty of the clerk to permit any voter to freely inspect the records at all reasonable times, and a wilful denial of this right by a clerk would subject him to the liability of removal from office. There can be no doubt as to the right of a voter of a school district to examine and copy the district records, under reasonable provisions. Section 18, of title 2, of the school laws provides that whenever it shall be proved to his satisfaction that any school commissioner, or other school officer, has been guilty of any wilful violation or neglect of duty under the school act, the Superintendent of Public Instruction may. by an order under his hand and seal, which order shall be recorded in his office, remove said school commissioner or other school officer from his office. From the facts established upon this appeal I am satisfied that the said Adelbert Case, as clerk of school district no. 6, town of North Norwich, Chenango county, was guilty of wilful violation and neglect of duty under the school laws, as such clerk, as alleged in said petition, etc. The petition herein is sustained. It having been proven to my satisfaction that Adelbert Case, clerk of school district no. 6, town of North Norwich, Chenango county, has been guilty of wilful violation and neglect of duty, under the school laws, as such clerk. I do therefore, by virtue of the power and authority in me vested, order: That the said Adelbert Case be, and he hereby is, removed from the office of clerk of said school district no. 6, town of North Norwich, Chenango county. OFFICERS — REMOVAL OF 5326 In the matter of tlie application of Melvin H. Pendleton et al. to remove John D. Jones from ihe oflice of school commissioner and John C. Hyde from the oflice of trustee. Where the moving papers in a proceeding to remove a school officer are legally defective and do not even allege an offense for which such officer might be removed, the proceeding should be dismissed. Decided August 20, 1907 Draper, Commissioner The petitioners allege that respondents wilfully misrepresented the views expressed by them in an interview relating to the dissolution of a school district. The moving papers do not allege that respondents have been guilty of a wilful violation of law or official duty or of any other offense for which the statutes impose the penalty of removal from office. Respondents deny the charge of misrepresenting the views of the petitioners expressed at the conference in question and offer evidence in proof of such denial. The proceeding should be dismissed on the moving papers which are legally defective and which fail to even allege an offense for which respondents might be removed. The petition herein is dismissed. 5184 In the matter of the petition of John Clark et al. for the removal of Charles A. Iligley from the office of school commissioner of the first school commis- sioner district of Oneida county. .•\. school commissioner will not be removed from office for making an order which was fair, open and above board in every particular and in which he exercised his discretion wisely. If a school commissioner exercises an unwise discretion in making an order, or if he makes an improper order, the relief of an aggrieved party is an appeal from tlie action of the commissioner in making such order and not a petition for his removal. Decided April 21, 1905 James W. Watts, attorney for appellants Draper, Commissioner The petitioners are residents of school district no. 8, town of Marcy, and of the first school commissioner district of Oneida county. It appears that one William H. Kauth desired to have his real property transferred from district 1440] JUDICIAL DECISIONS : OFFICERS — REMOVAL OF 44I no. 8, ]\ Farcy, to adjoining district no. i, Marcy. At a special meeting of district no. 8, Marcy, to consider the advisability of consenting to the transfer of Mr Kauth's property the voters present decided not to consent to an alteration of the district boundaries making such transfer. The school commissioner then made an order altering the boundaries of district no. 8, Marcy, by transferring the property of Mr. Kauth to district no. i, Marcy. It is alleged by petitioners that in making this order the school commissioner " acted in bad faith and against the best interests of said district, and simply to accommodate said Kauth." The petitioners do not present any evidence what- ever in support of this allegation. They do not assign one specific act or reason to sustain their contention. They do not even show that the action of the com- missioner in making such order was unwise. The affidavits of the petitioners are to the effect that upon " information and belief " Commissioner Higley acted in bad faith. This is insufficient and in their moving papers petitioners have failed to make a case sufficient to have warranted them in filing this petition. The commissioner possessed legal authority under sections 3 and 4 of title 6 of the Consolidated School Law to make this order even if a majority of the voters of district no. 8, Marcy, were opposed to the changes which would be made thereby. The action of Commissioner Higley was regular, fair and open and above board in every particular. He accorded those opposed to the order two impartial hearings. He does not appear to have exercised his discretion unwisely in making this order. If such order was improper or unwise the remedy of any aggrieved party was an appeal from the action of the commissioner therein to this Department. The petition herein is dismissed. A copy of this decision must be served by the respondent upon the attorney for the petitioners. In the matter of the removal of George Turner Miller from the office of school commissioner of the sole commissioner district of Chemung county. The fact that a school commissioner applied for and received money from the State to settle an expense of the teachers institute and that he kept this money over thirteen months, during which he was in frequent contact with the officials to whom it was to be paid, is sufficient in itself to constitute a wilful violation and neglect of duty, requiring the exercise of the power of removal reposed by law in the Commissioner of Education. Decided February 27, 1905 Draper, Commissioner On February 3, 1905, the president of the board of education at Horseheads, N. Y., called to my attention the fact that a claim against the State on the part of said board, amounting to $24.20, for coal consumed and for janitor service in connection with a teachers institute held in their high school building during theWeek ending December 19, 1903, had never been settled. Investigation showed that the amount had been paid to the school commis- sioner immediately after the institute was held, for the purpose of liquidating 44-' THE UNlVKKSri V OF THE STATE Ul- NEW VURK ihc claim. A letter from the elcrk of the school district stating the amount of the claim appeared among the papers, but no receipt on the part of the district was shown. On I-'ebruary 4th I addressed a letter to the school commissioner, calling for an explanation. On February jth the amount was paid, by post office money order, to the treasurer of the flistrict. Nothing was heard from the school com- missioner until February 17th. when he replied to my letter of the 4th, stating that "The amount was paid the Chemung Valley Bank, the treasurer of the district. The matter is now adjusted."' In consequence of the delay in replying to my letter and because of the unsatisfactory look of the whole atTair an order was made on February 13th for the school commissioner to appear here on Feb- ruary 23d to show cause why he should not be removed from office. On the return of the order, the school commissioner appeared and claimed that the delay in answering my letter of the 4th of February was because he was away from home. He admitted going to his home post office for mail and for the post office money order on February 7th, but asserted that my letter was not received at that office prior to his leaving home for a ten days' journey on February 8th, although my letter was mailed at Albany on February 4th. The home of the school commissioner is at Van Etten, some twenty miles from Horseheads. He stated that he paid the amoimt on February 7th, because when talking on the telephone with his father, who resides at Horseheads, it was suggested to him that there was some talk about the matter at Horseheads and that it ought to be settled. The explanation given for the long delay in paying the bill was that he was not certain as to whom he should pay it, and that he was not willing to pay it except to one entitled to legally receive the money. He asserted that there was some ill feeling between himself and officers of the district over trifling matters. He insisted that he at all times expected to pay over the money and was only waititig to be satisfied as to whom he should pay it. Mr Miller was, for some time prior to his election as school commissioner, principal of the school at Horseheads. He was wholly familiar with all the cir- cumstances in that district and was well acquainted with its officials. He has an office at Ilorselieads which he announces will be open on Saturday afternoon. He admitted that during the thirteen months while he had been holding this money he had been in Horseheads more than twenty times; also that he well knew the officers of the district and that the Chemung Valley Bank was the treasurer. The question as to the time when the school commissioner received my let- ter of February 4th. and as to what led him to pay the claim of the district three days after this letter was mailed from Albany, without having received this let- ter, is of slight importance except as it bears upon his credibility. The explana- tion oft'ered for the delay in paying over the money is not sufficient. It was the business of the school commissioner to pay this money over immediately upon its receipt. An officer having any correct feeling about the matter or any proper JUDICIAL decisions: officers — REMOVAL OF 443 appreciation of the ol)ligations and responsibility of a public ofTice, would have been anxious and restless until the money had passed out of his hands and into the hands entitled to possess it. The difficulty about determining to whom it might properly and legally be paid seems mere pretense. It is not necessary to indulge in speculations as to whether this money would ever have been paid over if the matter had not been stirred up by the parties in interest. The fact that this school commissioner applied for and received money from the State to settle an expense of the teachers institute, and that he kept this money over thirteen months, during which time he was in frequent contact with the officials to whom it was to be paid, is sufficient in itself to con- stitute a wilful violation and neglect of duty, requiring the exercise of the power of removal reposed by law in the Commissioner of Education. I should be glad to come to some other conclusion, but it is impossible. Failure to act as the law contemj)lates would be a delinquency on my part. It is therefore ordered, That George Turner Miller be, and he hereby is, removed from the office of school commissioner of the sole school commissioner district of Chemung county. 5286 In the matter of the application to remove James H. Roe as trustee of common school district no. 6, town of Warwick, county of Orange. Ai)pcaring in and answering a proceeding without reserving any rights, even if formal notice of proceeding is not given, brings the proceeding properly within the jurisdiction of the Commissioner of Education. A trustee who fails to provide for his own children the instruction prescribed by the com- pulsory education law is guilty of wilful violation of law and neglect of official duty and should be removed from office. The burden of proof as to the physical inability of children to attend school is upon the parent and not the school authorities. Trustees may require parents to furnish a physician's certificate in the case of habitual or long-continued absence on the ground of physical inability and such certificate is con- clusive. Decided October 20, 1906 Lewis J. Stage, attorney for petitioners Clifford S. Beattie, attorney for respondent Draper, Commissioner District no. 6, town of Warwick, county of Orange, is a common school dis- trict having three trustees. At the annual meeting of August 1905, James H. Roe was elected one of the trustees of this district and is still serving in that official capacity. This proceeding was commenced July 7, 1906, but the plead- ings were not' completed until October 22, 1906. At the time this proceeding was* instituted John M. ^larsh and George H. Davenport were the other trustees 444 THE UXIVEKSITY OF THE STATE OF NEW YORK of tlic (listricl. Tliesc two trustees and Jacob F. Welch and other les^al voters of the district are the i)etitioners who pray for the removal of Trustee Roe. The specific charge ai^aitist respondent is that he violated the provisions of the compulsory education law by not requiring his two children who are within the ages of that law to regularly attend upon instruction. The i)lcadings show that respondent Roe is the father of Arthur Roe, a boy lo years of age, and of Mima Roe. a girl 9 years of age, and that they are residents of school district no. 12, town of Warwick. It also appears that between October i, 1905. and April 30, 1906, the school in said district was in session 126 days and that Arthur Roe was in attendance thereat 63 days and absent 63 days, and that Elma Roe was in attendance upon such school 60^ days and absent 655/2 days. It is further shown that between April 30 and June i, 1906, neither of these pupils was in attendance at school. The absence of such children from school is not denied by respondent nor does he claim that such children were in attendance upon instruction elsewhere. It is also shown that on April 17, 1906, Arthur Roe had some trouble in school with the teacher over a recitation in arithmetic and that the teacher took Arthur from the recitation to his seat by the collar of his coat and that at noon when the teacher was at his dinner respondent appeared at the schoolhouse and look Arthur and his daughter Elma home. These children did not attend school any portion of the year thereafter. It is also shown that in the early part of May respondent took the books of these two children from the schoolhouse. The pleadings in this case further show that on April 30, 1906, on an infor- mation duly made by John L. Springer, an attendance officer of the town of Warwick, charging this respondent Roe with the crime of misdemeanor for vio- lation of the compulsory education law, a warrant for the arrest of said Roe was duly issued by J. V. D. Benedict, a justice of the peace of the town of Warwick. It also appears that on similar informations warrants were issued for four other residents of this district and that such residents were found guilty and fined. Respondent Roe was tried May 26, 1906, before a jury and such trial resulted in a disagreement of the jury. Before this trial, however, an application was made by respondent through his attorney to the special county judge of Orange county for an order directing that the case should be presented to the grand jury for indictment. This application was denied. It also appears that a second application was made to a justice of the Supreme Court and denied. The second trial of Roe took place June 16, 1906, and at the close of such trial the jury brought in a verdict of guilty without leaving the court room. Roe was there- upon fined $5 by the court the maximum penalty as this was the first time he had been prosecuted for a violation of this law. The respondent has taken an appeal from this judgment to the county courts. The foregoing outline of the history of the case is shown by the moving and answering papers in this proceeding. In the moving papers of petitioners is an informal petition signed by thirty- five legal voters of the district praying for Roe's removal. Respondent objects to the acceptance of such petition on the ground that it is not verified. It is JUDICIAL decisions: officers — REMOVAL OF 445 immaterial whether this petition is accepted or not as the petition of Trustees Marsh and Davenport and Jacob F. Welch, a legal voter of the district, is suffi- cient to bring the case properly before me for determination. Attorney for respondent further objects to the consideration of this proceeding on the ground that the offenses charged as being a violation of law took place more than thirty days previous to the date on which this proceeding was instituted and that notice of a hearing on the alleged charges has not been given as required by section 13, title I of the Consolidated School Law. This is not an appeal which must be brought within thirty days from the date on which an official act constituting a grievance occurred but it is an appealing termed an appeal brought by petition for the removal of a school officer for a wilful violation of law and official duty. This Department does not hold nor do the rules require that a petition for this purpose shall be presented within thirty days from the date on which the alleged violation of law or official duty occurred or that a satisfactory reason shall be given for such delay. If the rules did require this the fact as shown upon the pleadings that respondent was being prosecuted in the courts for the alleged viola- tion of law would in itself, without specifically pleading the same as such excuse, be regarded as good reason for delay in bringing the proceeding. It appears that no formal notice of application to me for hearing the charges alleged was attached to the moving papers. This notice is merely a matter of form. It is not required by section 13, title i of the Consolidated School Law or by any other provision of law. The moving papers contained all the essential facts as required by page 15 of the rules regulating such proceedings. The service of the moving papers was ample notice of what respondent was required to answer. Hovv^ever, respondent has appeared and answered without notice and without waiving any rights, and such appearance and answer even if notice were required is sufficient to bring the proceeding properly within my jurisdiction. After this proceeding was inaugurated before me, I applied to Justice of the Peace Benedict for a certified return of the evidence taken by him upon the trial at which Roe was found guilty. He returns what purports to be a record of such evidence but his certificate shows that by agreement at the trial between the complainant and the defendant he did not keep a complete record of the evidence and that the return made is a record written by him from memory since my application for a return has been made. Attorney for respondent properly objects to my receiving such return and I shall sustain this objection. Trustees of school districts are charged with the enforcement of the com- pulsory Education Law and a trustee who not only fails but refuses to provide for his own children who are subject to the provisions of that law the instruction which the law declares they shall receive is guilty not only of a wilful violation of law but of a wilful refusal to perform his official duty and should be removed from office. It is proper to inquire what the official record of district no. 6, Warwick, with this^Department has been in the enforcement of the compulsory education law. Our 'official reports and files show that it has been almost impossible to compel 44^ THE UNIVERSITY OF THE STATE OF NEW YORK the officers of this district to enforce such law. On December 5, 1905, the Chief of the Atten(hnicc Division wrote Trustee Marsh calHng his attention to the unsatisfactory attenchmce in his district and specifically naming the two children of respondent Roe as puj^ils who were not attending school as required by law. The trustee's attention is called to the " long record of unsatisfactory attend- ance " and is advised that if the law is not properly enforced the public money of the district will be withheld. Again on March i, 1906 the Chief of the Attendance Division wrote Trustee Marsh of the continued unsatisfactory attendance and again named the daughter of respondent Roe as one of the pupils who did not attend school as legally required and also staled that satisfactory excuse for her absence was not given. Again on April 18, 1906 a communica- tion was addressed to all three of the trustees calling attention to the failure to enforce this law. The Chief of the Attendance Division reports that in the enforcement of the compulsory education law district no. 6, Warwick, has one of the worst records of any district in this State. In this connection it is perti- nent to refer to the fact that the data of the last United States census will show that Orange county stands number 44 in the list of counties of the State arranged in the order of the number of illiterates above the age of 10 years. This county has 4090 illiterates above that age or 49 out of every 1000. It also stands number 46 in the list of counties of the State arranged according to the number of illit- erates in the voting population. It has 1894 illiterate voters or 62 out of every 1000. These figures show the importance of the strict enforcement of the com- pulsory education law and a trustee who does not manfully perform his duty in this respect is unfit to continue to assume the responsibilities of such office. The respondent's answer does not deny the charges of absence from school on the part of his children nor does he claim in his answer that proper excuses were furnished for their absence. Therefore the charges of petitioners, namely, that the children did not attend school as required by law and that proper and legal excuses were not furnished for their nonattendance, stand admitted. In his answer he justifies his violation of the plain provisions of the law on the ground that the children were physically incapacitated to attend. If his children were physically unable to attend school it was his duty to satisfy the school authorities upon that point. The statement of a parent to the effect that a child is ill and unable to attend school need not necessarily be accepted by school authorities as a proper excuse. School authorities might know that such children were running the streets or were illegally detained at home to aid their parents. If school authorities were required to accept such excuses, a parent might keep his children out of school at any time for any purpose and simply send an excuse to the school authorities stating that the children were ill. Such construction of the statutes would render the compulsory education law a dead letter and the " fundamental purposes of this law would be absolutely defeated. The affidavit of respondent's attorney shows that the principal ground upon which he has taken an ajijieal to the county court from the judgment of the court which tried and convicted him is that the justice improperly charged the jury JUDICIAL DECISIONS : OFFICERS REMOVAL OF 447 tliat the burden of proof as to the physical inability to attend school was upon the parent and not the school authorities. If the contention of respondent's attorney in this respect is true it would be an absolute impossibility to enforce the law. Such interpretation of the law would put many obstacles in the way of its enforcement which school officers would be unable to overcome. How are school officers to ascertain the physical conditions of children ? The law provides no method. If a physician should be sent by school authorities to examine a child detained on the ground of illness and the parent refuses to permit the child to be examined by such physician how can such examination be made? Must in such event application be made to the courts for an order to make such examina- tion and the important legal questions raised which such procedure involves? It can not be held that it was the intention of the Legislature to place such burdens upon the school system. The rational interpretation of this law consonant with the general policy of school administration is that the burden of proof in such cases is upon the parent. It violates no legal right of the parent. Section lo of the compulsory education law places the general responsibility of the supervision of the enforcement of this law throughout the State upon the Commissioner of Education. Pursuant to this authority I have promulgated cer- tain regulations for the enforcement of such law. In every school register of the State, a copy of which is furnished every school district and a copy of which was supplied school district no. 12, Warwick, for the year beginning August i, 1905, was the following printed regulation : No pupil subject to the provisions of the compulsory education law, shall be absent or tardy without bringing a written excuse from his parent or guardian, which excuse should state the specific reasons for absence or tardiness. Sickness of the child, severe sickness in the family requiring the service of the child tem- porarily till other help may be had. or some unusual condition beyond the con- trol of either child or parent, should be deemed the only legal excuse for absence. If any question as to the sufficiency of an excuse shall arise between the parent or guardian and teacher, it shall be referred to the superintendent of schools or to the school authorities for decision. This rule places it within the power of trustees to determine what are suffi- cient excuses. This Department has always ruled that in the case of habitual or long-continued absence on the ground of physical inability to attend, trustees are within their lawful rights in requiring parents to furnish a physician's certificate and that such certificate is conclusive. The Court of Appeals has held that the Commissioner of Education has authority to prescribe reasonable rules in the management of the public school system (181 N. Y. 421). Respondent also claims that the reason for making application to have the case presented to the grand jury was to have the case tried in a court of record so that a commission could be appointed to take the testimony of two physicians who reside out of the State. He sets up that it was impossible to secure their attejidance in this State at a trial and that a justice of the peace had not authority to take their testimony through a commission. If respondent believed the testi- 448 THR UXrVERSlTV OF THE STATE OF NEW YORK mony of physicians rcsidino^ out of the State admissible why did he not ofTer their testimony by atVichivit in this ])roceeding? No evidence of this character has been offered and no apj)Hcation or request has been made to me to obtain such evidence. It is proper to state, however, that evidence of this character is a(hnissil)le now as it was also upon the trial of Roe. The strained effort of respondent to make it appear now that he is desirous of presenting a certificate or testimony from a physician does not relieve him from the penalty due for failing to furnish the trustees such certificate at the proper time. It api)ears clear from the pleadings in this case that respondent was guilty of failing to rc(|uirc his children to attend school as provided by law and of failing to conform to a regulation of this Department in the enforcement of the com- pulsory education law and that the facts show that his conduct therein was wilful and for a wrongful purpose and that he thereby as trustee became guilty of a wilful violation of law, of a regulation of this Department and of official duty. He should be removed from oftice. The petition herein is sustained. It is ordered. That James II. Roe be, and hereby is, removed from the oflice of trustee of school district no. 12, town of Warwick, county of Orange. 5170 In the matter of the petition and proceedings of school district no. 6, town of Xorth Salem, Westchester county, for the removal of Charles S. Oakley and Frank C. Parkus, trustees of said district. Funds received by a school district as an award under condemnation proceedings in which tlie site of the district is taken for public purposes must be used for the purchase of a new site and in removing and erecting thereon a schoolhouse, and improving and fur- nishing such site and house and their appendages and to purchase school apparatus and for the support of the school. Such funds must be used for these purposes as the legal voters of the district shall direct, buch funds are not at the disposal of the trustees to be used for such purposes as they shall direct. When the trustees of a common school district are directed to expend $2000 in the erection of a building and such officers expend $4000 for that purpose they are guilty of a viola- tion of law and of official duty. If it is necessary to expend any considerable amount in excess of an appropriation for the erection of a building it is the duty of the trustees to call a special meeting of the district and permit the legal voters thereof to direct what action shall be taken. It is not within the power of trustees to decide to make improvements which are not neces- sary for the comfort or convenience of the children but which add to the general attractiveness of the building, such as installing electric light, putting in metal ceilings, papering walls, etc. The legal voters of the district in district meeting assembled is the proper authority to decide on making such improvements. Section 473 of the Penal Code prohibits trustees from becoming interested personally, directly or indirectly, in any contract which they are authorized to make for the district. School districts are entitled to protection in their rights and when trustees are determined to ignore such rights this Department is bound on appeal in due form to afford districts JUDICIAL DECISIONS : OFFICERS — REMOVAL OF 449 such protection as the law provides. When the conduct of trustees shows clearly that they have wilfully violated the law and wilfully neglected their duty the penalty of removal must be imposed. Decided January 31, 1905 Wilson Brown, jr, attorney for petitioners Frank L. Parkus & Charles S. Oakley, attorneys for respondents Draper, Couimissioner During the school year ending July 31, 1904, the board of trustees erected a school building in this district. The report of the trustees to the annual meet- ing in 1904 included expenditures for the erection of such building. Such report was referred to an auditing committee of three with instructions to report at an adjourned meeting to be held August i6th. At such adjourned meeting the com- mittee submitted a written report charging the trustees with having made unnec- essary and illegal expenditures, with being interested in district contracts, and recommending that such trustees be requested to resign on or before August 22d. The report also contained a recommendation to the effect that a committee be appointed with power to employ counsel and to take such action as might be deemed necessary. The meeting adopted this report and authorized the appomt- ment of the committee recommended therein. Isaac Purdy, G. Preston Brown and Uel T. Bailey were named as members of such committee. The meeting adjourned until August 23d. The trustees did not resign as requested before August 22d. At the meeting of the district on August 23d the above-named committee was instructed to petition the Commissioner of Education for the removal of these trustees. This petition is, therefore, presented by direction of the district. The members of the committee join in the petition as individuals and as taxpayers of the district. The petitioners allege twenty-two specific violations of law or of official duty on which they ask for the removal of Trustees Oakley and Parkus. It is unnecessary to go into a detailed consideration of each of these twenty-two counts against such trustees. The substance of the principal charges is that the\ made expenditures from the funds of the district in excess of appropriations and without legal authority therefor; and that they were personally interested in contracts which they made for the district and that they rendered services in various forms for the district, determined their compensation therefor and then audited and paid their own bills. The pleadings which contain several hundred pages of typewritten matter show, among other things, that during the school year ending July 31, 1903, the site of this school district with other adjoining land was taken by the authorities of New York City under condemnation proceedings for the purpose of obtain- ing a pure and wholesome supply of water for that city. An award was made to the district by proper authority about June 19, 1903. This award amounted to $6518.90. *" \ The school law does not directly provide what use shall be made of a fund derived from tiiis source. It will be shown hereinafter that under the provisions 450 THE UNIVF.RSITV OF THE STATE OF NEW YORK of tlie Consolidated School Law so much of such fund as may be necessary shall be used in procuring a " new site and in removing or erecting thereon a schoolhouse, and improving and furnishing such site and house and their ajjpend- agcs," and also to purchase school apparatus and for the support of the school. But such fund must be used for these purposes as the inhabitants of the district shall direct at a district meeting. Such fund is not at the disposal of the trustees to be used by them for any of such purposes as they shall direct. These alleged illegal expenditures were made during tlie school year begin- ning August I, 1903, and ending July 31, 1904. Tlie board of trustees for that year was composed of E. L. Quick, Frank L. Parkus and C. S. Oakley. Mr Quick's term of office expired at the annual meeting in 1904, and he was not reelected. This petition was not liled at this Department until October 3, 1904, and after Mr Quick's term of office had expired. The petitioners, therefore, ask for the removal of Mr Parkus and Mr Oakley who were members of the board of trustees at the time these alleged illegal expenditures were made and who are still serving as members of such board. It appears that during the school year ending July 31, 1903, a new site had been purchased for the sum of $500 and that improvements thereon had been made in the sum of 5397-93. At the annual meeting of 1903 the trustees reported a balance of $5620.97 in the fund received by award from New York City. Tile authorities representing New York City gave the district the building on the old site. At a district meeting the sum of $800 was voted for the purpose of removing the building from the old site to the new site. The sum of $1200 was voted for repairs to the building. The trustees were authorized to grade the grounds in a suitable condition, but a specific amount was not voted for that pur- pose. These are the only expenditures expressly authorized by the district. It is not claimed by the respondents that other expenditures were authorized by the district. Trustees are authorized by subdivision 5, section 47, article 6, title 7 of the Consolidated School Law to expend $50 for repairs to the schoolhouse, furniture etc. in any one year without a vote of the district. They may also, on the order of the school commissioner, expend under subdivision 3, section 13, title 5 of the same act, the sum of $200 for repairs to the schoolhouse and $100 for repairs to or for the purchase of furniture. They are also authorized by section 50 of title 7 to expend $50 for the erection of outbuildings when the district is wholly unprovided with such buildings and when such exi)enditure is directed by the school commissioner or by the Commissioner of Education. It is not claimed by the respondents that the school commissioner or the Commissioner of Education directed expenditures for these purposes. The trustees could, therefore, expend only $50 in addition to that voted by the district. As the district meeting authorized an expenditure of $800 for removing the building and $1200 for repairs to the building, and the trustees could expend $50 without a vote of the district, such trustees could legally expend $2050 and what- ever might be necessary to grade the grounds in a suitable condition. They did JUDICIAL decisions: officers — REMOVAL OF 451 not possess legal authority to expend more. Any expenditure in excess of such amount for the erection and equipment of buildings and the grading and improve- luent of the site was an unauthorized and illegal expenditure. In making such expenditures the trustees were guilty of a violation of law and of official duty. If it were necessary to expend any considerable amount in excess of the appro- priation to place the grounds and buildings in proper condition, it was the duty of the trustees to call a special meeting of the district and permit the legal voters thereof to direct what action should be taken. To pursue any other course would be an unwarranted and illegal procedure. It appears that many of the taxpayers believed improper and illegal expenditures were being made and petitioned the trustees to call a special meeting to consider the question. The school commis- sioner suggested to the trustees that they call such special meeting. These trus- tees refused to call such meeting. It was a serious mistake on the part of these trustees under the circumstances to refuse to honor such petition and to fail to comply with the suggestion of the school commissioner. They should have called a special meeting of the district. The report of this board of trustees to the annual meeting of the district in 1904 shows the following expenditures : Expenses of grading, cellar, ditch, well etc. Grading $422 55 Well 150 17 Cellar and chimneys 650 30 Cement, lime and brick 94 ^5 Tile 130 96 Labor 231 88 Posts for fence 30 00 Use of pump ^ °° Replacing tree 2 00 Total $171301 Less amount expended by former board 382 93 $I330 08 Architectural work °^ °7 Heating plant 45o 00 Desks and furniture 246 50 Moving and settling building 8/5 00 Registry of deed and lot ^ 40 Electric lights 47 90 Extra work on closets and clearing lot I7 43 $i699 90 Expense of building Bells, batteries etc •. ^4 30 Carpenter labor 546 88 Cartage and car fare ^94 Metal ceiling ^^ Express and freight ^ 50 Glass ^°32 ^\^ Hardware ^ ^ • Labels and cards for desk ^ ^5 T ^ ID GO Lavatory :>082 72 117 20 65 10 133 55 16 00 57 09 5 40 I 75 (>3 52 $1877 91 $4907 89 452 THE UNIVF.KSITY OF TMK STATE OF NEW YORK Expense of building — Continued Lumber Mason work, chimneys and walls Paint, paste, varnish etc Painters' labor Paper for ceilings Pipes, tin etc Registers Sink Slate boards Total expenditures The report made by these trustees therefore shows that they expended $4907.89 for the purposes for which they were legally authorized to expend $J05o plus what might be necessary for grading the grounds in a suitable condi- tion. The respondents do not attempt to state just how much they did expend in grading the grounds. They should be able to give the exact amount expended for that purpose. It is clear that at least $700 in addition to that expended by the former board was expended for this purpose. Accepting this as a fair, reasonable amount to have paid for grading the grounds, the board was authorized to expend not more than $2750. By this liberal estimate their expenditures still exceed the amount legally authorized by nearly $2200. All of these expenditures were made froin the fund derived from the award paid by New York City. These respondents attempt to justify their conduct in making these excessive and illegal expenditures, on the theory that section 21 of article 2, title 7 of the Consolidated School Law, conferred on them that power. Sections 19 and 20 of this article and title of the school law provides for the sale of a district site. Section 21 provides for the use that shall be made of a fund derived from the sale of a site. This fund, as previously stated, was obtained as an award in condemnation proceedings. The school law makes no provision for the use of a fund obtained in this manner. The school law does provide for the use that shall be made of money derived from a sale of the site of a district. A fund derived from an award made as the result of taking a site under condemnation proceed- ings is the equivalent of a fund derived from the sale of a site. In the absence of a provision of law to the contrary such fund must be so regarded and must be used as the law directs a fund derived from the sale of a site to be used. The section of law above cited must, therefore, govern the use of this fund in question. The law reads that this fund '' shall be applied to the expenses incurred in procuring a new site and in removing or erecting thereon a school- house and improving and furnishing such site and house, and their appendages, so far as such application shall be necessary; and the surplus, if any, shall be devoted to the purchase of school apparatus and the support of the school as the inhabitants at any annual meeting shall direct." This section of law does not provide that all of such moneys shall be expended on a new site and build- ings but only so much thereof as may be necessary. This section of law does not JUDICIAL DECISIONS : OFFICERS — REMOVAL OF 453 confer on trustees the power to select or purchase sites or to erect or repair buildings or to appropriate funds of the district derived from any source for these purposes. It simply provides that this fund shall be used for certain purposes. To be used for such purposes it must be appropriated by the authority which the law directs, namely, a duly assembled school meeting. There is no provision of the school law conferring on trustees the power to appropriate money for a site or to determine what amount shall be paid for a site. There is no provision of the school law conferring on trustees the power to appropriate money for the erection of buildings or for the improvement of, or additions to, school buildings except to the amount of $50, nor are trustees empowered to determine what amount shall be used for such purposes. The law does not confer on trustees the power to appropriate money beyond the sum of $50 for the purchase of school furniture. The law does, however, confer on a district meeting the power to appropriate money for these purposes and to determine the amount to be expended therefor (see subdivisions 7 and 8 of sec- tion 14 and sections 17 and 18 of title 7 of the ConsoHdated School Law). Before any portion of the $6518.90 could be legally used by the trustees in purchasing a site or removing or erecting a building, it was necessary that a district meeting authorize an appropriation therefrom and to specify the amount to be used. The trustees could legally expend the amount thus voted but no more. The respondents claim that the action of the district in voting $800 for removing the old building and $1200 for repairs was illegal and not binding upon them, on the ground that the vote was not taken at a proper meeting and not taken by the method which the law directs. In this they are in error. Such action was binding upon the trustees until declared illegal by proper authority. If these respondents were correct in this contention they had no right to make any expenditure from this fund except the $50 which the law permits trustees to expend without a vote of the district. By this contention the trustees evidently recognized the limitations placed on their powers by the Consolidated School Law in relation to expenditures for the purposes under consideration. If these expenditures were made by the respondents knowing that they were exceeding their rightful powers, their conduct was wilful and they must stand guilty of a wilful violation of law and neglect of duty. The trustees were authorized by the annual meeting of 1903 to inquire into the best mode of heating the schoolhouse. They never reported to the district on that question, but decided on a heating system and installed it at a cost of $450, without direction from the district to do so. It also appears from the report of the trustees to the annual meeting of 1904 that such trustees installed a system of electric lights in the building, put in metal ceilings, papered the walls, expended nearly $250 for furniture and made expenditures for several other purposes which had not been authorized. Many of these expenditures were not necessary for the comfort or convenience of the children but added to the general attract- -iveness of the building. It was not within the power of these trustees to decide to' make such improvements no matter how desirable they may have been. It 454 Tin-: uni\kksity ok tiiI': state of new vork was the rii^lit of the district, under the law, to pass upon the necessity and the desirability of making such exi)cnditures. It is also alleged in the ])ctition that these trustees personally supplied material, performed labor and services for the district and were thereby per- sonally interested in contracts which they, as trustees, made for the district. One of the purposes for which it is alleged excessive and illegal expenditures were made was grading the grounds. The official records of the board show that I rustee Quick was emploved on the grading a large portion of the time between ( )c(()ber 5. 1003. and b'ebruary 6. T904. ITe received $5 per day for the services of himself and team. These records also show that he supplied material used in the improvements made. He received for such labor, services and material at least .$346.60. The olticial records of the board also show that Trustee Parkus, who is a painter and decorator, supplied material at various times, that he was employed much of the time between November 20, 1903 and February 20, 1904, receiving $3.50 per day. He received for such labor, services and material at least $303.87. The bills of Trustee Quick and Trustee Parkus for such labor, services and material were presented to the board of trustees, audited by such body and paid under the order of that body. Mr Parkus and Mr Quick con- stituted a majority of the board. They could have controlled the action of the board. Mr Oakley ottered no objection to this procedure, but on the contrary readily concurred in it. It was an illegal and wrongful proceeding and ISIr (Jakley in acquiescing in it became equally censurable with the other two mem- bers. In fact he appears to have been the controlling power in the board. It is charged by i)etitioners and admitted by respondents that all members of the board rendered services or performed labor for which they presented bills which were audited officially by the board. This board of trustees made a division of certain work among its members. These members performed such work. As trustees they passed upon the character and quality of the work which they as individuals performed for the district. Again as trustees they determined the value of the services which they as individuals rendered the district. It is this very practice which the law prohibits. It is a violation of section 473 of the Penal Code for trustees to become interested personally, directly or indirectly, in any contract which they are authorized to make for the district. The petitioners have shown that those respondents did not make proper effort to get this work done for the district at the lowest price consistent with substantial service. The appellants have also shown by evidence of competent witnesses that the cost of the building and improvements is largely in excess of their real value. Four men competent to testify on the value of the school property in question as it now stands, swear that the cost of erecting the buildings and making the improvements to the grounds etc. should not have exceeded if'2500, provided such sum was properly expended. The respondents have failed to present competent evidence to controvert this charge. The testimony of men who have made repairs in the locality of this school district showing that such repairs have cost more than was anticipated is JUDICIAL decisions: officers REMOVAL OF 455 not sufficient nor is it competent. Testimony on this point should be from men familiar with grading and building and who know the cost of performing such labor and of the materials to be used etc. Such testimony the resondents have not offered and the allegation that the funds of the district were wastefully and wrongfully expended is established. Section 17 of article 2 of the Consolidated School Law rovides that no schoolhouse shall be built in any school district until the plan of ventilating, heating and lighting have been approved, in writing, by the school commissioner. The plans of this building, showing these features were never submitted to the school commissioner for approval and the trustees erected this building in viola- tion of a law generally understood by the people and with which they must have been familiar. The conduct of these trustees has been reprehensible in many ways. They seem to have had no regard for the wishes of the people of the dis- trict as clearly expressed in district meetings. They have shown no respect for the law regulating their duties and limiting their powers. They decided to make certain improvements and expenditures without regard to their legal powers or the rights of the district and they put into effect their decision thereon. School districts are entitled to protection in their rights and when trustees are deter- mined to ignore such rights this Department is bound on appeal in due form to afford districts such protection as the law provides. The severe penalty of removal from office will not be imposed for slight reasons or for trivial offenses committed through a misunderstanding of the law ; but when the conduct of trustees shows clearly that they have wilfully violated the law and wilfully neglected their duty this penalty must be imposed. When a district, acting within its legal powers, directs its trustees to do certain things and such trustees fail to do as directed or deliberately exceed their powers in such matter they ;ire guilty of a wilful violation of law and of neglect of official duty. School officers are to be commended for manifesting a desire to erect suitable buildings, to properly equip them, and improve and beautify the grounds. In all proper and legal efforts to achieve such results they will be fully sustained by this Department. When the voters of a district refuse to properly cooperate with trustees in such matters this Department will extend all assistance and relief which the circumstances will warrant and the law will permit. School officers who disregard the plainly written statutes and violate the rights of a district to reach these ends, of course, can not be sustained. I decide, that Frank L. Parkus and Charles S. Oakley, members of the board of trustees of school district no. 6, town of North Salem, Westchester county, were, and each of them was, guilty of wilful violation of law and wilful neglect and violation of duty: By expending illegally, excessively, exorbitantly and wrongfully the funds of the district; by knowingly permitting members of the board of trustees of such district to become personally interested in contracts of the district and by -auditing and paying the bills of members of the board for services performed and material furnished ; by failing to comply with the directions of the district 45^^ Tin-- l'M\ KKSITY OF Till-: STATI-: OF NEW YORK in many ways as charged in the moving papers ; and by failing to protect the rights, property and funds of the cHstrict as required by virtue of the offices which they held and as the law provides. The petition herein is sustained. It is ordered. That Frank L. Parkus and Charles S. Oakley, and each of them, be, and they are, and each of them is, hereby removed from office as members of the board of trustees of school district no. 6, town of North Salem, Westchester county, for wilful violation of law and wilful neglect and violation of duty as members of such board of trustees. It is further ordered, That Uel T. Bailey, the member of the board of trus- tees of said district, elected at the annual meeting held in such district August 2, 1904, without unnecessary delay, call a special meeting of the legal voters of said district no. 6, town of North Salem, in accordance with the provisions of section 6, title 7 of the Consolidated School I-aw, for the purpose of electing a trustee whose term of office shall expire on the first Tuesday of August 1905, in place of Frank L. Parkus, removed; also, for the election of a trustee whose term of office will expire on the first Tuesday in August 1906, in the place of Charles S. Oakley, removed. 3727 In the matter of the application for the removal of Isaiah M. Merrill as trustee of school district no. 8, town of Northfield, county of Richmond. A trustee who reported a claim against the district as paid, when in fact it was not paid, and who received district moneys into his own hands to pay tlic same, and then hqui- dated the debt by giving his personal promissory note, is guilty of a procedure which can not be upheld. Trustee's removal from office decreed. Decided November 15, 1888 Draper, Superintendent Isaiah M. Merrill is one of three trustees in the district above named. He was elected to such office at the annual school meeting in 1886, and his term will expire in 1889. The petitioners allege that he has been guilty of making false reports to district meetings. It was shown that the annual report of the trustees made in 1887, showed that a bill for lumber in favor of J. H. Van Clief & Son had been paid, when in fact such bill had not been paid. It seems that a brother of Merrill was the collector of the district and that between them they received the money which should have paid this bill. On the other hand, the trustee claims that the report was not intended to show that such bill had been in fact paid, but that an order had been drawn upon the collector in favor of Van Clief & Son for the payment thereof. It is also shown that Merrill settled this bill with Van Clief & Son on the 4th of I'ebruary 1888, by giving to said firm his promissory JUDICIAL DECISIONS : OFFICERS REMOVAL OF 457 note for the amount, and that said firm received such note in settlement of the claim. There are some other matters set forth in the petition for the removal of Merrill, but I do not deem it necessary to consider them. Sufficient appears to show that the trustee has been derelict in the duties of his office. He does not deny that he had full knowledge of all the circumstances and was responsible for the report to the district meeting in 1887 being made in the form in which it was presented. If the claim of Van Clief & Son had not actually been paid, the report should not have indicated that it had been. But while it might be possible to overlook a misstatement of that nature upon the ground that it was unintentional and that there was no deliberate purpose to deceive the district meeting, it is not possible to overlook the fact that this trustee received the money of the district into his own hands and that instead of paying the same over to the claimant he converted the same to his own use for a long time, and then finally settled the claim by giving his personal promissory note therefor. A school trustee has no right to take into his hands moneys belonging to the district. It is his business to draw orders upon the proper officer in settle- ment of legitimate claims and deliver the order to the claimant, who must get his money from the collector. It is quite possible that there has been no deliberate purpose to defraud the district, but the conclusion is irresistible that the trustee in this case has been guilty of a procedure which can not be upheld as a predecent, and can not be tolerated with safety to the public interests. Mr Merrill, the trustee, also comes before the Department with a petition asking that the records of a certain district meeting be expunged from the official records of the district, on the ground that such meeting was not regularly and lawfully called. It is alleged by the respondents that the meeting referred to was not intended to be a regular district meeting, that it was only a voluntary assemblage of residents of the district looking to action which should be advan- tageous to the interests of the district. It is admitted that if the records of such a meeting have been incorporated into the records which the law requires the clerk to keep, that the same should be expunged therefrom. It is, therefore, ordered that Isaiah M. Merrill be, and he is hereby removed from the office of trustee in school district no. 8 of the town of Northfield, Rich- mond county, and that the remaining members of the board call a speedy meet- ing of the district for the purpose of filling such vacancy. 5441 In the matter of the petition of Charles J. Quinby and Robert F. Smith for the removal of William A. Cromwell from the board of education in union free school district no. i, town of White Plains, Westchester county. Removal of member of board of education; authorizing expenditures in excess of appropriation. Where a board of education directs certain specified repairs to be made to the several school buildings in a union free school district and one of the members 45^ !■"£ UXIVERSITV ni- TlIK STATK Ol" XKW YORK of the board acts as a committee in making such repairs, the fact that such member in contracting for repairs exceeded the amount which had been appropriated for such repairs, is not a sufficient cause for his removal where it appears that there was no evidence of bad faith and that the board itself examined the accounts for the repairs and ordered them to be paid. Failure to obey rules requiring bids. A board of education adopted a rule requiring that bills sliould be received uu all contracts exceeding the sum of $ioo. A wilful violation of such a rule to the detriment of the district for the purpose of favoring any person or persons in transactions resj)ecting the district property or affairs is sufficient ground fur removal. Where the evidence shows that the violation of such rule is technical and not wilful he should not be removed. A petitioner who seeks the removal of a member of the board of education because of a violation of such a rule must show by pre- ponderance of proof that such violation was wilful and resulted in injury to the district. Decided March lo, lyio Charles J. Ouinby, attorney for appellant William A. Cromwell, attorney for respondent Draper, Couimissioncr The petitioners, Charles J. Quinby and Robert F. Smith, are taxpayers and quaHfied electors in union free school district no. i, town of White Plains, West- chester county, and they ask for the removal of William A. Cromwell from his ollice as member of the board of education of such district. The petition was filed in this Department November 17, 1909; an answer was filed by the respond- ent November 24, 1909, but the subsequent pleadings and affidavits submitted by both parties delayed the closing of the case until January 24, 1910. The case has assumed voluminous proportions; a large number of affidavits have been submitted on both sides and a considerable amount of documentary evidence has been adduced. It has been necessary to carefully examine all these pleadings, affidavits and documents to reach a decision. The proceeding is brought under section 228 of the Education Law which provides that " P'or cause shown, and after giving notice of the charge and opportunity of defense, the Commissioner of Education may remove any mem- ber of a board of education. Wilful disobedience of any lawful requirement of the Commissioner of Education, or a want of due diligence in obeying such requirement, or wilful violation or neglect of duty, is cause for removal." The respoiulent has been served with a copy of all the charges, and has replied thereto in detail. He has been notified of his opportunity to present oral testi- mony in his defense. The petitioners and the respondent have expressly consented to a decision upon the i)ai)ers presented, without oral argument. It is admitted that the respondent was a member of the board of education of union free school district no. i, town of White Plains, which consists of the village of While Plains, in the year 1908, and that during that year he was a member of the committee on buildings and repairs; that at the annual meeting held in August 1908, an item of $4500 was voted to be expended during the ensuing school years for repairs to school buildings; that the respondent, as a member of the committee on buildings and repairs, presented a detailed report to JUDICIAL DECISIONS : OFFICERS REMOVAL OF 459 the board, at a meeting held July 14. 1908, specifying the character and extent of the repairs to be made on the several school buildings in the district, and thereupon the making of such repairs was referred to the said committee, with power; that on July 30, 1908 the respondent, as sole acting member of such com- mittee, sent notices to certain persons, with specifications attached, directing them to make the repairs in accordance with such specifications ; that the repairs were accordingly made under the direction of the respondent during the months of July. August and September 1908, and that the total amount of indebtedness thereby incurred amounted to over $7300 ; that such repairs were made without competitive bids being asked for or received. The petitioners contend that the respondent wilfully violated the law in incurring an indebtedness for repairs in excess of the .sum of $4500, voted at the annual school meeting held August 4, 1908, for repairs to school buildings. But it appears from the allegations contained in the petitioners' reply that the board directed that certain specified repairs be made to the several school build- ings, without regard to the probable cost thereof, at a meeting held prior to the annual meeting of the district when the appropriation was made. It is the duty of a board of education to keep the schoolhouses of the district, and the furniture and apparatus therein in repair (Education Law, § 226, subd. 6)» and such duty is not limited or enlarged by an appropriation which may be made therefor by a district meeting. If the amount appropriated for such purpose by the annual meeting in accordance with estimates submitted to such meeting by the board is insufficient to pay the cost of necessary repairs, and there is no other fund avail- able for such purpose, it is the duty of the board to present a supplementary estimate to a special meeting duly called by such board (Education Law, § 242). If the school buildings are in such condition as to make the repairs necessary for the use of such buildings for school purposes, the board may take the neces- sary action to secure a tax levy to raise the amount required to pay for such repairs, as in the case of contingent expenses (Education Law, § 244). While it is true that under the provisions of section 232 of the Education Law, the amount appropriated for a specific purpose measures the liability to be incurred, such section must not be construed as arbitrarily limiting the amount to be expended in making repairs which must be made to preserve the district's prop- erty and to render its buildings fit for use. All of the bills submitted l)y the persons whom the respondent employed to make the repairs, amounting to more than $7300. were carefully examined by the board, and they were ordered paid without a dissenting vote. If there was any unlawful act committed in paying out money in excess of the appropriation made by the district meeting, it was the act of the board, for which it would be unjust to hold this respondent responsible. There is no proof that all or a part of the repairs were unnecessary, or that there was no fund available to pay the cost thereof, and it must therefore be held that neither the respondent nor the •board of education violated the law in exceeding the amount appropriated for such repairs at the annual school meeting. 460 THE UN'IVKKSITY OF TIIK STAl K oi' NKW YORK A more serious question is involved in the declaration that the respondent is guilty of a wilful violation or neglect of duty in failing to ask for and receive bids for the performance of the work which he was directed to do, and in omitting to refer the matter of making certain repairs to the board of education, as required by the rules and regulations of the board. The rules which it is insisted the respondent has violated are as follows: Buildings and repairs : this committee shall exercise general supervision oyer all buildings and grounds. It shall order all needful repairs on all school build- ings ami grounds, when the sum to be expended does not exceed $100, otherwise it shall first obtain the approval of the board. Proposals and bids: bids shall be received on all contracts and purchases exceeding the sum of $100, the board reserving the right to accept or reject any and all bids. These rules were probably in force when the respondent directed the reports to be made according to the specifications which had been submitted to the board, although this is denied by the respondent. It may be that the board had not contimiously observed such rules. It may be that the board had not adopted rules and regulations for the years 1907, 1908 and 1909. But it does not appear that such rules ami regulations have been abrogated, and the rules cited should have guided the respondent in the performance of his duty. It appears from the evidence that all the repairs of certain kinds on all the schoolhouses were given to the same person or firm. For instance, the work of renewing, repairing and cleaning heaters, repairing roofs, skylights etc. was given to Klein & Carter. This work was done on three schoolhouses. The expense incurred for such work on two of the schoolhouses exceed $100. The total amount of this claim was $973.32. The work of papering, painting and kal- somining was given to one firm, and was done by the day without contract, except as to a portion thereof on two of the school buildings. The total amount of such work was $1288.91. The carpentry work on all these school buildings was done by one man, and the amount charged therefor was $656. The masonry work required in and around all these buildings, consisting of plastering, cement work and brick work, was done by daywork and without competitive bids or contracts. The amount charged for such work was $1776.03. The amount expended for new plumbing and repairing old plumbing in the several school buildings was $1723.52, and it was all done under an arrangement made with one man on a daywork basis, separate charges being made for materials. In many instances the amount expended on each school building for the several kinds of repairs which were ordered by the respondent, in his capacity as sole member of the committee on buildings and repairs, exceeded the sum of $100, and the expenditures thereof should have been subject to approval by the board and in accordance with competitive bids. There was an apparent disregard of the two regulations of the board to which reference is made above. The respondent should have known that he was exceeding his authority in ordering these repairs to be made without asking for competitive bids and sub- JUDICIAL DECISIONS : OFFICERS REMOVAL OF 461 mitting the same to the board so that contracts therefor might be awarded. The Department approves of such a method of expenditure of the district's money, and will insist that such method be followed where the law or the rules of the board require it. If in any case it is shown by sufficient and competent evidence that a board of education or member or committee thereof has wilfully violated any such law or rule, to the detriment of the district, with the purpose of favor- ing any person or persons in transactions respecting the district's property or affairs, such board, member or committee will be removed from office. The respondent is guilty of a technical violation of the rules of the board in ordering the repairs made without receiving competitive bids. But unless such violation is shown to be wilful there is not sufficient proof to justify his removal. The statute conferring the power on the Commissioner of Education to remove a member of a board of education recognizes " wilful violation or neglect of duty " as cause for removal. There is no proof in this case that the respondent wilfully violated such rules or wilfully neglected his duty. The minutes of the board show that each member thereof voted in favor of a motion referring the matter of repairs to the various schools to the " building committee zvith pozver." The respondent insists that he thought he was thereby given power to proceed as he saw fit in making the repairs specified. The motion was broad in its terms and on its face would appear to confer ample authority upon the respondent to pro- ceed with the repairs. He might have misjudged his limitations, but he was not wilful in his transgression; there is no evidence that he wilfully refused to obey the directions of the board in respect to such repairs. The petitioners have alleged that the bills presented to the board were exor- bitant and that the repairs ordered by the respondent were not reasonably neces- sary. These allegations are denied by the respondent. The petitioners should have shown in what respect the repairs ordered were unnecessary and how the prices charged were exorbitant. Both of these statements, if true, could have been substantiated by affirmative proof. There being no proof of unnecessary work done upon the order of the respondent, for prices which are excessive, it must be held that the respondent is not guilty of fraud or collusion. Whatever proof is produced by either party upon this question leads to the conclusion that the district was not seriously injured by these transactions. The money paid for such repairs was not misappropriated. The petitioners must bear the burden of their allegation of misfeasance in office based upon the charges that favored tradesmen and contractors were permitted to charge exorbitant prices for work that was not needed. They have not assumed this burden, and it must be held that these charges are not proven. Mr Edward B. Long and Mr Robert C. Bromm are members of the board of education and present affidavits in support of the petition for removal. It appears from Mr Long's affidavit that he and Mr Bromm were appointed a com- mittee to examine the bills for repairs which were claimed to have been incurred 'by the respondent without authority. It is apparent that these two gentlemen were not friendly to the respondent. If they had discovered any fraud or collu- ^6 J THE UMVi;Kt«rJV ol- THli STATE UE -NEW YORK sion in these transactions they wcjiild have probably reported that fact to the l)oard. This committee kept these accounts in their possession for several weeks and presumably made a caret td examination of each piece of work done. The minutes t)f tlie board show that this committee reported nearly all the bills in controversy and advised that they lie paid. Mr Long and Mr liromm both say that they advisetl the boaril to j)ay the bills, since they believed that they were legal claims against the district. If the respondent exceeded his lawful authority in incurring an indebtedness in excess of an appropriation, or if he wilfully vio- lated a provision of law in failing to advertise for and receive bids for the work done, the claims therefor were not enforceable against the district. When the board directed the payment of these claims, it recognized their validity, and in etlect approved the acts of the respondent. The acts of the respondent thereby became the acts of the board, and if the respondent is guilty of improper conduct in incurring indebtedness in excess of the appropriation made for repairs, the board is ecjually guilty, and if the respondent should be removed on this account the members of the board who voted to pay such claims should also be removed. After a careful examination of all the material matters involved in this pro- ceeding it must be held that the respondent has not been shown to be guilty of any intentional or wilful violation or neglect of duty. The petition is therefore disnnssed. 5338 In the matter of the apjK-al of A. L. Clcaveland and E. N. Christopher from the action of the board of education of union free school district no. i, town of Union, Broome county. A proceeding to impeach the official action of a board of education without showing definite knowledge of wrongdoing on the part of such board and without supplying sufficient proof to sustain alleged charges, will be dismissed. Decided September 24, 1907 Thomas A. Macclary, attorney for respondents Draper, Commissioner The moving papers in this proceeding are very defective. The verification, the service, the insufticiency of proof of wrongful conduct on the part of the board of education and the failure of api)ellants to show that the action com- plained of operates as a grievance to them, are sufficient grounds for dismissing this appeal. It further appears that appellants were at the annual meeting of district no. i. town of Union, on the evening of August 6, 1907, and raised no objection to the acts complained of. Appellants are thereby estopped froin rais- ing objection to such proceedings now. It appears that the notice of the annual meeting was published but three weeks preceding the date of such meeting. If no notice at all had been given of such meeting the proceedings of such meeting would not be void. The law JUDICIAL decisions: officers REMOVAL OF 463 fixes the date of an annual meeting and the voters of a district may convene on that date at the proper hour and place and transact the business of the meeting if no notice at all is given. The provision of law requiring notice of such meet- ing is simply directory and not essential to the validity of the meeting. There is no ground for appellants' contention that the board improperly paid an attorney $io for services rendered the board. The services were proper and the charge therefor was not excessive. The board had full authority to employ an attorney for the work which he performed and the expense of the same was a district liability. The principal contention of appellants is that the published account of the receipts and disbursements of the board are not sufficiently itemized. On the contrary, the report which was printed appears to be very complete in details and very clear. It may be that there are two clerical or typographical errors but there is nothing in these suggestive of irregularity on the part of the board. A person should not initiate a proceeding to impeach the official action of a board of education without having definite knowledge of wrongdoing on the part of such board and without supplying sufficient proof to sustain his charges. The appeal herein is dismissed. 3907 In the matter of the appeal of Alfred T. Bortle and Jacob P. Lansing v. the trustees of school district no. ii, town of Schodack, Rensselaer county. A trustee having placed himself in an equivocal position as between the district whose inter- ests he should protect, and a contractor engaged in building for the district, by accepting employment from the contractor upon such work, removed from office. Decided September 10, 1890 Draper, Superintendent Appeal to restrain trustees of district no. ii, town of Schodack, Rensselaer county, from the further prosecution of the work of building a schoolhouse m said district, and for the removal of James Benner, one of the trustees, from office. The ground upon which an order to restrain is asked for, is that the work is not being carried on as required by the plans and specifications adopted. The trustee's removal is sought upon the ground that he has been employed by the contractor, and is doing work for him as a laborer or carpenter upon the school building, thereby placing himself in an equivocal position as between the district whose interests he should guard, and the contractor by whom he is employed. Having carefully considered the pleadings filed, and after hearing the appel- "lant and counsel for the respondent, I have concluded to defer a final determina- 4^14 THE UNIVERSITY OF TlIK STATE OF NEW YORK tion of all the issues raised until the completion of the building in question. I niai4 miles from the schoolhouse of the present district. Children are therefore required to travel from 5 to 7 miles daily in order to attend school This distance renders attend- ance by such children upon school prohibitive. If the district boundaries are to be maintained as they now exist the district must change the site to some suitable location at or near Rossburg. If the site is not changed former district no. 5 must be restored. This controversy must be determined by one of these two methods. If district no. 5 is restored it will be necessary for that district to erect a new schoolhouse. In determining the change of site the inhabitants of former district no. 13 should take into consideration the condition of the present schoolhouse. If the districts should be separated it will be necessary for district no. 13 to enlarge its site, make extended repairs to its schoolhouse, and erect outbuildings that shall be sanitary and conform to law. The appeal from the order of the school com- missioner in condemning this schoolhouse will not be decided until the question of changing the site is settled. I believe either of these districts will be able to maintain a satisfactory school. A better school can probably be maintained by the consolidated district at less expense to the taxpayers of the district. The conditions in this com- munity are such that I believe the voters of the district should be given an oppor- tunity to pass upon the question and I shall therefore direct the trustee to call a special meeting of the district to decide upon the wisdom of changing its site. After such meeting has been held and the action taken by the district is known such further orders may be made herein as shall appear necessary. The respondent has not satisfactorily answered the charge that adequate and proper school facilities can not be aft'orded by continuing the schoolhouse where it now stands. This charge is not answered by showing the physical con- dition of the schoolhouse, its seating capacity, etc. Neither is the question answered by showing that many of the farms are occupied by tenants who may 504 THE U.VIVERSITV OF THE STATE OF XEW YORK remove from the district at the end of the year. These vahia])le farms will con- tinue to be occupied by some one. If not by their owners or the present tenants by other tenants. Whoever may reside on these farms, whether owners or ten- ants, are entitled to pro])er school facilities. The value of the farms depends to a certain extent upon the school facilities afforded by the district. Respondent has devoted much eliort to show that many of the petitioners praying for a special meeting to vote upon the proposition to change the site of the schoolhouse are not taxpayers. It is not claimed that these petitioners are not legal voters of the district. Jt is shown that many of them have children whose education depends upon their ability to travel to and from the schoolhouse daily. A man who is so unfortunate as not to be a taxpayer but who is so fortunate as to be the father of children of school age has a right founded upon reason and law to be heard upon the question of proper school facilities in his district equal to that of a man who may be a large taxpayer but who is not the father of children of school age. It is ordered. That Fred E. Pratt, sole trustee of school district no. 13. of the towns of Hume and Genesee Falls, of the county of Allegany and Wyoming, be. and he hereby is, directed to forthwith call a special meeting of the legal voters of said district to vote upon the proposition to change the site of the schoolhouse to the site described in the petition of A. R. Mills and others, voters of said district, dated August 9, 1905, and presented to said Pratt on or about that date, or to such other site at or near the village of Rossburg as said meeting shall deem proper and suitable. It is also ordered. That the said Fred E. Pratt shall forward to me imme- diately after the said meeting shall have been held a true certified copy of the proceedings of said meeting and the whole thereof. 5387 In the matter of the appeal of Una Beth Davis from a decision of the board of education of the village of Spencerport, N. Y. A girl 18 years of age who has abandoned her parental home and resides with her grand- mother is entitled to attend school in the district in which her grandmother resides, without the payment of tuition. Decided May 19, 1908 Berton W, Brown, attorney for respondent Draper, Commissioner The appellant in this proceeding is 18 years of age and claims that she has abandoned the home of her parents and has resided since September last and is now residing in the village of Spencerport with her grandmother, Mrs Abbie B. Hiscock. The pleadings show that ]\Irs Hiscock is 78 years of age and has JUDICIAL DECISIONS : PUPILS SCHOOL PRIVILEGES OF 505 resided in the village of Spencerport for the past i6 years and that no one except appellant resides vi-ith her. It further appears that because of the age of Airs Hiscock it is necessary that she should have some one residing with her permanently. Appellant swears that she has abandoned her father's home to reside permanently with her grandmother and that her grandmother is responsible for her clothing and education. Mrs Hiscock swears that appellant has resided with her since September i, 1907, and that she has assumed general care and absolute responsibility and control over appellant. The father of appellant swears that because of the age of Airs Hiscock he has permitted his daughter to live with her grandmother and that she is to remain with her grand- mother permanently and that he has relinquished all rights and claims to his daughter's services. He further swears that he relies upon Mrs Hiscock for the general bringing up of his daughter, and to provide her moral and temporal education and to furnish her clothing etc. Under these conditions appellant claims the right to attend school in the Spencerport district without the payment of tuition. Such right has been denied her by the board of education and this proceeding is instituted for the purpose of obtaining an order directing the board of education to recognize appellant as a resident student of the Spencerport district. The contention of the board of education is that the father of appellant is a well-to-do farmer and abundantly able to pay the tuition of his daughter. The financial condition of appellant's father has no bearing upon the question. If appellant is a resident of the district she is entitled to the school privileges of such district. It is contended by the board of education that the claim of residence on the part of appellant is not founded upon sufficient facts or made in good faith. The whole theory of respondents' answer is founded upon information and belief. No evidence is offered to controvert the testimony of appellant, of her grandmother and of her father. The testimony of these three persons fully establishes that appellant is a resident of the Spencerport district. Airs Hiscock has resided in the Spencerport district for 16 years. It is claimed by the board of education and much stress is placed upon this point, that Airs Hiscock for several summers has closed her residence at Spencerport and passed the summ.er elsewhere and usually at the home of appellant's father. Even if she did, such action on her part would not affect her residence. The fact that a person leaves his home to spend the summer in some other part of the country is not an abandonment of his residence. The record in this case shows that Airs Hiscock is a resident of the Spencer- port district and that appellant resides with her and is entitled to all the privileges of resident pupils in such district. The exact point in this case was fully considered and determined by this Department in decision no. 4344, decided Alarch 20, 1895. Such decision is also supported by the Supreme Court in People ex rel. B.C.A.Soc. v. Hen- drickson (54 Alisc. 337). The appeal herein is sustained. 506 THE UXIVERSITY OF THE STATE OF NEW YORK It is ordered. Tliat the board of education of union free school district no. I, town of Ogden. sliail receive into the school of said district the appellant herein. Una Beth Davis, as a resident pupil thereof and accord the said Una Beth Davis all the rights and privileges to which resident pupils of such district are entitled. 5363 In the matter of the appeal of Beverly R. Crowell from the action of the boar 1 of education of union free school district no. i, town of Palmyra, county of Wayne. It is manifest that school authorities should give greater weight to the opinions of physicians who arc officially charged with responsibility concerning the public health than to the views of other physicians who are not charged with such official responsi- bihty. A board of education is not justified in barring from attendance upon school, children who are alleged to have had a contagious disease when the health authorities have formally declared that such children did not have the alleged disease. Decided December 16, 1907 S. K. and B. C. Williams and Hon. W. P. Rudd, attorneys for appellant Hon. Charles McLouth, attorney for respondents Draper, Commissioner This is an appeal from the action of the board of education of union free school district no. i, town of Palmyra, Wayne county, in excluding the children of the appellant from school. There is no contention about the right of the appellant to send his children to the school, except for cause. The cause alleged by the school board is that the children had scarlet fever in May 1907 and that the house has not since been fumigated. The appellant admits that the children were ill for a brief period, but contends that the disease was not scarlet fever and that there has been no scarlet fever in the house. He resists the desire of the school board to have his home fumigated, and stands on what he conceives to be his legal right that his children be admitted to the school without it. The pleadings show that the children n'ere admitted to the school on Sep- tember 3, 1907, and attended until October 15th, when they were excluded by the board of education because of some apprehension about the matter, which was quickened by the presence of considerable scarlet fever in the school dis- trict. Fortunately, there appears to be no wrongful intent; the school board appearing to be only desirous of fully meeting its responsibilities. Of course, a ver}' material question is, did appellant's children really have scarlet fever? This question is apparently involved in one of the unfortunate controversies which too frequently prejudice the medical profession. Several physicians in the town, some of whom saw the patients, say that the disease JUDICIAL decisions: pupils SCHOOL PRIVILEGES OF 507 was scarlet fever; the attending physician says that it was not. The proper representative of the State Department of Health visited the place and saw each of the children at the time of the illness, consulted the attending physician and other physicians who saw the children, and determined that the disease was not scarlet fever. The local hoard of health took the same view and, as the matter seems to have been much discussed, the local board of health was called upon several times to determine whether the disease referred to was or was not scarlet fever. On four different occasions it formally declared that it was not. The local health officer also officially reports that he has traced to his satisfaction the origin of each case of scarlet fever occurring in this district and that no case has been traced to the house or family of appellant. Thus, the school authorities are called upon to meet the question whether they should be guided by the official attitude of the health authorities upon a question of health, or should feel free to ignore the opinions of the health officers who are charged with official responsibility, and act upon the advice of other physicians. The opinion of the physicians upon which the board of education claimed to act in suspending appellant's children was a statement signed by such physi- cians on the 6th day of October. These physicians say in this statement that as it has been reported that members of appellant's family have been afflicted with scarlet fever and as it has been reported that the health officer of the village as a matter of precaution has recommended that appellant's house be disinfected that they concur in such recommendation. It appears upon the record that no report was ever received by the board of education from the health officer recommending that Crowell's house be fumigated. It also appears that the health officer reported to the village health board that the facts in the case did not authorize the board of health to fumigate the Crowell house. Section 24 of the public health law confers very broad powers upon local boards of health and if it appeared neces- sary to fumigate the house of appellant in order to protect the health of the citizens of Palmyra the board of health not only possessed the power to direct that such house be fumigated but it was the duty of that body to give such direction. It is manifest that the school authorities ought to give greater weight to the opinions of physicians who are officially charged with responsibility concerning the public health than to the views of other physicians who are not charged with such official responsibility. It might have been well if the appellant had thought proper to submit his home to the process of fumigation, but it can not be overlooked that his house is his castle and that when the public authorities sought to invade it he was entitled, if he saw fit, to stand upon his legal rights, and it seems to me that he had lawful warrant for taking the position that whether his house must be invaded by public authority for the protection of the public health was to be settled by the concurrent action of the local and State health authorities. It \'^t>uld also seem that the board of education would be abundantly protected in 508 THE UNIVERSITY OF THE STATE OF NEW YORK ^iich a matter by the attitude of the health authorities, and that where the right of a citizen to send his children to school was insisted upon, the board of educa- tion should have recognized the right when the health authorities formally declared that the children did not have scarlet fever and thereby held in effect, that the presence of the children would be no menace to the school. The able and ingenious counsel for the school board raises a question about the legal right of the Commissioner of Education to entertain and decide this appeal, on the ground that the discretional power of the local board of education is not subject to review by the Commissioner. The precedents of the State Department or the decisions of the courts do not sustain this view. The board of education would doubtless be absolved from responsibility in damages for a nn'staken course when acting with reasonable judgment and correct purpose, but it is manifestly the intent of the school law that local controversies affecting the schools or relating to the rights of citizens in the schools shall be determined by appeals to the Commissioner of Education, and that fundamental school policies shall be settled in this way. Otherwise, it would only be necessary for a school board to allege its good purposes and that it had exercised its discretion in order to wholly defeat the purposes of the Consolidated School Law as to the speedy, inexpensive and conclusive settlement of differences which are related to the administration of the schools. Counsel cites several court decisions of other states to show that trustees are sole governors of the school under their managements. These decisions how- ever relate to schools in states where appellate power to judicially determine school controversies is not vested in a state officer having general supervisory powers over the school system of the State. He also cites People ex rel. King V. Gallagher, 93 N. Y. 438, and In the matter of Walters, 84 Hun 457 in support of his contention. In each of these cases however the action of the board of education was explicitly authorized by the statutes. The courts therefore denied an application for a writ of mandamus and held that the action of the school authorities in such case was conclusive. The appeal under consideration is not analogous to these cases. In this proceeding the action of the board of educa- tion was not based upon any provision of law explicitly authorizing such action. Such action was based upon an implied power under the Consolidated School Law which in express terms confers the right of appeal therefrom to the Commissioner of Education and authorizes that officer to determine the matter. The action of the school board appealed from, so far as it relates to the children of the appellant and their right to be admitted to the school, is held to be erroneous, and the appeal is therefore sustained. It is ordered, That the board of education of union free school district no. I. town of Palmyra, Wayne county, shall forthwith admit the children of Beverly R. Crowell, the appellant herein, to the public school maintained in said district. JUDICIAL DECISIONS : PUPILS SCHOOL PRIVILEGES OF 5^9 53II In the matter of the appeal of WilHam H. Ash from the action of the board of education of union free school district no. i, town of Islip, Suffolk county, in suspending his daughter from the high school thereof without a hearing after demand. In the suspension of a pupil a board of education is not required to proceed with the formality of a trial. To hold such procedure necessary would be subversive of proper discipline in a large public school. In such case a board should acquire full knowledge of the facts in the case and take such action as will promote the best interests of the school. The action of a board in suspending a pupil pending suitable apology to a teacher to whom she had been impudent and insubordinate will be sus- tained. Decided April 12, 1907 Hon. John B. Merrill, attorney for appellant Freeman T. Hulse, Esq., attorney for respondent Draper, Commissioner Esther E. Ash, daughter of appellant, was a resident pupil In attendance upon the academic department of union free school district no. i, town of Islip, Suffolk county. On December 19, 1906, she was suspended from school for insubordination. Her reinstatement was conditioned upon an apology to one of the teachers for her alleged misconduct. Miss Ash was 17 years of age at the time of her suspension. On December 19, 1906, IMiss Ash had trouble with Mr Platner, the vice principal of the school. He reported the case to the prin- cipal. The principal interviewed Miss Ash on the subject and on her statement of what occurred and the statement of ]\Ir Platner, the principal suspended her on the condition above stated. Miss Ash refused to make the apology. The case was referred by the principal to the board of education. The board of education investigated the case and sustained the action of the principal. The father of Miss Ash, through his attorney, made demand upon the board of edu- cation for her immediate reinstatement in school. This the board declined to do. Thereupon the father of Miss Ash applied to the Supreme Court for a writ of mandamus commanding the board of education of said district to reinstate his daughter. The court denied such application without prejudice to an appeal to the Commissioner of Education. This proceeding was then instituted. The claim of appellant is that his daughter was not officially notified by the board of education of charges against her, that no hearing was granted her by the board of education even after a request therefor was made by her father, and that to protect the rights of this pupil the board of education was required to order a formal hearing and to permit her to appear with counsel and pro- ceed with all the formality of a trial. This contention is not sound. The school law contains no provision con- templating such procedure. Such procedure would be subversive to proper dis- cipline in a large public school. Subdivision 2 of section 15, title 8 of the Con- 5K) THE LMVEKSITY OF THE ST ATE OF XEW YORK solidated Scliool Law confers on a board of education the power to establish such regulations concerning the order and discipline of the schools under its charge as it shall deem necessary to secure the best educational results. Subdivision lo of the same section among other things provides that a board of education is " to have, in all respects, the superintendence, management and control of said union free schools." It appears that the board of education pursued the proper course in dealing with this case. The board made an informal inquiry into all the questions involved. Members of the faculty were consulted. Pupils of the school having knowledge of the affair were consulted. The principal had talked the matter over with Miss Ash. The board acquired full knowledge of the facts in the case and took such action as it deemed for the best interests of the school. I shall not hold that in such cases a board of education shall proceed with the formality of a trial. A board should ascertain what the conduct of a pupil has been and should take such action as the facts in the premises warrant. If a board violates any of the rights of a pupil the statutes afford adequate relief. The pupil was not expelled. She was simply suspended until she made suitable apology to a teacher to whom she had been impudent and insubordinate. It was not stipulated that the apology should be public or attended by humilia- tion. The requirement was that Miss Ash should conform to that decorum by which ladies and gentlemen are governed when one has unintentionally violated the conventions of good society. She may return to school any time upon suit- able apolog}\ It does not appear from the pleadings submitted that any injustice has been imposed upon appellant's daughter by the action complained of. The appeal herein is dismissed. Suspension from school for more than a year sufficient punishment for using language to a teacher unbecoming a gentleman. Should not be made perpetual. Decided July 21, 1875 Gilmour, Superintendent The appellant was and still is suspended, " for disrespectful conduct and language toward his teacher," and the board of education refuse to restore him to the school until he shall make an apology to the teacher. This the pupil refuses to do. The Superintendent finds that the language of the pupil was such as no provocation would justify a gentleman in using toward a lady, and that his own sense of self-respect should have prompted him to make an apology to the teacher without any requirement from the trustees. But in view of the fact that the pupil has already been deprived of the privileges of the school for more than a year, which may perhaps be regarded as a sufficient punishment for an offense committed in a moment of excite- ment, and by a scholar of unifortn previous good conduct, the appeal is, with considerable reluctance, sustained, and the pupil restored to the privileges of the school. JUDICIAL decisions: pupils SCHOOL PRIVILEGES OF 5II Colored children are entitled to attend the common schools in this State, in all districts, except those in which, by law, provision is made for their education in separate schools. Decided December 21, 1865 Rice. Superintendent The petition of appeal in this case states, as the ground of appeal, that the trustees came to the schoolhouse and ordered a certain colored lad, commonly called " Dick," to leave the school. The petition alleges that said " Dick " was at the time over 5 and under 21 years of age, and was of the age of 14 or 15 years; and that he was an actual resident of the district, and has for the last two years been included, by the trustees of the district, in the enumeration of the children made in their annual report to the school commissioner. These facts would give him the right to attend the district school, while the trustees would also have the 'right to expel him from the school for any good cause shown. The appellant alleges that " the trustees gave ' Dick ' no reason for his expulsion, except that, if he continued to go to school, the school would be broken up," and he also alleges that after the dismissal of " Dick " from school, the teacher said to appellant that " Dick " had been an orderly scholar, and had not disobeyed the rules or orders of the school. The only allegations in the answer which may be considered as contradicting these are in the language of the respondent, as follows, namely : " On the morning of the ist day of December 1865, the teacher dismissed school on account of disturbance caused, as the teacher declared, and as the trustees verily believe, on account of said colored boy being in school; and on the 4th day of December 1865, the teacher commenced school again, and the trustees did there and then dismiss the said colored boy from school, and at the time did assign to him the reason why they so dismissed him; and that, on the nth day of December 1865, the said colored boy went to school, and on the same day the above-named John Skatts and William R. Parker went to the school- house and dismissed the said colored boy again for the same reason, and told him that he could not come to school until the weather was settled ; that they dismissed him because he was offensive and a laughing stock for the scholars both in and out of school ; and that his presence there did annoy and disturb the school to such an extent that the teacher could not preserve or keep order." These are all the facts of any consequence alleged in the case. It is, therefore, admitted by the respondents, that " Dick " was primarily entitled to attend the school, being a resident and of school age; and that he was expelled because " his presence did annoy and disturb the school to such an extent that the teacher could not preserve or keep order." I know no law of this State, or decision, excluding a pupil from a public school merely because his presence annoys and disturbs the school. If he had the small-pox, or some other dangerous and contagious disease, the presence of such disease would be dangerous to the school, and the disease might legally be removed by removing the pupil. But no such complaint is made of " Dick," and the presumption is that he is a strong, healthy, intelligent boy. 5 12 THE UNIVERSITY OF THE STATE OF NEW YORK But the respondents allege that he " was offensive and a laughing stock for the scholars."' It is not alleged that he actively engaged in any offensive operations at school, to the injury of the scholars. Therefore, the cause of his offense, if there was any cause, must have been that he was " colored," or in some other respect, was not by his Creator so made as to be adapted to the tastes of his school- fellows, or that his tailor was at fault. The oft'ense was committed by those who made sport of him. They ought to have been taught better manners. The mere fact that " Dick " was " a laughing stock for the scholars " is not a just ground of punishment or censure to be visited upon him. but may be the result of the highest virtues, the noblest purposes, and the most commendable action in ///'/;;. In the absence of evidence to the contrary, such is presumed to have been the case, in view of the allegations of the appellant, " that v/hen the colored lad returned to school on the nth day of December, other boys in school hours annoyed him with opprobrious looks and actions." There is no allegation in the answer that " Dick " has ever, on any occasion, in school or out of school, acted in a manner unbecoming a high-minded, earnest boy. For such boys this great State has, by the labors and money of a willing people, organized and sustained a beneficent common school system, and has designed thus to extend a ]>rotecting and guiding hand to them, and by these means to bless and exalt all her children. 'I he trustees of said school district nos. 21 and 11, in the towns of Darien and Alexander, in the county of Genesee, are, therefore, hereby ordered forth- with to admit said colored lad " Dick " to all the privileges of said district school. The authority of trustees, and hence of teachers over pupils, ceases after the close of school, and their departure from the school premises. Derided May 13, 1875 Gilmour, Superintendent A rule adopted by the board of education of a union free school district, among other things forbade pupils attending parties, and their being " absent from their rooms and studies at unusual and improper hours during school week," and further provided that pupils " violating this rule, or any part thereof, may be suspended, or on repeated violations, expelled from the school by the principal, subject to the approval of the board of education." This rule was enforced against the appellants, two pupils of said school, by their suspension therefrom, the offense charged against them being their attendance upon a meeting of a society in the village known as the Good Tem- I^lars, an organization for the promotion of the cause of temperance, of which the appellants were members, their attendance therein being charged as a vio- lation of the above rule. JUDICIAL decisions: pupils — SCHOOL PRIVILEGES OF 513 The appellants do not lodge in the school building, and the rule in question is avowedly for the purpose of regulating the conduct of the scholars out of school hours, and when absent from the school premises. I am aware of the existence of no law under which trustees or teachers have the right to regulate the conduct of the scholars out of school hours, and when away from the school premises. When the school closes and the pupil leaves the school premises the authority of trustees and teacher ceases, and that of the parent or guardian is resumed. All rules or regulations founded upon any different basis are without authority, and no penalty for their violation can be legally enforced. '■ Cruel and unusual punishments " of pupils reprehended. Decided April 15, 1873 "Weaver, Supcrintetidcnt A pupil accused of whispering was ordered by the teacher, as a punishment for the offense, to take a seat near a very hot stove. This the young man declined to do, and because he would not subsequently acknowledge that he had done wrong in thus disobeying his teacher, the trustee suspended him from school until he should make the required acknowledgment. Held, to be the duty of teachers to exercise a sensible discretion in their deahngs with the pupils under their charge. To compel a scholar to sit by a Jiot stove is an improper punishment for any offense, and when one refuses to acknowledge that he has done wrong in declining to submit to its infliction, a proper case is not presented for suspension from school. The right of a pupil to wear her hair in school according to the taste of the parent, maintained. Decided April 6, 1S74 Weaver, Superintendent A mother appeals from the action of the trustees in expelling from the school her two children, a girl of 9, and a boy of 7 years of age. The alleged ground of expulsion is the refusal of the mother to comply with a requirement of the teacher and the trustees, in regard to the mode in which the hair of the little girl of 9 should be arranged. Though this, as the reason of the expulsion, is denied by the trustees, it would seem that the conflict of opinion between mother and teacher, upon this important question of the arrangement of the child's hair, led the way at leastxto the final act in the controversy, the exclusion of the children from school. The Superintendent says : " There is no evidence of the infraction of the rules 17 514 THE UXUEKSITV OF THE STATE OF NEW YORK of the school by the boy, and the girl docs not appear to have violated any rule, unles'? it is by coming to school with her hair arranged by her mother in a manner different from that required by the trustees. " The action of the trustees is without lawful authority. They had no right to make such a regulation as they say was disregarded in this case, and conse- quently they could not legally inflict any penalty for its violation." Nor could they lawfully insist upon the conditions prescribed by them for readmitting the children to the school, which are, that the mother shall make a written apology to the teachers of the school for alleged insults offered to them in connection with this matter, and shall stipulate in writing with the trustees that all rules and regulations of the school shall be strictly conformed to, and that she " will not seek to enter upon the school lot, speak to, or address by letter either of the teachers." Trustees directed to admit the children to the school. Riijht of children, residing on lands within a district which have been ceded to the United States, to attend the school of the district. Decided July 13, 1869 W^eavcr. Superintend ait . Within the limits of school district no. 13. Champlain, Clinton county, are certain lands, jurisdiction over which has been ceded by the State of New York to the United States, " for the defense and safety of the State." Resident upon these lands are persons with children of school age whom they desire to send to the school of the district within whose boundaries they are embraced. The trustee of district no. 13 refuses to allow these children to attend the school in said district without payment of a tuition fee, claiming that the cession of jurisdiction referred to has had the efifect of entirely excluding the lands in question from the said district. The Superintendent says : " In this position, the respondent, in my judgment, is in error. There exists no good reason either in the purpose for which the cession of jurisdiction was made, or in the terms of the cession itself, for excluding any of the children resident upon the lands in question from the advantages for education afforded by the State." Trustee directed to permit the children resident upon said lands, to attend the district school in equal terms with other children of the district. Trustees have no power to impose a fine upon a pupil, and suspend him from school until it is paid. Decided March 25, 1873 Weaver. Superintendent It appears that the appellant, a minor of the age of 15 vears, residing in union free school district no. 2, town of Onondaga, has been suspended from the school until a fine of fifteen cents, inflicted upon him for damages done to JUDICIAL decisions: pupils SCHOOL PRIVILEGES OF 515 seats and desks in the schoolhouse, shall be paid. The appellant denies the charge as against him, but the decision is made without regard to his guilt or innocence in the matter. If to protect the district property the trustees deem it necessary or proper to suspend from the school for a reasonable period any of the scholars guilty of injuring such property, there is no doubt of their right to do so. But there is no provision of law which authorizes school officers to inflict a pecuniary fine upon the pupils for any cause. It will be the duty of the board of educa- tion to readmit the appellant to the school on his application therefor. Abuse of discretion in the enforcement of discipline rebuked. Decided April 27, 1872 Weaver, Superintendent The son of the appellant, a boy about ii years of age, had been guilty of some light offense against the discipline of the school, and the same was reported to the trustee by the teacher in accordance with previous instructions to that effect. The trustee ordered the boy to ask pardon upon his knees of the teacher, on penalty of expulsion from school for a refusal to comply. The scholar expressed his willingness to ask pardon of the teacher, but declined to do so in the humiliating posture required. He was thereupon expelled from the school. Such an abuse of his discretion by the trustee is in my opinion entirely without excuse. While I would always cheerfully sustain trustees in enforcing discipline in the schools by the use of proper means, such an act of petty tyranny as the one complained of can receive no countenance from me. 3891 In the matter of the appeal of William McDonough v. Lorenzo Smith, trustee of school district no. 6, town of Springfield, Otsego county. A child was excluded from the school by a teacher, with the trustee's approval, upon the alleged ground that he was idiotic, lacked capacity for education, and was unable to care for himself. Evidence ofifered before the school commissioner did not sustain the charges, but rather refuted them. Held, that the boy should be received as a pupil. Decided July i8, 1890 Draper, Superintendent During the last term, Miss Fannie E. Ingalls, teacher in the above-named district, sent a son of the appellant from the school and refused to permit him to reenter. In this action, she is sustained by the trustee. This appeal is brought to determine whether or not the child should be permitted to attend school in the district. 5l6 THE UNIVERSITY OF THE STATE OF NEW YORK The ground upon wliicli the child was sent from school was that he was idiotic, and not only lacked capacity for education, but also was unable to care for his own person. It is alleged by the trustee and otliers, that upon occasions he permitted his clothing to be disarranged, even to the exposure of his person. and that he said and did things detrimental to the interests of the school and incompatible with his continuance therein. These allegations are stoutly denied by the father and at his instance. I directed the school commissioner having jurisdiction to take testimony touching the matter. He has taken the testimony offered by the appellant, but his rejjort discloses the fact that the respondent entirely failed to maintain his side of the case at such inquiry. Neither the teacher nor any one else was pro- duced before the commissioner to give testimony touching the matter. I observe, however, that two or three witnesses who had previously made affidavit on the side of the respondent, were produced by the appellant before the commissioner, and contradicted material parts of the affidavits which they had previously made, stating that such affidavits were read to them by the father of the teacher, and that either he did not read them as written, or that they did not understand them to that effect. These discrepancies are not at all explained by the respond- ent, and it must be said that they materially weaken his case. I have read all the allegations of the parties, and all the testimony taken before the school commissioner, with much care. From all of the statements made, I conclude the fact to be that the boy in question, who is now ii years of age, is of weak physical and mental organization, and has been of no little trouble and annoyance to the teacher. Yet, but one instance is set forth by her when his conduct was subversive of the good order and decorum of the school- room, and touching that occasion, it occurs to me that more may have been said than was justified. No less than three persons who have previously taught the school, and of unquestioned credibility, state that the boy was in the school while they had charge of it, and that they not only suffered no severe annoy- ance or inconvenience because of his presence, but that they considered him capable of receiving an education, and that they believed that he had made some progress in that direction. I Suppose the true rule touching such a case is that the child should be per- mitted to attend the school unless his presence is obnoxious to others, and unless he is so weak-minded as to be incapable of caring for himself and receiving the elements of an education. The school ought to help this boy if it can do so without detriment to the interests of other pupils. Not the mere pleasure or convenience of the teacher is to be considered, but the efficiency and success of the school. Although he may be the occasion of some annoyance, and of a little unusual care and attention, he should be permitted to continue in the school unless his presence there will injure it. Applying this view to the facts in this particular case, I can not resist the conclusion that it is my duty to direct the trustee to again receive the boy into the school. The appeal is sustained, and it is so ordered. JUDICIAL decisions: pupils — SCHOOL PRIVILEGES OF 517 3861 In the matter of the appeal of Patrick Horan v. the board of trustees of school district no. 19, of the town of Watervliet, county of Albany. Appeal from the refusal of the trustees of a district to receive a pupil in the school who had been expelled for a breach of discipline. The boy has been denied the privileges of the school for several weeks. The act for which the punishment was inflicted was evidently the result of momentary impulse, and for which he is now contrite. Nothing is shown against him but this one act. Held, that he should be admitted to the school. Decided March 4, 1890 Draper, Superintendent The appellant has a son, William Horan, who has been a pupil in the school, in the above-named school district, and who has been expelled from the school for a breach of discipline on or about the 28th day of January 1890. Since that time the father has made repeated efforts to have the boy received into the school again, but the trustees persistently refused to admit him. From this refusal he brings this appeal to the Department. The trustees make no answer. The boy is about 14 years of age. It nowliere appears that he is of such a character as to make his presence in the school destructive of its efficiency. Nothing is shown against him except the one act for which he was expelled. That act was evidently the result of momentary impulse, and there is apparent contrition on the part of the boy. The father is evidently a hard-working, industrious man, with a large family, and is anxious to give the boy a suitable education. It is not necessary to deter- mine whether the board was justified or not in turning the boy out of the school. It is manifest to me that whatever may be said upon that point, he has been deprived of the privileges of the school as long as he ought to be. The appeal is sustained, and the trustees are directed to forthwith admit William Horan to the privileges of the school. 3689 In the matter of the appeal of E. Parmly Brown v. the board of education of the village of Flushing, in the county of Queens. The action of a teacher and of a board of education in suspending a pupil will be upheld when it is shown that the pupil was disorderly and refused to obey the teacher and properly deport himself in the school. Until it is made to appear by proof that the pupil has been subjugated and is ready to conduct himself properly, he should not be admitted to the privileges of the school. Decided May 30, 1888 Draper, Superintendent This is an appeal from the action of the respondents in suspending the son of the appellant, a young man named Anthony Brown, 17 years of age, from the privileges of the school under their charge. 5l8 THE UNIVERSITY OF THE STATE OF NEW YORK Tlie papers submitted by the respective parties are voluminous, containing mucli irrelevant matter, but they have been read and. compared with care. The cause of the suspension of the boy was his misconduct. The facts touching his misconduct are in dispute. The statements of the parties are contradictory. Without entering into an extended or detailed account of what is alleged on either side, it may be said that there is considerable evidence to show that the boy had been irregular in attendance and frequently disorderly and troublesome to his teachers, in consequence of which he was kept on the front seat. On the I2th day of October 1887, while the principal of the school, Mr John H. Clark, was speaking to the pupils of the room in which the boy was, in relation to some matter of discipline, the young man partly rose in his seat and turned around to look at other pupils in a manner so contemptuous to the principal as to lead the latter to take hold of him. The boy resisted and a trial of physical strength between the two ensued. It seems to have been so severe as to have required the intervention of the janitor of the building on behalf of the teacher. The boy was taken to the office of the principal and talked with until he indi- cated his willingness to make an apology before the school and promise future good behavior, which he did the same day. The next morning the lady teacher, in whose room the boy was, reported to the principal that he was continually troublesome, and later, upon the same day, she sent him to the principal, pur- suant to a rule of the school that such action should be taken when a pupil had received four demerits during the month, which this boy had now received. The princijial swears that upon his remonstrating with the pupil he became insolent and abusive, defended his action, applied a vile and offensive epithet to him, dared the teacher to undertake to put him out of the school, said that, if he did not look out, he (the teacher) would have to go himself, and if he did not take care he would get hurt. The teacher told the pupil that he should sus- pend him from the privileges of the school and directed him to leave, which he finally did. The next morning, however, the boy appeared in the school and was, it is alleged, a leader in a plot for scattering numerous paper caps upon the floor and in exploding the same, to the great confusion of the school. There- upon, the boy was removed from the school and the matter reported to the board of education, which body, by resolution, sustained the action of the principal. The appellant's statements put a coloring upon these facts more favorable to his son, but I think I state them as favorably to the boy as the proofs sub- mitted will justify. The principal of the school is a man of mature age and long experience. His affidavit is clear and minute in its statements of all the cir- cumstances. He is strongly supported by the sworn statements of two lady teachers, and the janitor of the school, as to the facts of which they were wit- nesses and which were the more important and essential ones. All the surround- ing circumstances, many of which are admitted by the appellant and his son, are in corroboration of the statements of the board and the principal. The facts lead to the conclusion that the boy undertook the task of over- throwing the government of the school. It was necessary that he be reduced to subjection immediately and effectually, or removed from the school. There is no JUDICIAL decisions: pupils SCHOOL PRIVILEGES OF 519 proof of oversevere punishment. There is proof of moderation and forbearance on the part of the teacher. There is evidence of persistent insubordination on the part of the pupil This, even after suspension and to an extent v^hich rendered him, in my judgment, hable to punishment in the criminal courts for interfering with and disturbing the school. There is no doubt of the power of the school authorities to deprive pupils of the privileges of the school until they are ready to abide proper discipline. The propriety of exercising this power is more mani- fest in the case of pupils of advanced age. The pupil in the case under con- sideration is 17 years of age. He may have strength equal to that of the teacher. The public has no right to call upon teachers to test their physical powers with those of young men already grown to man's estate. I do not see that the princi- pal or the board could have done anything less than suspend this boy. The action of the board indicates that the suspension was intended to continue only so long as was necessary to reduce the boy to subjection. No proof is offered of contrition on the part of the boy or of any application for his readmission upon promise of good behavior. The main purpose of the appeal seems to be the overthrow of the teacher and defeat of the board. Facts are not shown which would justify me in sustaining this attempt. The boy is the one to be subjugated and until there is proof of that having been accomplished and the board still refusing to admit him to the privileges of the school, I shall not feel justified in interfering with its action. In view of these considerations, the appeal must be dismissed. 3698 In the matter of the appeal of W. C. Baldwin v. L. Duane Streeter. trustee of school district no. i6, town of Volney, county of Oswego. A pupil was denied the privileges of the school because he persisted in leaving the school grotinds during the noon recess; held, insufficient cause. That the teacher has no claim upon a pupil's time during the recess. Decided July 16, 1888 Draper, Superintendent From the statement of the appellant, it seems that the trustee and teacher in district no. i6, town of Volney, county of Oswego, dismissed one Clarence Stead from the school in said district in the latter part of March 1888. The reason for such dismissal which is alleged is, that the boy persisted in going away from the school grounds during the noon recess. It seems that he was on one occasion called away from the school during the afternoon session in order to assist his uncle in an emergency, but the principal difficulty alleged is that he refused to remain upon the school grounds during the noon recess, in violation of a rule which the teacher had established. No answer has been s«-ved upon the appellant by the trustee, and none has been filed in the Depart- ment. Fearing that there was some misunderstanding or oversight about the matter on the part of the trustee, a letter was addressed to him on the 8th day 520 THE UXIVEKSITV OF THE STATE OF NEW YORK of June, asking why no answer liad been interposed and also requesting him to advise nie whether the boy was still denied the privileges of the school, and, if so, upon what grounds. In the course of time a reply was received, in which he states that the boy had not l)cen permitted to reenter the school, and that no answer had i)een interposed because he " did not think there was enough to it to bother with it," and he volunteers the statement that " if this is not sufficient, let me know and I will go into details." The rules of this Department, which are, or should be, familiar to all trus- tees, require that all appeals shall be answered within ten days from the lime of service. That not having been done in the present case, the unusual course was purstied of communicating with the trustee, in order that he might make no mistake about the matter. Even after this, he neglects to interpose an answer in justification of his own act in dismissing the boy from the school. Such gross negligence is hardly tolerable on the part of a trustee. There being no answer interposed, I must accept the statements of the appellant as true. That being so, I can see no good reason for depriving the boy of the privileges of the school. The teacher had no claim upon his time during the noon recess. He was at liberty to go where he chose at that time, assuming that he did so with his parents" knowledge and consent. It is not shown that his attendance during school hours was with any such irregularity as to interfere with the efficiency of the school or justify the school authorities in dismissing him. The appeal is, therefore, sustained, and the trustees and teacher directed to admit Clarence Stead to the privileges of the school whenever it shall be in session. 3574 In the matter of the appeal of Lyman Randall v. Homer Titus, trustee of school district no. 2, towns of Lindley and Erwin, Steuben county. When a pupil has been suspended from school for violating a rule of propriety, and before an appeal \yas taken, the officer who suspended the pupil had given public notice that the pupil might return to school, an appeal subsequently taken from the act of dismissal will not be sustained. Decided March lo, 1887 Draper, Supcrititendcnt This is an appeal by a resident of school district no. 2, towns of Lindley and Erwin. Steuben county, New York, from the action of the trustee of said district, in suspending appellant's son, who is a pupil at the public school in said school district. The alleged cause of the suspension is that the bov broke a pane of glass in the schoolhousc, which the boy, or his father, the appellant, would not replace. It is claimed by the appellant that the glass was broken accidentally. JUDICIAL decisions: pupils — SCHOOL PRIVILEGES OF 52I The trustee has answered the appeal, and filed affidavits of two boys who were present at the time, which tend to show that the boy undertook to go through a window of the schoolhouse instead of using the door, which was unlocked ; that he was warned to go to the door, but he persisted in using the window, and in so doing broke the glass. The trustee admits that he suspended the boy, but before this appeal was brought he had publicly stated to the scholars, among them one of appellant's children, that the boy could return to school, and that he. the trustee, would pay for the glass. The appellant asks that the action of the trustee in suspending his boy. be set aside. As the evidence shows that this has already been done by the trustee's action in inviting the boy to return to school, the necessity for the appeal to me does not exist, and I therefore dismiss the same. 4362 In the matter of the appeal of Daniel Lynch, sr, and others v. R. F. Ford, sole trustee, school district no. 22, town of Verona, Oneida county. Where it is established to the satisfaction of the trustees of a district that pupils attending the school in the" district have indecently exposed their persons and acted in obscene or indecent manner, and used vile and indecent language, the trustee of said district has the power, and it is his duty, to suspend such pupils from the school. Decided July 9, 1895 M. H. Powers, attorney for appellants Davies & Johnson, attorneys for respondent Skinner, Superintendent This is an appeal by Daniel Lynch, sr, and Edward Lynch and Daniel Lynch, jr. his sons, from the action and decision of R. F. Ford, sole trustee of school district no. 22, town of Verona, Oneida county, suspending said Edward Lynch and Daniel Lynch, jr from the school in said district. The respondent has filed an answer to the appeal; to said answer a reply has been made ; to the reply a rejoinder, and to the rejoinder a subrejoinder. The papers are somewhat voluminous, but much of the matters contained therein is not relevant to the issue presented by the appeal and answer. From the proofs filed herein it appears: That R. F. I-ord is the trustee of school district no. 22, town of Verona, Oneida county, for the present school year; that the appellant, Daniel Lynch, sr, is, and has been, a resident of said school district during the present school year, and that the appellants. Edward and Daniel Lynch, jr, are the sons of said Daniel Lynch, sr, residing with their father in said school district, and of school age, to wit: said Edward is 16 years of age, and said Daniel, jr, is 14 years of age; that said Edward and Daniel, jr, have been attending the school in said school district in the present school year, 522 THE UNIVEKSITY OF THE STATE OF NEW YORK and in the term of school in said year in wliioh said school was maintained, com- mencing March ii. i>^jS'- that at different times during said school year com- plaint was made by scholars attending the school in said district that said Edward Lynch and Daniel Lynch, jr, had each of them at different times in the school- house and upon the school grounds indecently exposed their persons to the scholars attemling said school, and had acted in the presence of scholars in said school in the schoolhouse and upon the school grounds in an obscene and indecent manner, and had also used vile, obscene and indecent language; that within the week of said school next preceding April 12, 1895, for a day or two a large number of scholars absented themselves from said school by reason of the afore- said conduct on the part of said Ldward and Daniel Lynch, jr; that on or about April 10, 1S95, seven of the scholars attending said school informed the respondent herein of the aforesaid acts on the part of said Edward and Daniel Lynch, jr, and severally signed a paper in which they stated that during school hours they had repeatedly seen said Lynch boys indecently expose their persons to them and other scholars of said school, and delivered said paper to the respondent; that the respondent, after receiving said statement, informed the appellant, Daniel Lynch, sr, of the charges made by scholars attending said school against his sons, Edward and Daniel, jr, and asked or advised that he take his said sons out of school temporarily, and thus save the respondent from the necessity of suspending them from school; that said appellant, Lynch, sr, declined to take his sons out of school, and informed the respondent that he must act in the matter as he thought best ; that on April 12, 1895, the respondent went to said schoolhouse while the said school was in session, and the said Edward and Daniel Lynch, jr, being then present in said school, he directed them to leave the school and informed them that they were suspended from said school until such time as he (the respondent) deemed advisable for them to return, and they should conduct themselves properly; that on April 16, 1895,- the appellants herein filed their appeal from said action and decision of the respondent, as such trustee. It must be conceded that if said Lynch boys had conducted themselves in the schoolhouse or upon the school grounds in the presence of the scholars attending said school in the manner they were charged to have acted and the respondent was satisfied from the statements made to him that said statements were true, it was the duty of the respondent to suspend them from attending said school. Under the school law, the Lynch boys and their parents, if they felt aggrieved, that is, injured, by the action of the respondent, had the right to appeal to the State Superintendent of Public Instruction from the action and decision of the respondent, when the proofs relative to said charges and their answer thereto could be presented. The respondent has filed the affidavits of eleven scholars attending said school, all of whom allege that they have seen both Edward and Daniel Lynch, jr, in the school building and upon the school grounds, while the school was in session and in recess and intermission, indecently expose his or their person or persons, and act in an obscene and indecent manner, and heard them use vile, obscene and indecent language. JUDICIAL decisions: pupils SCHOOL PRIVILEGES OF 523 In the proofs filed by the appellants, Edward and Daniel Lynch, jr, deny, in the affidavits made by them, the charges brought against them. The other affidavits filed by the appellants, so far as they relate to the aforesaid charges, the affiants state therein that they never saw the Lynch boys indecently expose their per- sons, or act in an obscene or indecent manner, or hear them use vile, obscene and indecent language, and that the said affiants do not believe the said boys are guilty of the charges made against them. I can not disregard the positive testimony presented by the respondent in this appeal, that said Lynch boys were guilty of the conduct alleged therein. I am clearly of the opinion, upon the proofs presented herein, that the respondent acted within the powers and duties given him under the school law in suspending said Lynch boys from the school in said district, and upon sufficient proof of the improper conduct of said boys. The appellants have failed in establishing their appeal and the appeal should be dismissed. Appeal dismissed. RELIGIOUS SERVICES Trustees have no warrant of law for directing religious exercises to be conducted in the school during .school hours, nor for excluiling pupils from the school altogether on the ground of their declining to be present at such reading. Decided August 23, 1870 Weaver, Supcrintcudcut The appellant states that by the express orders and directions of the trustee, the teacher of the district school, each morning at the opening thereof, reads a chapter of the protestant version of the scriptures. That the appellant from conscientious and religious scruples has kept his children from going to school until after such reading of the scriptures was ended. That in consequence thereof, appellant's children get to the school ten or fifteen minutes after the opening of school, and that they are for that reason refused admission by the teacher, and are by her sent home, she declaring to them " that they must be present at the reading or stay away all day." The object of the common school system of the State is to afiford the means of secular instruction to all the children within its borders. For their religious training, the State does not provide and with it does not interfere. The advan- tages of the schools are to be free to all alike, and the consciences of none are to be legally violated. There is no authority in the law, as a matter of right, to use any portion of the regular school hours in conducting any religious exercise at which the attendance of the scholars is made compulsory. On the other hand, there is nothing to prevent the reading of the scriptures or the performance of other religious exercises by the teacher in the presence of such of the scholars as may attend voluntarily or by the direction of their parents or guardians, if it be done before the hour fixed for the opening of the school or after the dismissal of the school. (Decisions of Secretary Spencer and Superintendent Rice, above quoted, commented on and approved.) The action of the trustee in directing the reading of the scriptures as a part of the school exercises, and in causing the exclusion of any of the pupils from the school on the ground of their declining to be present at such reading, has been entirely without warrant of law. Decided June s. 1872 Weaver, Superintendent A long and bitter controversy between certain of the inhabitants and the board of education of Long Island City, involving precisely the same question as that in the last preceding decision, leads the Superintendent to recite quite fully the previous rulings of the Department upon the question and the same are [524] JUDICIAL decisions: religious services 3^0 upheld by him in the following conclusion concerning the particular issue pre- sented upon those separate appeals from that city : " The action of the board of education of Long Island City, in directing the reading of a portion of the Bible as an opening exercise in the schools under their charge during school hours, and in excluding pupils from those schools or any of them, on the ground of declining to be present at such reading, has been without warrant of law." 2847 Decided April 18, 1870 Gilmour, Superintendent Religious exercises that are held before nine o'clock a. m., and are not com- pulsory, do not violate any legal right. Trustees can not, under any circumstances, be required to open the schoolhouse for religious meetings. Decided June 7, i860 A'an Dyck, Superintendent This Department, in its late action, has favored the policy of opening the schoolhouse for religious and other worthy objects, when not wanted for school purposes. Where this power is exercised by the trustees, within the limits of a proper discretion, and regard for the district property, the Department will not interfere. But this is very different from compelling the trustees to open the house for such purposes. They can not, as trustees of the district, be compelled to do any act not specifically within the range of duties prescribed. They are under no obligation to yield, even to the unanimous wish of the district, to open the schoolhouse for other than school purposes ; and for the reason that they are not elected as guardians of the moral or religious interests of the district, but of its educational interests. They can not be compelled to take action outside of their official relations. For their refusal to comply with the wishes of the district in matters outside their official relations, there is no remedy but to elect others in their places, as fast as their terms of service shall expire. Trustees will not be ordered to open the schoolhouse for religious meetings. Decided May 5, 1862 Rice, Superintendent No denomination has a right to the use of the schoolhouse for religious or other purposes. Whoever occupies it for other than school purposes does so by ""sufferance only. The trustee who allows such privileges to be exercised does so without the sanction of any statute law, and is personally responsible for any injury to the property caused thereby. C26 THE US'INEKSITV OF THE STATE OF NEW YORK No inhabitant of the district has a right to demand any thing from the trus- tee as an offuer, whicli he is not lawfully bound to grant; and this Department has no authority to order him to do any thing not required or contemplated by the law prescribing his duties. Consequently, the Superintendent has not authority to order the trustee to open the schoolhouse for other than school purposes. School may be opened with prayers, provided that it be done before school hours, and that there be no comiulsic n to enforce attendance. Decided May 13, i83y Spencer. Superintendent In an appeal to the Superintendent, certain inhabitants of district no. 15, Barre, complained that the teacher, with the permission of the trustees, " made prayer part of school discipline." The trustees replied that they had permitted the teacher to have prayers on condition that they should be had previous to school hours, and they alleged that he did not occupy school hours. The Super- intendent dismissed the appeal, with the following remarks : " In this conduct of the trustees, the Superintendent can perceive no cause of complaint. Both parties have rights; the one to bring up their children in the practice of publicly thanking their Creator for his protection, and invoking His blessing; the other, of declining, in behalf of their children, the religious services of any person in whose creed they may not concur, or for other reasons satis- factory to themselves. These rights are reciprocal, and should be protected equally; and neither should interfere with the other. Those who desire that tl:eir children should engage in public prayer have no right to compel other chil- dren to unite in the exercise, against the wishes of their parents. Nor have those who object to this time, place or manner of praying, or to the person who conducts the exercises, a right to deprive the other class of the opportunity of habituating their children to what they conceive an imperious duty. Neither the common school system, nor any other social system, can be maintained, unless the conscientious views of all are equally respected. The simple rule, so to exercise your own rights as not to infringe on those of others, will preserve equal justice among all, promote harmony, and insure success to our schools. In the present case, the Superintendent thinks the trustees had lawful right to permit the teacher to commence the business of the day by public prayer, with the children of such parents as desired it; and they were also right in directing that such exercises should not take place during school hours, nor form a part of school discipline." Another branch of this first question is whether the teacher has a right to compel the children to kneel, during prayer, or to dispense with their ordinary business. The answer already given proceeds upon the principle that prayer is no part of the business of a common school, but that parents may place their children JUDICIAL decisions: religious services 52; under the superintendence and government of a teacher for that purpose. Of course his jurisdiction would extend to that only. But others have no right to disturb the performance of what is considered a sacred duty. As the one class is required to abstain from all attempts to compel the children of the other class to engage in an exercise which the latter disapprove, so the latter should abstain from interrupting such exercise, and should instruct their children, accordingly, not to enter the schoolroom, until the usual hour of commencing school, and not to disturb those within by any noise, or other conduct calculated to annoy them. And the teacher should allow the children of all parents who do not desire them to engage in prayer to withdraw from the room, or to absent themselves from it. But if they come into the room before the usual school hours, and choose to remain there during prayer, they must preserve the order and decorum betitting such an occasion. Religious exercises are not a part of district school exercises, and, therefore, no portion of the regular school hours is to be consumed in conducting them. Decided February 5, 1866 Rice, Superintendent A teacher has no right to consume any portion of the regular school hours in conducting religious exercises, especially where objection is raised. The prin- ciple is this : Common schools are supported and established for the purpose of imparting instruction in the common English branches; religious instruction forms no part of the course. The proper places in which to receive such instruc- tion are churches and Sunday schools, of which there is usually a sufficient num- ber in every district. The money to support schools comes from the people at large, irrespective of sect or denomination. Consequently, instruction of a sec- tarian or religious denominational character must be avoided, and teachers must confine themselves, during school hours, to their legitimate and proper duties. 5440 In the matter of the appeal of Rev. Charles A. Logue from the decision of the board of education of district no. 9, town of Hempstead, Nassau county. Religious services in schools. The policy of the State education system has been to deny the right of school authorities to compel the attendance of pupils upon religious exercises held during school hours. The rule is that religious instruction may not be given in the public schools as a part of the prescribed course of instruc- tion therein; that religious services consisting of prayers, reading of the Bible and singing of hymns shall not be held during the hours customarily allotted to the per- ■ . f ormance of school work, and that the pupils of the schools may not be compelled to attend such services whenever held. Decided November 18, 1909 528 THE U.VIVEKSITY OF THE STATE OF NEW YORK Draper, Commissioner The appellant. Rev. Charles A. Log^ue, complains that the board of educa- tion of union free school district no. 9, town of Hempstead, unlawfully permits the reading of the Bible, the recitation of the Lord's prayer and the singing of hymns as a part of the school exercises of the schools of such district, and dur- ing school hours. The respondents have not answered the appellant's petition, and the allegations therein will therefore be taken as true. The appellant states that he has protested to the board of education against the reading of the Bible, the recitation of the Lord's prayer and the singing of hymns during school hours, but that such board has ignored such protests, and that such exercises have been continued as a part of the school curriculum. The question here submitted is not a new one. The established policy of the State education system has been to deny the right of school authorities to compel the attendance of pupils upon religious exercises held during school hours. There has been no departure from the rule that under the general school laws of the State, religious instruction may not be given in the public schools as a part of the prescribed courses of instruction therein, that religious services consisting of prayers, reading of the Bible, and singing of hymns shall not be held during the hours customarily allotted to the performance of school work, and that the ]>upils of the school may not be compelled to attend such services whenever held. The decisions of Superintendent Weaver in the case of the appeal of Thomas McMahon (Decision no. 1985. June 5, 1872) and of Superintendent Ruggles in the matter of the board of education of union free school district no. 4, Orangetovvn (May 27, 1884) are declaratory of the Department's policy in respect to this question. These decisions control the determination of this appeal, which is hereby sustained. It is hereby ordered. That the board of education of union free school dis- trict no. 9, town of Hempstead, Nassau county, take such action as may be necessary to conform to the rule set forth and declared in this decision. 1985 I. On the appeal of Thomas McMahon and others, board of trustees of the first ward of Long Island City, Queens county, against John Fahnstock and others, board of educa- tion of Long Island City. 2 Owen McEleamey and others, against the same. 3 Edward McBennett against the same. Decided June 5, 1872 Weaver, Superintendent These three appeals are all against the same respondents, and, as they involve but one and the same question, they may conveniently and properly be considered and disposed of together. The respondents compose the board of education of Long Island City, a body created under the provisions of chapter 461, Laws of 1 87 1, for the general local supervision and control of the public schools of Long Island City. The ground of appeal, in all these cases, is the action of JUDICIAL DECISIONS : RELIGIOUS SERVICES 529 the respondents under a provision in a by-law adopted by them for the conduct of the schools under their charge. That provision is in the following words: " The daily opening exercises shall consist of the reading of a portion of the Holy Scripture, without note or comment." The appellants in the tirst of the above entitled cases, who are the trustees of the first ward of Long Island City, complain of the enforcement, under the direction of the respondents, of the provision of the by-law above cited, by com- pelling the pupils in the school of the first ward to be present at the reading of the Bible therein, under penalty of expulsion from school in case of their non- attendance at such reading. The appellants allege that the regulation was directed to be so enforced, against their protest, and that of many of the scholars, and of the parents or guardians of those scholars. The appellants in the second appeal complain of the threatened expulsion, in some instances, of their children from the first ward school, because the appel- lants forbade their attendance upon the religious exercise in question, and in other instances they show that their children were actually expelled from that school, for refusing, in obedience to the direction of their parents, to attend school when the Bible was read. The third appeal is by a resident of the second ward of Long Island City, who alleges that his child was expelled from the school of that ward for refusing, under the direction of the appellant, to attend at the reading of the Bible therein. In this case an attempt has been made to show that the pupil left the school voluntarily, but it is manifest, from the evidence, that the enforcement of the regulation in question caused his withdrawal, and that he was refused permis- sion to remain in the school, except upon the condition of compliance with the requirements of the rule by attending when the Bible was read. The question presented by these cases is not a new one in the history of the public schools of this State. The claim by trustees, of the right to enforce the attendance of pupils in the public schools upon religious exercises therein, has been frequently passed upon in this Department by my predecessors in otfice and by myself, and it has uniformly been held that no such right legally existed. The following observation? in a former decision rendered by me are equally applicable here: "The object of the common school system of this State is to afford means of secular instruction to all children over 5 and under 21 years of age, resident therein. For their religious training the State does not provide, and with it does not interfere. The advantages of the schools are to be free to them all alike. No distinction is to made between Christians, whether Protest- ants or Catholics, and the consciences of none can be legally violatetl. There is no authority in the law to use. as a matter of right, any portion of the regular school hours in conducting any religious exercise, at which the attendance of the scholars is made compulsory. On the other hand, there is nothing to prevent the reading of the Scriptures or the performance of other religious exercises Tjy the teacher in the presence of such of the scholars as. may attend voluntarily, or by the direction of their parents or guardians, if it be done before the hour fixed for the opening of the school or after the dismissal of the school. These 53^ TIIK UNIVERSITY OF THE STATE OF NEW YORK principles were set forth by Secretary Spencer more than thirty years ago. In a decision made by that able othcer in the year 1839, in which he sustained the action of the trustees of a school district in permitting a teacher to have prayers in the school, on condition that they should be had previous to school hours, the following remarks occur: " Both parties have rights; the one to bring up their children in the practice of publicly thanking their Creator for his protection, and invoke his blessing; the other, of declining, in behalf of their children, the religious services of any person in whose creed they may not concur, or for other reasons satisfactory to themselves. These rights are reciprocal, and should be protected equally, and neither should interfere with the other. Those who desire that their chiUlren should engage in public prayer have no right to compel other children to unite in the exercises against the wishes of their parents." Neither the common school system, nor any other social system can be maintained, unless the conscientious views of all are equally respected. The simple rule, so to exercise your own rights as not to infringe on those of others, will preserve equal justice among all, promote harmony, and insure success to our schools" (Code of Public Instruction, p. 355 j. The same view of this subject was expressed by my immediate predecessor. The late Hon. V. M. Rice, in a decision rendered by him February 5, 1866, said: " A teacher has no right to consume any portion of the regular school hours in conducting religious exercises, especially where objection is raised. The principle is this: Common schools are supported and established for the purpose of imparting instruction in the common English branches ; religious instruction forms no part of the course. The proper places in which to receive such instruction are churches and Sunday schools, of which there is usually a sufficient number in every district. The money to support schools comes from the people at large, irrespective of sect or denomination. Consequently, instruction of a sectarian or religious denominational character must be avoided, and teachers must confine themselves, during school hours, to their legitimate and proper duties." (Code of Public Instruction, p. 349.) The action of the board of education of Long Island City, in directing the reading of a portion of the Bible as an opening exercise in the schools under their charge, durintj; school hours, and in excluding pupils from those schools, or any of them, on the ground of declining to be present at the reading, has been without warrant of law. The appeals must therefore be, and are hereby sustained. The proper course for those who are dissatified with the rule established by the decisions above cited, and who desire a different or more explicit regulation on the subject, is to apply to the Legislature for such enactments as will meet their views. Con- tentions about the construction of general principles of law might thus be obviated by plain statutory provisions. All persons, otherwise entitled to attend any of the schools of Long Island City, and who have been and are excluded therefrom for a refusal to be present at the reading of the Bible therein, have had the right to be admitted to such schools upon the same footing as other pupils rightfully attending them; and i<- JUDICIAL decisions: religious services 531 is, therefore, the duty of the said board of education to see that the right of all such persons, in that respect, is accorded to them. This decision must be liled with the clerk of the board of education of Long Island City, and notice thereof must be given by him to the members of the board, and to the appellants in the appeals above, numbered 2 and 3, with opportunity to examine the same. In the matter of the application of the board of education of union free school district no. 4, of Orangetown, Rockland county. Decided May 27, 1884 Ruggles, Superintendent This application represents that the above-named board of education " wish to move unerringly, but firmly, in the matter of sustaining the reading of Scripture and prayer as a part of the exercises in opening the daily sessions of our public school," that the board has " not required the children of non- protestant families to participate in repeating Scripture or the Lord's prayer, but have simply required them to behave with decorum," that a number of Catholic families " ask that their children be allowed to remain outside until the devotional exercises are concluded," and that " this interference causes much disorder outside of the room, and the subsequent entrance of these pupils causes a loss of time and disturbance to class work." I have carefully examined the special act under which this school was organized to see if there was any provision therein which might be held to authorize any other or different rule for the government of this particular school, in the respect in question, than that which applies to the public schools organized under the general law. I do not find any such exceptional provision. By the Constitution of this State all people, in respect to the free exercise and enjoyment of religious profession and worship, stand upon a footing of absolute equality. Interference therewith, in the way of discrimination or pref- erence, even by legislative enactment, is, by the express words of that instru- ment, prohibited. Under our public school system, within the legal limitations of age and residence, instruction is free. The material resources necessary for the mainte- nance of this immense and complicated system, are drawn at large from a popu- lation characterized by dissimilar religious beliefs, observances, modes of worship and preferences. With such a public furnishing the money to support the schools, supplying them with the children in attendance, and having equal rights to the full and equal enjoyment of all the benefits of the schools, if it were possible to devise some limited measure of religious instruction for adoption in the schools, upon which all these diverse classes and sects could harmonize, it would be- a gratifying result. But this is manifestlv impracticable and impossible. The only alterative, therefore, to preserve the 'benefits of the constitutional guaranties, in letter and 532 THE UXIVERSITY OF THE STATE OF NEW YORK spirit, and to secure to all absolute equality of right in matter of religious pre- dilection, must be, however reluctantly the conclusion is arriveil at, to exclude religious instruction and exercises from the public schools during school hours. This conclusion involves the enunciation of no new principle. An examination of the records in this Department shows a uniform series of decisions by my predecessors, extending over a period of more than forty years, in substantial conformity with the views above expressed. In 1838, Hon. John A. Dix, then Superintendent of Common Schools, referring to a former decision in 1837, says: (Orders and Decisions, 6:391) "I have heretofore decided that a teacher might open his school with prayer, provided he did not encroach upon the hours allotted to instruction, and pro- vided that the attendance of the scholars was not exacted as a matter of school discipline." This was a case in which the teacher was in the habit of attending at the schoolhouse at 15 minutes before 9 in the morning (9 o'clock being the hour for opening the school), and devoting the intermediate time to religious exercises. In 1839, Superintendent John C. Spencer, having occasion to examine and pass upon the question (Orders and Decisions, 8:101) says: "Prayers can not form any part of the school exercises or be regulated by the school discipline. If had at all they should be had before the hour of 9 o'clock, the usual hour of commencing school in the morning, and after 5 in the afternoon. . . . Both parties have rights, and it is only by a mutual and reciprocal regard by each to the rights of the other, that peace can be maintained or a school can flourish. The teacher may assemble in his schoolroom before 9 o'clock the children of those parents who desire him to conduct religious exercises for them, and the children of those who object to the practice will be allowed to retire or absent themselves from the room. If they persist in remaining, they must conduct themselves with decorum and propriety becoming the occasion. If they do not so conduct, they may be dealt with as intruders." On another occasion during the same year (Orders and Decisions, 8:87) he says : " Neither the common school system, nor any other social system can be maintained, unless the conscientious views of all are respected. The simple rule, so to exercise your own rights as not to infringe on those of others, will preserve equal justice among all, promote harmony, and insure success to our schools." The principles laid down in these early decisions have been followed by every one of my predecessors in office, no distinction having been made between Scripture reading and prayers, but each having been held, in separate and distinct appeals, to constitute no legitimate part of the business of the public schools. They will be my guide and govern my action in all cases of Hke nature which may come officially before me. In the particular case now under consideration, with these principles in view and a disposition to carry them out fairly, and to respect the rights and con- scientious opinions of all, the board of education will, I think, have no difficulty in avoiding further contention and securing harmony in the school. RELIGIOUS GARB 3520 In the matter of the appeal of Leander Colt v. the board of education of union free school district no. 7, of the village of Suspension Bridge, town of Niagara, Niagara county. Wearing an unusual and distinctive garb, one used exclusively by members of a certain religious sect, and for the purpose of indicating membershii^ in that sect, by public school teachers, constitutes a sectarian influence prejudicial to the interests of the public school system and must not be persisted in. Pupils in a common school should not be permitted to address the teachers by an assumed religious name, as Sister Mary or Sister Martha, but by their family name with the prefix, Mr, Mrs or Miss, as the case may be. Decided March 24, 1887 Messrs Tucker & Gary, attorney for appellant Hon, W. Caryl Ely, attorney for respondents Draper, Superintendent The circumstances out of which this appeal has arisen are as follows: St Raphael's church, of the village of Suspension Bridge, after having maintained a school in connection with said church at their own expense for twenty years, presented a petition to the board of education of union free school district no. 7, upon the 3d day of October 1885, in which they requested said board to take said school under its care and maintenance. It was also requested, in the language of the petition, " that we may be permitted to retain our sisters for teachers provided they be found competent." The request of the petitioners was granted at a meeting of the board held October 8, 1885, since which time the school has been under the care and direction of the board and has been supported by public moneys. On the loth of November 1885, the board entered into a written agreement with the trustees of St Raphael's church, by the terms of which, the board leased from the trustees of the church the premises known as " St Raphael's school lot," together with the schoolhouse, furniture, fixtures, stoves and pipe and all school appliances, for the term of one year, at the nominal rent of one dollar per year and also agreed that, during the term of the lease, they would " cause one of the schools of said free school district no. 7 to be kept in operation in said schoolhouse building and keep employed as teachers therein of such school at the same wages as are paid to other teachers in schools of said district, of the same grade, three competent teachers of the class commonly known as " sisters." An appeal was taken to this Department -from the action of the board in entering into this agreement, and the decision of the acting superintendent (ISIorrison) sustained the appeal and held that the [533I 534 THE UNINKKSITV OF THE STATE OF NEW VORK agreement to keep three teachers of the class called " sisters " was a discrimina- tion in favor of a particular class, which was contrary to the spirit of the school laws and against iniblic policy, and, consequently, void. After such decision and on the ist day of February 1886, the board entered into another written agreement with the trustees of the church, whereby they leased the property for the purposes of a public school for the term of five years from the nth day of January 1886, at the nominal rent of one dollar per year. The appellant now alleges, that the school has since been maintained by the board of education, at public expense, under about the same management, and with substantially the same pupils, as before the leasing of the property by the board ; that it has been taught by Sisters of Charity of the Roman Catholic Church, who wear, at all times, the distinctive garb of their order, with crucifix and rosary ; that it is attended exclusively by children of Roman Catholic parents ; that the authorities of tliat church require the members of their church to send their children to this particular school, and that the school is opened and closed by religious exercises in conformity with the usages of that church. The appel- lant alleges, also, that this school is not a component part of the school system of the district, and particularly says that the pupils in this school are not classified and graded according to their different degrees of proficiency as is done in the other schools, and as their educational interests require. He alleges, also, that the leasing of St Raphael's school building is an unnecessary expense and to his injury' as a taxpayer, because the district school building is sufficiently com- modious to accommodate all the pui)ils in both schools, and that one additional teacher in the district .school would provide amply for the pupils of both schools combined. He objects, moreover, to the presence in the schoolroom of Sisters of Charity, wearing the dress of that order, on the ground that these things tend to inculcate in the minds of the children the faith and doctrines of the Roman Catholic Church, and insists that the employment of such persons as teachers affords extra privileges to that church and constitutes an unlawful discrimina- tion or preference to that religion, in violation of the well-settled laws governing the public school system and of the spirit of article i, section 3, of the Constitu- tion of the State. It is shown that the appellant presented a petition, setting forth the above- mentioned grounds of his complaint, and demanding that, in consequence of them, the school should be abandoned, to the board of education, at a meeting held on the 4th day of June 1886. but that the board laid the communication upon the table and refused to consider the matter. From such refusal the appellant brings this appeal, and asks that the board be overruled and the prayer of his petition be granted. The board of education, in their answer, admit that St Raphael's Roman Catholic Church, in the village of Suspension Bridge, has, for some years, main- tained a private school in connection with said church, and that said church presented a petition to the board requesting it to take said school under its charge and maintenance, and that the two written agreements relative to the JUDICIAL decisions: religious garb 53; leasing of the school property were made as alleged, and that, since making the said agreements, the board has maintained a school in the leased property, which is taught by three duly qualified and licensed teachers. They say that they are informed that said teachers " are members of some religious order of the Roman Catholic. Church, but are not Sisters of Charity; and that the garb, dress or habit worn by said teachers consists of a loose, flowing dress of black serge, with a black veil, and that the said dress conceals from view all portions of the form of said teachers, except the hands and head, . . . and that in addition to this, is worn a slight girdle about the waist from which depend a cross and beads, which hang upon the folds of said dress." The board says that the school maintained in the leased property is needed for the accommodation of the pupils of the district and that it is cheaper to hire than to build; that the capacity of the district school building is inadequate; that the second school is conducted substantially like the first or older one ; the books used and the rules and regulations for the management and conduct of both schools are the same. They say, furthermore, that neither of the religious con- nections nor the religious belief of the teachers have been the subject of notice or inquiry by the board. They say that the board " is under no agreement, express or implied, with any board, body, person or persons to employ any par- ticular person or persons, or members of any particular denomination as teachers in said school. They deny that the school is opened or closed with religious exercises. They allege broadly that their entire action in the premises has been in good faith, without any intention of discriminating in favor of any religious creed or belief, and actuated only by the desire to accommodate all children of school age, of all creeds and conditions, in the enjoyment of the benefits of the public school system." In view of the disputed questions of fact presented by the appeal and answer, the case was referred to the school commissioner of the second district of Niagara county to take the evidence of the parties and their witnesses and to allow them an opportunity to cross-examine each other, and such evidence has been returned and examined with care. From the allegations and admissions of the parties in the pleadings, and from the evidence taken before the commissioner, I find the facts of the case to be as follows : 1 St Raphael's Church, at Suspension Bridge, for several years prior to Octo- ber 1885, maintained and managed a private and sectarian school at its own expense. 2 On October 1885, the board of education of union free school district no. 7, of the village of Suspension Bridge, leased this school property at a nominal rental value, and has since maintained a school at public expense in said property. 3 A written lease, dated November 10, 1885. was executed between the board and the trustees, in which, among other things, it was agreed that the board should maintain a public school in the property and should keep con- tinually employed in such school three teachers of the class commonly known as 536 THE UNIVERSITY OF THE STATE OF NEW YORK " sisters." This lease was, because of this provision, set aside upon an appeal to this Department. On the 1st day of February 1886, another written lease was executed between the parties, by which the property was leased to the board for five years at a nominal consideration. 4 The school accommodations of district no. 7, other than the St Raphael school property, were not sulticient fur the convenience of the pupils of both schools. 5 Since the St Raphael school has been in charge of the public school authorities it has been continually taught by three duly qualified and licensed teachers, who are members of the order of St Joseph of the Roman Catholic Church. Two teachers, who served up to September 1886, then resigned, and two others, who were members of the same order, were appointed in their place. 6 The teachers of the school wear in the schoolroom and at all times, in common with all the members of their order, black serge dresses, hanging loosely in folds about the person, white linen coronets and black veils falling down to the shoulders, and white linen capes. Tied about the waist is a black cord and tassels, to which are attached beads and a crucifix. 7 The teachers are commonly known to the world and are uniformly addressed by the pupils by their Christian names, with the prefix of " Sister," as *• Sister Martha." " Sister Marj'," etc. 8 No question is raised as to the personal character or intellectual or prac- tical qualifications of these teachers. Their high character and capabilities are conceded. 9 The pupils attending the St Raphael school are very generally, if not exclusively, of Roman Catholic parentage. 10 There is some evidence that the authorities of the Roman Catholic church seek to have the members of that church send their children to this particular school, but the fact is not established. 11 It is shown that there are no religious ceremonies or exercises held in the school during school hours. Upon this state of facts, the appellant asks to have the action of the respond- ent in taking the .St Raphael school under its maintenance and supervision, and in refusing to discontinue the same upon demand, set aside and overruled. It is the duty of the people of every school district to provide pubhc school accommodations for all the children of school age in the district, desiring to attend the public schools. When application was made to the respondent in this case to take the St Raphael school under its charge, it was bound to take the children of that school into the public school of the district, if there were accom- modations for them there, and if not. it was bound to go to the extent of its lawful authority to provide accommodations for them. The statutes confer authority upon boards of education, or trustees, to lease propertv for school pur- poses, and as the fact appears that there were not accommodations for the chil- dren of the St Raphael school in the district schoolhouse, the board seems to have acted within its lawful authoritv in entering into the lease for the St JUDICIAL DECISIONS : RELIGIOUS GARB 537 Raphael school property. It is impossible to see any reason why the taking ot that particular property and the maintenance of a school in it, was not a proper exercise of the lawful authority of the board. If the owners of the property found themselves unable or unwilling to continue their school at their own expense, and were desirous of leasing the property to the bo^rd at a nominal rent upon condition that the board would maintain a public school therein, I see no objection to the arrangement. But the school which the board maintains in this property must be, in all regards, a public school. Being supported by general taxation, it must be abso- lutely free from all things not essential to the purpose for which it is m.aintained, namely, the general education of its pupils. All must have equal and common rights in it. There must be no discrimination in favor of or against any one. Nothing must be done in it or about it to which any interested person can reasonably or properly object, and most surely must this be so concerning mat- ters which the people hold so sacred as their religious faith and opinions. The appellant here particularly objects to the appointment of all the teachers in the school from one religious denomination and from one class of persons wathin that denomination, and to the fact that these teachers wear, at all times, clothing which distinguishes them everywhere, as members of their particular sect or order, as well as to the fact that these teachers are known to the pupils and are usually addressed in school, not by their family names, but by names assumed by them in the religious order of which they are members. A board of education has no right to discriminate in favor of any religious denomination in the appointment of teachers. Inasmuch as the board assumed charge of and continued a school previously in existence, it ought not to be con- sidered reprehensible to have continued the teachers previously employed there, even though they were all of one religious order, provided they were properly qualified, as is undisputed in this case. But three facts appear in this connec- tion, (a) In a written lease of the St Raphael school property entered mto between the board and the church trustees prior to the execution of the lease now in force, and held to be void by my predecessor in office (Supermtendent James E :^Iorrison), it was agreed that the board should contmually keep employed in this school three teachers "of the class commonly known as 'sifters'" (b) The three teachers first employed were representatives of this class, and the teachers of the school have been exclusively confined to this class U) Durin- the time the school has been under the charge of the board, two of the teacher's have resigned and their places have been filled by two others of the same class. These facts, taken together, must be held to indicate a purpose on the part of the board to discriminate in the employment of teachers m tavor of this particular class. The purpose to discriminate would not be so manifest if these teachers had all held a common religious faith and nothing more That -would be found to be true in many other schools, I apprehend. But when the facts above suggested are taken in connection with the tact that the class known as ' sisters'" is not a numerous class, it is impossible to arrive at any 538 THE uni\"i:ksitv of the state of new york other conrlusion than that the board has intended to appoint none but the mem- bers of this particular class of persons. This constitutes a discrimination or reference, which is in violation of the fundamental law of the State. I have given the question raised in relation to the dress of the teachers and the names by which they are known among the pupils very full consideration, and have arrived at the conclusion that the wearing of an unusual garb, worn exclusively by members of one religious sect, and for the purpose of indicating membership in that sect, by the teachers in a public school, constitutes a sectarian influence which ought not to be persisted in. The same may be said of the pupils addressing the teachers as " Sister Mary," " Sister Martha," etc. The conclusion is irresistible that these things may constitute a much . stronger sectarian or denominational influence over the minds of children than the repeti- tion of the Lord's prayer or the reading of the Scriptures at the opening of the schools, and yet these things have been prohibited, whenever objection ha? been oflfered by the rulings of this Department from the earliest days, because of the purpose enshrined in the hearts of the people and embedded in the funda- mental law of the State, that the public school system shall be kept altogether free from matters not essential to its primary purpose and dangerous to its harmony and efficiency. In view of the conclusions which I have reached, I am compelled to deny the application of the appellant that the school shall be abandoned, but to direct that the respondent require that the teachers shall discontinue the use in the school- room of the distinguishing dress of the religious order to which they belong, and shall cause the pupils to address them by their family names with the prefix of " Miss," as teachers are ordinarily addressed. It is ordered that the board of education take action for the purpose of carrying the above direction into effect within fifteen days from the date hereof, and that the direction be fully complied with within thirty days from said date. 4516 In the matter of the appeal of Fayette B. Durant and others v. board of educa- tion of West Troy school district. It is the policy of the school law that each of the school districts of the State should become the owner of a schoolhouse or houses or school building or buildings, either by purchase or by building, upon a suitable site or sites; and where power is given to lease a room or rooms, it is only for a limited time to provide for an emergency. When in a school district, abundantly able to provide by construction or purchase, sufficient rooms and buildings for the proper accommodation of the pupils, the school authorities hire rooms in a parochial school building in which to maintain a public school, with the right of the control of such rooms only during the school hours of each day, and consenting and giving to the lessors complete control of the rooms at all other times; and such lease is continued beyond the period of emergency contemplated by the statute, such hiring is without legal authority on their part. JUDICIAL decisions: religious garb 539 Where the teachers in the public school, who are members of any religious sect or order, wear the distinctive garb or dress of such order, it is the duty of the school authorities to require such teachers to discontinue, while in the public schoolrooms and in the performance of their duties as teachers therein, the wearing of such dress or garb. Decided November 25, 1896 Ward & Cameron, attorneys for appellants James F. Tracey, attorney for respondents Skinner, Superintendent The appellants in the above-entitled matter, Messrs Durant. Ross, Covert, and Hilton, as residents and qualified voters in the West Troy school district, appeal from the action of the board of education of the West Troy school dis- trict, consisting of Messrs Van X'ranken, Phelps, Sabin, Mace, Neason, McKee- ver, McLeese and Ball, in leasing for school purposes rooms in a building known as " St Bridget's Parochial School," the property of St Bridget's Roman Catholic Church, during school hours only, and at the nominal rate of $1 per month, the church authorities to furnish fuel, pay the fireman and janitor, and maintain therein a school of said district, and to employ eight persons as teachers in such school, all of whom are members of the Roman Catholic Church, and six of whom are of the class known as " Sisters," residing in St Joseph's Con- vent. These sisters dress in a garb peculiar to their religious sect or order, and are usually addressed in school by the names assumed by them in the religious order of which they are members, prefixed by the term " Sister." The appellants allege that by reason of the action of said board of education, the school is wholly or partly under the control or direction of a religious secta- rian denomination; that denominational doctrines, or tenets, are taught therein, and that by the reason of the sectarian character of the school many parents residing within the district object to sending their children thereto. The appellants ask that the action of the board of education in leasing said school rooms be annulled and set aside; that the contracts with the teachers be annulled and set aside, and that the board of education be instructed to provide a suitable building or rooms for school purposes, if the public school buildings now owned by the district are inadequate, and to employ duly qualified teachers to teach the school, irrespective of any religious denomination, order or sect, to which they belong, and that the teachers be prohibited from teaching any denomi- national doctrines or tenets in the school, and for such other or further relief as may be proper in the premises. The members of said board of education, with the exception of Mr Ball, have joined in an answer to the appeal, in which they give their statements as to the leasing of the rooms, the contracts with the teachers, and the charges of sectarian influences, with denials, either upon information and belief, or posi- tively, of certain allegations in the appeal. - \ Mr Ball, in an affidavit made by him and annexed to the answer, alleges that he has read the answer, and that he concurs in the statement of facts as to all past transactions of the board contained therein, but is unable to concur in the 540 THE UNIVERSITY OF THE STATE OF >:E\V YORK conclusions thereof, as to sectarian iniluences, and for that reason refuses to sign or verify the answer. To the answer of the respondents the appellants have filed a reply contain- ing statements controverting certain allegations in the answer, and stating cer- tain matters relative to the establishment of union free school district no. i in West Troy, all of which occurred prior to the election of the respondents as members of said board of education, and are not relevant to the action of the board complained of in the appeal. It is contended by the aj)pcllants in the reply, in substance, that the public school buildings in the district are of sufficient capacity to accommodaie the scholars attending school, provided they are put in proper condition to receive pupils applying for admission, and such pupils not residing in the first ward are required to attend the schools in those portions of the district in which they reside. Annexed to the reply are the affidavits of twenty-five persons, residents of said West Troy school district, who are the parents of, or stand in parental relations to, in the aggregate, fifty-two children of school age, in which they severally allege that, while they have no personal knowledge of religious doc- trines being actually taught as part of the studies in the school maintained in St Bridget's Parochial School building, the sectarian character of the school is so well known and denominational influences in the school are so great that they are unwilling to submit tlieir children to such influences while attending school, and for that reason would not allow their children to attend the school. A rejoinder to the reply has been filed, in which all of the members of the board of education join, excepting Mr Ball, who, in his affidavit annexed to the rejoinder, states that he prefers not to sign the same for the same reasons sub- stantially as stated in his affidavit annexed to the answer, and for the further reason that he believes the capacity of the public school buildings in the first ward is conservatively stated in the reply of the appellants. ^Ir Ball, one of the members of the board of education, has filed a separate affidavit relative to the capacity of said public school buildings. The following facts are admitted : That by chapter 88 r of the Laws of 1895 the territory embraced in what, on February i, 1895, constituted union free school district no. i, and school dis- tricts numbers 2, 9 and 20 of the town of Watervliet, and that portion of school district no. 22, town of Waten-liet, lying west of the track of the main line of the Delaware and Hudson Canal Company's Railroad was, from and after the organization of the board of education provided for in said chapter, consoli- dated into one school district to be known as the " West Troy school district." That the public schools of said West Troy school district shall be under the exclusive charge of eight school commissioners to be chosen as in said chap- ter provided, who were constituted a body corporate under the name of "The board of education of the West Troy school district." That on the first Tuesday of August 1895, at an election to be held in the JUDICIAL DECISIONS : RELIGIOUS GARB 54I aforesaid districts, eight school commissioners were to be elected or appointed as in such chapter provided, and at such election Messrs Van Vranken, Phelps, Sabin, Mace, Neason, ]\IcKeever, AIcLeese and Ball were elected as the board of education of the district, and are acting as such. That said board has power to appoint a superintendent of schools; to raise by tax such sums as it may determine necessary and proper (not, however, more than two and one-half times the amount of school moneys apportioned to the district or the consolidated districts composing said district for the previous year, except as thereinafter provided), for the purposes, among others, to purchase, lease or improve sites for school purposes; to build, purchase, lease, alter and repair schoolhouses, outhouses and appurtenances ; but the board, whenever in its judgment a greater sum will be required in any one year for such purposes than it is authorized to raise, as hereinbefore stated, is authorized to call a special meeting of the qualified voters of the district to consider the proposition to raise such additional sum. That said board has the power and it is its duty to organize, establish and maintain such and so many schools in said school district, including the common schools now existing therein, as it shall deem requisite and expedient, and to alter and discontinue the same; to purchase and hire schoolhouses and rooms, lots or sites for schoolhouses, and to fence and improve them; upon the lots and sites owned by the board of education, to build, enlarge, alter, improve and repair schoolhouses, outhouses and appurtenances as it may deem expedient ; to have the custody and safe-keeping of the schoolhouse and all the school prop- erty belonging to the district, and to see that the regulations of the board in relation thereto be observed; to contract with and employ all teachers in the schools and for sufficient cause to remove them; to have in all respects the superintendence, supervision and management of the schools in the district; . . . from time to time to adopt, alter, modify and repeal, as it may deem expedient, rules and regulations for the organization, government and instruc- tion of the schools, and for the reception of pupils and their transfer from one class to another or from one school to another, and generally for their good order, prosperity and utility. By said chapter 88 1 it is further enacted that nothing therein shall be construed to limit, restrain or annul the powers of the State Superintendent of Public Instruction ; that in all matters of dispute which shall be referred to him by appeal and which shall arise under and by virtue of such act or under and by virtue of any other act which is now or shall hereafter be applicable to the schools, school officers or school property of or in said district, his decisions or orders shall be final and binding. That on the first Tuesday of August 1895, upon a parcel of land situate in the first ward of West Troy, and in former union free school district no. i. and within said West Trov school district, which land is bounded on the north by an alley, on the east bv Fourth avenue, on the south by Seventh street and on the litest' by Fifth avenUe. there were three buildings — one known as St Joseph's Convent, one as St Bridget's Roman Catholic Church, and the third as St 54- THE UNIVERSITY OF THE STATE OF N'EW YORK Bridget's Parochial School. That said third building was erected in or about the year iS86, and is owned by the St Bridget's Roman Catholic Church, having over the front entrance on Fifth avenue a tablet with the inscription " St Bridget's Parochial School," and the building is surmounted by a large gilt cross similar to the one on St Bridget's Church. That after the completion of this building the ofticers of St Bridget's Roman Catholic Church conducted a parochial school therein, and during the school year of 1894-95 the board of education of former union free school district no. i leased certain rooms in the building in which a portion of the schools of the district were maintained. That at a meeting of the board of education of said West Troy school district, held on August 10, 1895, an offer in writing was received from the trustees of St Bridget's Roman Catholic Church to lease for one year to the West Troy school district the schoolrooms in the building at the corner of Fifth avenue and Seventh street (St Bridget's Parochial School building), the board to have control of all schoolrooms during school hours ; the said church officers to furnish fuel and pay the fireman and janitor; and the consideration to be paid being one dollar per month. That the board of education, at this meeting, unanimously adopted a resolution accepting the offer. That thereupon at the opening of the schools of the district by the board for the school year of 1895- 96. the rooms in said building so leased were occupied and used during the school liours of each school day in which the schools have been in session therein for schools conducted by the teachers employed by the board. That no religious emblems are displayed in the schoolrooms. That at a meeting of the board of education held on August 19, 1895, a resolution was adopted for the employment of eight teachers in the school to be conducted in the rooms so leased, and such teachers designated, all of whom were members of the Roman Catholic Church, and six of whom resided in St Joseph's Convent, and were members of a religious order or sisterhood of said church, namely: Catharine Walsh, known as Sister Leonie ; Anna G. Conway, known as Sister Gertrude; Kate Rice, known as Sister Ludwina; Victoria Melinda, known as Sister Adelaide; Hannah Keefe, known as Sister Ignatia; Jennie Higgins, known as Sister Dechautal. That on August 31, 1895, each of the six teachers named received a contract, partly printed and partly written, dated that day, addressed to each, respectively, by name at St Joseph's Convent, stating that at a meeting of the board, held August 19. 1895, she was appointed a teacher in the first district for the pro- bationary term of one year, at a salary therein named, and stating further the manner in which the payment thereof would be made, and providing as to pay- ment in the event of a resignation by her for sickness or any other good cause ; and containing a statement that it was to be distinctly understood that the appoint- ment was for one year only, and her further retention was wholly within the discrimination of the board, and which contract was signed by the president of the board and the superintendent of schools ; that upon each of the contracts was the following form of acceptance : " To the board of education, West Troy, JUDICIAL DECISIONS : RELIGIOUS GARB 543 N. Y. : I hereby accept the employment mentioned in the foregoing contract upon the terms stated therein, dated August 31, 1895;" and which acceptance was duly signed by each of the six persons respectively on the contract addressed to her. That the six persons named under these contracts entered upon their employ- ment as teachers in the school conducted in the leased rooms, and at the date of the submission of this appeal were still performing the duties of teachers therein under the direction of the board of education and under the rules and regulations adopted by the board. That each of the six persons, during the school hours of each school day, in the performance of her duties as such teacher, respectively, was dressed in the particular garb of the religious order or sister- hood of which they are respectively members. The following facts are established: That in August 1S95, each of the six persons so employed as teachers in the schools in the West Troy school district was duly qualified to teach in the public schools of this State under the provisions of the school law prescribing the qualifications necessarv to be possessed by persons to qualify them to teach in the schools of this State. That during the school hours in which the school conducted in said leased rooms has been held no prayers have been said and no religious exercises have been held, nor any denominational tenets or doctrine taught, either orally or by the use of books. That the \\'est Troy school district has a superintendent of the schools therein, dulv elected, pursuant to the provisions of chapter 881 of the Laws of 1895- That it is the belief of a large number of the residents of that part of the West Troy school district known as the first ward that, by reason of the leasing of rooms in St Bridget's Parochial School building for school hours only, and conducting a school therein, and the employment of eight teachers, all of whom are members of the Roman Catholic Church, and of whom six are members of a religious order or sisterhood of said church, and who wear the distinctive garb of their order, that denominational tenets or doctrines are taught in the school, and hence a large number of children are not permitted by their parents or guardians to attend thereat. The first question presented by the appeal herein for my consideration and decision is in relation to the action of the respondents herein in the leasing of certain rooms in St Bridget's Parochial School building during the school hours of each school day only, and maintaining a school therein. The respondents state as grounds for such leasing: that the public school buildings in the West Troy school district do not furnish adequate accommoda- tions for the children of school age residing therein, or for such children enrolled therein, or for the average number of children attending the schools; that more schoolrooms were needed, and the offer to lease the rooms seemed in the interest of the district; that the board of education of union free school 544 THE UXIVEKSITY OF THE STATE OF NEW YORK district no. i (a part of the present West Troy school district) had, for the ten years prior, leased tlie same rooms; that no other suitable building in the first ward could be leased, and to build and furnish a new school building would cost the district many thousand dollars; that they believe that they and their predecessors in union free school district no. i have saved the taxpayers of West Troy great sums of money by annually renewing the lease; that there were two school buildings owned by the district within four blocks of the St Bridget building, so that no scholar was without a choice of schools; that ihey have express authority to hire schoolhouses and rooms by subdivision 2 of sec- tion 21 of chapter 881 of the Laws of 1895, and cite decision no. 3520 of Super- intendent Draper, in the matter of St Raphael's Church, decided March 24, 1887. No proofs have been presented to me herein of the number of children of school age residing in the school district, nor the number registered in the schools therein respectively, nor of the average attendance at the schools respec- tively; nor as to the number of school buildings the property of the district, and the seating capacity of each building; nor whether said buildings or any of them would properly accommodate more children than now attend school therein if additional seats and desks were provided. Xo proof has been presented herein as to the aggregate assessed valuation of the district upon which taxes for school purposes could be assessed. The appellants herein, in their reply, annex thereto a map showing two school buildings in ward one on Sixth street, one school building in ward two on Fourteenth street, one school building in ward three, near Sixteenth street, and one school building in ward four, near Fourth avenue. An affidavit of Mr Ball, one of the respondents, alleges that he has personally inspected and investigated as to the capacity of the public school buildings of said district in the fourth ward, and that the floor space of the buildings is sufficient for 394 scholars with- out more crowding than in the other public school buildings in the district ; that in the larger building with four rooms, with a capacity of 60 scholars in each room, one room had 13 scholars enrolled, one 18, one 45 and one 36, aggregating only 112, with a capacity for 240. The brief for the appellants states that in these two buildings, with a capacity for 394, but 250 children are enrolled. The respondents allege in their answer that the daily attendance for the past two years in the school in the St Bridget's School building was 351. The appellants allege that of the number attending the school, 150 should properly be required to attend at the other school buildings in the district. From the statements contained in the papers herein it is not clearly estab- lished that the public school buildings, the property of the school district, if put in proper condition in August 1895, were not sufficient to accommodate all the children attending school in the district. It has been uniformly the policy of this Department to call the attention of the inhabitants of school districts, and the trustees and boards of education therein, to the condition and improvement of schoolhouses and grounds, to the end that the comfort and health of the pupils attending may be promoted, and JUDICIAL decisions: religious c.arb 545 the best educational interests secured. It is the poHcy of the school law and of this Department that each of the school districts of the State should become the owner of a sclioolhouse or school buildinj;^, either by purchase or by build- ing, upon a suitable site or sites. The scliool law provides that in the levying of taxes for the construction of schoolhouses such taxes may be collected in instalments, extending several years, and thus obviate any heavy burden upon the taxpayers of such districts. By section 26 of the law creating the West Troy school district it is enacted that in case a tax shall be voted to erect a suitable building for an academy or high school the same may be raised in instalments, the amovuits of which and the times of payment of which to be left optional with the board of education ; and it is further enacted that the provisions of said section shall extend to all amounts required for building schoolhouses where the estimated cost exceeds $3000. It was the duty of the respondents herein, admitting for the purposes of argument that when they entered upon their duties in August 1895, there were not sufficient public school buildings in the district to accommodate all the chil- dren desiring to attend school therein, to have taken into consideration the erection of a new school building, and the submission of the question of such construction and the voting of a tax therefor, to a meeting of the qualified voters of said district. Instead of taking such action they entered into a lease with the trustees of St Bridget's Roman Catholic Church for certain rooms in the parochial school building owned by the church, alleging as a reason for such leasing that the building and furnishing of a new school building wouUl cost the district many thousand dollars ; that the board of education of union free school district no. 1 had for several years previously hired the rooms, and that the respondents believed that they and the former lessees thereof saved the taxpayers of West Troy great sums of money. Care in the expenditures made by the authorities of school districts, to relieve the burden of taxation, is commendable when reasonably exercised, and when it does not result unfavora])ly to the best educational interests of the district; but when the money saved to the districts is obtained solely by the occu- pation of leased property for school purposes, thereby postponing the con- struction of needed school buildings, or necessary additions to school buildings then existing, it can not be claimed in good faith that the result is in any sense really of benefit to the districts. If the West Troy school district is financially weak, such action might be deemed excusable ; but this is not the fact. From the reports in this Department made by the school commissioner of the third commissioner district of Albany county, I find that on July 31, 1895, the aggregate assessed valuation of taxable property in union free school district no. I was $1,185.501 ; that by the reports of 1894, on July 31, i8()4. the aggregate assessed valuation of taxable property in school district no. 2, town of Water- 18 54^ TIIK UXIVEKSITV OF Till-: STATI-: OF N FW YORK vlict, was $733,6^2; that of school district no. 9, of Watervliet, was $867,736; that of school district no. 20, of Watervliet, was $1,013,010. Under chapter 881, i.aws of 1895, the territory which on February i, 1895, constituted union free school district no. i, and districts nos. 2, 9 and 20, and part of no. 22, of Watervliet. were consolidated into the West Troy school district, anrl in Aujjust i8(;5, in the West Troy school district there was an agg^rcgate assessed valuation of taxable property therein of $4,000,000. A tax of half a mill upon a dollar (a low rate for a school tax), would produce the sum of $20,cxx5. The West Troy school district, by the apportioiunent made in March 1896, of the public school money to the district so constituted, received from the State between $5500 and $6000. The respondents claim that under the provisions of chapter 881, Laws of 1895, they had and have had the power to hire schoolhouses and rooms. It is true they had and have that power, and such grant or jiower is given, in like language, to the trustees of tiie common and union free scliool districts by the general school law of the State; but such provisions have never been held to authorize school authorities to lease rooms except to temporarily supply the lack of schoolhouses and rooms in buildings the ])roperty of the district, or during a time when the district does not own sufficient school accommodations, and pending action on the part of the school autliorities or the inhabitants of the district to supply such deficiency. Admitting for the purpose of argument tliat the respondents had lawful authority to hire rooms in wliich to conduct a public school in the district, they had no legal authority to hire the schoolrooms in St Bridget's Parochial School building or ebcwhere for the term of one year, with the right of control of the rooms during the school hours only of eacl: day in which a school, under the direction of the respondents, should be held during the year; they consenting and giving to the lessors comjilcte control of the rooms at all other times except dur- ing school hours. Under the lease entered into between the respondents and the trustees of St Bridget's Roman Catholic Church, the trustees thereof retained the use, custody and control of the leased rooms for and during the term of time men- tioned except between the hours of 9 o'clock in the forenoon and 4 o'clock in the afternoon of each day in which the school conducted under the direction of the respondents should be in session. The lessors had the right to use the rooms for any puq)Ose they desired during all the time on every day and night of the year, except the school hours during the school days on which the school was in session. The respondents had no control of the janitor of the building, the fires and lights therein, nor of any school property or apparatus placed therein by the respondents for school puq-ioses, nor of the books and property of the pupils attending such school which might be left in the rooms, as is customary to be left in public school buildings. The decision of Superintendent Draper, in 1887, cited by the respondents, is not in point in this appeal for the reason that the lease taken by the board of JUDICIAL DECISIONS : RELIGIOUS GARB 547 education was of the St Raphael's CathoHc School hnilding for a period of five years, and not of certain rooms in said huilding during school hours only. I am clearly of the opinion that the action of the respondents in hiring the rooms upon the conditions demanded by the trustees of the church, and assented to by the respondents, was an unwise exercise of the power given to them in rela- tion to the leasing; nor can I escape the conclusion that while no direct instruc- tion of a religious character is, or has, so far as appears from the pleadings, been given in this school, nevertheless it is worthy of inquiry why the church authori- ties are willing to indefinitely contribute to the school authorities the use of this valuable property for a mere nominal consideration. Formerly the church authorities had maintained a separate denominational school therein. It is entirely natural to suppose that those parents who now object to its present use, reason that such school, with its close proximity to the church build- ing and convent, with the inscription over the doorway, the emblem surmounting the building and the teachers therein employed with their distinctive garb, furnish an object lesson at least, and all the surroundings of the school therein maintained tend to lead the mind of the child toward this particular religious denomination. This result is but natural, and I am convinced is quite in conflict with the trend of American sentiment toward public schools, and the school authorities should perform no acts in their official capacity tending to subject the schools under their charge to this criticism. Since this appeal was presented the territory embraced within the village of West Troy has been incorporated into the city of Watervliet, but no provision was made in this legislative enactment for additional school facilities, nor has any provision been made for the ownershi]:) by the new city, so far as I am informed, of additional school facilities. If such neglect is to be considered as an indication that the present system of leasing — a system only intended to meet sudden emergencies — is to be continued indefinitely, I can not approve such a course, and the respondents herein must be directed to surrender said rooms and discontinue the public school maintained therein. The second question presented by the appeal herein for my consideration and decision is, in relation to the action of the respondents in the employment as teachers in the school conducted in the St Bridget's Parochial School building of the six persons, members of a sisterhood or order of the Roman Catholic Church, and the wearing by them during school hours of the particular dress or garb of such order. The appellants allege that these six persons, with others of their order, in their examination under the rules of uniform examinations for commissioners' certificates, established by the State Superintendent of Public Instruction, occupied a separate room apart from other persons taking such examinations ; that such persons have not attended at the teachers institutes held in the school commissioner district in which the school is situate ; that it is con- trary to the rules and regulations of the religious order of which such persons are members for them to attend mixed gatherings, such as public examinations and teachers institutes. 54^ THK UNIVKKSITY OF THE STATE OF NEW YORK The apiiellant.s liavc failed to establish by proof these allegations or any of them. It appears that the examination referred to by the api)ellants was conducted by School Commissioner Main, assisted by Examination Clerk Mr Finegan, of this Deixirtment, and several other examiners from this Department, in accord- ance with the rules established ; that the six persons, with others, attended thereat and complied with the rules; that the six persons, with the others attend- ing, were distributed in three rooms, and were under the direction and subject to the supervision of the examiners at all times during such examination ; that the answer papers of all those examined were forwarded to this Department for examination, marking and filing, and that upon such examination, etc., it was found that these six persons were qualified, and each received the proper certificate of qualification, and each became, under the school law, a qualified teacher in the common schools of this State of the grade and for the term of time in the certificates respectively stated. As to the allegation that these persons have not attended at a teachers institute, it appears that the West Troy school district has a population of more than 5000 and employs a superintendent of schools, and it is therefore optional with the board of education as to whether or not it will close the schools in the district during the time a teachers institute shall be in session ; that it is not shown that the schools were closed during any session of a teachers institute in the school commissioner district in which the West Troy school district is situated. The appellants also allege that the six teachers, members of a religi<^)us order or sisterhood, were usually addressed in school hours by the scholars, not by their family names, but by the names assumed by them in the religious order, prefixed by the term " Sister." The appellants have failed to sustain this alle- gation by proof. The allegation that these six teachers, members of a sisterhood or order of the Roman Catholic Church, have worn, and continue to wear, during school hours the particular dress or garb of the order, is admitted by the respondents. It is also established that at the meeting of the respondents, on August 19, 1895, when a resolution was adopted to employ these six persons as teachers, it was stated that they would wear such dress or garb while teaching. There is no statutory law in this State which prescribes that any particular dress or garb shall be worn by the teachers in the public schools in this State during school hours, nor which prohibits the wearing by them of any particular dress or garb during school hours ; neither is there any decision of any court of this State upon the matter. Therefore, the questions to be determined are whether such practice shall be discontinued as a matter of school polity; and what the effect of the recent amendment of the Constitution is upon such practice. In the appeal of Leander Colt v. the board of education of union free school no. 7, village of Suspension Bridge, town of Niagara, county of Niagara, taken to State Superintendent Draper in 1887, it was established that the board of JUDICIAL DECISIONS : RELIGIOHS GARB 549 education on February i, 1886, hired of St Raphael's (Roman Catholic) Church, by a written lease, a building owned by it for the term of five years at a nominal consideration, and established a school therein under the board, and employed in the school three duly qualified and licensed teachers, who were members of the Order of St Joseph, of the Roman Catholic Church ; that the teachers wore in the schoolroom, and at all times in common with all of the members of said order, a particular dress or garb; that such teachers were commonly known to the world, and were uniformly addressed by their pupils by their Christian names, with the prefix of " Sister," as " Sister Martha," etc.'; that there were no religious ceremonies or exercises held in the school during school hours. Super- intendent Draper in his decision, no. 3520, made on March 24, 1887, held that: '' The wearing of an unusual garb, worn exclusively by members of one religious sect and for the purpose of indicating membership in that sect by the teachers in a public school, constituted a sectarian influence, which ought not to be persisted in. The same may be said of the pupils addressing the teachers as * Sister Mary,' ' Sister Martha,' etc. The conclusion is irresistible that these things may constitute a much stronger sectarian or denominational influence over the minds of children than the repetition of the Lord's prayer or the reading of the Scriptures at the opening of the schools, and yet these things have been prohibited whenever objection has been ofifered by the rulings of this Department from the earliest days, because of the purpose enshrined in the hearts of the people and embedded in the fundamental law of the State, that the public school system shall be kept altogether free from matters not essential to its primary purpose and dangerous to its harmony and efficiency." Superintendent Draper directed the board of education to require that the teachers should discontinue the use, in the schoolroom, of the distinguishing dress of the religious order to which they belonged, and to cause the pupils to address such teachers by their family names with the prefix " Miss," as teachers are ordinarily addressed. It does not appear that this decision has been modified or vacated by Superintendent Draper or modified or disapproved by his succes- sors in the office of State Superintendent of Public Instruction. The respondents herein cite the decision of the Supreme Court of the state of Pennsylvania in the case of John Hysong et al. v. Gallatzin Borough School District et al., decided in the October term 1894, 164 Penn. State Reports, p. 629, etc. From an examination of the case it appears that a bill in equity was filed in the Common Pleas of Cambria county to restrain the school directors of Gallatzin borough from permitting sectarian teaching in the common schools of the borough, and from employing as teachers sisters or members of the order of St Joseph, a religious society of the Roman Catholic Church. It was alleged in the bill that the " Sisters," while teaching in the public schools wore the garb, insignia and emblems of their order, and that they used the garb, etc., in such mai'iner as to impart to the children under their instruction certain religious and sectarian lessons and ideas peculiar to the Roman Catholic Church. The court 550 Till-: UNlVKkSlTV OF TlHi STATK OF NEW YORK of cuniiii..n pk-as fouiul as a fad llial there was no evidence of any religious instruction or religious exercises of any character whatever during school hours. The fact heing admitted that such " Sisters," as teachers, wore, while teaching, the habit or garb of their order, the judge said: " We conclude, as to this branch of the case, that, in the absence of proof that religious sectarian instruction was imparted by them during school hours, or religious sectarian exercises engaged in, we can not restrain by injunction members of the order of Sisters of St Joseph from teaching in the public schools in the garb of their order, nor the school directors from employing or permitting them to act in that capacity." An appeal was taken from the decision of the common pleas to the Supreme Court, the main assignment of error being that, " the court erred in tinding that the employment of the Sisters of St Joseph as teachers in the public schools, and their acting as such while wearing the distinctive sectarian garb, crucifixes, and rosaries of their order and sect, could not be enjoined." The Supreme Court affirmed the decree of the court below and dismissed the appeal. The opinion was written by Justice Dean and Justice Williams wrote a dissenting opinion. The decision of the court appears to be made upon the ground that the school directors of Gallatzin, in the absence of any special provisions of law upon the subject, had the discretion to employ the sisters as teachers in the school and to permit them to wear, while teaching, the distinctive dress or garb of the religious order of which they were members, and that the court had no power to revise the exercise of such discretion. Justice Dean, in his opinion, said : " In thus expressing our full accord with the learned president, judge of the court below, we intimate no opinion as to the wisdom or unwisdom of the action of the school board in selecting six Catholic school teachers, members of an exclusively religious order. In this matter was involved, solely, the exercise of discretion by the school board in the performance of an official duty, for which they alone are responsible. This discretion, when it does not transgress the law, is not reviewable by this or any other court. When a teacher of good moral character applies for a school, and presents a certificate of qualification as to scholarship and aptness to teach, that is the end of judicial inquiry into the action of the board in appointment, because the law makes no further inquisition up to this point. . . . We can not infer, from the mere fact that a school board composed of Catholics has selected a majority of Catholics as teachers that, therefore, it has unlawfully discriminated in favor of Catholics ; because the selection of Catholic teachers is not a violation of law, or, which is the same thing, is not an abuse of discretion. Unless this be the case, no court has power to revise the exercise of this discretion, for the very sufficient reason that the law has not made the court school directors, while it has devolved on six citizens of Gallatzin borough the duties of that office." Upon the contention that such teachers, wearing such distinctive dress while teaching in the school, should be enjoined from wearing it, the court declined to decide, as a matter of law, that it is sectarian teaching for a devout woman to JUDICIAL decisions: religious garb 551 appear in a schoolroom in a dress peculiar to a religious organization of a Christian church and, as Judge Dean said, " We decline to do so ; the law does not so say." Justice Williams, who dissented from his associates on one point, namely, the wearing of a distinctive garb while teaching, said : " Clergymen sometimes wear on the street a coat or hat that affords some evidence of their profession, but they do not appear in churchly robes when about their daily work, or in any garb that points out the church to which they belong, or the creed to which they adhere; but these six teachers in Gallatzin do just that. They wear, and must wear at all times, a prescribed, unchangeable ecclesiastical dress, which was plainly intended to proclaim their nonsecular and religious character, their par- ticular church and order, and their separation from the world. They come into the school not as common school teachers, or as civilians, but as the representa- tives of a particular order, in a particular church, whose lives have been dedicated to religious work under the direction of that church. Now, the point of the objection is not that their religion disqualifies them. It does not. Nor is it thought that church membership disqualifies them. It docs not. It is not that holding an ecclesiastical office or position disqualifies, for it does not. It is the introduction into the schools as teachers of persons who are, by their striking and distinctive ecclesiastical robes, necessarily and constantly asserting their membership in a particular church, and in a religious order within that church, and the subjection of their lives to the direction and control of its officers." It appears that at the first session of the Legislature of the state of Pennsyl- vania, held after the decision of the Supreme Court in Hysong et al., above referred to, an act was passed, which became a law, prohibiting any teacher in any public school of the State from wearing any dress or garb peculiar to or distinctive of any religious denomination, sect or society. So long as such law is operative so much of the decision in the case of Hysong et al. as holds that school directors in the public schools in that State may permit teachers employed by them to wear, while teaching, the garb of any religious denomination, order, sect or society, is of no force or effect. The passage of the act by the Legislature of the state of Pennsylvania pro- hibiting any teacher in any public school in that state from wearing any dress or garb peculiar to or distinctive of any religious denomination, order, sect or society, ts indicative of the intention of the people of that state to restrain the directors of the public schools therein from permitting in their schools anything that would create the impression or belief on the part of the patrons of such schools that even indirectly the schools are under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught. It has been the policy of this Department, when the matter has been brought to its attention and its action invoked, as in the case of the Colt appeal deckled by Superintendent Draper, that when the wearing by teachers in the public schools of this State of any dress or garb peculiar to or distinctive of any religious denomination, order, sect or society, creates the impression or belief on the part 552 IIIK LMVKKSITY OF THE STATK OF NEW YORK ui the patrons of tlic school llial the school was under the control or direction of any reliyious tk-iiomination, or in which any denominational tenet or doctrnie was tauKlit; or when hy reason of said distinctive ^^rb being so worn conten- tions and dissensions have arisen among the inhabitants of a school distiict, threatening the harmony therein and the eflficicncy of the school, and antagonistic to the best educational interests therein, to advise that the wearing of such dis- tinctive garb should be discontinued. Hy section 4 of article 9 of the Constitution of the State, it is enacted: •' Neither the State nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of le.irning wholly or in i)art under the control or direction of any religious denoniin.ition. or in which any denominational tenet or doctrine is taught." This amendment to the organic law of the State has but recently been adopted by an overwhelming majority. It indicates very clearly an unmistakable and earnest desire on the part of our citizens to permanently establish and main- tain a public school system that shall be entirely nonsectarian. That this is the trend of i)ublic opinion, both in this country and in the neighboring provinces on the western continent, is manifest. With this spirit I am heartily in accord. The public school system has achieved its greatest measure of success where this has been insisted upon. It is my duty, as it is the duty of the school authorities of the public schools in the several districts of the State, to see that the ])rovisions of the Constitution above cited are neither directly nor indirectly violated. I take great pleasure in stating that the clergy and laity of the Roman Catholic Church have given to this Department their earnest support and aid in the enforce- ment of the compulsory education law, as well as every other act relating to the public school system of the State. The appellants ask that the contracts with the six teachers herein referred to be annulled and set aside. This I have no power to do. These teachers are duly (lualified teachers within the provisions of the school law, and having been duly employed by the respondents herein, can not be dismissed during their term of employment without sufficient cause, and no sufficient cause has been shown. Nevertheless, upon this branch of the case I desire to express my disapprobation of the custom of their dressing, while in the performance of their duties, in the garb peculiar to and indicative of the i)articular sect or order of which they arc members. Such dress or garb taken in connection with the location, surroundings and distingui.'^hing characteristics of the building leased by the school authorities and in which they are emi)loyed. is a constant and hourly reminder to the pupils under their charge of the existence of one particular religious denomination or sect, and this public declaration under all the circumstances is such an object lesson to the susceptible mind of the pupils under their charge that it comes dan- gerously near the line of prohibition laid down in the Constitution as herein quoted. JUDICIAL decisions: religious garb 553 The proofs herein show that it is considered such by the parents of upwards of fifty of the pupils who would otherwise attend this school. They are the people ■whose interests are to be conserved by this particular school. The objections herein urged against such influences would, of course, apply to like public declara- tion of religious preference or belief on the part of teachers connected with any other denomination. The fact that but few, if any, of the many sects or denomina- tions insist upon members of their order dressing upon all occasions in a distinctive garb adds force to the objection as it presents itself to my mind. I therefore con- cur in the opinion of my predecessor in office, namely, that the teachers in the public schools of the State ought not to wear the distinctive garb of any rbligious denomination, order, sect or society, but dress in the usual costume worn by men and women generally; and that any other costume or usage is inimical to the best educational interests of the locality and should be discontinued by direction of the local school authorities whose duty it is to so administer the trusts reposed in them as to bring about the very best results with the least irritation, and in harmony with the spirit of the section of the organic law herein quoted. The school best docs this which avoids any reference directly or indirectly to any particular denomination, sect or order, both in the construction of the buildings used for school purposes and in the dress worn by the teachers employed therein. To those not satisfied with this complete and absolute severance of secular and religious instructions, the private school is open. If we ask ourselves in what particulars this school differs from the usual parochial school as formerly maintained therein, before the adoption of the con- stitutional amendment herein quoted, what rei)ly shall we make? By the nature of the lease, by the wearing of distinctive garb, by the emblem surmounting the building, by the inscription over the doorway, by the practical result that only the children of one particular faith attend this school, the conclusion is irresistible that the State, to all external intents and purposes, is maintaining a sectarian school therein at public expense. It was clearly the intent of this amendment to the organic law that this practice should be prohibited. The delay in rendering a decision in this appeal was primarily caused by the hope and expectation that in the legislative enactment incorporating the city of \^^lter^■liet and providing for the school system thereof, such legislation would determine the questions raised in this appeal. No provision has, however, been made for school facilities to be owned by the city, and to take the place of those secured by such lease. The contracts made by the respondents herein both in respect to leasing said building and the employment of the teachers engaged therein from which the appeal herein is taken, having expired at the termination of the school year 1895-96, this decision can not be operative except as a determination of the principles involved, and to that extent this decision will be valuable only as indicat- iug the policy to be pursued by school authorities. ' A new appeal to reach the result here indicated as the policy to be pursued bv local school authorities ought not to be necessary. 554 Till-: UNIVF.KSITV OF TllK STATK OF NEW YORK I decide, That the action of the respondents herein, in hirin,c; the rooms in St Bridget's Parochial School Building, in which to conduct a public school, with the rii,'ht of the control of the rooms during the school hours only of each day, in which a school under the direction of the respondents is maintained, and con- senting and giving to tlie lessors complete control of the rooms at all times other than during school hours, and the continuation of such lease beyond the period of emergency contemplated by the statute, was without legal authority on the part of the respondents. I also decide that it is the duty of the respondents to require the teachers employed by them to discontinue the use in the ]niblic schoolroom of the distin- g[uishing dress or garb of the religious order to which they belong. 4546 In the matter of the appeal of Samuel Kennedy, Edward M. Getman and James I'^orsyth v. the board of education of the city of \\'atervlict, Albany county. The wearing of an unusual garb worn exclusively by members of one religious sect for the purpose of indicating membership in that sect, by the teachers in a public school, constitutes a sectarian influence wliich ought not to be persisted in. It is clearly the duty of trustees of school districts to require such teachers to discontinue the use in the public schoolroom during school hours of the distinguishing dress or garb of the religious order to which they belong. Decided May 15, 1S97 William Hollands, attorney for appellants John H. Gleason, attorney for respondents Skinner, Supcrintciuiott The appellants, in the above-entitled matter, as residents of, and qualified voters in the city of Watervliet, Albany county, appeal from the action of the board of education of such city, consisting of School Commissioners William H. FlewcUin, James B, McLeese, Isaac G. Braman and John H. McKeever, in refusing to rccjuire six teachers now employed and teaching in one of the public schools of such city, namely, Catharine Walsh, Anna G. Conway, Kate Rice, Victoria Melinda, Hannah Keefe and Jennie Higgins, to discontinue the use in the public schoolroom of the distinguishing dress or garb of the religious order to which they respectively belong. The appellants allege that the teachers above mentioned are members of a religious order or sisterhood, namely: Catharine Walsh, known as Sister Leonie; Anna G. Conway, known as Sister Gertrude ; Kate Rice, known as Sister Ludwina ; Victoria Melinda, known as Sister Adelaide; Hannah Kcefe, known as Sister Ignatia; Jeimie Higgins, known as Sister Dechautal ; and that they were at the time of bringing this JUDICIAL DECISIONS : RELIGIOUS GARB 555 appeal, to wit, March i, 1897, performing the duties of teachers in one of the public schools of the city of Watervliet, being held and conducted in the building on the northeast corner of Fifth avenue and Seventh street, commonly known as " St Bridget's Parochial School Building." and that each of said six persons, during the school hours of each school day, in the performance of their duties as such teachers respectively, is dressed in the particular garb of the religious order or sisterhood of which they are respectively members. The appellants also allege that at a meeting of the board of education of said city of Watervliet. held February 22, 1897. ^^ which all four of the afore- said school commissioners were present, and at which Michael J. Day, the mayor of such city as chairman ex officio, presided, the following preamble and resolu- tion were introduced and their adoption moved and seconded, namely : Whereas, the Superintendent of Public Instruction recently decided on an appeal from the action of the board of education of the West Troy school dis- trict, that it was the duty of said board to require teachers employed by them, " to discontinue the use in the public schoolroom of the distinguished dress or garb of the religious order to which they belong," and the same not having been done, and the school particularly referred to in such decision being now a part of the school system of the city of Watervliet, and under the control and man- agement of their board, therefore, be it Resolved, That the clerk of this board be. and is hereby, instructed to forth- with notify Catharine Walsh, Anna G. Conway, Kate Rice, Victoria Melinda. Hannah Keefe and Jennie Higgins, now acting as teachers in the public school maintained in the St Bridget's school building, to discontinue the use in the public schoolroom of the distinguishing dress or garb of the religious order to which they belong. It is also alleged by the appellants that upon a vote being taken thereupon such resolution was declared lost by a tie vote, two of such commissioners voting in the affirmative, and two of the commissioners voting in the negative, the chairman ex officio, not being a member of said board and not being entitled, under the law, to vote in the proceedings of said board. The appellants further allege that the school referred to in their appeal was, until and including the 31st day of December 1896, one of the public schools of the West Troy school district, and the same school referred to in decision in appeal case no. 4516 of the Department of Public Instruction made by the State Superintendent November 25, 1896; that according to the provisions of chapter 905 of the Laws of 1896 (the act incorporating the city of Watervliet) from and after said 31st day of December 1896, the said West Troy school dis- trict ceased to exist, and all the public schools within the city of Watervliet and under the control of the board of education of such city, which board has, " to the exclusion of all boards and officers, except the Superintendent of Public Instruction of this State, the entire supervision and management of the schools of said city"; that by the provisions of said chapter 905 of the Laws of 1896, sucb board of education is required annually to make and transmit to the State Superintendent of Public Instruction a report in writing, which report shall be 55^ THE UNIVERSITY OF THE STATE OF NEW YORK in all respects as is required by law of trustees of school districts, and deposit and flic the same as re(|uired by law. The appellants ask that the State Superintendent of Pul)lic Instruction issue an order directing said board of education of the city of Watervliet to forth- with re(|uire the aforesaid teachers to discontinue the use in the public school- rooms in such citv durinjj school hours of the distinguishing dress or garb of the religious order of which they are members. Two of the members only of such board of education of the city of Water- vliet, namelv, School Commissioner McKeever and School Commissioner A'lc- I.ecsc. have made answer to tiic appeal herein. The answer does not contain any denial of the allegations contained in the api)eal. The respondents in substance allege: That the teachers n^.nicd in the appeal are legally qualified to teach in the public schools of the city of Watervliet, and each is legally employed to teach pursuant to the terms of a written contract duly executed until the close of the l)resent .school year; that as the respondents are informed and believe such teachers refuse to wear, while engaged in the discharge of their duties in such school any other than the apparel, dress or garb which they have worn while thus engaged for many years last past ; that the adoption of the resolution men- tioned in the ap|)eal, and its attempted enforcement by the board of education of said city would be an infringement upon the legal rights and an unlawful and unwarranted interference with the personal freedom of each of such teachers, and a violation of the written contract, and ef|uivalcnt to an illegal and unwar- ranted dismissal and discharge of each of such teachers before the end of the contract term, and the city would be liable for compensation without securing the service; that the employment of other teachers, which the adoption and enforcement of the resolution would necessitate, would be a serious injury to the present school system; that they (the res])ondents) were prior to February 22, 1897. and are now advised, and believe that the board of education of such city has no legal authority to adopt or enforce the resolution mentioned in the ai)peal ; that the respondents deny that the wearing by the teachers, during school hours, of the garb objected to by the appellants is in violation of, or conflicts with, any law of the State of New York, and that the adoption by said board of education and the enforcement or attempted enforcement of said resolution, would be in violation of law, and void and of no legal eflfect. Ujion the facts established herein, and the law and decisions of the State Superintendents of Public Instruction, the contentions of the respondents herein are not tenable and the appeal herein should be sustained. Under the laws relating to the public schools of the State the State Superin- tendent of Public Instruction has supervisory powers over all public schools withm the State. He posses.ses the power to entertain and examine an appeal brought to him by any person considering himself aggrieved, concerning any matter under the school law, or any other act pertaining to common schools, and to decide the same. Such decisions when so made have all the force and eflfect of statutes and are binrling upon school officers until modified or reversed. JUDICIAL decisions: religious garb 557 Under the provisions of subdivision lo of section 12, title 5 of chapter 905 of the Laws of 1896, entitled, "An act to incorporate the city of Watervliet," the power given to the board of education of such city to supervise and manage the schools therein, is subject to the supervision of the State Superintendent of Public Instruction. State Superintendent of Public Instruction Draper, in his decision no. 3520, made on March 24, 18S7, in the appeal taken to him by Leandcr Colt v. the board of education of union free district no. 7, village of Suspension Bridge, town and county of Niagara, held that : " The wearing of an unusual garb, worn exclusively by members of one religious sect and for the purpose of indicating membership in that sect by the teachers in a public school, constituted a sectarian influence, which ought not to be persisted in. The same may be said of the pupils addressing the teachers as ' Sister Mary,' ' Sister Martha,' etc. The conclusion is irresistible that these things may constitute a much stronger sectarian or denominational influence over the minds of children than the repetition of the Lord's prayer or the reading of the Scriptures at the opening of the schools, and yet these things have been prohibited whenever objection has been offered by the rulings of this Department from tlie earliest days, because of the purpose enshrined in the hearts of the people and embedded in the fundamental law of the State, that the public school system shall be kept altogether free from matters not essential to its primary purpose and dangerous to its harmony and efficiency." Superintendent Draper directed the board of education to require that the teachers in such school should discontinue the use in the schoolroom, of the dis- tinguishing dress of the religious order to which they belong. It does not appear that Superintendent Draper ever modified or vacated such decision, nor that his successors in the office of State Superintendent of Public Instruction have ever modified or disapproved of such rulings and decision. Such decision had the force and efi'ect of a statute in relation to the matter examined and deter- mined therein, and became binding upon the school authorities of the several public schools of the State. On November 25, 1896, in a decision made by me, no. 4516, in the appeal of Fayette B. Durant and others v. board of education of West Troy school dis- trict, relative to the employment of the same six teachers mentioned in the appeal herein, and the wearing by them in the schoolroom during school hours, of the particular dress or garb of the religious order or sisterhood of which they were respectively members, I approved of and concurred in said decision of Superin- tendent Draper, and stated : " I therefore concur in the opinion of my predecessor in office, namely : that the teachers in the public schools of the State ought not to wear the distinctive garb of any religious denomination, order, sect or society, but dress in the usual costume worn by men and women generally; and that any other costume or usage is inimical to the best educational interests of the locality and should be 558 nil': umvkkshv of Tiiii srATi-: of new vokk discontimic'l by the dircilion of the local school authorities whose duty it is to so administer the trusts reposed iu theui as to bring a!)out the very best results with the least irritation, and in harmony with the spirit of the section of the organic law herein (luoted. " The school best ilocs this which avoids any reference directly or indirectly to any particular denomination, sect or order, both in the construction of the buildings used for school purposes and in the dress worn by the teachers employed therein. To those not satisfied with this complete and absolute sever- ance of secular and religious instruction, the private school is open. " If we ask ourselves in what particulars this school differs from the usual parochial school as formerly maintained therein, before the adoption of the con.stilutional amendment herein ([noted, what reply shall we make? By the nature of the lease, by the wearing of a distinctive garb, by the emblem sur- mounting the building, by the inscription over the doorway, by the practical result that only the children of one particular faith attend this school, the con- clusion is irresistible that the State, to all external intents and purposes, is main- taining a sectarian school therein at public expense. It was clearly the intent of this amendment to the organic law that this practice should be prohibited, and that a new appeal to reach the result here indicated as the policy to be pursued by local school authorities ought not to be necessary." I decided that it was the duty of the respondents therein to require the teachers employed by them to discontinue the use in the public schoolroom of the distinguishing dress or garb of the religious order to which they belong. Such decision was duly hied with the clerk of such West Troy school district and notice thereof given to the appellants and respondents in such appeal ; that the respondents herein were two of the members of the board of education of such West Troy school district. It was clearly the duty of the board of education of such West Troy school district to re(iuire such teachers to discontinue the use in the public schoolroom during school hours of the distinguishing dress or garb of the religious order to which they belonged. No new or ditTerent state of facts are established in this appeal from those presented in the appeal of Durant and others v. board of education of West Troy school district. The board of education of the city of Watervliet is conducting one of the schools of such city in the St Bridget's Parochial School Building and employing the same six persons as teachers therein that were employed by the authorities of the West Troy school district, each of whom wears, during school hours, and in the |)ublic schoolroom, the distinctive dress or garb of the religious order to which she belongs or of which she is a member. There is nothing presented in this appeal to alter, change or modify my ruling and decision, as contained in said decision no. 4516, and such decision is in all things affirmed JUDICIAL decisions: religious garb 559 It was, and is, the duty of the board of education of the city of Watervliet, under the aforesaid decision of Superintendent Draper and my decision no. 4516, as aforesaid, to require of each of said six persons, teaching in said school, to discontinue the use in such public schoolroom and during school hours, of the distinguishing dress or garb of the religious order to which they severally belong. The appeal herein is sustained. It is ordered : That the board of education of the city of Watervliet be, and it is, hereby directed forthwith to notify and require Catharine Walsh, Anna G. Conway, Kate Rice, Victoria Melinda, Hannah Keefe and Jennie Higgins, and each of them, now teaching in one of the public schools of said city, which school is conducted and maintained in the building known as the St Bridget's Parochial School Building, situate on the northeast corner of Fifth avenue and Seventh street of said city, to forthwith discontinue the use and wearing by them, and. each of them, during the school hours of each school day such public school is held and maintained and is taught by them or either of them, of the distinctive or distinguishing garb of dress of the religious sect or order to which they, and each of them, belong or of which they are members. It is further ordered : That in the event such teachers above named, or either of them, after such notification and requirement to them by said board of education, refuse to comply therewith or obey such requirement and the decisions of the State Superintendent of Public Instruction, as set forth in the foregoing decision, and continue the use and wearing, in school hours, in such public schoolroom or rooms, as such teachers, such distinctive garb or dress of the religious order of which they are members, that said board of education forthwith dismiss the above-named per- sons, and each of them, as teachers in such public schools. It is further ordered : That such board of education of the city of Watervliet, report in writing to the State Superintendent of Public Instruction on or before June i, 1897, all acts performed and proceedings had and taken by such lioard of education, and by the said six teachers, and each of them, under and pursuant to the fore- going decision and the orders made to carry such decision into effect. Whereas, on March 10, 1897, I made an order in the appeal herein directing E. L. Barckley, county treasurer of the county of Albany, to retain in his hands and withholding payment to the city of Watervliet of the school funds there- tofore apportioned by me to said city in the annual apportionment made in January 1897, until the hearing and final determination of the above-entitled appeal, or until my further order in the premises. It is, therefore, further ordered : That said order of March 10, 1897, directing the retention in his hands by the county treasurer of Albany county of such school funds apportioned to such city, and the withholding by him of the payment thereof to such city, be. and the same hereby is continued in full force and efl'ect until a further order in relation thereto shall be made by me. 50O T1II£ UNIVEKSITV UK THE STATE OF -NEW VOKK This decision must be filed with the clerk of the board of education of the city of Watervliet and that notice thereof be by him given to the appellants and respomleius herein, with opportunity to examine the same; and that a copy of such decision be forthwith served personally upon the treasurer of the county of Albany and the city chamberlain of the city of \\ atervliet, and each of them. 4722 In the matter of the appeal of Edward Keyser v. the board of education of the city of Poughkeepsie. Since iX)4 it lias been the settled policy of the State that localities must own school builditifis in which their public schools are conducted; that the leasing and renting of rooms and buildings for school purposes are not authorized except under extraordinary condilinns, and to provide for emergency. The wearing of an unusual garb worn exclusively by members of one religious sect, and for the purpose of indicating membership in that sect, by the teachers in the public schools, constitutes a sectarian influence which ought not to be persisted in. The fact that such members do not associate in public places with the world at large, and will not be employed in any building not consecrated or devoted under the rules of the denomina- tion of which they are comnnmicants, to charitable or religious purposes, and their right, while thus attired, and Ii'-bling these strict views, to be employed as teachers in tlic public school ^\stem of the State goes far beyond ihe mere question of the garb or distinctive dress worn by them. It is fundamental that teachers employed in the public schools of the State, in fitting children for useful citizens, should keep them- selves in close touch with everything that will enhance their usefulness in this direction. To do this requires association with others engaged in like employment, and familiarity to the cvcry-day affairs of life with which such pupils in future years will be engaged. They should be in touch with men and women in the every-day affairs of life, and above all, the professional training which comes from association with educational representatives ought never to be barred from any teacher employed in the public schools. Transfers from one position to another, as the needs of a city school system may require, ought always to be possible, and no teacher should be employed who owes such allegiance to any other institution, organization or denomination as makes such transfers impossible. It is the duty of the school authorities to require such teachers to discontinue, while in the public schoolroom, and in the performance of their duty as teachers therein, the wearing of such dress or garb. Decided December 23, 1898 P. Alver?on Lee, attorney for appellant J. L. Williams, attorney for respondent Skinner, Sut^cnntcndctit The above-named appellant appeals from the action of the board of educa- tion of the city of Poughkeepsie in leasing for school purposes the building known as school 11. situate on North Clover street in the city of Poughkeepsie, and the building known as school 12, situate. at loi Mill street in said city, both of said buildings being the property of St Peter's Roman Catholic chu/ch, and in the employment of two teachers in school 11, and two in school 12, each of JUDICIAL decisions: religious garb 561 whom are members of the order known as the Sisters of Charity, Vvho dress in the garb pecuHar to their rehgious sect, and are addressed usually in the school by their christian names prehxed by the term " sister." It is contended on the part of the appellant that by reason of the sectarian character of the school thus maintained in these two buildings, parents residing witliin the first ward of said city where said schools are situate, object to sending their children thereto, and parents residing at long distances from said schools send their children thereto in order to obtain the religious instruction given therein. The respondents admit the leasing of such buildings at the rental alleged, and admit the employment of teachers who are dressed in the garb described in the appellant's papers, but they deny that there is any religious instruction imparted in such schools, and deny that any " denominational doctrines or tenets are taught in these buildings at any time during the school days of the week." They a^lso allege that the board of education has no power under the provisions of the charter of said city to provide buildings or rooms for school purposes, except by renting the same ; that buildings can only be purchased or erected by the afhrmative vote of the taxpayers, and allege that the present bonded indebtedness of said city bears such a relation to the total assessed valuation thereof that the constitutional prohiliition precludes the city from incurring any further indebtedness. The material allegations are therefore admitted except as to the teaching of religious doctrines or tenets in these schools, and the power of the city to pur- chase or erect new buildings by reason of its bonded indebtedness. The right of boards of education to employ teachers who dress in the peculiar and distinctive garb of any religious denomination and who arc addressed by the pupils under their charge by their christian names with the prefix " sister " thereto, has been determined by this Department in several decisions, and I can not state the settled policy of the Department of Public Instruction in this State upon this question more aptly than to quote the follow- ing language from Superintendent Draper's decision, 3520, rendered March 24, 1887: "The wearing of an unusual garb worn exclusively by members of one religious sect and for the purpose of indicating membership in that sect by the teachers in the public schools, constitutes a sectarian influence which ought not to be persisted in. The same may be said of the pupils addressing the teachers as ' Sister ^lary,' ' Sister Martha,' etc. The conclusion is irresistible that these things may constitute a much stronger sectarian or denominational influence over the minds of the children than the repetition of the Lord's prayer or the reading of the Scriptures at the opening of the schools, and yet these things have been prohibited whenever objection has been offered by the rulings of this Department from the earliest days, because of the purpose enshrined in the hearts of the people and embedded in the fundamental law of the state that the public school system shall be kept altogether free from matters not essential to its primary purpose and dangerous to its harmony and efficiency." 562 TIIR UNI\ KKSITY <1F TIIR ST ATI-: OF NEW YORK riu- teachers rcfcrrcil to herein ;iic inenihcrs of a religious and charitable order known as " Sisters of Charity," who wear at all times a garb peculiar to their order. It is well known that they do not associate in public places with the world at large, and will not be employed in any building not consecrated or devoted by the rules of the denomination of which they are communicants, to cliaritalile or religious purposes, and their right while thus attired and holding these strict views to be employed as teachers in the public school system of the .^tate goes far beyoml the mere question of the garb or distinctive dress worn by them. To my mind, it is fundamental that teachers employed in the public schools of the .State in fitting our children for useful citizens, should keep themselves in close touch with everything that will enhance their usefulness in this direction. To do this requires association with others engaged in like employment and fanuliarity with the everj'-day alTairs of life with which the pupil in future years must battle for his own existence. They should touch men and women in the mnllitudinous and intricate affairs of life which perplex and discipline us, and above all, the jirofessional training which comes from association with educa- tional rcjiresentatives ought never to be barred from any teacher em[)loyed in the public schools. Transfers from one position to another, as the needs of a great city school system may require, ought always to be possible, and no teacher should be employed who owes such allegiance to any other institution, organiza- tion or denomination as to make such transfers impossible. Upon the susceptible mind of a child the influence of a teacher always wearing the garb of a particular denomination with the insignia of a religious order upon her person, who is never seen by the child except under the protec- tion imposed by the rules of that order, employed in a building thus consecrated and known to the child to be in the opinion of the teacher a sacred and holy place, and surmounted by an emblem everywhere known as a religious symbol, is, to my mind, the identical influence which is sought to be excluded from the public schools by the organic law of our State. This State annually spends many thousand dollars for visual instruction, recognizing it as one of the legitimate and most useful methods of imparting instruction. It is idle, in my judgment, to recognize this educational influence and close our eyes to the fact that the teacher described herein exerts a like influence upon the susceptible minds of the children. The principle laid down in the language herein quoted from the decision of Superintendent Draper has been followed in several cases and must be considered as the settled and established policy of this State. W ith reference to the renting of the buildings complained of by the appellant lierein. the proof submitted by the respondent establishes the fact that on the 21st day of August 1873, the board of education of the city of Poughkeepsie entered mto an agreement with the Right Reverend John McCloskey, archbishop, etc. wherebv the city leased the land and buildings thereon situate on the north side of Mill street in the city of Poughkeepsie, known as " St Peter's Church School for Boys, and the school furniture and facilities connected therewith, and also JUDICIAL decisions: religious garb 563 the land and school buiUling and outbuildings situate on the lot in the rear of the dwelling house of the Sisters of Charity on the west side of Clover street, known as the " Girls' or Female School of St Peter's Church," and the school furniture and fixtures belonging thereto, for a period of ten years from the 1st day of September 1875, ^t the yearly rental of one dollar, to be paid in yearly payments, the said city also to pay the premiums of insurance on the leased property during the continuance of this lease. By the terms thereof the board of education were to have the absolute control and use of such buildings and lands and school furniture for the use and purpose of public schools " during the school hours fixed or to be fixed by said board," and before and after school hours the said building, land and school furniture were to be under the control of the lessor. It appears that at the expiration of such term said buildings continued to be occupied by the board of education and respectively designated as schools 11 and 12, and are and since that date have been part of the public school system of the city. No new or other lease seems to have been executed between the church authorities and the board of education, but the board continued in possession of such property after the expiration of their lease without any other agreement, further than that the respondents allege that in the year 1897 it was verbally agreed between the parties to such lease that all religious or denominational instruction therein during school days should be discontinued, and the right to use such buildings for such purposes was waived by the lessor. The buildings thus leased are each surmounted by a cross, and over the doorway of one is the following inscription cut in stone, " St Peter's Male Academy, 1869," while the other building stands partially in the rear of a dwelling house owned by the church authorities, which is occupied as a residence by the sisters teaching in the above-named schools. It appears from the evidence that prior to the leasing of the buildings herein described, a parochial school was maintained in each of said buildings, and teachers then employed were continued in the school by the board of education. As their places have become vacant by resignation or otherwise, care has always been taken that their successors should be members of the same order or sect, wearing a like attire, whether in pursuance of any understanding with the church authorities or not, is not clear, but it is fair to assume that some agreement of that character outside of the written lease must have existed. The teachers thus employed have been paid by checks drawn by the board of education upon one of the banks of that city, payable to the teacher by her full christian name, and such checks prior to the commencement of these proceedings all bore the indorsement when presented for payment, of " Sister Alexis," alleged to be the sister in charge of the parish house in which the teachers resided. I am asked by the board of education to hold that the employment of teachers thus attired, teaching in buildings of the character described and per- manently leased in the manner set forth, is not a violation of the Constitution of this State. In my judgment such action of this board of education is unwise as 564 THK UN'IVEKSrrV OK Tllli STATE UF NEW YORK a matter of school polity, is a violation of the letter ami spirit of the Constitution, and such leasinjj of huildings is without warrant of law. The charter of the city of Poughkeepsie makes provision for its public school system. It provides for the election of a board of education, whose powers and duties arc dellned in section 189 thereof. Subdivision 4 of this section provides that " said board of education are to exercise the powers and discharge the duties of said schools the same as trustees of school districts under the statutes of this State." No provision is made in the charter for the renting of buildings or rooms for school purposes. Section 192, however, makes ample provision for the " purchase or erection of an additional schoolhouse, if the board of educa- tion deems such course proper or necessary." Hence we must look to the pro- visions of the Consolidated School Law for the authority of the board of educa- tion of this city to lease property for school purposes. Such authority is given to them only by section 50 of title 7 of the Consolidated School Law, which reads as follows : *■ Whenever it shall be necessary for the due accommodation of the children of the district, by reason of any considerable number of said children residing in portions of said district remote from the schoolhouse in said district, thereby rendering it ditTicult for them in inclement weather and in winter to attend school at such schoolhouse, or by reason of the room or rooms in said schoolhouse being overcrowded, or for any other sutticient reason the due accommodation of said children can not be made in said schoolhouse, they shall establish temporary or branch school or schools in such place or places in said district as shall best accommodate such children, and hire any room or rooms for the keeping of said temporary l)ranch school or schools, and fit up and furnish said room or rooms in a suitable manner for conducting such school or schools therein. Any expendi- ture made or liability incurred in pursuance to this section shall be a charge upon the district." This language clearly contemplates only the temporary leasing of property for school purposes by school authorities, and was not intended to authorize school boards to permanently maintain schools in leased rooms or buildings. Prior to 1894 trustees were authorized by subdivision 5 of section 49 of title 7 of the Consolidated School Law of 1864 " to purchase or lease a site for the district schoolhouse or schoolhouses as designated by the meeting of the district, and to build, hire or purchase such schoolhouse as may be so designated, and to keep in repair and furnish such house with necessary fuel and appendages and pay the expense thereof by tax." But in the consolidation of the school law in 1894, the power of leasing school buildings was hedged about with certain conditions not in the former statute, clearly indicating the intent on the part of the Legislature to limit such leasing to temporary and extraordinary conditions. Since 1894 it Ivis been the settled policy of the State that localities must own the school buildings in which their schools are conducted, and that the leasing and renting of property for school purposes was not authorized except under extraor- dinary conditions. JUDICIAL DECISIONS : RELIGIOUS GARB 565 The condition existing in the city of Poughkeepsie for the past fifty years is the best illustration possible of the wisdom of the State in taking away from school officers the power to perpetually rent property for school purposes. Since 1843 the schools in that city have been wholly or partially conducted in buildings and rooms rented for the purpose. In 1843 ^'^e village corporation owned no school buildings, and the board supplied the want by the rental of a building formerly occupied as a theater, situate in Market near Jay street. Since that time there have been rented rooms in buildings situate on the corner of Clinton and Thompson streets, in the coach factory at the junction of Mill street and Dutchess avenue, in the basement of the Universalist church, in a building rented of the Baptist church, known as the Hofifman street chapel, in Faith chapel on Union street, in the primitive Methodist church on Church street, and the present board of education is now renting in addition to schools 11 and 12, described in the petition of appeal herein, the Hofifman street chapel of the Baptist church, at an annual rental of $185, the building known as the " Poughkeepsie Military Institute," formerly Waring's Military School, a frame building erected over thirty years ago, paying an annual rent of $1000 therefor, and also a building rented of St Mary's parish in which school 9 is conducted. The deplorable condition of school facilities in this city is best shown, by stating the exact facts. Out of thirteen buildings in which schools are main- tained, five are rented, one is a building formerly used as a dwelling house, one is an old machine shop repaired and converted into a school building, and with the exception of school 5, not a single building has any system of ventilation, and no means of heating except by coal stoves, in some cases within twenty inches of the desks occupied by the pupils, consuming the oxygen of the overcrowded schoolroom. No provision is made for children's wraps, which hang about the schoolroom four and fi.ve deep upon an insufficient number of hooks, a most unsanitary condition. Some of these buildings have water-closets in the base- ments, the odors from which permeate the whole building; in some the rooms are separated from others by glass partitions where the school exercises con- ducted in one room confuse the school work in the room adjoining. Narrow aisles, in some cases but fifteen inches wide, temporary outside frame stairways, built upon those old buildings as afterthoughts to meet the growing wants of the city ; and insufficient seating accommodations for an attendance in some cases larger than the total seating capacity of the room, are among the bad conditions that prevail. Taken altogether, I know of no other city in the State with such deplorable school facilities as this city possesses. If it be said that the limit of bonded indebtedness has been reached by this municipality, I can only say that that city is now engaged in erecting a brick and stone building for its fire department; has erected three such buildings within five years ; has erected a commodious building for the use of its police and public -works department within ten years; has found means for paving its streets with asphalt and Belgian block pavements, and if the choice has been presented between adequate school facilities and these improvements, the city seems delib- erately to have chosen the latter in preference to the former. e^Uj THE UMVEKSITV nl" TlIK STATK OK NEW YORK The two IniiUlings described in the ai)])ellant's petition herein are not adapted to school purposes. Access to the upper floor of one is had by a winding narrow stairway. One is upon low, undesirable ground. They can not be properly heated and neither l.as any satisfactory means of ventilation. The extrava.o^ance of the present system is clearly manifest when we consider that the building rented of the Baptist church is scarcely worth, including the land on which it staiuls. one year's rental paid therefor. It is an antiquated structure with small windows, low ceilings and dark rooms. The rear room is reached by a narrow passage, the entrance to which does not exceed twenty inches in width. The old I'oughkeepsie Military Institute, while it is an antiquated frame building built more than thirty years ago is still probably the most comfortable school building in use in the city of Poughkccpsie. Its rental, however, is $1000 a year. This represents an investment of .$25,000 at 4 per cent, while that amount would build at least two modern school buildings, with modern heating, lighting and ventila- tion and slate blackboards, not at present possessed by any school building in the citv. with the possible cxcei)tii)n of a portion of school 5. Xotwithstanding the continued leasing of school buildings in this city, there ha^ been such an utter lack of .school facilities that prior to September i, 1898, icj^)4 of the school children in this city who by the laws of our State were entitled to free instruction, were compelled to alternate in their attendance and were able to obtain but two and one- fourth hours' instruction each day. No evidence whatever is presented to me as to the amount of bonded indebtedness of this city. Hence I have no means of knowing whether the local authorities are permitted under the constitutional limitations to create any further bonded indebtedness. No evidence is presented that any efifort has been ma*^ in recent years by the board of education to supply this woeful lack of school facilities by taxation. The respondents allege as a matter of belief that the inhabitants of that city would not vote the necessary funds for the erection of new school buildings, although I am at a loss to determine upon what such opitiiou is founded. They do not allege that any effort has been made to test public sentiment upon that question. I shall be loath indeed to believe that a city possessing the wealth of Pough- kecpsie and citizens of acknowledged intelligence would refuse to appropriate money sufhcient to enable her board of education to comply with the school laws of the State, or to furnish reasonable accommodations for her children while in attendance upon the public schools. I am very clearly of the opinion that the statutes of this State do not contem- plate the leasing of school property as practised by this city and that such leasing is clearly contrary to the provisions of the charter of Poughkeepsie and of the school law of the State, although I am not unmindful of the fact that this system, known as the '* Poughkeepsie plan," has been widely commented upon and in many quarters ha<; been regarded as wise and practical. How far the desires of those interested in its continuance may have influenced the board of education in the course pursued by it in regard to the JUDICIAL DliCISlONS : RELIGIOUS GARB 567 erection of new buildings, I do not know. That it has been eminently satis- factory to the lessors of these buildings is apparent. That the board of educa- tion has always considered that the employment as teachers of members of the religious order named, was to be some equivalent for rent, is evident from the fact that the rental of these comparatively large buildings has been but nominal, while to the other denominations, renting inferior buildings but with no effort to have their communicants employed as teachers therein, has been paid a sum fully equal to or in excess of the real rental value of the property. That the lessors of these buildings have always so regarded the arrangement is evident from the fact that for upwards of twenty-five years this large amount of prop- erty has been practically donated to the uses of the public school system of the city, and from the further fact that since the commencement of these proceedings great anxiety has been manifest to have the system continued. This union of interests is no longer desirable, nor for the best interests of the schools of the city. It has been and is a cause of irritation and discord among the patrons of the schools, is against the spirit of our institutions which calls for a complete and total severance of church and state, and in my judg- ment is against the letter and spirit of the Constitution. Our public school system must be conducted in such a broad and catholic spirit thati Jew, and Protestant, and Catholic alike shall find therein absolutely no cause for com- plaint as to the exercise, directly or indirectly, of any denominational influence. In this respect every school maintained at public expense should be free, open and accessible without reasonable ground for objection from any source whatever. While the discussion of the facts in connection with the school system of this city has been somewhat broader than the issues raised by the pleadings herein, nevertheless the rental of other church property and private property by the board of education of this city has been and is so clearly a violation of the principle laid down herein that I deemed it advisable to treat the whole question in this opinion. I have also desired that this decision should state without uncertainty the position of the Department with reference to all questions raised herein. Cities, villages and school districts must own the buildings in which their schools are conducted save only when temporary hiring of rooms or buildings is made necessary by some sudden emergency. The renting by the respondents of the property of the Baptist church and the renting of rooms or buildings by their predecessors from the Methodist or Uni\-ersalist denominations, in which to permanently conduct the schools in said city is equally reprehensible, and I desire it to be hereafter clearly understood that the prohibition extends to all denominations, as well as to all individuals. All other questions raised herein are but incidental to this. I decide that the action of the respondents herein in hiring rooms and build- ings in which to conduct any of the schools of said city and in continuing the lease of buildings, rented by a former board, and in conducting schools therein beyond the period of emergency contemplated by the statute, is without legal authority on the part of the respondents. 568 THE i;\IVEKSITV OF TIIF. STATE OF NEW YORK I also decide that it is the duty of the respondents to require teachers employed by (hem to fliscontinuc in the pul)lic schoolroom the use of distinguish- ing,' dress or garb of any religious order. 4642 In the matter of the ai)peal of Eugene Lockwood and others v. hoard of educa- tion of school district 9, Corning, Steuben county. It is the policy of the scliool law tliat each of the .•school districts of the State should hecomc tin- owmr of the schoollinuse or houses or school building or buildings, either by purciiasc or by building upon a suitable site or sites; and where power is given to lease rooms or buildings it is only for a limited time to provide for an emergency. The wearing of an unusual garb, worn exclusively by members of one religious denomina- tion, for the purpose of indicating membership in that denomination, by the teachers in the public school during school hours while teaching therein, constitutes a sectarian influence which ought not to be persisted in. It is the duty of the school authorities to require such teachers to discontinue, while in the public schoolroom and in the per- formance of their duty as teachers therein, the wearing of such dress or garb. Decided March 31, 1898 Skinner, Superintendent This is an apjjcal by the appellants in the above-entitled matter, as residents and qualified voters of school district 9, city of Corning, froin the action of the board of education of such district in refusing to take action upon, or to comply with the rccjuest contained in, a petition or memorial signed by the appellant Lock- wood and twenty other qualified voters of such district, and dated September 27. i8<)7, that certain teachers named therein, teaching in the .schools in such district, be required by such board of education to forthwith discontinue the use and wearing by them, during the school hours of each school day held and taught by theni, of the distinctive garb, dress or badge of the religious sect or order to which they belong. The appellants herein also appeal from the action of said board of educa- tion in leasing and paying rent for the brick building in which school 2 in such school district is being maintained. Annexed to such appeal is a copy of the i)etition or memorial delivered to said board of education, dated September 27, 1897, as hereinbefore stated, and the separate alVidavit of one Ira W. Ten Broeck and the api>ellant herein, Eugene Lockwood. The appeal herein was filed in this Department on November 29, 1897. Ihe respondents, the board of education, applied for and received an extension of time to answer the appeal, and on January 8, 1898, such answer was filed in this Department. The following facts are admitted: That the api)cllants herein are residents of school district 9. city of Corning, county of Steuben, and are (pialified voters therein; that Amory Houghton, jr, JUDICIAL decisions: religious garb 569 George R. Brown, John L. Lewis, O. P. Robinson, David S. Drake and William E. Gorton are members of, and compose, the board of education of such school district; that the following named persons were employed by such board of education to teach during the school year of 1897-98 and are now teaching in the school designated as 2 in such school district 9, namely, Genevieve Levett, Bercham Holway, Philomena Walsh, Beatrice Brown, Michel Donovan, Joseph ine O'Connor and Rita Connors, all of whom are members of a religious society, order of sisterhood, known as the " Sisters of Mercy," and are the only teachers employed and teaching in such school except one other not named; that during all the time that such persons have been employed as such teachers in such school, and during each school hour of each school day in which they have been employed in the instruction of the scholars in such school, they have worn the particular, distinctive, distinguishing garb or dress of the sisters of mercy, the religious society, order or sisterhood of which they are members, and wear upon their persons, conspicuously displayed, a cross, rosary or other badge or insignia peculiar to such religious order; that on or about October 2, 1897, a memorial or petition, addressed to the board of education of such school district and dated September 27, 1897, signed by the appellant Lockwood and twenty others, resi- dents and voters in such school district, was delivered to George Hitchcock, the secretary of such board of education, in which, after stating the employment of the said teachers and that they wore during school hours and wdiile teaching in the school, the distinctive dress or garb of the religious order of which they were members, together with the badge or insignia of the order, alleging that the wearing of such garb, they believe, constitutes a sectarian inlluence within the prohibition contained in section 4 of article 9 of the Constitution of this State, and requesting the board of education to require such teachers to forthwith dis- continue the wearing of the distinctive garb or dress during school hours and while teaching in such school ; that annexed to the memorial or petition were the separate affidavits of the appellant Lockwood and one Ten Broeck in support of the statements contained in the memorial; that one meeting of such board ot education was held after the delivering to the secretary of the memorial and affidavits before the appeal herein was taken, but no action was taken at such meeting by the board relative to the memorial ; that the board of erlucation has not interfered with the style and mode of dress of any of the teachers employed by it. The appellants allege that the scholars attending at said school 2 are expected to, and do, address such teachers habitually as " sisters." The respondents in their answer deny, upon information and belief, " that there is any rule as to the manner of address to said teachers by the pupils of the school." It is established by the proofs filed herein: That the building in which said school 2 is maintained is a brick structure, located in the fourth ward of the city of Corning, opposite St Mary's Roman Cathblic church, and was formerly used as a parochial school building ; that for the past ten years such building has been leased to the board of education of 570 THE UNIVERSITY OF THE STATE OE NEW YORK school district 9 for use for tlic maintenance therein of one of the schools under its char^'e; that on Sei)teniher i, 1893. the board of education of district 9 leasetl from one IVtcr Coljjan. a priest of such church, said building for the term of five years, at the animal rent of $1000, such rental to include the keeping of the building in repair and to be furm'shed with school furniture, properly plumbed and supplied with water-closets, gas fixtures, etc. and the ground probably graded and clraincd; also the heating of the building with steam heat, and the services of a janitor; that said board during such term has the full and absolute control of such building. The appellants herein appeal from the action of the board of education in leasing and paying rent for the brick building in which school 2 is maintained. Such lease, by its terms, will expire on September i, 1898, and in my opinion, should not be thereafter renewed or continued; but measures should be immedi- ately taken for the construction of a new school building for such district. The resjiondents state, as the grounds for their action in leasing such build- ing that by reason of the increase of population and of pui)ils requiring accom- modation, the board of education since and including the year 18S3, had erected three school buildings, the last of which was erected in 1895, '^"^l that on this account the bonds of the district to the amount of $55,000 are outstanding, the last of which will mature in the year 1931 ; that to be comi)cllcd now to erect another building would greatly embarrass the district, as the aggregate assessed valuation of the real and personal property therein docs not exceed $3,000,000. It has uniformly been the policy of this Department to call the attention of inhabitants of school districts, and of trustees and boards of education therein, to the condition of their schoolhouses and grounds and the necessity of erecting schoolhouses when necessary to properly accommodate the pupils therein. It is true the respondents herein have the power to hire schoolrooms in their school district, and such power is given to trustees and boards of education under the general school law and special acts relating to schools ; but such provisions have been held to authorize such school authorities to lease rooms and buildings to supi)ly temporarily only the lack of schoolhouses in the district, or where the same are not in condition for use, or are being repaired or added to, or pending action on the part of the school authorities, or the inhabitants to supply deficiencies. School district 9, Corning, is financially a strong district, having at present an aggregate assessed valuation of $3,000,000, and is abundantly able to erect the additional schoolhouse needed therein. It has been decided and must be accepted as the settled i)olicy of the State that, except in cases of extreme tem- porary emergency, localities must provide and in their corporate capacities, must own all necessary school buildings and their equipments. The respondents herein are in error in assuming that the appeal herein is from their action in making the contracts with the seven teachers named in the appeal, and that as such contracts were made in April 1897, the appeal herein was not taken in time. JUDICIAL decisions: religious GARli 5/1 The appellants herein do not appeal from the action of the respondent in employing such persons as teachers, but in refusing or neglecting to take action upon the memorial presented to the respondents, and in refusing or neglecting to require such teachers to discontinue the wearing, during school hours and while teaching in the school, of the distinctive dress or garb of the religious order or society of which they are members. I decide : That the appellants having given a satisfactory reason for their delay in bringing such appeal, the appeal in that regard was taken in time, under the rules of this Department. The question raised by the appellants herein, in relation to the wearing by teachers in the public schools of this state of the distinctive garb or dress of the religious order of which such teachers are members, and in being known and addressed by the pupils as " Sister ]\Iary, etc." has several times been brought to the attention of and has received the consideration of this Department. It has been uniformly held that the wearing of an unusual garb, worn exclusively by members of one religious denomination, and for the purpose of indicating membership in that denomination, by the teachers in a public school, during school hours, while teaching therein, constitutes a sectarian influence which ought not to be persisted in. The same may be said of the pupils addressing such teachers as " Sister Mary, etc." School authorities should require their teachers to discontinue the use in the schoolroom of the distinguishing dress of the religious order to which they belong, and should cause the pupils to address them by their family name with the prefix of " IMiss or Mrs " as teachers are ordinarily addressed. (Decision 3520 of Superintendent Draper, decided March 24, 1887, in the appeal of Lcander Colt v. the board of education of union free school district 7 of the village of Suspension Bridge, Niagara county, page 854, etc. of the Report of the State Superintendent of Public Instruction for the year ending 1888; also, decision 4516, decided November 25, 1896, in the appeal of Fayette B. Durant and others v. board of education of West Troy school district, page 174, etc. of the Report of the State Superintendent of Public Instruction for the year 1897; also, decision 4546, decided May 17, 1897, in the appeal of Samuel Kennedy and others v. the board of education of city of Watervliet, Albany county, in the Report of the State Superintendent of Public Instruction for the year 1898.) Nothing is presented in the appeal herein to alter, change or modify the decisions of this Department as hereinbefore cited, and such decisions are affirmed, and made operative and obligatory upon the respondents herein. It appearing that each of the seven teachers mentioned in the appeal herein is under contract to teach in the school in such district until the end of the present school year, and that the dismissal of such teachers by the board of education for the refusal of such teachers to discontinue the wearing of their distinctive garb during school hours and while teaching in such school, would necessitate the ^7-^ THE U.\I\KkSITY OK THK STATK OF NEW YORK employment rtf olltcr teachers ior the halance of the school year, and cause complications in the school district, the directions hereinafter given to the respondents are not to take elTect until the end of the present school year. The appeal herein is sustained. It is onlered, That the board of education of school district 9, city of Corn- ing, Steuben county, be, and they are hereby, directed to require all teachers employed by them, to iliscontinue the wearing during the school hours of each school day in which the school is taught by them, of the distinctive or distinguish- ing garb or dress of the religious order, society or sisterhood of which they are members. It is further ordered. That said board of education be, and it hereby is, enjoincil antl restrained from leasing or using, on or after September i, 1898, the brick building in which school 2 is now maintained, for the purpose of main- taining or conducting therein any of the public schools of the city of Corning. 5010 In the matter of the appeal of William A. Ferris, Gcrrit S. Preston, Horace A. Crane and Alfred K. Bates v. Henry Allen Sylvester, sole trustee of school district no. 9, Lima, Livingston county. It has been the settled policy of the State since 1848 that localities must own the school huildinys in which their public schools are conducted; that the renting of rooms and buildings for school purposes is not authorized, except under extraordinary conditions and to provide for emergencies. The wearing by the teachers in the public schools, during school hours, while teaching therein, of an unusual garb worn exclusively by members of one religious denomination for the purpose of indicating membership therein, constitutes a sectarian influence, which ought not to be persisted in. It is the duty of the school authorities to require such teachers to discontinue, while in the public schoolroom, and in the performance of their duties as teachers therein, the wearing of such dress or garb. Decided June 5, iyo2 Albert H. Stearns, attorney for appellants (ieorge W. At well, jr, attorney for respondent Skinner, Superintendent On April 16, 1902, the above-named appellants filed in this Department their ai>peal from the action of Henry Allen Sylvester, sole trustee of school district 9. Lima, Livingston county, in leasing for school purposes certain rooms in the building known as " Brendans Hall," situated on Lake avenue in the village of Lima, in said district, and in furnishing heat, light etc., therein, on the ground that such leasing is illegal and void under the Constitution and laws of this State. The api)ellants also appeal from the action of such trustee in the employ- ment of two teachers in the school in "Brendans iLall," both of whom they JUDICIAL DECISIONS : RELIGIOUS GARB 5/3 allege are members of the religious order or sisterhood known as " Sisters of Charity," and both of whom, during school hours, dress in the garb or dress peculiar to such order, and are usually addressed by the scholars as " sister " instead of '"miss."' They allege that the use of public school money by the trustee in paying said teachers is contrary to the Constitution and laws of this State. On April i8, 1902, the above-named William A. Ferris and Gerritt S. Pres- ton filed in this Department their withdrawal as appellants in this appeal. Issue has been joined by service of the usual answer herein. The following facts are established from the pleadings and proofs filed herein, and the records in this Department. School district 9, Lima, Livingston county, is a common school district formed many years ago, and comprises the village of Lima, with certain con- tiguous portions of the town of Lima, and having a population of over 1000. The number of children of school age residing in the district, according to the school census of 1901, was 205. The schoolhouse of the district is a one-story brick building erected in i860, having two rooms, the larger room having a capacity for seating 40 pupils, and the smaller room a capacity for seating 36 pupils, making a total of 76 pupils. During the present school year the trustee of such district has hired a room in the second story of a block of stores on Rochester street in the village of Lima, in wdiich a school of 20 pupils has been conducted. For a number of years a school of the district, known as the " South School," has been maintained in a brick building situated on Lake avenue in the district, owned by a religious corporation of Lima, under a contract by which the school district pays the sum of $100 annually for heating the rooms in such building in which such "South School" is conducted. On August 22, 1901, Respondent Sylvester, as trustee of such district, employed as teachers in such " South School " Nora O'Connor, at a compensation of $9 per week, and Cath- erine Dougherty at a compensation of $7 per week, each of whom was a duly qualified teacher under the Consolidated School Law of 1894, and each of them is teaching in such school. The Misses O'Connor and Dougherty are both mem- bers of a religious order or sisterhood, and are habitually addressed by the scholars attending such school by the prefix '* Sister " instead of " Miss." The assessed valuation of property subject to taxation for school purposes in such district as stated in the report of the trustee for the school year 1900-1, was $550,680. Since 1848 it has been the settled policy of the State that localities must own the school buildings in which their public schools are conducted; that the renting of rooms and buildings for school purposes is not authorized except under extraordinary conditions and to provide for emergencies. The wearing of an unusual garb, worn exclusively by members of one reli- gious denomination for the purpose of indicating membership in that denomina- tion, by the teachers in the public schools during school hours while teaching therein, constitutes a sectarian influence which ought not to be persisted in. It 57-4 TIIK UMVKKSITY Ol- T!IK STATK OF NEW YOKK is the (Intv of the school authorities to require such teachers to discontinue, while in the puhlic schoolroom and in the performance of their duties as such teachers therein, the wearing f)f such dress or garb. (See decision 3250, dated March 24. 1SX7. hy Superintendent Draper in Lcander Colt v. board of education of union free school district 7. villa.c^e of Suspension r.rids^e, Nia.j^ara county. Decision 4516, in the appeal of Durant and others v. board of education of West Troy .school district, dated November 25. 1S96, made by me. Decision 454^). in the ajipeal of Kennedy and others v. board of education of the city of Watervliet, Albany county, dated May 15. 1897, made by me. Decision 4642, in the appeal of Lockwood and others v. board of education of school district »), Corninj;. Steuben county, dated March 31, 1S9S, made by me, and decision 4722. in the appeal of Edward Keyser v. board of education of the city of Pough- keepsie. dated December 23, 1898. made by me.) I decide that the action of the respondent herein, in hiring rooms in which to conduct any of the schools of such district 9, Lima, Livingston county, and in continuing the lease of rooms rented by his predecessors in ofifice, and in con- ducting schools therein beyond the period of emergency contemplated by the school law. was and is without legal authority. I further decide that it is the duty of the respondent herein to require teachers em])loyed by him to discontinue in the public schoolroom or rooms the use of the distinguishing dress or garb of any religious order. The appeal herein is sustained. It is ordered that Henry Allen Sylvester, as sole trustee of school district 9, Lima, Livingston county, be and he is hereby directed to require any and all teachers employed by him in the school or schools of such district to discontinue wearing, during the school hours of each school day in which school is taught by them, the distinctive or distinguishing garb or dress of the religious order, society or sisterhood of which they are members. It is further ordered that said Sylvester, as such trustee, be and he is hereby enjoined and restrained from hiring or using, on and after June 30, 1902, the room in the block or store on Rochester street, in the village of Lima, and the room or rooms in the building on Lake avenue known as " Brendans Hall," in which the .school known as the South school is now maintained, for the purpose of maintaining and conducting therein any of the public schools of such district 9. Lima, Livingston county. RESIDENCE 4901 In the matter of the appeal of Francis B. Taylor from proceedings of annual meeting held August 7, 1900, in school district no. 17, Hempstead, Nassau county. To acquire a domicile or residence in a school district two things are necessary, the fact of a residence in a place, and the intent to make it a home. A domicile or residence once acquired remains until a new one is acquired. Mere intention to remove without the fact of removing will not change the domicile ; nor will the fact of removal with- out the intention to change the residence. A person, once established in any place, the presumption of residence continues unless rebutted, and the burden of proof is upon the party alleging the same. Decided November 10, 1900 John Lyon, attorney for respondents Skinner, Superintendent This is an appeal from the action of the annual meeting held on August 7, 1900, in school district 17, Hempstead, Nassau county, in the election of L. Pflug as a trustee of such district for the term of two years, as a successor to the appellant herein, who it was claimed had ceased to be a resident of such district. The grounds alleged by the appellant for bringing his appeal is that he was, at the time of the said annual meeting, a resident of, and a qualified voter in, such district, and hence, there was no vacancy created by his removal from the district or otherwise, which could be legally filled by the election of any person as trustee, for the unexiMred term for which he was elected a trustee. Messrs Lauer and Hartung, two of the trustees, have united in an answer to the appeal, and to such answer the appellant has made a reply. It is admitted that the appellant is unmarried and was, on August i, 1899, and until about the middle of October, 1899, a resident of school district 17, Hemp- stead, Nassau county; that at the annual meeting held in such district August I, 1899, he was elected a trustee of such district for the term of three years to succeed one S. Elderd, whose term of office as a trustee then expired ; that dur- ing the school year of 1899-1900 he acted as one of the trustees of such district and performed all the duties thereof, including the signing, on August i, 1900, of the annual report of the Iward of trustees presented to the annual meeting therein held on August 7, 1900, and that he was present at such annual meeting: that at such annual meeting, after the election of Jacob Lauer as a trustee for three years, a motion was made to fill the vacancy in the term of appellant as a trnstee, upon the ground of his not being a resident of the district, upon which the appellant stated that he was then a resident of the district and had been, since 1890; that the chairman ordered a vote to be taken of the sentiment of [575I 570 THE UNIVKKSITV OK THE STATE l)K XEW YORK the voters as to whctlicr the appellant was then a resident of the district, with the following result: 4 yeas, iS noes and 5 blanks; that after the announcement of the result of such vote the ajjpellant a^e^ain objected to the election of a trus- tee for two years to fill out his (api)ellant's) term of office; that a ballot was taken for a trustee for two years to fill out the term of api)cllant which resulted in the election of I.. Pllug. It is established by the proofs filed herein that the apj^ellant is a lawyer, having an office in the village of Hempstead, Nassau county, in school district i, and less than a mile from the boundary line between districts i and 17; that the appellant is the owner of certain real property situated in school district 17, known as the " Bedell homestead " and, since October 1890, has resided and still resides in said homestead, and in such district 17; that the appellant is, and for the past 10 years has been, a voter in the twelfth election district of Hemp- stead, in which election district part of school district 17 is situated, and in which election district the " Bedell homestead " is situated. Inhabitancy and residence mean a fixed and permanent abode or dwelling place for the time being, as distinguished from a mere temporary locality of existence. To acquire a domicile or residence two things are necessary — the fact of a residence in a place, and the intent to make it a home. To retain a residence once acquired, actual residence, however, is not indispensable, but it is retained by the mere intention not to change it or to ado])t another, or rather by the absence of any present intention not to change it or adopt another, or by the absence of any present intention of removing therefrom. A domicile once accjuired remains until a new one is acquired. Mere intention to remove with- out the fact of removal will not change a domicile ; nor will the fact of removal without intention to change the residence. Once established in any place the presumption of residence continues unless rebutted, and the burden of proof is upon the party alleging the change. I decide (i) that the respondents herein hive failed to establish by a pre- ponderance of proof that the appellant herein, in October 1899 or at any time since October igoo, changed his domicile or residence from school district 17, town of Hempstead, Nassau county; (2) that the appellant herein, on August 7, 1900, was, and still is, a resident of, and a qualified voter in, said school dis- trict 17; (3) that the appellant herein was, on August 7, 1900, and still is, a trustee of said school district 17, having been elected such trustee in August 1899 for the term of three years; (4) that the action taken at the annual meet- ing, held in said district 17. August 7, 1900, that the appellant herein w^as not then a resident of such district, was without authority of law and void; (5) that the action taken at such annual meeting, held in such school district 17, August 7, 1900. in the election of Pflug as a trustee of such district, was without authority of law and void. The appeal herein is sustained. It is ordered that the proceedings taken at the annual meeting, held August 7, 1900, in school district 17, Hempstead, Nassau county, that Francis B. Taylor, JUDICIAL decisions: residence 577 the appellant herein was not then a resident of such district be, and the same are, hereby vacated and set aside. It is further ordered that the proceedings taken at such annual meeting in such school district 17, Hempstead, August 7, 1900, in the election of L. Pflug as a trustee of such school district, be, and the same are, hereby vacated and set aside. 4229 In the matter of the appeal of Edward T. McEnany v. union free school district no. 2, town of Highlands, Orange county. Where a person has acquired a domicile or residence in any school district in the State and has children of school age, and enters into the employment or service of the United States, such person does not lose his residence and domicile in such school district by reason of his employment elsewhere in the service of the United States, and is entitled to send his children to school in the school district in which he had acquired such domicile or residence. Decided March 28, 1894 M. H. Hirschberg. attorney for respondent Crooker, Superintendent This is an appeal from the action and decision of the board of education oif union free school district no. 2, town of Highlands, Orange county, in refus- ing to permit the four children of the appellant to attend the school in said dis- trict free. An answer to the appeal herein has been interposed by the respondent. It appears from the papers presented upon this appeal : That from December 1879, to May 1882, the appellant resided with his family in said school district no. 2, town of Highlands, and appellant was a qualified voter in said school district, and was then and for a period of five years prior thereto ifi the employ of the United States on the military post or reserva- tion at West Point; that about May i, 1881, he moved with his family to West Point upon said military tract or reservation into a United States government building, where he and his family have since resided and still do reside; that the appellant is now and has been since May 1882, in the employ and service of the United States; that the respondents refuse to allow the children of the appellant to attend the schools in such district without payment of tuition. The appellant on and prior to May 1882, had acquired a domicile or resi- dence in the town of Highlands, Orange county, and in said school district no. 2, town of Highlands, Orange county ; such domicile and residence of the appel- lant was that of his minor children unless such minors had been emancipated from parental control or had been adopted into a new family, and such does not appear to have taken place. To retain a domicile or residence once acquired, actyal residence, however, is not indispensable, but is retained by the mere inten- tion' not to change it, and a domicile or residence once acquired remains until a new one is acquired. 19 578 Till'. LNIVF.KSrrV of THK STATF. of NFW YORK There is no proof that the ai)i)ellaiU has any intent to change or has changed the domicile and residence ac(|nircd hy him in such school (hstrict. The fact of his removal of himself and his family upon the West I'oint reservation while employed in the service of the Unitcil States did not lose him his residence and domicile in such school district, nor gain him a residence or domicile in West Point. Hy section 3 of article 2 of the Constitution of the State of New York, it is provided that no person shall he deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States. I find and decide that the appellant herein is a resident in union free school district no. 2, town of Highlands, Orange county, and entitled, under the school laws, to send all and any of his children of school age free to the school in said school district. The appeal herein is sustained. It is ordered. That the hoard of education of union free school district no. 2. town of Highlands, Orange county, be, and said board is. hereby directed to receive into the schools in said district, all and any children of school age of the appellant herein, Edward T. Mcl*Lnany, free. 4238 In the matter of the appeal of Airs E. G. Cuddeback v. board of education of uniiin free school district no. 10, town of Skaneateles, Onondaga county. A pcr.son who has acquired a residence and domicile within a union free school district and whose business necessarily takes him away from the district a large part of the time, and whose wife and son are also temporarily absent from said district, does not lose his residence and domicile in said district, and his domicile and residence is'that of his wife and their child, and such child is entitled to attend the school in the district without payment of tuiliDii. Decided April 24. 1894 M. F. Dillon, attorney for appellant Crooker, Superintendent The appellant appeals from a decision of the respondent, made on Novem- ber 21, iX«)3. in refusing to permit her son to attend the school under their jurisdiction without payment of tuition. It appears from the paj^ers presented that the appellant is a married woman riving with her husband. Egbert G. Cuddeback, and they have a son, Clarence Cuddeback. residing with them; that said Egbert G. Cuddeback is engaged in the wholesale produce business, and that such business calls him away from liis home the greater portion of his time; that the residence of said Cuddeback is in the village of Skaneateles and in union free school district no. 10 of Skane- ateles; that the appellant owns a house and lot in said school district and has juDiciAi. decisions: residence 579 resided there for the past sixteen years; that on April i, 1893, she leased her house until October i, 1893, and since April i, 1893, has been temporarily absent from said school district with her son. It affirmatively appears that Mr Cudde- back is a resident of the village of Skaneateles and of school district no. 10, and that the marital relations existing between Mr and Mrs Cuddeback still exist. There can not be any doubt but that Mr Cuddeback acquired a domicile and resi- dence in said school district. To retain such domicile when once acquired, actual residence, however, is not indispensable, but it is retained by the mere intention not to change it or adopt another, or rather, by the absence of any present intention of removing therefrom. A domicile once acquired remains until a new one is acquired. A married woman follows the domicile of her hus- band. The domicile of the parent is the domicile of a minor, unless such minor has been emancipated from parental control or adopted into a new family, and there is no proof that the son of Mr Cuddeback has been so emancipated or so adopted. I find and decide that Egbert G. Cuddeback was in the year 1893 a resident of union free school district no. 10, Skaneateles ; that the domicile and residence of the appellant herein in 1893 was that of her husband; that the residence of Clarence Cuddeback, the minor son of said Mr and Mrs Cuddeback, in 1893, was that of his parents. The appeal herein is sustained. It is ordered, That the board of education of union free school district no. 10, Skaneateles, do receive into the schools in said district Clarence Cuddeback, the minor son of Mr and Mrs Cuddeback, free as a resident pupil in said dis- trict, and without demanding or receiving any tuition fees for his admission to and attendance in said schools. 5259 In the matter of the appeal of John S. Dennis, Thomas li. Colder and Edmund T. Ker, from the acts of Wm. Bunselmeyer in claiming to be trustee of union free school district no. 9, town of Greenburg, Westchester county. Renting a room in a school district for the purpose of storing household goods is not sufficient to maintain a residence in the district when an actual home is maintained elsewhere. Decided May 25, 1906 Henry C. Griffin, attorney for appellants Frank V. Millard, attorney for respondent Draper, Commissioner There is no dispute as to the facts in this case. The only question to be det^mined is whether certain acts of respondent constitute a removal from the district. Respondent Bunselmeyer was elected trustee of school district no. 9, town of Greenburg. Westchester co., on August 2, 1905. His wife owned a house and lot in the district in which Bunselmeyer and his family resided. In 5^0 ' Tin: UNIVERSITY OF TIIIC STATK QV NEW YORK March io<>'> Mfs lluiisclmcycr sold the lioiisc and lot. Resiiondent was unable to rent anotiicr house in the district and on April 2, 190C, moved his family into another district in which he had rented a house. Since that lime his child has attcndet! .school in the district into which he has moved. It does not appear that he has any business interests in district no. 9. He also rented one room in a house in district no. 9, (ireenburg, and placed therein certain pieces of property. Respondent also claims that he owns a lot in district no. 9 and that he intends to erect a house on such lot. He does not show when he intends to erect such house or that he is making any preparation to erect it. Renting a room in a school district for the purpose of storing a few household goods, is not sufficient to maintain a residence in the district when an actual home is maintained else- where. A trustee of a school district should be accessible to the residents of the district and should actually reside in the district so that he may be in touch with the needs of the school and the wishes of the inhabitants of the district. Under section 29. title 7 of the Consolidated School Law removal from the dis- trict vacates the ofiicc of trustee. I decide, That the acts of respondent constitute a removal from the district and that he thereby vacated the office of trustee. This vacancy has existed since April 2, 1906 and Respondent Bunselmeyer has not been a legal trustee of dis- trict no. 9, Greenburg, since that date and has not therefore been legally entitled to meet with the board of education of that district since such date. As more than thirty days have elapsed since such vacancy occurred the school commis- sioner has the power to fill such vacancy by appointment. The board of educa- tion may fill such vacancy if action is taken before the school commissioner makes an appointment. 5228 In the matter of the ajipeal of Orvillc T. Smith from the action of the board of education of school district no. i, town of Catskill, Greene county. A board of education may legally .suspend a nonresident pupil until the tuition for wliich he is cliargeable is paid. A man who hires a house and lives in a district a portion of the time for the " comfort and convenience of business" is not necessarily a resident of such district. If such arrangement is only temporary and he has an established permanent home else- where his residence must be regarded in the district of such permanent home. Decided December 5, 1905 James H. Van Gelder, attorney for appellant H. L. Austin, attorney for respondent Draper, Commissioner On October 31, 1905, the board of education of school district no. i, Catskill, Greene county, suspended the 12 year old son of appellant from the school privileges of said district. The cause of this suspension was the failure or refusal of appellant to pay the regular tuition charged to him for the attendance of his JUDICIAL decisions: residence 581 son at the schools of said district as a nonresident pupil. After his son had been suspended by the board of education appellant, under protest, paid the tuition in cpestion so that his son might be accorded the school privileges of the Catskill schools. He then brought this appeal from the action of the board of education in charging him tuition for his son's attendance and also from th^ action of the board in suspending his son. It is not clear from the moving papers in this appeal on what ground appel- lant claims the right to send his child to the Catskill school without the payment of tuition. The inference is that he claims a bona fide residence in the Catskill district, although he does not, as pointed out by the attorney for respondent, even allege that he is a resident of such district. Appellant states that he rents certain property in the district ; that he is engaged in business in the district and that during a portion of the year his family lives or resides in the district. These conditions are not sufficient to make him a resident of this district. He states that " for the comfort and convenience of business he hires a house in Catskill and moves there in the fall.'' He could do this and still be a nonresident. If appellant claims to be a resident of district no. i, Catskill, and therefore entitled to send his children to school in that district he must affirmatively show that he is an actual resident of the district. His pleadings do not show this and on his moving papers the appeal should be dismissed. The pleadings of respondent show conclusively that appellant is not a resident of the district, that he owns real estate and maintains a permanent residence in school district no. 2, Catskill, that at the last general election he voted in the election district in which his resi- dence is located and that such election district does not include any part of the village of Catskill, and that his residence in district no. I, Catskill, is only tem- porary and for his " comfort and convenience " in business matters and to ol)tain for his son the advantages afforded by the Catskill schools. The board of education was lawfully protecting the interests of the district in charging appellant tuition for his son's attendance at school and appellant's failure or refusal to pay such tuition was good ground for suspending the child from school privileges. The appeal herein is dismissed. 4084 In the matter of the appeal of D. L. Spaulding v. board of trustees of union free school district no. i, town of Austerlitz, Columbia county. Right to attend school. When cliiklren whose home has been broken up are brought to the residence of one who stands in the place of the parent, to find care and protection for an indetinite period, they become residents of the district in which said person resides. Decided June 3, 1892 Crooker, Superintendent This appeal is brought from the refusal of the board of trustees of union free school district no. i of Austerlitz, Columbia county, N. Y., to allow one Roscoe 582 THE UMVKKSITV Ul- TlIK STATK OF NEW YORK Ilaniiii to alkiul the public school in said di^lrict witliout paying tuition therefor, aiul for suspcndiii;^^ him from schcml until such tuition shall be paid. The following facts appear from the papers ujion this appeal : The appellant, with his family, resides in union free school district no. i, town of Austerlitz, Columbia county, N. Y. Roscoe llamni, a nephew of api)el- laiit, of the age of 12 years, resides with the ai)pellant. The mother of said Roscoe liamm is dead. His father is a poor man, and a day laborer, ha\ing no permanent domicile, and at present working in the state of Connecticut, and unmarried. The appellant, under authority from the father, has taken the said boy into his family, to care for. manage and correct him as if he were the son of the appellant, and without receiving any com])ensation therefor from the father. Tlie boy has been attending the school in said district. That on April 29, 1S92, the respondents, by resolutions adopted, declared that the said Roscoe Hamm, in their opinion, was not a resident of said district, and that the secre- tary of respondents be instructed to present a tuition bill for the last two terms to the appellant, and to notify appellant that if such bill was not paid by him or other relatives of said boy, the said Roscoe Hamm could no longer be allowed to altenil said school. The bill for tuition was presented to appellant, who declined to pay it. The boy attended the school the following week, when the principal of the school, acting under directions of respondents, suspended the boy from attendance at school until the tuition bill should be paid. The question involved in this ap])eal is that of residence, and it is often a dillicult one to decide. The facts in this case establish that the appellant has taken the boy for an indefinite period to care for and manage, and establishes such a substantial adoption of the boy as to make him a resident of the district and entitled to the privileges of the school. It has been the rule of this Depart- meiU that when children, whose home has been broken up, are brought to the residence of one who stands in the place of the parent, to fmd care and protec- tion for an indelinite jjeriod, they become residents of the district in which said person lives. The appeal is sustained, and the board of trustees of union free school dis- trict no. I of the town of Austerlitz, county of Columbia, is hereby directed to admit Roscoe Hamm to the privileges of the school in said district as a resident thereof. 4088 In the matter of the appeal of Joseph S. Hamlin v. the board of education of union free school district no. 2 of the town of Trenton, county of Oneida. The granddaughter of the appellant, whose parents reside in the state of Missouri, and, from anything that appears, are able to maintain and educate their children, is temporarily residmg with the appellant in Trenton, Oneida county. Such residence is subject to be JUDICIAL decisions: residence 583 terminated at her option or that of her parents. The appellant does not occupy the relation of a parent or guardian to his said granddaughter. Held, that such grand- daughter is not entitled to the privileges of the school in the district where the appellant resides without payment of tuition. Decided June 10, 1892 Crooker, Superintendent This is an appeal from a resolution and decision of the board of education of union free school district no. 2 of the town of Trenton, county of Oneida, refusing to allow Louisa Gosnell, a grandchild of the appellant, residing with him, to attend said school without the payment of tuition. From the papers filed with this Department upon said appeal, the following facts are established: That the appellant resides and is a taxpayer in said school district. That he is about 82 years of age. That his family consists of his wife, who is about 74 years of age; his daughter, Ada Hamlin; his grandson, Walter Hamlin, and a servant, Harriet Carpenter. That his granddaughter, Louisa Gosnell, who resided with her parents in Westport, Mo., at the request of her grandmother and her aunt, in or about February 1891, with the consent of her parents, catne to reside in the family of the appellant. That the appellant had no knowledge that his said granddaughter was to come to his residence until her arrival. That the traveling expenses of said granddaughter from JMissotiri were paid by appel- lant or some of his family. That the arrangement under which the said grand- daughter came to reside in the family of the appellant, as appears from the testimony of Miss Hamlin, was that a servant who had been in the employ of the family of appellant for some years left said employment. That in a conversation had betv/een the mother of the granddaughter and Miss Hamlin, the mother had stated that if said servant left she (the mother) wotild let one of her dauditers come to appellants to assist them. That Miss Hamlin wrote to the mother requesting that said Louisa come and remain a year or two or more and they would pay her traveling expenses. That in about three weeks the said Louisa came to appellant's residence. That during the residence of said Louisa with appellant, he has furnished her board and clothes and she has taken lessons in music from Aiiss Hamlin. That the said Louisa does the cooking, fine ironing, helps with the sweeping, and looks after her grandfather. That she is about 17 years of age. That the mother of said Louisa stated to her daughter and wrote to Miss Hamlin that she did not want her daughter to go to school, but desired her to devote her time to music. That said Louisa did not wish to attend school, but upon the request and advice of Aliss Hamlin in or about September 1891, commenced to attend the union free school in district no. 2, in Trenton, Oneida county, and continued to attend said school during the term in the months of September and October 1891. That on or about October 30, 1891, the respondents adopted the following resolution: "Resolved. That Lo.uisa Gosnell and Walter Hamlin are not considered by this board as resident pupils, and that Joseph Hamlin, the person with whom they reside, be notified 5^4 THE UNIVERSITY OV TIIK STATK OF NEW YORK that iIkv imi>t pay tuition witliin one week from date (October 30, 1891), or they will not be allowed to attend the school after that time." That a letter of II. A. I'ridc, secretary of respondents, under date of November 2, 1891, con- taininjij such resolution, was delivered to the appellant. That at a meetini,^ of respondiiits held on or about November 7, 1891, said respondents decided that .•^aid Walter Handin was entitled to the privile,<,a's of said school. That the appel- lant thereupon brou.i,dit an a|)peal from the decision of respondents that said l-ouisa r;(isncll was not a resident of said district and not entitletl to the privileges of said school without payment for tuition. It is dearly established by the foregoing facts thai the said Louisa Gosnell did not come to reside in the family of the appellant for the purpose of attend- ing school. The sole question presented by this appeal is as to the residence of Louisa Gosnell. 'I'he question of residence is often one difficult to decide. The residence of a minor is usually that of the parents or guardian. The residence of the parents of Louisa (losnell is in the state of Missouri. They are possessed there of a home, at which, for anything that appears upon this appeal, they are able to maintain, care for and educate their children. The a])pellant does not occu|)y the relation of a parent or guardian to his granddaughter. Her residence in his family is but tem])orary, subject to be terminated at her option or that of her parents. In my opinion the said Louisa (lOsnell is not a resident of union free school district no. 2 of the town of Trenton, and not therefore entitled to the privileges of the school in said district without payment of tuition. The appeal is disiri ed. SCHOOLS 3993 In the matter of the appeal of citizens of Ehnira, N. Y., v. the hoard of education of the city of Ehnira. The corporate authorities of a city having neglected to provide by tax the sums needed for the support of the public schools of such city for the school year, the board of educa- tion assumed to close the schools and dismiss the teachers employed; held. That the closure of the public schools, except in special cases, is contrary to the laws of the State. The board of education directed to open the schools. The corporate authorities directed to levy a tax for the amount needed for school purposes for the school year. Decided Septeruber 4, 1891 D raper , Superintend en t Chapter 113 of the Laws of 1859, as amended from time to time, is a some- what comprehensive special statute providing for the administration of the schools of the city of Elmira. Among other things this act provides (section 20, subdivision 11) that the board of education shall annually, before the day for the last meeting of the common council in March, determine and certify to the common council the sums deemed necessary for the maintenance of the schools for the year commencing on the ist day of September thereafter. In accordance with this direction the board of education duly determined and certified that the sum of $49,340 would be needed for the purposes named. The statute (section 21) directs the common council, upon the receipt of the estimates of the board of education, to proceed to consider the same and to approve, increase or diminish the same, but prohibits the council from reducing the sum below a sum sufficient to defray all the necessary expenses of the pul)lic schools, including the academy, and after fixing the amount to be expended for the purposes named, to certify the same back to the board of education, which body is required to limit its expenditures to the amount so fixed. The common council proceeded to the discharge of this statutory duty and on the 25th day of May fixed and determined the amount deemed necessary for school purposes for the ensuing year, at the said sum of $49,340. Section 12 of the act makes it the duty of the common council to raise by tax the sum so determined upon, and section 13 directs that it " shall be levied and collected in the same manner, by the same collector and at the same time that other city taxes are." The charter of the city provides the machinery for collecting city taxes, but instead of being in operation as to the special school act contemplated is at a 'sfandstill in consequence of disagreement in the council as to the amount to be raised for such city taxes. Although the statute reciuires that the assessment I585] 5-% TilE L'NIVKkSITY (•!■ Till-: STATK Ol- NKW YORK rolls with the tax warrant shall be delivered to the city chamberlain as the col- lecting officer on or before the 15th day of June in each year, this has not yet been done in the present year. In view of this blockade of the machinery for raising taxes and because of the apprehension that funds for meeting the expenses of the schools would not be j)rovi(led. and of the disinclination to incur an indebtedness not provided for, the board of education on the 29th of July determined to close the schools for the ensuing school year and took formal action to that effect. From this action an ai)peal was brought to this Department by numerous rcsidciUs of I-llmira. In comnumications to the board and in conference with a committee thereof, the Superintendent informally expressed his opinion that the board, in taking this action, fell iiUo an error. The State undertakes to provide a common school within reach of every home. It insures this by raising some $4,000,000 through a general State tax levy for the sujjport of a general system of common schools, and by providing for the organization and management of such a .system. It authorizes localities to do as much more as they will to augment or perfect this system. It does not permit them to overthrow it. In one part of the State it provides for raising moneys, over and above what the State provides, in one way and in another part in another way. In one place it causes this system to be administered by local officers chosen in one way and in another place by officers chosen in another way. The particular way is largely left to the wishes of the locality. P.ut everywhere the common schools are part and parcel of a general .system. This is so. in Elmira. No local authority, much less the failure to dis- charge an ofTicial and statutory duty can be permitted to stop their operation. Th.e schools there have fortunately been organized upon a broader basis than the State rerjuired. Local intelligence and pride may always be relied upon to do this. The residents of Elmira desired this. In deference to their wishes the Legislature provided for it by enacting special statutes for the government of the schools of that city. These special statutes only supplement the general school laws of the State. All must be read and construed together. Having organized a city system of schools upon such a basis it must be operated on that basis. The statute makes the expenses thereof a city charge. The city authori- ties are directed by law to raise the money and how to raise it. If they fail to perform their duty they may be compelled to do it. If they do not raise the money and are not compelled to, the schools are to proceed all the same and teachers, employees and others acquire a right of action against the city for serv- ices or necessary supplies, which the courts will enforce. Acting upon this view of their duty in the premises, the board of education on August 2Sth, rescinded their resolution of July 29th, determining to close the schools, and directed that they be opened at the usual time in September. Having taken this step, the board, very properly presents the question as to whether there is not a way of requiring the city authorities to proceed with the collection of the tax without forcing teachers and others to the necessity of many suits against the city. JUDICIAL DECISIONS : SCHOOLS 587 If there is a way it is manifestly to the interest of all concerned that it should be followed. As the amount to be raised for the schools is not a subject of controversy, as it has been absolutely fixed and determined in the maimer provided by law, it is undoubtedly desired by the citizens of Elmira that its col- lection shall forthwith proceed in order to avoid, so far as possible, the annoy- ances which are impending. The Elmira school act provides (section 13) that the amount to be collected in the city for school purposes " shall be levied and collected in the same manner, by the same collector and at the same time that other city taxes are." The only thing in the way of the collection of the school taxes proceeding at once, and without av^^aiting the solution of the controversy in reference to other city taxes, is the provision that all sliall be collected at tJie same time. But all the statutes relating to the matter must be read together. Tlie legislative purpose in the premises is not to be determined by the literal wording of a single clause separated out from pages of statutory law bearing upon the matter. It is clear that the Legislature intended that the amount determined to be necessary for the support of the school establishment of Elmira should be collected. Its collection was not to take place upon the happening of some contingency. The moneys in question are for the expenses of the school year commencing Sep- tember I, 1891, which has already been entered upon. They are now needed to meet the expenses of the work which the Legislature directed to be carried on. The Legislature intended that they should be ready for use when needed. The direction that these moneys should be collected at the same time as other city taxes, was only for convenience and no essential part of the scheme. Suppose it should so happen that in any year no other city taxes are to be collected. Would any one contend that no school moneys could be raised? The provision as to time was not mandatory but only directory, and was made upon the con- fident expectation that other city taxes would be collected prior to the month of September in each year. There would seem, therefore, no good reason why, under existing circumstances, the city authorities should not have proceeded with the collection of the school moneys, or why they may not do so at any time. Nor is there any apparent reason sufficient to prevent their being com- pelled to do so by ordinary legal process. Rut regardless of this the Legislature has evidently intended that the col- lection of taxes for school purposes shall not depend upon any local considera- tions whatever. The Consolidated School Act (chapter 555, Laws of 1864, title 11) provides that any person conceiving himself aggrieved by any act or decision concerning any matter pertaining to common schools may appeal to the State Superintendent, and requires that officer to hear and decide the same and makes his decision final and conclusive. Section 2, subdivision 4 of the title above named provides ■that the Superintendent shall have power "to make all orders by directing the levying of taxes or otlicrzvise which may in his judgment be necessary to give effect to his decision." 5StS Till-: UNIVERSITY OF THE STATE OF NEW YORK Arriving ;it the dctcrniiiiafion liercinhefore set forth upon the matters sub- mitted, and in order to give effect to his decision that the schools must be kept in operation, the Superintendent Orders that the clerk of the city of I-llniira forthwith proceed to extend and apportion the amount fixed and determined by the common council of said city as necessary to be raised for the expenses of the schools of said city for the year coninu-ncinp September i, 1891, namely: the sum of $49,340 on the assess- ment rolls of said city, and to CAc the same and make a full duplicate or copy thereof with the tax so extended and apportioned and certify the same in the manner re(|uire(l by law, and shall deliver the same to the chaml^erlain of said city, and the said chamberlain shall thereuj^on proceed to collect from the several persons named in the said assessment rolls the sums set opposite their respective names. Said clerk and chamberlain will in preparing' the rolls and collecting said sciiool taxes proceed as directed by the statutes relatine^ to the levying and col- lection of taxes in said city of Elmira. but without the formal authority of the coninK»n council or the warrant of the mayor of said city, and this order shall be their warrant and authority for so doing. CLOSING OF PUBLIC SCHOOLS Action of a borrrl of education in resolving to close public schools for the reason that the corj)()r:itc authorities upon whom the duty to provide funds devolves by law, neglect to provide necessary means, will not he upheld. Statutes providing for the raising by tax of moneys for scbnol purposes in tlie city of Elmira, set forth and considered. Teachers under contract of employment would have a remedy liy law, if wages provided for by contracts were in default, allhough prevented from teacliing ])y reason of the closing of the schof)ls. State of Neiv York, Def^artmcnt of Puhlic Instruction Superintendent's Oitice, Albany, N. Y., August 4, iSqi F. J. Beardsley, Esq., Superintendent of Sclwols. Jiiniira, N.^ Y.: Sir: On the first in.stant I received by your hand petitions signed by many citizens of Rlmira. addres.sed to the State Superintendent of Public Instruction, praying him to intervene and prevent certain resolutions adopted by the board of education of said city on the 29th day of July, and determining to close the public schools of said city during the next school year from taking effect. You also handed me a paper signed by the members of the board of education assuring me that the statements contained in the petitions were true and consenting that I should make whatever answer I deemed proi)er in the matter, without notice to the board or any of its members. While evidently intending that the matter shall be brought before me by way of appeal from the action of the board, the rules governing the practice in appeals to the Department have not been complied with and the usual course JUDICIAL DECISIONS : SCHOOLS 589 would be to return the papers that they might be perfected and completed. It is important, however, that there shall be no unavoidable delay in a matter of so much general concern, and I have therefore deemed it advisable to at once express my views of the subject rather than compel the board and the peti- tioners to await the slow progress of a formal appeal. It seems that the board following the statute under which it operated (chap. 113, Laws 1859) certifiL'd to the common council of the city that the sum of $49,340 would be necessary to meet the expenses of the schools of the city for the school year beginning September i, 1891, and that upon the 25th day of May the common council considered and approved the said estimate. The statute provides that moneys for school purposes " shall be levied and collected in the same manner, by the same collector and at the same time that other city taxes are," but it is generally known that the warrant for the collection of other city taxes has not yet been issued, although the same should have been in the hands of the chamberlain prior to the 15th day of June 1891, in consequence of a con- troversy in the common council touching taxes for other than school purposes, but of the precise nature of which I am not advised. The board of education therefore appears to conclude that funds may not be available for school expenses during the next year, and with manifest unwill- ingness resolves that the schools be closed during the year. I have given the subject such consideration as I have been able during the limited time afforded me and with the greatest respect for the opinion of the board, I am led to say that it seems clear to me that the action of the board can not be justified. The public school laws of the State, applicable in Elmira as elsewhere, and the special statutes particularly applicable there, contemplate that schools shall be continuously maintained, save only at such times as may be deemed neces- sary for the purposes of recreation. It has been repeatedly held that local boards or oflicers have no power to discontinue schools. All the statutes exemplify this intention of the Legislature. Let us instance one that is particularly applicable in this case. The Elmira school law (section 21 as amended February 21, 1866) guards against the closure of the schools by expressly providing that upon the receipt of the estimates of the board of education "the common coiuicil shall proceed to consider the same, and approve, increase or diminish any or all of said estimates; provided, hozcever, that the aggregate amount shall not fall belozu a sum sufficient to defray all the necessary ex{^enses for the support of the public schools in the school district of Elmira, including the academy, for the ensuing year." Fortunately the common council has performed this duty and approved the estimates for the expenses of the schools as presented by the board of education. The statute requires the board to limit its expenditures to the sum so fixed and appro^■ed, but does it not justify the board in assuming that such sum will be available for the purposes named? '~\ Are all the provisions of the general school laws and these special provi- sions in the case of the city of Elmira to be neutralized and set aside because a 5«jo Tiiii l'ni\i;kshv ui- iiii-: siaik of nkw vork common council has delayed the issuance of a lax warrant longer llian it should have done? I am clearlv of the opinion tliat the board has no authority to close the schools for a year nor for any length of time (usual vacations excepted), unless something occurs which necessarily stops their operation, and then only until the obstacle can be removed. lias any such thing yet occurred in Elniira? I think not. The schoolhouses have not been burned. There is no contagious disease prevailing. The teachers have not refused to act. No warrant has even been dishonored. An apprehension that one may be at some time in the future is not enough. In public ailministration it is well not to attempt to cross trouble- some bridges until they are reached. I observe that the board resolved that " persons engaged to teach be released from such engagement." But suppose they prefer not to be released? It takes two to make an engagement and two to unmake one. The board can not dis- charge the persons who have been engaged to teach the public schools of Elniira without their consent, because of the possibility that there may not be money with which to jjay them. These teachers are entitled to have the city fulfill its engagement. They will be entitled to their pay or to such legal damages as they may suffer and can re(|uire the city to make them good by actions in the courts. In the event of possible contingencies let that course be taken. Aside from the re(|uiremcnts of the school laws, the board would surely not be justified in sub- jecting the city to this liability without securing to the city the benefit of the services of these teachers. It occurs to me that it is very usual for city charters to forbid the incurring of any city liability beyond the amount in the treasury for meeting the expenses, and that the board may apprehend trouble from such a provision in the Elniira charter. Without the facilities for conveniently referring to such provisions which may exist and without stopping to look them up, it seems proper to me to suggest to the board that they may well distinguish between a liability imposed by law or already legally incurred, and some new and unusual liability for which legal provision has not been made. Liability for teachers' wages and other ordi- nary expenses of the schools are of the former class. The city is liable for such expenses under the law and without any new or affirmative action of the board, and the board need apprehend no personal or other liability from proceeding upon this assumption. So I conclude that there has been no sufficient justification for determining to close the schools, and accordingly that the board has exceeded its authority; that it should forthwith rescind its action, open the schools as usual and go on in the ordinary way until something occurs to absolutely prevent their operation. If in the course of time, funds are not provided in the ordinary way for meet- ing the expenses, let legal claims be enforced by legal remedies. Attempt to cross streams only when they are reached and if bridges are then found to be gone, cross in some other way. If any bridges are now down it is more than likely that they will be repaired before the schools get there. In any event I am quite JUDICIAL DECISIONS : SCHOOLS 59I certain that the people of Ehnira will stand by the board of education in going on with the schools, even though they be obliged to meet unusual dilTiculties with unusual means. The greater their embarrassments, the more thoroughly will they be sustained. I am, yours very respectfully, ^ A. S. Draper, Superintendent CLOSING OF PUBLIC SCHOOLS The law contemplates that public schools shall be open continuously (save during reasonable vacations). Failure of corporate authorities to provide moneys required for the support of schools, no justiikation for the school authorities in closing same. Liability incurred by the employment of teachers can not be evaded by closure of schools. State of Nczv York, Department of Public Instruction Superintendent's Office, Albany, N. Y., August 26, iSpi To the Board of Educalion, Ehnira, N. Y.: Referring to an interview with Messrs Joslyn and Cooley on the 25th instant, in relation to certain resolutions adopted by your board on the 2<)th of July, determining to close the schools of tlie city of Ehnira the next school year, in consequence of the failure of the common council of that city to issue a warrant for the collection of taxes for the support of the schools, I very respect- fully advise you that my views upon the subject were very fully set forth in a communication to Mr E. J. Beardsley, superintendent of schools of the city of Ehnira, on the 4th instant, which I will be glad to have the board consider as intended for its information and guidance. I have nothing of consequence to add to that communication other than that more reflection confirms the views therein expressed. It seems to me that the board erred in determining to close the schools. The law contemplates they shall be open continuously (save reason- able vacations), and undertakes to provide the means for maintenance and make certain that its purpose is not thwarted or overthrown. The board is to assume that the moneys for meeting expenses will be provided when actually needed. If the common council fails to perform its duty in the premises, the board of education can not help it. It should continue to perform its duty just the same. The city will become liable for the expenses and the same may be collected by due process of law. Even though the city be harassed with suits and saddled with costs and expenses, the board w411 not be responsible for it, for it will not be the cause of it. It will only perform the duty w-hich the law imposes and which its members have sworn to perform. It can not properly do less than this. It may very properly use every reasonable means for removing the obstacle which clogs the machinery set up for collecting school taxes but the schools must "proceed with their vital and beneficent work whether such efforts are successful or not. If the ordinary processes for raising school moneys are paralyzed, others C^ij2 THE LMVKKSnV Ol' THE STATE Ul-" NEW VOKK will have to be resorted to. If public liability is incurred, it will not be the work of the members of the board, but of the law which governs them and which will not permit its purposes to be overthrown. I entertain no doubt of the duty of the luiard in the premises. It is clear to me that it should forthwith rescind its action of July 3jth and open the schools at the usual time. 1 am, very respectfully A. S. Draper, Superintendent 3706 In the matter of the ai)pcal of L. Z. Miller v. school district no. 39, town of Hector, county of Schuyler. A scliool was cli'Sid for one week because of the prevalence or fear of an epidemic disease. Held, Tliat a teacher was entitled to pay for the time the school was so closed, within the term of lier employment, the same as if school had been continued. Decided .\uk;ust J4. 1888 Draper. Sujhrinlcndent The appellant was employed by the board of education of district no. 39, in the town of Hector, Schuyler county, to teach the school in saiii district for the term of sixteen weeks, commencing on the 2()th day of September 1887, at three dollars per day, and entered u])on his employment. Such employment afterward seems to have been continued by agreement of the parties up to the summer of 1S88. During the week between the 15th and 22d days of November 1887, the school was closed because of the prevalence or the fear of an epidemic disease. The board has never paid the teacher for that week. The teacher has demanded pay and been refused, and brings this appeal for the purpose of determining his right to such compensation. The board admits the employment and admits that the school was closed at the time for the reason specified by the teacher, and also admits the demand for compensation for such week and their refusal to pay the same. They set forth two reasons in justification of such refusal: first, they say that the school was closed but not by order of the board of educa- tion ; second, they say that they had settled with the appellant from time to tiine and that no claim was made for compensation for the week during which the school was closed until about the time of the close of the school for the year. There is no force in the claim of the board that the school was closed without permission or action on the part of the board. It is clear, from the papers, that it was closed by the consent of all three members of the board, and indeed in accordance with their judgment and wish. If the business of the board was transacted in an irregular way, it certainly is not for them to take advantage of it. The second reason assigned by the board for refusing the claim of the teacher, has addressed itself to my mind much more seriously. It is clear that when in the midst of a term of employment the school is closed by reason of JUDICIAL decisions: schools 593 circumstances for which the teacher is in no wise responsible and he continues ready to fulfill his agreement at all times, he is entitled to pay the same as though the school had been in operation. It is true that such claim ought to be asserted by the teacher promptly. lie ought not to settle accounts with the board, receiv- ing no pay for a portion of his time, and, at the same time disclosing no claim to it. I have carefully weighed what is said by the respective parties touching this point of the case. From it I conclude that there never was any conclusive settle- ment between the parties. The board paid the teacher, on account, wages from time to time ; it is probable that they may have paid him all they understood they owed him ; but I am unable to find that at any time the teacher did anything which must be licld as a waiver of his claim. No receipts are produced and no proof is offered tliat he in any way acknowledged that he had received all that was due him. It is to be borne in mind also that the teacher was an employee of the board and that his employment was continued until the summer of 1888, and that he was in a position which might, although it ought not to, cause him to be less independent about the matter than he otherwise would. It is also shown that he made claim to this week's compensation ujjon the termination of his employment. It is clear that under the law he was entitled to pay for the week in question and that he never has been paid. The only question is, whether his course was such as to bar him from now asserting his right to the compensation in dispute. I am of the opinion that it would have been better for him to have made his claim more promptly, but I can not conclude that he has waived his rights in the premises. I therefore sustain the appeal and direct the respondents to draw their order in settlement of one week's wages of the appellant, according to the terms of their agreement with him. 3973 In the matter of the appeal of Robert C. Roberts and others v. school district no. 9, town of Marcy, county of Oneida. A school district meeting voted to close the district school. From such action an appeal is taken. The evidence shows that the school was not closed. Held, that the appeal was prematurely taken; that the action of the district was not controlling upon the trustee. Decided April 21, 1891 Draper, Superintendent This appeal is brought by three electors of school district no. 9, town of Marcy, county of Oneida, upon the following ground: That, at a special meeting of the district, held February 24. 1891, the meet- ing voted to close the school in said district until the next annual meeting. They allege that they are parents of children of school age, residing in the district, aTid object to the closing of the school. 594 i'"'- LNivi-.Ksnv (»i- Till-: stati;: ok ni:\v york From the answer of llic rcspniuk-iil, it appears that this action was taken by llic district meeting, hiit tliat the school has not been closed and is still in session. It is also made to appear by the answer, allhou-h it is unnecessary to consider it upon this appeal, that there has been a very small attendance at the school held in the district, for some time past. At times, there has been no attendance by pupils, and the average daily attendance has not. during the past term, amounted to four. This appeal has been taken prematurely. The action of the district meeting is not controlling upon the trustee. If I were to reverse the action of the meeting, it would in no way change the condition of affairs in the district. I therefore dismiss the appeal. 3794 In the matter of the appeal of Silas C. Kimm v. tlic board of education of union free school district no. i, of the town of Ilcrmon, county of .St Lawrence. The law directs that .sclmols he closed during the time a teachers institute is being held, and requires attendance at the institute of teachers without loss of pay. Boards of education arc not authorized to determine whether a teacher shall attend or not; they have no discretion in the matter. .\ memorandum of hiring, which authorized a teacher to attend a teachers institute, pro- vided the Icaclier would make up the time so spent at the end of a term; held an attempt to avoid the effect of a plain provision of law, namely, that teachers shall be paid for time spent in attendance at institutes, just as if school had been taught by them that week, and therefore void. Decided July 29, 1889 De Coster & Newberry, attorneys for appellant Worth Chamberlain, attorney for respondent Draper, Supcrintcudcnt The appellant was employed to teach the school in the above-named district during the school year 188S-89. The memorandum of employment was as follows : Hcrmon, N. Y., May 2, 1888 This is to certify that I have been empowered by the board of education of the Ilcrmon school to employ S. C. Kimm to teach said school for one vear of thirty-nine weeks, beginning on such a day in August of 1888, as the board may desire, with the usual vacations between terms. I hereby promise to pay him the sum of J^Soo for said year's term of service. But if. at the close of any term of school, it is found that he is not working for the interests of said school, we reserve the right to refuse to continue him in our service. I also agree to allow him to attend a teachers institute which may be held in this commissioner district, provided that he will make up such time at end of the term during which said institute occurs. S. C. Kimm q H. Risley Teacher President JUDICIAL decisions: schools 595 The appellant taught thirty-nine weeks and also attended the teachers insti- tute one week. He claims an extra week's pay therefor. His appeal is from a refusal to pay the same. The board admit the contract, but contend that under it the teacher was to teach thirty-nine weeks and attend the institute one week, for $800. The board also claims that the teacher failed to perform his agreement in other particulars. They say he agreed to spend his time for four weeks, prior to the opening of the school, looking up pupils for the school, by which, I suppose they mean, he was to exert himself to induce nonresident pupils to attend the school, and also that he promised to hold a school exhibition to raise money for the benefit of the district, and that he failed to keep these promises. They claim the right to offset the loss which they allege they sustained through such failure against his claim for an extra week's wages. It may be well doubted whether a contract with a teacher that he should spend time endeavoring to secure the attendance' of nonresident pupils, and that he should hold an exhibition to raise money for the district could be upheld and enforced. But independent of that question, it is apparent to me that this claim of an offset is an afterthought on the part of the board. They have ten- dered him the balance of the year's salary without claiming any right to make a deduction for failure to fulfil his agreement, and it does not seem to me that their claim of that character, under the present circumstances, is entitled to much weight. The paragraph in the memorandum of employment, concerning attendance upon the institute, shows a misconception of the law in that connection on the part of the board. In this memorandum, the president of the board says : " I also agree to allow him to attend a teachers institute which may be held in this commissioner district, provided that he will make up such time," etc. It is not for the board to allow a teacher to attend an institute. The law does that. The board can not require time spent in attendance upon an institute to be made up. The law directs that the schools shall be closed; that the teachers shall attend the institute, and shall be paid for their time in so doing. The board has no discretion in the matter, nor can it by any circumlocution avoid the payment of teachers' wages while attending the institute. It is impossible for me to arrive at any other conclusion than that the board undertook to rid itself of all responsibility for the teacher's wages while he should attend the institute. The memorandum certifies that the employment was for thirty-nine weeks for $800. If the teacher attended the institute, the board would allow it, provided the week was made up. This is precisely what the statute forbids. There is an institute in every district every year. The district has no option in the matter. The law does not contemplate any making up of time spent in the institute. It does require that the district shall pay wages if the teacher attends the institute, precisely as though he had taught school. 59^ Tilt: L .M\ i.K.-i i » tiK Tiiii: state uf new vork I have considered the question whether the teacher did not har himself from exactinj^ an extra week's pay, by reason of the fact that he accepted this nienioranduin without raisin^ij any question about the provisions in reference to institutes. I am of the opinion that he came short of doini^ what ho shuidd have done at that time. Me should have had a clear understanding, at once, about the institute matter. lUit I do not think he can be held to have waived his rights under the statute. rile appeal is therefore sustained, and the district directed to settle with the ajjpellant for one extra week of service at the rate of $800 for thirty-nine weeks. SCHOOL DISTRICTS -ALTERATION OF The provision requiring three months' notice to trustees of an aUcration in their school district is intended for their protection, and to that end is to be benignly construed. Decided December 26, 1828 Flagg, Superintendent In September 1827, Messrs Reuben Stearns and Nathaniel W. Ingraham were set off from district no. 10 in the town of Locke, and attached to district no. 9 in the same town. In November ensuing, Ingraham was elected a trustee of the latter district, and officiated in that capacity until November 1828. There was no evidence on record of the alteration above mentioned having been made with the consent of the trustees of district no. 10, or that any notice had been served on them by the commissioners ; but they were notified of the intention of the commissioners to set off the two individuals referred to, and of the time and place of meeting for the purpose. In November 1828, a tax was voted in district no. 9 to build a schoolhouse, when a doubt was raised by one of them, whether they had been legally set oft' from no. 10. The facts were submitted to the Superintendent for his opinion. Messrs Stearns and Ingraham petitioned the commissioners of common schools to be detached from district no. 10 to no. 9, and in September 1827, their petition was granted ; and Ingraham was elected a trustee of no. 9, in which capacity he served until November 1828. The alteration of district no. 10 by attaching them to no. 9, appears to have been recorded in the usual manner under the old law. Whether the trustees of no. 10 were originally willing to gratify Messrs Stearns and Ingraham in their request to be annexed to no. 9 or not, and whether notice was served or not, can not after so long a time affect the relations of Messrs S. and I. with the trustees and inhabitants of no. 9. The provision requiring the consent of trustees to detach persons from their district. and holding them three months without such consent, was made for the bcnelit and protection of the trustees, to whose injury the alteration might operate. For instance, trustees might have made contracts and incurred responsibilities, which would operate oppressively, if some of the most wealthy were detached before they had time to collect the tax. In such cases the trustees are effectually pro- tected by their veto upon the formation of the district for three months, in which time they can collect their tax. And to carry this intention into effect, the act should be benignly and favorably construed for the protection of the trustees. But in relation to Messrs Stearns and Ingraham, none of these reasons can avail them; they desired to be set to no. 9, and were gratified. The trustees of \no. 10, from their silence in the matter, seem to have acquiesced ; and as the trustees have not sought to retain Messrs S. and I., and more than a year has elapsed, they must be considered as having been legally attached to no. 9. [597I 598 Tllli LMVKKSITY OF TlIK STATK OF NEW YORK Town superinteiuliiits (school commissioners) have no authority to alter the boundaries of a school district, if the same have been established by this Department upon appeal, until after the lapse of lincc years from the time they were so established, without c.\|)rcss permission of tlie State Superintendent. Decided May i^, 1855 Rice, Supcriulctidcut The ai)i)cllaiits, in making their annual report, enumerated, ainong the children of their (Hstrict, the five children of Mr William Raynor. In making his apportionment, the town superintendent deducted these children from the enumeration of district no. 22, on the ground that they and their father were residents of the adjoining district, no. 21. The trustees of the latter district answered the appeal. It api>cars from the evidence that the farm of Mr Raynor was taken from district no. 22, some five or six years since, and annexed to district 110. 21, by an order of the town superintendent, that officer not being aware that the line between the said districts had been established in 1830, by the State Superin- tendent, upon appeal. It has been held that town superintendents have no power to alter the boun- daries of a school district, if the same have been established by this Department, upon appeal, unless consent shall have been previously given by the State Super- intendent for such alteration. This rule was established to prevent the decisions of the Department from being deprived of any practical effect, as might be the case, if immediately after the decision a new order could be made precisely or substantially similar to the one which has been set aside. This reason fails, however, when lapse of tiine and a consequent change of circumstances may have made the reasons no longer applicable which controlled the decision. As this is a subject of regulation, it will hereafter be held that, after a lapse of three years from the tiiue when the boundary of a district shall have been established by this Department, upon appeal, it shall no longer be requisite to apply for express permission of the State Superintendent to author- ize a local officer to make an alteration of the same. In the case under consideration, the appeal should be sustained, without reference to the above-mentioned objection. It is the duty of the town superin- tendent to apportion the public money according to the number of children in the several districts "as the same shall have appeared from the last annual reports of the trustees," and not otherwise. If he deems the report incorrect, It is proper for him to call upon the trustees to correct it, and if they refuse to do so, they may, perhaps, render themselves liable to the penalty iinposed for wilfully signing a false report, with the intention of causing the town superin- tendent to apportion and pay to their district a larger sum than its just propor- tion of the school moneys of the town. The report, however, is conclusive until it shall be amended by the trustees, or the question be determined on appeal. JUDICIAL decisions: school districts ALTERATION OF 599 4917 In the matter of the appeal of Fred J. Saunders v. N. F. Benedict as school commissioner, third commissioner district, Onondaga county. It is against the settled policy of this Department to allow real property to be transferred from a comparatively weak district to a stronger one when it is not clearly shown that it would give increased convenience to the persons occupying the transferred territory. A trustee of a school district has no pov/er, in the name of the district, to consent to an order for the alteration of school district territory which would take him out of the dis- trict of which he is trustee, and by its operation, vacate his office. Decided December ig, igoo. Dougherty & Aliller, attorneys for appellant Skinner, Superintendent This is an appeal from an order made, August 17, 1900, by N. F. Benedict, as school commissioner, third commissioner district, Onondaga county, altering joint school district 13, Fabius, Onondaga county, and Truxton, Cortland county, and the consequent alteration of union school district 9, Fabius, Onondaga county. The appellant, alleges, in substance, as the grounds for bringing his appeal, that such order was improvidently and improperly made in that it trans- fers territory from a weak to a strong district, and is an abuse of power on the part of the commissioner ; that the order is irregular in that the territory set oil is not described by metes and bounds; that said commissioner had no jurisdiction to make the order without the concurrence or knowledge of the school commis- sioner of the second commissioner district of Cortland county, such district 13 being a joint district located in said second commissioner district of Cortland county, and third commissioner district of Onondaga county, and said order hav- ing been made without the knowledge of, and without any notice to, the school commissioner of the second commissioner district of Cortland county, of the pro- ceedings leading up to the making of such order, and without her concurrence in such order. Commissioner Benedict has answered the appeal, to such answer the appel- lant has replied, and to such reply such commissioner has made a rejoinder. Since the appeal herein was taken school commissioner Benedict applied to me for permission to amend his said order of August 17, 1900, by describing therein more definitely the territory aflfected by said order. Permission was given him to so amend such order, and November 14, 1900, such amended order was made by him, describing such territory by metes and bounds, and such order was filed in the otifice of the clerk of the town of Fabius, Onondaga county. A copy of such amended order was annexed to the answer made herein by such conmiissioner. The following facts are established by the pleadings and proofs filed herein: -.On August 17, 1900, and for many years prior thereto, there was a school district known as joint school district 13, Fabius, Onondaga county, and Truxton, Cortland county, and within the third commissioner district of Onondaga county and second commissioner district of Cortland county. The assessed valuation ()00 TlIK UNIVMRSrrV OF TlIF STATF. OF NF.W YORK of such (iistrict was .$18,750, and there were residing therein cigliteen chil(h-en between the ages of 5 and 21 years. There was situated in said town of Fabius, union school (h'strict 9. having an assessed valuation of $200,100, and about one hundred and fifteen children between the ages of 5 and 21 years, residing therein. (Jne J. M. Crandal was sole trustee of such joint school district 13, and resided with his wife, Helen C Crandal, upon a tract of land consisting of about 2jS acres in lots 34 and 35 of the town of Fabius, which land was owned by F.lizabeth Rowley and Franklin B. Rowley, and assessed for school taxes at the sum of $3c/x). Said tract of land was occupied by Trustee Crandal and his wife, Helen ('. Crandal, under lease thereof either to said trustee or his wife or to both of them. Trustee Crandal and his wife had residing with them four children of school age. On August 17, 1900, school commissioner Benedict, with the written consent of Trustee Crandal, and the president of the board of edu- cation of union school district 9, made the order appealed from herein, transfer- ring said tract of land upon which such Trustee Crandal resided, from district 13, of which he was sole trustee, to union school district 9, town of Fabius, thereby taking Trustee Crandal out of district 13, and vacating his office of trustee. It is in proof that the distance from the residence of Trustee Crandal and his wife to the schoolhouse in district 13 is from one mile to one and one-fourth miles, and that the distance from such residence of Trustee Crandal to the school- house in union school district 9 is two miles. It is against the settled policy of this Department to allow property to be transferred from a comparatively weak district to a stronger one when it is not clearly shown that it will give increased convenience to the persons occupying the transferred territory. State Superintendent Ruggles, in decision 3419, dated ]\Iay 5, 1885, held " that a trustee of a school district has no power, in the name of the district, to consent to an order for the alteration of school district territory zvhich will take him nut of the district of which he is trustee, and by its operation, vacate his office." I concur in said decision of Superintendent Ruggles. The appeal herein is sustained, and the order of School Commissioner Bene- dict, dated August 17, 1900, appealed from, and his amended order, dated November 14, 1900, are, and each of them is, hereby vacated and set aside. 3938 In the matter of the appeal of Alfred Ward and others v. J- Freeman Wells, school commissioner of Warren county. .\n order of a school commissioner setting off lands from one district to another, and based upon the consent of a trustee whose lands upon which he resides, are set off, and the cfTcct of wliich is to take him from the district of which he is trustee, and thus vacate his office. Hctd to be inoperative and void. Order set aside. IJecided December 3, 1890 L. C. (loodrich, Fsq., attorney for appellant JUDICIAL DECISIONS : SCHOOL DISTRICTS ALTERATION OF 6oi Draper, Siipcrintcndoit This appeal is brought by resident taxpayers of school districts nos. 5 and 7 of the town of Thurman, Warren county, from an order made and issued by J. Freeman Wells, school commissioner of Warren county, transferring lands from district no. 7 to district no. 5 aforesaid. The order was made upon the consent of the sole trustees of the districts affected, and bears date September i, i8go. One objection raised by the appellants to the validity of the order, is a fatal one. and renders necessary no further investigation of the matters raised by the appeal. It is clearly shown that the trustee of district no. 7, upon whose consent the order was made, was the owner of and resided upon land affected by the order, and transferred from the district in which he was trustee, to another. Ruggles, Superintendent, in deciding appeal no. 3419, May 5, 1885, in which the same question arose, said : " It is clear to my mind that the trustee of a school district has no power, in the name of the district, to consent to an order for the alteration of school district territory, which will take him out of the district of which he is trustee, and by its operation, vacate his oflice." I concur in the opinion of my learned predecessor, and hold, in this case, accordingly. The order appealed from is set aside, and the appeal sustained. 4903 In the matter of the appeal of Fanny E. Sawyer and others v. Everett A. Chick as school commissioner third commissioner district of Jefferson county. This Department has never favored the alteration of school districts, in taking property from a comparatively weak district financially, and annexing it to a district financially strong. Decided November 10, 1900 A. M. Leffingwell, attorney for appellants Skinner, Superintendent This appeal, while in form is taken l)y the appellants against Everett A. Chick as school commissioner of the third commissioner district of Jelfersou county, is in fact an appeal from the action of a local board, consisting of School Commissioner Chick, A. A. Scott, supervisor, and Lee M. Whitney, clerk of the town of Henderson, taken on September 22, i«/^o, in vacating a preliminary order made by Commissioner Chick, dated September 15, 1900, to take effect on December 15, 1900, and filed on said September 15, 1900, in the office of the clerk of the town of Flenderson, altering school districts 5 and 8, Henderson, by the transfer of certain real property described therein from district 5 to district 8. An answer to su.ch appeal has been made by the persons constituting such local board. C02 TIIF. UNIXEKSITY i H- illi; STATIi OF NKW YORK The fullowinj; fads arc cstahlishccl by the proofs filed herein: A petition, in writing, dated September u, 1900, signed by ihe appellants, was lielivered to Commissioner Chick, reijuesting him to make an order altering the boundaries of school district 5 and school district 8, Henderson. Jefferson county, by the transfer of certain real property, described therein, and owned or occupied by the petitioners, from district 5 to district 8; that Commissioner Chick, on September 15. Kjoo, made a preliminary order of alteration, the trustee of district 5 not consenting thereto, of such districts 5 and 8, said order -to take effect December 15, 1900, transferring the real property described therein and in said petition of the appellants, from said district 5 to district 8, which order was liled in the oftice of the clerk of the town of Henderson September 15, 1900; that on September 15, 1900, Commissioner Chick gave notice, in writing, to the trustee of each of districts 5 and 8, which districts were affected by his said pre- liminary order of alteration, of the said order of alteration so made by him, and notice that on the 22d day of September 1900 at 10 o'clock a. ni., at the oftice of A. M. Leftingwell. in the village of Henderson, N. Y., he would attend and hear objections to the said preliminary order of alteration of such districts; that said trustees might request the supervisor and town clerk of the town ra whicli their school districts lie to be associated with said school commissioner at such time and place for the purpose of confirming or vacating the said order ; that on September 22, 1900, at the office of said Leffingwell, in the village of Henderson, Commissioner Chick attended and heard proofs and arguments in objection to, and proofs and arguments in favor of, said alteration of such school districts, and that at such place and time there were also present A. A. Scott, supervisor, and Lee AI. Whitney, clerk of said town of Henderson, each of whom producetl proof that he had been requested by the trustee of school district 5, situated in said town, to be associated with said school commissioner upon such hearing; that opportunity to be heard was then and there given to all persons who desireil to present objections against or arguments in favor of such altera- tions, and after due deliberation the said local board rendered its decision that the said preliminary order of Commissioner Chick be vacated; that September 25, 19:0, a record of said action of such local board was filed in the office of the clerk of said town of Henderson. It further appears that the nuniljcr of children of school age residing in school district 8 is eighty-six, and the aggregate amount of property subject to taxation therein is $246,568; that the number of children of school age residing in school district 5 is seventeen, and the aggregate amount of property subject to taxation therein is $36,408; that the aggregate valuation of the real property sought to be transferred by said preliminary order, from district 5 to district 8 is $4100, aiid the aggregate number of children of school age resid- ing upon such property is five ; that the appellant. Fannie E. Sawyer, is the ow ner of a farm situated in district 5, assessed at $3000, but resides with her husband, Charles Sawyer, in the village of Henderson in district 8, and has no children; that the appellant. Alfred Wilson, resides upon the farm owned by Mrs Sawyer, untler a lease which will expire :\Iarch i, 1901, and in the hearing before the local board, did not allege any expectation of remaining on such farm after said date. JUDICIAL DECISIONS : SCHOOL DISTRICTS ALTERATION OF 603 and has three children, one of whom is 13 years old, one 17 years old and the third not as yet 5 years old ; that the appellant Julia E. Penney owns real prop- erty assessed at $500 situated in district 5, upon which she resides with her hus- band Adolphus Penney, and they have two children of the ages respectively of 10 and 13 years; that the appellant. James Ellis, owns real property situated in district 5, assessed at $400, and has residing with him one child of the age of 17 years; that the schoolhouse in district 5 is nearer the residences respectively of the appellants herein who have children attending the school therein, than the schoolhouse in district 8; that the road over which such children are required to travel to attend school is a fairly well-traveled road and is not more obstructed by snow than ordinary country roads; that most of the travel between Sacket's Harbor and Henderson village is upon said road on which the schoolhouse in district 5 is located and any obstruction by reason of snow is more often greater between the residence of Penney and Henderson village than between the resi- dence of Oilman near the schoolhouse in district 5 ; that the teacher employed in the school in district 5 is of sufficient learning and ability to teach any study that any child or children attending such school would wish to pursue; that the school in such district has been maintained for at least 160 days in each school year, and can be maintained for a longer period if the educational interests of the dis- trict require it. This Department has never favored the alteration of school districts in taking property from a comparatively weak district financially, and annexing it to a district strong financially. I am clearly of opinion, from the facts established herein, that the action of the local board in vacating the preliminary order made by Commissioner Chick, September 15, 1900, in the alteration of school districts 5 and 8, Hender- son, Jefferson county, was a wise exercise of the power vested in said board, and should be affirmed by me. The appeal herein is dismissed, and said decision of said local board is affirmed. 3693 In the matter of the appeal of R. W. Parks, trustee of school district no. 2; P. W. Wilbur, trustee of school district no. 3; Hugh Boyle, trustee of school district no. 7; H. B. Pike, trustee of school district no. 11, all of the town of Burke, in the county of Franklin, and others, v. James M. Wardner. school commissioner, and others. A commissioner's order, taking territory from weak districts and annexing it to a strong district, will not be upheld unless it is clearly shown that such change is benelkial to patrons of schools, or that district boundaries would by the change be made more regular. Failure of the supervisor and town clerk to affix their signatures to an order changmg •district boundaries, not fatal; they may affix their signatures at any time. A public officer will not be allowed to impeach his own official act. Decided June 8, 1888 604 THE UNIVKKSITY OF TIIK STATE OF NIvW YORK Draper, Superintendent This is an appeal from the action of the school commissioner of the first school commissioner district of Franklin county, in making an order, dated Novcinher jS, iScSj, cutting off certain territory embraced in school districts nos. 2, 3, 7 and 11, in the town of IJurke, and adding such territory to school district no. 16 of said town, and also from an atfirmatory order made by the school commissioner in conjunction with the suj)erA'isor and town clerk of said town, made on the 17th day of December i(S87. 'I'iie proceedings of the school conmiissioner and of the board, consisting of the school commissioner, the supervisor and the town clerk, seem to have been regularly taken and in the form and manner prescribed by statute. I observe that the aflirmatory order is only signed by the school commissioner, when it should have been by the supervisor and town clerk as well; but I do not think the omission vital. It is not contended that they did not assent to the order, and their signatures could be attached at any time. I also notice a written statement by the town clerk, to the effect that he acted under the influence of the school comnnssioner aiul without much regard to the merits of the question involved. 1 his statement is of no consequence whatever. An officer can not be allowed to impeach his own otilicial act. I come then to consider the advisability of the action appealed from. A full exann'nation of all the papers and maps submitted leads me to doubt the advisability of it. The efTect of it is to cut olT from four districts, none of which is very strong, taxable property of considerable consequence to them, and to add the same to a district which, in valuation, is stronger than any of the four adversely aiTected. It seems that, before the change, the assessed valuation of taxable property in school district no. 2 was about $32,000, and about the same in school district no. 3, while in school district no. 7 it was $34,000, and in school district no. 11 it was less than $12,000. In district no. 16 (the one added to) it was $Ck),ooo before the change. Inquiring as to the number of children of school age in the several districts before the change. I find that in no. 2 it was forty-seven, in no. 3 it was thirty-three, in no. 7 it was eighteen, and in no. ii it was seventeen, while in no. 16 it was one hundred and thirteen. It is not con- tended that the alteration is made for the convenience of the persons aflfected thereby. It is not shown that it brings them any nearer a schoolhouse. The most, and about all, that can be said for it is that district no. 16 is stronger and more thickly settled; that it has establish a graded school; that it proposes to make still better schools, and that it needs the benefit of the added property in order to to enable it to do so; but it seems to me that this ought not to be done at the expense of making districts which can not afford it, poorer than they are against their protest. They say that they have endeavored to maintain good schools with suitable schoolhouses and through the employment of capable teachers. They show that they have, within a short time, improved their school property at some expense, and that they have been obliged to, and have taxed themselves to a reasonable extent, for the support of the schools. They insist that the opera- JUDICIAL decisions: school districts ALTERATION OF 605 tion of the orders appealed from would mainly be to increase taxation for school purposes in their districts, and lower it in the district added to, and it seems to me that their papers establish the fact. No person who is a resident of die territory taken from the four districts named, and added to no. i6, appears to sustain the order: An examination of the map seems to show that the effect of the order does not cure or remove irregtdarities in district Ijoundaries. I do not see that the boundaries, after the change, would be any more regular, or that the districts would be in better form and shape than before it. A piece of the line of the Ogdensburgh and Lake Champlain Railroad Company runs through the town, and it seems to have been the purpose to bring a still larger portion of said road within district no. i6 than it had before. In short, the only result of the change which I can see, is to make one district, which is already reasonably strong in valuation, still stronger, and that at the expense of four districts which are as weak in that direction as school districts ought to l)e. It has been repeatedly held by this Department that that should not be done unless it was shown that there were other reasons for the change which were overpowering. If it could be shown that the advantages arising from the change would be sufficient to outweigh the disadvantages, the order could be upheld, \mt the papers before me fail to satisfy mc of that fact in the present case. I think they establish the contrary. I am therefore obliged to sustain the appeal, overrule the action of the commissioner, and of the board consisting of the school commissioner, super- visor and town clerk, and declare the orders appealed from to be of no force and effect. 3774 In the matter of the appeal of Lemon Thomson and John A. Dix v. William N. Harris, school commissioner of the second district of Saratoga county. Experience has demonstrated that the affairs of districts which are formed of parts of two or more counties, are not, as a general rule, as smoothly administered as those which lie wholly within a county. In a district in which the larger proportion of the children reside in one county and the schoolhouse is located in another, to reach which they are compelled to cross a river by a bridge which it is claimed is not in a safe condition; ordered, that the school commissioners, from whose refusal to join m a preliminary order dividing the district by the county line an appeal is taken, should make such preliminary order. Decided March 23, 1889 Draper, Superintendent This appeal is brought by residents, taxpayers and electors of joint school district no. lo of the towns of Greenwich, Washington county, and Northumber- Tand, Saratoga county, from the refusal of the respondent to join with Com- missioner J. W. Barbur, of Washington county, in an order dissolving said dis- trict and detaching so much of the district situate in Washington county to district no. 17 in the same county. Oo6 Till-: l'\I\ KRSITV OK TIIK STATK OF NKW VOKK From the i)lca(lini,'> ii .ti-i-ciirs that the district is now divided by the Hudson river, and the Greenwich jjortion of the district is separated from the North- imiherland portion by said river. Joint district no. lo has but one trustee, and he has refused to consent to the aUerations. The trustee of district no. 17 has consented, and Commi.ssioner Joseph W. Barl)ur is ready to join in a prehminary order with the resjiondent, making the alteration desired by the ai)pellants. It has been found by experience that districts which are formed of parts of two or more counties, are not, as a general rule, as smoothly run as those which lie wholly within a comity. In this case it appears that the schoolhouse of the joint district is located in Saratoga county, and that the larger proportion of the children of the district reside in Washington county, and in order to reach the schoolhouse are compelled to cross the river by a bridge which, the appellants allege, is not in a safe condition, but this is disputed by the respondent. I have reached a conclusion in this matter, and it is not necessary for me to examine at this time very closely, into the merits of this particular case. I liave concluded to sustain the appeal, and hereby direct the respondent, Commissioner William N. Harris, to join with Commissioner Joseph W. Barbur in making a preliminary order, taking so much of the territory from joint district no. 10 as is situate in Washington county, and annexing the same to district no. 17 of the town of (Ireenwich in said county. The consent of the trustee of district no. 10, having been secured, the order must be made to take effect at least three months after the date of the order. The trustees may then call a meeting of the supervisors and town clerks of the towns, to be associated with the commissioners, and determine whether a confirmatory order shall be made or not. From the action of this local board, any jjerson feeling aggrieved may take an appeal to this Department. 4909 In the matter of the appeal of A. Coleman Smith and Leonard S. Sherwood as trustees of school district 4, Ossining and Mount Pleasant, Westchester county V. Bertha E. H. Berbert as school commissioner second commissioner district of Westchester county. The power to form, alter and dissolve school districts is given to school commissioners, under the provisions contained in title 6 of the Consolidated School Law of 1894, and the acts amendatory thereof, and such provisions must be strictly complied with. The description of a district should be so complete and definite that a surveyor, at any future day, may be able to run its boundaries without reference to any other document than the order forminp, altering or dissolving it. A preliminary ordir, altering the boundaries of school districts is defective in not re- citing the refusal of the trustee of any of the districts to consent thereto, and in direct- ing tliat the order take effect iu less than three months after the notice given by the commissioner of a time and place when he or she would attend and hear objections to ■ such order. JUDICIAL decisions: school districts ALTERATION OF 607 The first imperative duty of a school commissioner after making and filing the preliminary order, is within 10 days thereafter to give at least a week's notice in writing to the assenting and dissenting trustees of the district to be affected, of a time and place named when he or she will hear objections to such order, and that the trustees may request the supervisor and the town clerk of the town or towns within which such district shall wholly or partly lie to be associated with the commissioner in such hearing. If such local board shall affirm such preliminary order the commissioner must then make and file a confirmatory order, the board uniting in the order; that such confirmatory order must recite the preliminary order and all proceedings taken thereafter, including the actions of the local board, and concluding with the final order of alteration made by the com.missioner. Decided November 30, 1900 Aug. Coleman Smith, attorney for appellants Baldwin & Boston, attorneys for respondent Skinner, Superintendent This is an appeal from an order or orders, made by Bertha E. H. Berbert as school commissioner of the second commissioner district of Westchester coimty, altering the boundaries of school district 4, Ossining and Mount Pleasant, Westchester county, and the consequent alteration of school district 6, Ossining, Westchester county. The ground alleged by the appellants for bringing their appeal is, that the proceedings taken, and the order or orders made by Commissioner Berbert, are not in accordance with the provisions contained in sections 2 and 3, and section 4 as amended by section 4, chapter 264 of the Law^s of 1896, of title 6 of the Con- solidated School Law of 1894, and the rulings of this Department. School Commissioner Berbert has answered the appeal and to such answer the appellants have made a reply. From the proofs filed herein, it appears that School Commissioner Berbert, on or about June i, 1900, made an order, in writing, addressed to the trustees of school districts 4 and 6, Ossining, Westchester county, which order was to take effect August 30, 1900, making certain alterations, stated therein, of the bound- aries of said district by the transfer of certain lands from district 4 to district 6; that said order was filed with the clerk of the town of Ossining, but at what date does not appear; that notice of such order came to Trustee Sherwood and Trustee Harris of school district 4, and Trustee Bayles of district 6; that on or about July 31, 1900, a protest to said order was made by the trustees of district 4 and filed with the clerk of the town of Ossining. upon the ground that the said order was in violation of sections 2, 3 and 4 of title 6 of the Consolidated School Law of 1894; that on or about August 9, 1900, the trustees of said districts 4 and 6 were notified by School Commissioner Berbert that she wotild hold a meeting August 15, 1900, at three o'clock p. m.. at the office of the clerk of the town of Ossining in Sing Sing for the purpose of hearing arguments upon said order; tliaton said date, said commissioner. Trustee Sherwood of district 4 and Trustee Bayles of district 6, met at said office of the town clerk, and Trustee Sherwood 6o8 TIIK UNIVF.RSITY OF TIIF. STATK OF NEW YORK was heard in opposition and Trustee Piayles on behalf of siicli order; that there- upon Coniniissinncr Herbert sustained said order. Sections 2 and 3 of title 6, and section 4 of title 6 as amended by section 4 of chapter 264 of the Laws of i8oo, and all proceedings alleged to have been taken at the office of the clerk of the town of Ossining, Westchester county, August 15, 1900, in rela- tion to the alterations of said school district 4, Ossining and Mount Pleasant, and district 6. Ossining. Westchester county, be, and the same are, and each of them is, vacated and set aside. 3642 In the matter of the appeal of Lemuel K. Tinncy v. J. Russell Parsons, jr, school commissioner of the first commissioner district of Rensselaer county, and Lewis N. S. Miller, school commissioner of the second commissioner district of said county. Orders of school commissioners altering school districts, where the statutory proceeding has been observed, will not be disturbed by the Superintendent, unless it is shown by a clear preponderance of evidence that the action taken was unwise, adverse to the interests of education and decidedly against the convenience of the greater number of people affected thereby. Decided November 9, 1887 Warren, Patterson & Gambell, attorneys for appellant Thomas & Pattison, attorneys for respondents Draper, Superintendent On the i6th day of June 1887, the school commissioners of the first and second commissioner districts in Rensselaer county made an order dissolving joint district no. II, of the towns of Brunswick, Grafton and Poestenkill, of said county, and divided said district into three portions. That portion lying in the town of Brunswick was annexed to district no. 3, of that town ; that portion lying in the town of Grafton was annexed to district no. 7, of that town; and that portion lying in the town of Poestenkill was annexed to district no. 4, of that town. The appellant, being a resident and taxpayer of said district no. 11, and, feeling aggrieved at the order of the commissioners, brings an appeal therefrom to this Department. JUDICIAL decisions: school districts ALTERATION OF 6X1 In considering appeals of this nature, it is customary to inquire, first, whether the commissioners proceeded with regularity, and in the manner pro- vided by the statutes. The proceeding is a statutory one, and the several steps provided by the statutes must be strictly followed. If it is found that the com- missioners failed to comply with the requirements of the statutes, then their acts must necessarily be set aside. If it is found that they committed no error, it then becomes necessary to inquire whether the thing which they did was an advisable thing to do ; whether it is calculated to promote the interests of educa- tion. Touching the propriety or advisability of an order, it is always assumed that the officer making it acted with sound discretion and good judgment; that he, being upon the ground and familiar with local circumstances, was the better able to determine intelligently as to the course which ought to be taken in the matter concerning which the order is made than the Superintendent can at his distance from the scene ; and orders of this nature are commonly sustained and followed unless the appellant shows by clear preponderance of evidence that the action taken was unwise, not to the advantage of education, and decidedly against the interests of the greater number of people afifected thereby. There is no claim that the steps taken by the commissioners in this case were not regularly taken, and it must therefore at once be assumed that they followed the requirements of the statutes. Now, touching the advisability or expediency of the order, I have arrived at the conclusion, after most carefully reading the papers submitted, that the appellant fails to show, in any such conclusive manner as is required to override the order, that the action taken was not advisable. I find that the order which is appealed from was made with the written consent of the trustees of all of the districts in which portions of the dissolved district were annexed, and with the consent of two of the three trustees of the dissolved district. This circumstance is certainly of great weight in determining the matter. It is not to be supposed that the order could work great injustice to residents of the dissolved district, or be prejudicial to the educational interests of the territory affected, and, at the same time, have the approval of all of these trustees. It is always desirable, also, that school districts shall lie wholly in a single town, and the order seems to have been made to bring this about. The school commissioner of the first commissioner district says that he visited the school in district no. ii upon four different occasions, and each time found not to exceed five children in attendance. The district seems to have been a weak one, and there is everything to indicate that the children of the district will have the advantages of better schools, under the operation of the order, than they had before. It is true that they may, in one or two instances, be obliged to go further, in order to attend school, than at present, but these unfortunate cases ought not to be permitted to overthrow a proceeding taken evidently with great deliberation, and after carefully investi- gating and considering all the circumstances concerning the matter. •I am, therefore, led to dismiss the appeal. ()I2 mii LNIVEKSITV UK J H K STATL: UK NKW YORK 49^3 ill the matter of the appeal of John Pettis as trustee of school district no. lo, Wilton, Saratoga county, v. John T. Rice as scliool commissioner, second commissioner district of Saratoga county. Tliis Di-partmcnt has uniformly held that the order of a school commissioner altering the bniiiKJarics of school districts should be sustained when on appeal it appears that the commissioner has acted in good faith and by the order has restored to a district territory whicli had been uninUntionally and under a misapprehension of facts set otf from such district. Decided December 31, njoo I""rank Gick, attorney for appellant William 1). McXulty, attorney for respondent Skinner, Superintendent This is an appeal from the decision of a local board, confirming a prcluninary order, dated September 27, 1900, to take effect January 21, 1901, made by John T. Rice as school commissioner of the second commissioner district of Saratoga county, altering the boundary of school district 10, Wilton, Saratoga county, and consequently altering the boundaries of school district 6, Northumberland, Sara- toga county, in the transfer of a parcel of land, known as the Giiiford farm from said district 10 to said district 6. The appellant alleges several grounds for bringing his appeal. School Commissioner Rice has filed an answer to the appeal. From the facts established by the appeal and answer herein, Commissioner Rice in making his preliminary order, and the local board in confirming said order, acted in good faith and for the purpose of restoring to school district 6, Northumberland, Saratoga county, territory which had been unintentionally and under misapprehension of facts set off from said district 6, Northumberland, to district 10, Wilton, Saratoga coimty. It is in proof that in July, 1899, the appellant herein was sole trustee of school district 10. Wilton, and a Mr Washburn was the sole trustee of school district 6. Northumberland ; that the appellant, Pettis, was the owner of a parcel of land known as the Gitiford farm, situated in school district 6, Northumberland, assessed for school purposes at the sum of $350; that a portion of the roadbed of the Delaware & Hudson Railroad Company lies in district 6, Northumberland and in 10, Wilton, a part of said roadbed being located upon said parcel of land known as the Gifford farm ; that the appellant applied to Trustee Washburn for his consent that said G'.fTord farm be transferred from said district 6. North- umberland, to said district 10, Wilton, for the reason that it would be a con- venience to the appellant; that on July 13, 1899, Commissioner Rice, upon the application of the appellant, and the written consent of the appellant as trustee of district 10. Wilton, and said Washburn as trustee of district 6, Northumber- land, transferred the Gifford farm from district 6, Northumberland, to district 10, Wilton; that at the time said order was made, neither Commissioner Rice JUDICIAL decisions: school districts ALTERATION OF 613 nor Trustee Washburn knew that said order included the track of said railroad, located upon the land so transferred ; that Trustee Washburn, having within a few days after the order of July 13, 1899, was made, learned that such order transferred from district 6, to district 10, property of said railroad of the assessed value of $6000, saw Commissioner Rice and informed him of the effect of such order, and his (Washburn's) ignorance of the fact that the transfer of the Gif- ford farm carried with it the property of said railroad, and requested said Rice to make an order setting back said Gifford farm in district 6 in order to correct the error and misapprehension of facts under which such order was made ; that thereupon, and by reason of the misapprehension of facts on the part of Trustee Washburn and Commissioner Rice, said commissioner, July 28, 1899, made a preliminary order to take effect October 28, 1899, Trustee Pettis refusing his consent thereto, transferring said Gifford farm back to said district 6; that subsequently a hearing was had before a local board and a confirmatory order was made from which the appellant herein appealed to me, and on October 31, 1899, I made my decision, 4814, dismissing the appeal on the ground of irregu- larities in the confirmatory order and the filing thereof, and vacated said order; that September 2.^, 1900, Commissioner Rice made a preliminary order to take effect October 8, 1900, setting off from district 10, Wilton, to district 6, North- umberland, said parcel of land known as the Gifford farm, and on the same day gave notice thereof to the trustees of each of such districts ; that October 8, 1900, at the schoolhouse in Gansevort, Saratoga county, he would hear objections to such order; that October 8 and 13, 1900, a hearing was had before a local board consisting of Commissioner Rice and the supervisors and town clerks of the towns of Northumberland and Wilton, the trustees of district 10, Wilton, and 6, North- umberland, being present, and the preliminary order of September 27, 1900, was affirmed, and a confirmatory order was made, signed and filed In the office of the clerk of each of said towns of Northumberland and Wilton, Saratoga county. This Department has held that an order made by a school commissioner, setting off real property from one school district to another under a misappre- hension of facts, will be vacated. See decision of Superintendent Weaver, May 20, 1869. Superintendent Draper, in decision 3518, made August 18, 1886, held, that a commissioner's order, altering the boundaries of school districts should be sus- tained, when on appeal it appears that the commissioner has acted in good faith, and by the order has restored to a district territory which has been uninten- tionally and under a misapprehension of facts, set off from such district. From the facts established it is clear that on July 13. 1899, the order made by Commissioner Rice, transferring the Gifford farm from district 6, North- umberland, to district 10, Wilton, was so made under a misapprehension of facts and mistake on the part of the commissioner and of Trustee Washburn of dis- trkt 6, in consenting thereto. ^'•Tt is in proof that on July 13, 1899. there were no children residing on the territory known as the Gifford farm ; that the assessed valuation of the property 6l4 THE UNIVERSITY OF THE STATE OF NEW YORK situated in district lo, Wilton, was $62,789; that there were twenty children of school age therein and one teacher employed: that the expense of maintaining a school therein for a school year was $321.06; that the assessed valuation of dis- trict 6, Northumherland, was $131,630. with sixty children of school age therein and two teachers employed ; that the expense of maintaining a school for a scliool year was $670.28. The appeal herein is dismissed, and the confirmatory order, appealed from herein, dated October 13, 1900. to take effect January 21, 1900, is hereby affirmed. 3518 Luther L. Ackerson, trustee of school district no. 6, town of Sterling, Cayuga county, N. Y., from an order of Josiah Gailey, school commissioner of the first commissioner district of Cayuga county, dated March 26, 1886, changing the boundaries of said district. Commissioner's order altering the boundaries of a school district sustained, when on an appeal it appears that the commissioner has acted in good faith, and by the order has restored to a district territory which had been unintentionally and under a misappre- hension of facts set off from such district. Decided August 18, 1886 Draper, Superintendent This is a proceeding by Luther L. Ackerson, trustee of school district no. 6 of the town of Sterling, Cayuga county, appealing from an order of Josiah Gailey, school commissioner of the first commissioner district in said county, altering the said district no. 6 by taking therefrom lands and annexing them to the adjoining district no. 17. The commissioner's order bears date March 26, 1886. The grounds of appeal are as follows : 1 That the lands in question were formerly a part of district no. 17, and were, by an order bearing date March 24, 1877, with the consent of the trustees of both districts affected, annexed to district no. 6. 2 That the property set over does not contain a dwelling house, and, there- fore, the change does not bring any child of school age nearer to a public school building. 3 That district no. 17 was, before the granting of the order appealed from, already a stronger district than district no. 6, and that consequently the change weakens the weaker district. 4 The real objection seems to be that a portion of the Rome, Watertown and Ogdensburgh Railroad, which, for a number of years, had been taxed in dis- trict no. 6, will hereafter be taxable in district no. 17. I have very carefully examined the pleadings and papers filed upon this appeal, and from such examination I find the facts to be • JUDICIAL decisions: school districts ALTERATION OF 615 That previous to the granting of an order by then School Commissioner Morehouse, some doubt and confusion had arisen as to the boundary hne between districts nos. 6 and 17 in the town of Sterling. That an order was consented to by the trustees of districts nos. 6 and 17 and granted by the school commissioner taking certain farm lands claimed by district no. 17, and annexing them to dis- trict no. 6. That the present school commissioner at that time acted as an adviser to the trustees of district no. 17, and advised such trustees to consent. That neither the commissioner nor the trustee of district no. 17, nor the present com- missioner intended to consent or advise that the lands covered by the tracks of the said railroad should be included in such transfer. That in describing the line between said districts nos. 6 and 17, the south side of the farm of one Jesse Carris was used, the commissioner and trustee of said district no. 17 supposing that to carry the line south of the railroad bed. But it appears that Carris had changed his south line by parting with a part of his farm on the south so that this south line was north instead of south of the track, and the effect of using his south line to divide the districts was to include the railroad in district no. 6 instead of district no. 17. This change was unknown to both commissioner and trustee. Upon the discovery of the error the present commissioner by the order appealed from has set back to the district from which it was so taken by misapprehension, the lands north of Carris's old south line. It is not claimed that any attempt was made to deceive the commissioner or the trustee of school dis- trict no. 17 at the time the original order was granted, but no mention of the change of the boundary of Carris's farm was made, and the commissioner and trustee of said district no. 17 were not informed of it, and the commissioner in describing the boundary of the districts was misled thereby. From all the facts so found, I am led to the conclusion that when the order of March 27, 1877, was granted by the commissioner and consented to by the trustees of districts nos. 6 and 17, the commissioner and the trustee of school district no. 17 acted under a misapprehension of facts and did not intend to transfer the lands mentioned from district no. 17 to district no. 6. A similar case came up on appeal to this Department in 1869, and Superin- tendent Weaver decided the order, made under misapprehension of facts, void and set the same aside. But I have also considered the question of the relative strength of the dis- tricts and fail to discover that there is any great difference. Both are and will be sufficiently strong to support suitable schools and provide instruction for the number of children of school age in their respective districts. The commissioner having acted in good faith and in the absence of contrary proof, I shall hold with good judgment and in accord with the statute. I must, from all the facts presented to me on this appeal, overrule the appeal and sustain the order appealed from. 6l6 Till: UNIVERSITY OK THE STATE OF NEW YORK 4314 In the matter of the appeal of John Greenan v. Stephen Pollard, school commis- sioner second commissioner district, Allegany county. Where it appears that an order of a school commissioner, setting off a portion of one district and annexing such portion to another will give better school facilities and increased convenience to the persons occupying the transferred territory and, at the same time, leave the district from which such territory was taken sufficient resources with which to maintain a good and sufficient school therein, this Department can find no justification in setting aside the action of said officers. Decided January 3, 1895 Crooker, Superintendent This appeal is taken froin the final order of the respondent, as school com- missioner of the second commissioner district of Allegany county, made on June 30, 1894, in the alteration of the boundaries of school district no. 9, town of Wcllsville. Allegany county, and the consequent alteration of the boundaries of school district no. 7, town of Wellsvillc, Allegany county, in taking " All that part of sublet "y^, within great lot 31 of the Schermerhorn tract, in township 3, range 3-1, of Morris reserve, as lies south of the Erie Railway lands, being about 165 acres." and attaching the same to district no. 7, town of Wellsville; said order to take effect on October i, 1894. An answer has been made to the appeal, and to the answer a reply, and to the reply a rejoinder. The following material facts are established : That prior to the aforesaid order of the respondent, said part of sublot 73, consisting of about 165 acres of land, was situate within said school district no. 9, town of Wellsville ; that one Nathan Williams resided upon said lot of land, having residing with hiin six children, four of whom are of school age ; that the distance from the dwelling house of said Williams to the schoolhouse in district no. 9, by the nearest highway, is over three iniles ; that to attend the school in district no. 9, said children would be obliged to travel the same highway which leads to and past the schoolhouse in district no. 7, and that after reaching said schoolhouse they would be compelled to travel about one and three-fourth miles to reach the schoolhouse in district no. 9; that the schoolhouse in district no. 7 is about one and three-fourth miles from the residence of said Williams, and can be reached by the main traveled valley road leading from the village of Wellsvillc to the village of Andover; that there is no road, public or private, including log roads, leading from the dwelling house of said Williains, excepting the public highways, as shown upon the map annexed to the appeal herein, over which said children of Williams could reach the schoolhouse in district no. 9; that there is no road across said lot 73 from the residence of said Williams to said school- house in district no. 9 ; that said Williams resides on what is known as Dyke's Creek, which is in a valley, and that the schoolhouse in said district no. 9 is situ- ate on the uplands, and that running parallel with said creek is a high steep hill, higher than any other hill in the school district, over which hill the children of JUDICIAL decisions: school districts — ALTERATION OF 617 Williams would have to go to attend at the schoolhouse in said district no. 9, unless they traveled the aforesaid highways ; that much of the time during the school year said Williams has sent his children to school in the village of Andover for the reason that it was impossible for them to attend the school in said dis- trict no. 9. It also appears that prior to June 15, 1894, the aggregate valuation of the property liable to taxation in said school district no. 9 was the sum of $34,237, and there were thirty-seven children of school age residing therein; that the assessed valuation of the land in said lot j}^, owned by said Williams, was the sum of $1750; that the United Pipe Line runs over and across the said land of said Williams in said lot 73 and between the residence of said Williams and the highway in front of said residence, and hence in taking said lot 73 from said dis- trict no. 9 it was impracticable to do so without transferring the said pipe line therewith; that the assessed value of said pipe line was $1714; that aggregate value of the property set ofif by said order of respondent, was the sum of $3464, leaving said district no. 9 with property of the aggregate assessed valuation of $30773- It further appears that application was made by said Williams to the respondent to set off said lot 73 from said district no. 9 to said district no. 7, and that the respondent after careful investigation of the subject, on June 15, 1894, made a preliminary order for such alteration ; that the appellant as trustee of said district no. 9, not consenting, on June 16, 1894. the respondent gave due notice, under the school law, to the trustees of both districts nos. 7 and 9, that on June 30, 1894, at 2 o'clock p. m., at the town clerk's office in Wellsville he would attend and hear objections to the proposed alterations; that the respondent attended at said time and place, when an opportunity to all persons who desired to be heard to present their objections was given, and no sufficient objection being given, the respondent, on June 30, 1894, made his confirmatory order, dated on that day, to take effect on October i, 1894, and duly filed the same with the town clerk of the town of Wellsville. There is no claim on the part of the appellant of any irregularity in the pro- ceedings had and taken by the respondent. The main ground upon which the appeal is taken appears to be: (i) that the children of Williams could reach the schoolhouse in district no. 9 by going across lots or on private or log roads ; (2) that many children residing in the dis- trict are obliged to travel a greater distance to reach said schoolhouse than the children of Williams; (3) that by taking property from the district of the aggre- gate value of $3464. the financial condition of district no. 9 is materially weakened. As to the first ground above stated the proofs clearly establish that it is almost impracticable for the children of Williams to reach the schoolhouse in dis- trict no. 9 other than by the public highways, by reason of the high ground and the- absence of roads of any kind across lots. As to the second ground above stated it is equally clear that many children in said district reside at a greater dis- 6l8 THE UMVERSITY OF THE STATE OF NEW YORK tance by the j)ublic highways from said schoolhouse than do the children of Williams, hut they have no such elevation to climb as the children of Williams, and there are j)rivatc and log roads by which they can reach the said schoolhouse at a great saving of distance; that it also appears no application has been made by the i)arents of such children to the school commissioner to set them off from said district. As to the third ground stated above, school district no. 9 has an aggregate assessed valuation of $20,773, ^ sum amply sufficient to raise, without being burdensome, sufficient money to maintain a good and sufficient school in said district. This Department has held that where it api)cars that an order of the school conunissioncr, setting off a portion of one district and uniting it to another, will give hotter school facilities and increased convenience to the persons occupying the transferred territory, and at the same time leave the district from which the transferred territory was taken sufficient resources with which to maintain a good and sullicient school, this Department can find no justification in setting aside the action of such officer. In my opinion the respondent herein, in making the order appealed from, has wisely exercised the power and discretion vested in him by the school law, and that the school district no. 9 possesses sufficient resources with which to maintain a good and sufficient school therein. The appeal herein is dismissed, and the order of School Commissioner Pol- lard, of June 30, 1894, is confirmed. 3705 In the matter of the appeal of Charles Cady, as trustee of school district no. 14. town of Hounsfield, Jefferson county v. S. W. Maxson and T. S. Gray, school commissioners of said county. An order altering school districts will not be disturbed where the change was made to beUer accommodate patrons of the school and the change does not materially affect the size or the assessal)le valuation of the district from which a portion of territory lias been cut off. Decided August 22, 1888 Draper, Superintendent By the order of the two commissioners of Jefferson county, made upon the nth day of May 1888, a portion of district no. 9 of the town of Hounsfield was cut off and annexed to joint district no. 14 of the towns of Hounsfield and Watertown. Inasmuch as the trustees of the districts affected did not all consent to such order, notice was given that the commissioners would attend at the schoolhouse in district no. 9 of Hounsfield at 10 o'clock in the forenoon on the 24th day of May 1888, to hear objections thereto. At the time and place named the supervisor and town clerk of the town of Watertown and the town clerk of the town of Hounsfield were associated with the commissioners to hear JUDICIAL DECISIONS : SCHOOL DISTRICTS — ALTERATION OF 619 objections. After such hearing and after due dehberation, the board confirmed the order of the commissioners by a unanimous vote. This appeal is brought for the purpose of setting aside the orders making the alteration. Numerous objec- tions are ottered to the change by the appellants. It is claimed that the new boundary lines are not properly set forth ; that the only house upon the territory afifected is nearer the schoolhouse in district no. 9 than in district no. 14; that the change weakens the district from which the territory is taken. It is insisted with considerable energy that the descriptions of the boundary lines in the first order of the commissioners and the subsequent order of confirmation are not the same. In answer, the commissioners insist that the descriptions of boundary lines are proper, except that they admit that there was a slight clerical error in the first order, which was corrected in the subsequent one. They say that more than thirty days elapsed after the making of the order before the appeal was taken ; that no map accompanied the appeal; that the house upon the territory aflfected is only about two-thirds as far from the school in district no. 9 as it is from the one in no. 14, and that the road to district no. 9 is a main public highway, always open for travel, which is not the case as to the roads to no. 14. They show also that after the alterations the assessable valuation of property in no. 14 is $74,990, while in no. 9 it is $51,150. I have carefully considered all that has been said by the parties on both sides. It seems to me that the commissioners were justified in the action which is appealed from. The only material question which is raised is as to the variation in the orders, but that is shown to have been a clerical error only, and one which misled nobody; and I do not deem it to be of sufficient moment to justify me in requiring the commissioners to retrace their steps and go through the proceedings again. It seems to be clear that the alteration is made for the benefit of one family in order to bring such family in closer proximity to a schoolhouse, and I see no reason why it could not be made for that purpose inasmuch as it does not materially afifect the size or the assessable valuation of the district from which a portion of territory was cut oflF. I have determined to dismiss the appeal. 3893 In the matter of the appeal of Thomas G. Parsons and Mary B. Parsons v. William J. Barr, school commissioner of Genesee county. The setting off of lands from one district to another will be ordered by the State Super- intendent when the effect will be to give the occupants of such lands school advantages which they did not possess, and when a district will not be materially weakened by such transfer, nor the symmetry of the district lines be affected. Decided July 24, 1S90 Draper, Superintendent Appellants are residents of school district no. 3, of the town of Batavia, Genesee county. The appellant, Mary B. Parsons, is the owner of real estate 620 THE L'\r\EKSITY OF TIIK STATE OF NEW YORK in said district. The appellants arc the parents of four children of school age, three of whom are over 15 years of age. All the children now attend and for some time past have attended the school in district no. 2, of the town of Batavia, where appellants are required to pay for their tuition. The appellants, whose property adjoins district no. 2, and from the map of the district before me would seem naturally to belong thereto, are desirous of being set ofif to district no. 2. They allege that district no. 3 has taxable proi)crty to the amount of $159,795, a sufiiciently large amount of taxable property so that the district would not be materially weakened by the loss of appellants' land ; that the road to be traveled to reach the school in district no. 2, is one leading to Batavia where appellants receive their mail and transact their business, while the road to the school in district no. 3 leads them away therefrom. That the school facilities in no. 3 are not adequate for children as far advanced as the appellants* children are, and that appellants are now doubly taxed for tuition, paying taxes in district no. 3, and for tuition in no. 2. It is also alleged that the school which appellants' children attend in district no. 2 is nearer to appellants' home and much easier reached. The respondent avers that the distance to district school no. 3 is about the same as to no. 2, and that a good school is usually maintained in district no. 3, and the instruction there given is sufficiently advanced for appel- lants' children. He alleges that the supervisor and town clerk oppose the change, and for these reasons he has declined to make the order. I have reached a conclusion in this case with some hesitation. Ordinarily, the judgment of the local school authorities will be upheld, but I feel that in this case that the educational interests of district no 3 will not suffer, and that the symmetry of the district lines will not be affected by the transfer. The chil- dren do not attend in district no. 3, and that an unfair burden is imposed upon the appellants, is evident to me. The appeal is sustained and the commissioner is hereby directed to make an order setting off the lands of the appellants as shown on the map filed with this appeal, from district no. 3, of the town of Batavia, to district no. 2, of the same town. 3669 In the matter of the appeal of Nathan Marsh, of school district no. 6, town of Conesus, Livingston county, v. R. Austin Kneeland, jr, school commissioner of the first district of Livingston county. A school commissioner's refusal to make an order setting off land from one district to another m order that certain children residing on said land might be given school facilities which, at certain seasons of the year, they were denied, because of the con- dition of the roads leading to the schoolhouse, upon the ground that by the change a weak district would be injured, will not be upheld, when it appears that the district will not be materially weakened by the change, but will still have sufficient taxable property to maintain a good school. Decided May 29, 1888 JUDICIAL decisions: school districts ALTERATION OF 62I Draper, Superintendent This is an appeal by a resident taxpayer of school district no. 6, town of Conesus, Livingston county, from the refusal of the school commissioner to set off and annex his lands to district no. 8 of said town. The appellant alleges that the change sought for will enable him to send his children to school ; that owing to the condition of the road leading from his residence to the schoolhouse in district no. 6 in the winter seasons and the fact that no persons reside on the road between his residence and the schoolhouse, and because the road is, consequently, not generally traveled, it becomes impas- sable, and, as his children are young, they are not able to attend the school ; that the road leading to the schoolhouse in district no. 8 is largely traveled and kept open. The commissioner answers and alleges that district no. 6 is relatively weaker than district no. 8 and that it would weaken materially a weak district to make the change. It appears that each district contains a good schoolhouse and maintains a satisfactory school; that the number of children in each district is about the same; that the assessed valuation of district no. 6 is $65,200 and district no. 8, $87,450; that the appellant's property lies largely in district no. 8, but is taxed in district no. 6, he residing on that part of his property lying in district no. 6. It can not be doubted that the change will be beneficial to the family of the appellant, and the district from which he would be taken would still be suffi- ciently strong to maintain a good school. I do not consider the objection urged by the commissioner sufficient to sustain his refusal to grant the order. I have concluded to sustain the appeal and hereby direct R. Austin Knee- land, jr, school commissioner of the first district of Livingston county, to make an order, within thirty days from the date hereof, transferring the lands of the appellant Tying in district no. 6, and abutting lands in district no. 8, to district no, 8 of the town of Conesus in the county of Livingston, 3813 In the matter of the appeal of Thomas O'Connell v. Eber S. Devine, school commissioner of the first district of Broome county. A farm will be set off from district and annexed to another, when it will enable the occupant thereof, who has a large family of children of school age, to have school accommodations for his children, and the change will not materially reduce the amount of taxable property in a strong district. Decided September 24, 1889 D. H. Carver, attorney for appellant Draper, Superintendent The appellant resided in school district no. 6. of the town of Conklin, in the county of Broome. He desires to have his farm annexed to school district 622 THE UNIVERSITY OF THE STATE OF NEW YORK no. 4, of the town of Binghamton. The town of Conklin is in the first school commissioner district of Broome connty. and the town of Bins^hamton is in the second commissioner district. Mr O'Connell shows that he has from time to time made application to Commissioner Devine to make the alteration, but that the commissioner has declined and refused to do so. This appeal is brought for the purpose of procuring a determination of the matter. The appellant shows that he resides at a point which practically prevents his children from attending the school in his school district. His house is nearly three miles from the schoolhouse. The road is but little traveled, and during a considerable portion of the year is shown to be impassable. He has nine children. He has for several years sent his children, who were capable of attending school, to a school across the line in the state of Pennsylvania. He shows that, if he were annexed to school district no. 6, of the town of Bing- hamton, he could send his children to school in that district, the road being better and being more convenient for him because of the frequency with which he goes to the city of Binghamton on business errands. The school district in which he resides is a strong district. The assessable valuation is over $40,000. He presents the consent of the majority of the taxpayers in his district, and also of the trustees of both of the districts which would be affected by the change. He also presents a certificate from Commissioner James L. Lusk, of the second commissioner district of Broome county, saying that he thinks the change ought to be made. The respondent has made no answer to the appeal, and the facts alleged by the appellant must, therefore, be assumed to be true. I have no hesitation in saying that, upon this showing of facts, the appellant seems to me to be clearly entitled to the relief he seeks. The appeal is sustained and the respondent is directed to join with the other commissioner having jurisdiction in an order making the proposed alteration. 3795 In the matter of the appeal of J. A. Wright v. George Peckham, school commis- sioner of the second district of Cayuga county. Territory may properly be detached from one district and annexed to an adjoining district, when it appears that it is in close proximity to the schoolhouse in the latter district and a very considerable distance from the schoolhouse in the former district, and there are children to be accommodated with school advantages, to whom the alteration is no inconsiderable matter, and the former school will be left sufficiently strong to maintain a satisfactory school. Decided July 29, 1889 JUDICIAL DECISIONS : SCHOOL DISTRICTS ALTERATION OF 623 Draper, Superintendent On the 1st day of April 1889, the respondent made an order detaching a certain portion of territory, including the residence of appellant, from district no. 5, of the town of Moravia, and annexing the same to district no. i of said town. Inasmuch as the consent of the trustee of district no. 5 to the alteration was not given, it was directed, pursuant to statute, that said order should not take effect for ninety days. Subsequently the commissioner heard objections to the order going into effect, at a time and place named by him, as required by statute, and on the 15th of April made a second order annulling the first. From this second order this appeal is taken. It does not appear that either the supervisor or town clerk of the town of Moravia was associated with the commissioner in determining upon the advisa- bility of the alteration. District no. i is the village of Moravia, and the fact is undoubtedly, as claimed, that the school facilities are better there than in the outlying district no. 5. The residence of the appellant is nearer, by half, to the schoolhouse in no. I than that in no. 5. The walks are better and more passable. He has children to whom the advantages of getting to the school, in district no. i, is no inconsiderable matter. It must be conceded, I think, that the appellant should be given the enhanced advantages of the school in the village, when he is in sight of the schoolhouse, and, indeed, so near, as he says, as to hear the opening exercises at his house, unless there is some insuperable reason why it should not be so. The only reason which can be advanced against the alteration is that it would weaken district no. 5. If the alteration is made, it would transfer property of the valuation of $6350 from no. 5 to no. i, and leave an assessable valuation of over $70,000 in no. 5. There are fifty-nine children of school age in no. 5 at present, and the change would leave nearly fifty, as large a number as can well and advantageously be provided for in an ordinary common school district in the country. So I can not see that district no. 5 would be materially injured by the change. While there is wide disparagement in the strength of the two districts, it must be remembered that one is an ordinary school district, and the other a union free school district; and it may well be doubted if the former is not as well able to provide the school facilities which it does provide for its children, as the other is to provide such as it does pro- vide for its children. This being so, I can not escape the conclusion that the first impression of the school commissioner was correct, and that this appellant should be transferred to the village district. The appeal is sustained; the order of the school commissioner of date of April 15, 1889, is set aside and annulled, and the one of the date of April ist is eanfirmed. 0J4 TUli UMVEKSITV OF THE STATE OF NEW YORK 4534 In the matter of the appeal of E. A. Barton, sole trustee, school district no. 2, town of I'-lko, Cattaraugus county, from proceedings for the alteration of school districts nos. 2 and 3. town of Elko, Cattaraugus county. The notice by school commissioners required to be given under section 4 of title 6 of the Consolidated School Law of i8y4 of a time when and place where he or she will hear objections to a preliminary order for the alteration of school districts must be served personally upon tlic assenting and dissenting trustees, or left at his or their residence with some person of suital)lc age and discretion, and can not be served by mail. The order of the local board affirming the preliminary order of the school commissioner must be made by the school commissioner, and signed by him or her and all the mcmliers of the local board must unite with the commissioner in such order. Decided March 4, 1897 O. S. Vreeland, attorney for appellant Skinner, Superintendent This is an appeal from certain proceedings had and talcen in the alteration of school districts nos. 2 and 3, town of Elko, Cattaraugus county. In August 1896, a petition, signed by certain residents of school district no. 3, town of Elko, Cattaraugus county and presented to the trustee of such district, requesting upon several grounds stated therein, that such district be extended by annex- ing thereto the whole of lot 8 (in district no. 2) which petition was presented to Martha Van Rensselaer, school commissioner of the second district of Catta- raugus county, by such trustee, together with his written consent to the altera- tions asked for in the petition. That subsequently, School Cominissioner Van Rensselaer, the trustee of district no. 2, refusing to consent to such altera- tions, made a preliminary order making the alterations asked for, which order was to take effect January 27, 1897, and such order was filed in the oflke of the clerk of the town of Elko on October 9, 1896. That on October 10, 1896, the appellant herein received by mail a notice signed by School Commissioner Van Rensselaer, of which the following is a copy: To the trustee of school district no. 2, tozvn of Elko, county of Cattaraugus, Take notice that I, Martha Van Rensselaer, school commissioner of the second commissioner district of Cattaraugus county, New York, did on the day of October 1896, make an order altering districts nos. 2 and 3, town of Elko, as does appear from the order hereto attached, and that said order was filed in the town clerk's office on the day of October 1896. You are also notified that on the 9th day of October 1896. at 10.30 o'clock, a. m., and at the town hall, Quaker Bridge, in the town of Elko, I will attend and hear objections to the foregoing order and to proposed alterations. You are also notified that you may request the supervisor and town clerk of the to\yns or town in which your school district lies, to be associated with me at such time and place for the purpose of confirming or vacating said order. Martha Van Rensselaer School Commissioner, Second District, Cattaraugus County JUDICIAL DECISIONS : SCHOOL DISTRICTS ALTERATION OF 625 That the appellant on October lo, 1896, went to Quaker Bridge, town of Elko, and saw the town clerk and was informed by him that no meeting pursuant to such notice was held on October 10, 1896; that no other notice was ever received by the appellant. That on October 27, 1896, at 10.30 a. m.. School Commissioner Van Rensselaer attended at the town hall at Quaker Bridge, town of Elko, and at such place and time D. H. Andrews, supervisor of such town also attended at the request of the trustee of district no. 3, of such town, to be associated with such school commissioner upon such hearing, and opportunity being given to all persons who desired to be heard, a vote was taken upon con- firming such preliminary order made by such school commissioner, and said Andrews, as supervisor, voted in favor of such confirmation, and said school commissioner voted against such confirmation, and thereupon such school com- missioner made a confirmatory order, to take efifect on January 27, 1897, which order was not signed by her associate in the local board, and such order was filed with the clerk of the town of Elko. That the appellant received a letter from School Commissioner Van Rensselaer, dated, October 31, 1896, informing him of the proceedings of the meeting of October 27, 1896, and of such con- firmatory order and the filing thereof. That on or about December 26, 1896, the appellant brought his appeal herein. School Commissioner Van Rensselaer, and Eben Seekins, trustee of district no. 3, have each answered the appeal. Trustee Seekins alleges that the appeal herein was not taken within the time prescribed by the rules of practice of this Department relating to appeals. I decide that the appellant has rendered a satisfactory excuse for his delay in bringing his appeal. It is admitted that the trustee of district no. 3, consented to the alterations of districts nos. 2 and 3, and that the trustee of district no. 2, refused his consent. Section 4, title 6. of the Consolidated School Law of 1894, as amended, enacts among other things, that within ten days after making and filing a pre- liminary order for the alteration of school districts, the school commissioner shall give at least a week's notice in writing to one or more of the assenting and dissenting trustees of any district or districts to be affected by the proposed alterations; that at a specified time, and at a named place within the town in which either of the districts to be affected lies, such commissioner will hear the objections to the alteration, etc. The section does not provide that such notice shall be served on the trustees by mail, and in the absence of any such provision such notices must be served personally upon such trustees, and if any such trustee shall be absent from home, or can not after due diligence be found, then by leaving the notice at his or her residence with some person of suitable age and discretion, between six o'clock in the morning, and nine o'clock in the evening. It is clear, from the proofs filed herein, that School Commissioner Van Rensselaer did not serve personally, or cause or attempt to serve personally, either of the trustees of said districts nos. 2 and 3 with the notice required by 626 THE UNIVERSITY OF TIIR STATE OF NEW YORK section 4, above cited. On the contrary, it appears by an affidavit of such scliool commissioner, sworn to on November 5, 1896, that the service of such notice upon both such trustees was made by depositing, on October 8, 1896, in the post office at Randolph, Cattaraugus county, such notice inclosed in prepaid wrappers, directed respectively to E. A. Barton, Tunesassa, Cattaraugus county, N. Y., and E. Seckins, Elko, Cattaraugus county, N. Y. I decide that no legal notice under the provisions of said section 4, title 6 of the school law was served upon the trustees of such districts nos. 2 and 3, or cither of them by School Commissioner Van Rensselaer, of a meeting to hear objections to the preliminary order made by her on October 8, 1896, and the meeting held on October 27, 1896, at which she and Supervisor Andrews were present, was without authority of law. Admitting, for the purpose of argument only, that School Commissioner Van Rensselaer had legal authority to give the notice required by such section 4 to such trustees, by mail, it clearly appears that the notice mailed by her to the appellant herein, was that she would attend at the town hall at Quaker Bridge on October 9, 1896, and not on October 27, 1896, to hear objections to such preliminary order made by her. The appellant has annexed to his appeal the notice received by him by mail on October 10, 1896, a copy of which is hereinbefore set out in full. Such notice is typewritten with the exceptions that the day and month w^ien she would attend, etc., are written 9th and " October," and her signature is written. The notice fails to show that any erasures or alterations have been made therein. The dates in October on which she made the preliminary order and on which said order was filed with the town clerk of the town of Elko, are left blank in such notice. It is w^ell settled that the first or preliminary order made in the alterations of school districts is but one step in the proceedings and is of no effect whatever until the same has been duly confirmed. That the first imperative duty of the school commissioner, after making and filing the preliminary order of alteration, is to give at least one week's notice in \vriting to the trustees of all the districts affected by such proposed alteration, and such notice must state that he or she has made an order of alteration, reciting such order, and that at a stated time and place within the town in which either of the districts to be aft'ected lies, he or she will hear the objections to the alteration. When the local board decides to confirm the order of the commissioner, it becomes necessary for the commissioner to make and file the final order, or the order of alteration. The local board does not make the alteration. The commissioner must do this, the board uniting with him or her in the order. The confirmatory order appealed from has the signature of School Com- missioner Van Rensselaer, but does not have the signature of D. H. Andrews, supervisor of the town of Elko, who was associated with her in hearing objec- tions to such alterations. The appellant also alleges that Eben Seekins is not trustee of school district no. 3, town of Elko, for the reason that at the time of his election as trustee, on JUDICIAL DECISIONS : SCHOOL DISTRICTS ALTERATION OF 627 the first Tuesday of August 1896, he was not, has not since been, nor was he at the time of bringing the appeal herein, a resident of such school district. It appears that at the annual school meeting held in said district on the first Tues- day of August 1896, said Seekins was, by the color or form of an election, elected trustee of the district, and ever since has been, and still is, acting as such trustee; that no appeal from such election upon the ground that he was not eligible to hold such office, or any other ground, has ever been taken to the State Superintendent of Public Instruction. Until an order shall be made by such State Superintendent that such election of Seekins was illegal or that he is ineligible to hold the office of trustee, he is deemed to be trustee de facto of said district, and as such, authorized to perform the duties of the office of trustee under the school law. I find and decide that the appellant herein never received, in accordance with the provisions of section 4, title 6, of the school law, any notice that School Commissioner Van Rensselaer would attend at the town hall, Quaker Bridge, in the town of Elko, on the 27th day of October, 1896, at 10.30 a. m., to hear objections to the order made by her on October 8, 1896, altering school districts nos. 2 and 3, town of Elko ; that no notice of a time and place at which she would attend to hear objections to such order was ever duly and legally given by her to the appellant herein ; that all proceedings had and taken by such school commissioner relating to alterations of the districts subsequent to October 8, 1896, including the proceedings taken on October 27, 1896, and the alleged con- firmatory order made therein, were, and are, and each of them was, and is, illegal and void, and should be vacated and set aside; that the appeal herein should be sustained. The appeal herein is sustained. It is ordered, That the order made by School Commissioner Van Rensselaer, dated October 8, 1896, altering school districts nos. 2 and 3, town of Elko, Cattaraugus county, and the proceedings had and taken by such school com- missioner and Supervisor Andrews in relation to such alteration, on October 27, 1896, and the confirmatory order altering said districts, signed by such school commissioner and filed with the town clerk, of the town of Elko, Cat- taraugus county, be, and the same hereby are, and each of them is, vacated and set aside. 4544 In the matter of the appeal of Fred W. Rickmyer and others v. Cora A. Davis, school commissioner, first commissioner district, Oneida county. The description by a school commissioner in an order forming a new district or annexing territory to another district or districts should not be described "As a farm owned or occupied by A. B.," or, "As known as the Washington place." but should be described by great lot, tract or lot lines, or highways or well-known established monuments that - . survive the transfer of ownership in the land, so complete and definite that a surveyor "at any future day may determine the boundaries of such territory without any reference to any other document than the order of the commissioner. Decided March 25, 1897 628 TIIF. UNIVERSITY OF THE STATE OF NEW YORK Skinner, Supcrintcndcut This ap])cal is taken from an order made on January 28. 1897, by School Commissioner Davis of the first commissioner district of Oneida county, dissolv- ing school district no. 7, town of Floyd, Oneida county, and annexing the terri- tory of the district so dissolved to other adjoining school districts in the towns of Floyd and Rome. The order recites that the annexation of tlie territory of such dissolved district to such other adjoining districts was with the consent of School Commissioner Harding of the third district of Oneida county; that said order was filed in the office of the clerk of the town of Floyd. The appellants allege several grounds for bringing the appeal. School Com- missioner Davis has answered the appeal and alleges that in her judgment it is for the best educational interests of the persons of school age residing in such district that the district be dissolved and its territory annexed to adjoining districts. I do not deem it necessary for me to examine as to whether or not School Commissioner Davis has wisely exercised the power and authority given to her by the school law, to dissolve school district no. 7 of Floyd and annex its terri- tory to other adjoining districts within her commissioner district, and acting with Commissioner Harding to annex other portions of its territory to adjoining school districts in the third commissioner district of Oneida county, as there is an objec- tion to the validity of the order appealed from which appears to be fatal. Commissioner Davis could have made an order dissolving school district no. 7 of Floyd, and then different orders annexing the territory of the dissolved district to adjoining districts within her commissioner district, and with Commis- sioner Harding made orders annexing the remaining territory to adjoining school districts within the third commissioner district. She elected to make one order including therein the dissolution of school district no. 7 and annexing its territory to adjoining districts, thereby altering such districts. In the order appealed from " all property of. said dissolved district belonging to Messrs Moulton, Lawton, Vanderpool, Vanderhoof, Brown, Evans and Mrs Eunice Crumb" is annexed to district no. i, Floyd; property known as the Walbran place to district no. 8, Floyd. Like descriptions are given of the prop- erty annexed to districts nos. 10 and 16, Rome; and all property occupied by Messrs Holtby, Pugh, Briggs and Rickmyer, to district no. 14, Rome. This Department has uniformly held that in the description of territory forming a new district, or annexed to another district, the description should be so complete and definite that a surveyor, at any future day, may run its bound- aries without reference to any other document than the order forming, altering or describing the territory. For this purpose the exterior lines should be defined by reference to natural monuments, marked trees, creeks, etc., or to township lines of historical notoriety, such as the lines of the great original subdivisions in great lots, tracts, or lots, or the course of highways. Where these fail, the courses JUDICIAL DECISIONS : SCHOOL DISTRICTS ALTERATION OF 629 and distances as ascertained by the compass and chain should be given. Bound- aries should be defined by known esta1)lished monuments and marks that survive the transfer in the ownership of the soil. Boundaries by farms owned by i)er- sons named, or other transitory and perishable lines, however clearly under- stood at the time, are perpetually subject to change, and in a few years become vague and uncertain, as the memory of men and the title to their possessions pass away. Lines that coincide with farms that have afterwards been cut up into smaller lots, or consolidated with other farms, whereby the original boundaries have become obliterated, are a fruitful source of contentions, strifes and litiga- tion in school districts. The statements " of the farm now owned by, or the property of, or occupied by A. B." renders it very difficult to ascertain what territory was meant, as the ownership or occupation of land is continually shifting. In the order appealed from " the property " belonging to Messrs Moulton etc., or known as the Walbran place, or occupied by Messrs Holtby, etc., is annexed, etc., whereas certain land or territory formerly forming a part of dis- solved school district no. 7 of Floyd, was annexed to certain adjoining school districts. The Department has, therefore, acted upon the policy of setting aside the action of school commissioners in the alteration of districts where this prin- ciple of defining boundaries of territory annexed to districts by proper monu- ments and prominent landmarks is disregarded. When school commissioners ascertain that school districts within their com- missioner districts are weak financially, and weak in the total resident school population, and weak in the average attendance upon instruction, the dissolution of such weak districts and the annexation of the territory of the dissolved dis- tricts to adjoining districts will be approved. In the orders made to carry into effect such dissolutions and alterations of school districts, care should be taken by school commissioners to define the terri- tory annexed to the different districts by proper monuments and prominent landmarks. The appeal herein is sustained. It is ordered, That the order made by Cora A. Davis, school commissioner of the first commissioner district of Oneida county, on January 28, 1897, i" which Selden L. Harding, school commissioner of the third district of Oneida county, joined, dissolving school district no. 7, town of Floyd, Oneida county, and annexing the territory of the dissolved district to school districts nos. i and 8, town of Floyd, and nos. 10, 14 and 16, town of Rome, Oneida county, be, and the same is, hereby vacated and set aside. 630 Tilt: UNIVERSITY OF THE STATE OF NEW YORK 4427 In the matter of the appeal of George W. Wilson, trustee, school district no. 5, town of Lunibcrland, Sullivan county, from decision of local board in the matter of the alterations of school districts nos. i and 5, town of Lumber- land, Sullivan county. The alteration of school districts, solely for the purpose of equalizing valuations in dis- tricts afffcted, is against public policy, and will not be sustained by this Department. Such puri)ose of equalization of values may be an element for consideration, but should not be the controlling one. Decided March 3, 1896 Skinner, Supcriutcndcut John Z. Twichell, school commissioner of the first commissioner district of Sullivan county, on November 22, 1895. made an order upon the consent of the trustee of school district no. 5, but without the consent of the trustee of school district no i, town of Cumberland, vSullivan county, altering the boundaries of said district no. 5 so as to include all the real estate of lot 36 lying south of the foot of the tow path of the Delaware and Hudson canal ; and altering the boundaries of said district no. i so as to take out of said district that part of lot 36 north of the foot of the tow path of said canal and which order was to take effect on March 2, 1896. That on December 28, 1895, a local board com- posed of Commissioner Twichell and Supervisor Smith of the town of Lumber- land (the clerk of said town, being the trustee of said district no. 5, not sitting), after hearing all persons desiring to be heard in relation to said order rendered its decision, vacating said order of Commissioner Twichell. From said decision of said local board the appellant in the above-entitled matter, as trustee of dis- trict no. 5 and on behalf of said district, has taken an appeal. It appears that the aggregate amount of taxable property in district no. 5 is $5885 and the amount raised therein for school purposes the present school year is $157, the tax rate being 2.67 per cent; that the aggregate amount of taxable property in district no. i, other than the Delaware and Hudson canal, is $5490, and the valuation of such canal company within the district is $54,101.60, making the total valuation $59,590.60 ; that the amount raised therein for school purposes for the school year of 1894-95 is $625, the tax rate being .010488. It further appears that school district no. i was formed by an order made February 18, 1850, by the then town superintendents of schools fixing the bound- aries thereof, which order was recorded in the oflice of the town clerk of said town on March 23, 1850; that the said boundaries had not been changed up to November 22, 1895. It is admitted by the parties to this appeal that the alteration of said dis- tricts, as described in said order of Commissioner Twichell, so far as the inhabit- ants of district no. 5 were concerned, was solely for the purpose of increasing the amount of taxable property in the district by including within its boundaries a section of said Delaware and Hudson canal. It appears that three and nineteen- twentieths miles of said canal is within said district no. i and the order of Com- JUDICIAL decisions: school districts ALTERATION OF 63I missioner Twichell would take about three-quarters of a mile of said canal from district no. i of the valuation of $10,000 and annex it to district no. 5. It is not claimed that said order was made for the convenience or benefit of the residents of the territory affected, nor would it enlarge their school privileges. The decision of the local board vacating the order of Commissioner Twichell was based upon the decision of Superintendent Draper in appeal no. 3534. on November 13, 1886. The facts in appeal no. 3534 appear to have been that in district no. 5, Poughkeepsie, there were about two and one-half miles of the New York Central Railroad, and no portion thereof in district no. i ; that the order therein appealed from cut oft' territory containing about three-quarters of a mile of said railroad from no. 5 and annexed it to no. i ; that the fact was undisguised that the object of the order was solely to increase the valuation of property in district no. i. Superintendent Draper in his decision said : " In any event, I am not prepared to give sanction to the proposition that school districts should be changed only for the purpose of equalizing valuations. Perhaps it may properly be an element for consideration, but it should not be the controlling one. If districts are to be altered whenever, and only because one has more valuable property than another, the result would be a constant struggle for the annexation of such property, and the people and the school system would be endlessly involved in controversy in consequence of it. This is against public policy, and as it is the essential, if not the only, ground upon which the change here in question was made, it can not be sustained." I concur in the views stated by Superintendent Draper. Altering school dis- tricts only for the purpose of equalizing valuations is not sustained by this Depart- ment ; it may be an element for consideration, but it should not be the controlling one. The appeal herein is dismissed and the decision of the local board affirmed. 4453 In the matter of the appeal of John Fisher, William Madden, Michael J. Jackson. Joseph Silk and Walter F. Jeffers, individually and as trustees of and com- posing the board of education of union free school district no. i. town of East Chester, Westchester county, v. Walter S. Allerton, school commis- sioner, first commissioner district, Westchester county. Charles Dusenberry, jr, and others v. Walter S. Allerton, school commissioner, etc. A school commissioner has no jurisdiction to alter a school district until the trustees thereof have been asked and have given, or refused to give, their consent ; a pre- liminary order altering or dividing the school district or erecting a new district, is simply a step in the proceeding. It is the confirmatory order by which the district is altered or divided or the new district is erected. School commissioners have no power to alter or divide school districts upon which there is an outstanding bonded indebted •ness. Decided June 8, li Herbert D. Lent, attorney for appellants 6^2 TIIK UNIVEKSITV UF THK STATIC OF NKW YORK Skinner, Superintendent The two above-entitled appeals are taken from an order made by Walter S. Alierton, school commissioner, first school commissioner district of Westchester county, altering or dividing union free school district no. r, town of East Chester, Westchester county, by taking certain territory therefrom and forming a new school district to be known as district no. 3, town of East Chester, Westchester county. The two appeals being from the same order, they are consolidated and are examined and decided as one appeal. The principal ground upon which said appeals are brought is, that at the time of making the said order, altering or dividing said union free school district no. I, town of East Chester, said district had a bonded indebtedness outstanding. The following facts are established by the proofs filed herein : That at the annual school meeting in said union free school district no. i, East Chester, held on August 6, 1895, a resolution w^as duly adopted to raise by tax the sum of $25,000 for the purpose of purchasing a schoolhouse site and erecting a schoolhouse thereon, and that said tax be levied and collected by instalments ; that the board of education of said district, pursuant to the pro- visions of the school law, gave public notice that bonds for sai 1 $25,000 would be sold on January 27, 1896, said bonds to bear interest from March r, 1896, and to be delivered on or about that date; that on January 27, 1896, the T3ank of Mount Vernon submitted to said board of education a bid for said bonds; that by reason of an injunction granted by the Supreme Court restraining the sale of said bonds no action was taken by said board of education upon bids received for said bonds until February 10, 1896 (said injunction having been vacated on February 7, 1896), when said board notitied said bank that its bid had been accepted and said bonds awarded to it, and that said bonds would be delivered to said bank on or about March i, 1896; that on March 4, 1896, said board of edu- cation delivered said bonds amounting to $25,000 to said Bank of Mount Vernon, and received from said bank therefor the sum of $25,400, being the face thereof and the premium thereon ; that on or about labruary 10 a petition was presented to the respondent. School Commissioner Alierton, asking him to alter or divide said union free school district no. i by taking therefrom certain territory and erecting said territory into a new school district; that on February 13, 1896, said Commissioner Alierton wrote to the president of the board of education of said union free school district no. i, informing him of the filing of said petition and asking if the trustees would consent to the erection of the proposed new district, and on March 4. 1896. said Alierton received a letter from said board dated March 2. 1896. informing him that said board had refused to give its consent; that on March 6, 1896, said Commissioner Alierton made a preliminary order erecting said new school di.strict, to be known as district no. 3, East Chester, to be composed of territory theretofore contained in said union free school district no. I. and reciting therein that the trustees of said district did not consent to said order, and which order was filed with the town clerk of the town of East Chester; JUDICIAL decisions: school districts ALTERATION OF 633 that on March 14, 1896, said Allerton gave notice in writing to the trustees of said district no. i, East Chester, that 011 March 25, 1896, at 8 o'clock in the even- ing he would attend at the office of the town clerk of the town of East Chester, at Tuckahoe, to hear ohjections to the erection of said new school district; that in pursuance of said notice the said Allerton did attend at the time and place stated in said notice, and due opportunity was given to all persons who desired to be heard to present their objections, and all such persons were heard, the prin- cipal objection as stated being that said union free school district no. i. East Chester, could not be legally altered or divided, as there was upon said district an outstanding bonded indebtedness; that afterward said Commissioner Aller- ton decided to confirm said preliminary order made by him on March 6, 1896, and made his confirmatory order dated March 25, 1896, erecting said new school district out of territory theretofore contained in said district no. I, thereby con- sequently altering and dividing said district no. i, which confirmatory order was to take efifect on June 10, 1896, and which order was filed with the town clerk of the town of East Chester on March 31, 1896. Section 30 of article 5, title 8, of the Consolidated School Law of 1894, among other things, enacts " And the school commissioner having jurisdiction may alter any union free school district whose limits do not correspond with those of any incorporated village or city, in the manner provided by title 6 of this act, but no such district shall be altered or divided upon which there is an outstanding bonded indebtedness." In section 6, title 6, of said Consolidated School Law of 1894, it is enacted: " He (school commissioner) may alter the boundaries of any union free school district whose limits do not correspond with those of any city or incorporated village, in like manner as alterations of common school districts may be made as herein provided ; but no school district shall be altered or divided which has any bonded indebtedness outstanding." The application to Commissioner Allerton to alter or divide said district no. I by taking therefrom certain territory and erecting said territory into a new school district, was made about P^bruary 10, 1896, but it was not until March 4, 1896, that he was informed by the trustees of said district no. i that they refused their consent to such alteration of their district. This Department has held that a school commissioner has no jurisdiction to alter a school district until the trustees thereof have been asked and have given, or refused to give their consent. Commissioner Allerton, therefore, had no juris- diction to make any order in the premises until March 4, 1896, and it appears he did not make any order until March 6, 1896. It is clear that on March 4, 1896, there was upon said union free school district no. i, East Chester, an outstanding bonded indebtedness, and that said district had a bonded indebtedness outstanding of $25,000, and, therefore, under the provisions of the school law, said Commissioner Allerton was forbidden to alter or divide said district. The preliminary order of March 6, 1896, did not alter or divide said district or erect a new district, but was inchoate, simply a step in the proceeding, and 634 THE UNIVERSITY OF THE STATE OF NEW YORK of no efTcct whatever until the same was confirmed by his action, or that of the local board, if the supervisor and town clerk were associated with the com- missioner upon the hearing of objections, at the re(|ucst of the trustees of district no. I, inider the provisions of the school law. It was the confirmatory order of March 25, 1896, which, by its terms, was not to take effect until June 10, 1896; that said alteration or division of said district, and the erection of the new district, could be made and become operative, and on and since March 4, 1896, said union free school district no. i, East Oiester, had and has a bonded indebtedness outstanding. As the provisions of the school law prohibited the alteration or division of said school district, I have not deemed it necessary to consider any other question presented by the appeals herein. The appeals are sustained. It is ordered, That the preliminary order made by Walter S. Allerton, school commissioner, on March 6, 1896, and the confirmatory order made by him on March 25, 1896, altering and dividing union free school district no. i, town of East Chester, Westchester county, and the erection of a new school district, to be known as school district no. 3, town of East Chester, Westchester county, out of territory heretofore contained in said union free school district no. i, are, and each of them is, hereby vacated and set aside. 3512 William Morrison, as sole trustee of school district no. i, towns of Stockport and Greenport, Columbia county, N. Y., from an order of the school com- missioners of Columbia county, and an order affirming the same, altering school districts no. i, Stockport and Greenport, and no. 2, Stockport. Alteration of school districts is a purely statutory proceeding. Provisions of title 6, chapter 555, Laws of 1864, must be strictly followed. When a school district lies within two commissioner districts, one commissioner can not alter or divide it. Town officers are not authorized to proceed to hear objections to the alteration of a school district lying in two commissioner districts, or to make any order in the premises unless both commissioners attend. The preliminary order for the formation of a naw district, in case the trustees refuse to consent thereto, provided for in section 3, title 6 of the Consolidated School Act, is inchoate and of no effect, until confirmed by the order provided for in section 4. Decided July 24, 1886 Draper, Superintendent This is a proceeding by William Morrison, sole trustee of school district no. I, Stockport and Greenport, Columbia county, N. Y., appealing from an order made by the school commissioners of Columbia county on the 26th day of January 1886, altering school districts no. i, Stockport and Greenport, and no. 2, JUDICIAL decisions: school districts — ALTERATION OF 635 Stockport, by taking a part of the territory of the former district and adding it to the latter, and from the order of the local board confirming such order on the 8th day of February 1886. The objections raised to the proceedings appealed from are: 1 That the confirmatory order is void for the reason that the school com- missioner of the first commissioner district did not unite in the same. 2 That the local board was without jurisdiction for the reason that the supervisor and town 'clerk of Greenport had not been requested to participate in the proceedings thereof by the trustees of district no. i. 3 That great wrong and injustice will be done district no. i, by the alteration. The facts relating to the procedure are as follows: On the 26th day of January 1886, Oliver W. Hallenbeck, school commissioner, of the first commis- sioner district of Columbia county, and Peter Silvernail, school commissioner of the second commissioner district, duly made and filed their order altering school districts no. i, Stockport and Greenport, and no. 2, Stockport, by taking part of the territory of no. i and adding it to no. 2. The trustee of district no. 2, John P. Van Buren, duly consented to said alteration, and the trustee of district no. I, William Morrison, dissented, as recited in the order. It appears that district no. 2 lies wholly in the second commissioner district of the county, and district no. I partly in the second and partly in the first commissioner district. The trustee of district no. i not consenting to the alteration, the order was made to take effect not until the 15th of May 1886. Copies of the commis- sioners' order, and of the assent and dissent of the trustees of the respective districts were filed in the town clerks' offices of the towns of Stockport and Greenport on the 27th day of January 1886. On the 29th day of January 18S6, notice was served by the commissioners on the trustees of both districts, that on the 8th day of February 1886, at 10.30, a. m., at Kittle's Hall, in Stockport, they intended to make a final order for the alteration of said school districts. The trustees of school district no. 2 notified the supervisor and town clerk of Stockport of the intention of the commissioners, and requested them to be associated with the commissioners at such time and place. The trustee of school district no. i did not request the supervisor and town clerk of Greenport to be associated with the commissioner. It further appears that on the 8th day of February 1886, at 10.30, a. m., and at Kittle's Hall, in Stockport, pursuant to the notices aforesaid, the commissioner of the second commissioner district of the county, and the supervisor and town clerks of Stockport and Greenport met and made an order afiirming the original order. This order was duly filed in the proper town clerks' offices. The alteration of school districts is a purely statutory proceeding, and the provisions of title 6, chapter 555, Laws of 1864, must be strictly followed. In the case before me, the first objection urged to the proceeding is, that the '-commissioner of the first commissioner district did not unite in the con- firmatory order made February 8, 1886, and it becomes necessary to examine 636 THE UNIVERSITY OF THE STATE OF NEW YORK the question as to whether it was necessary for both commissioners to unite in this order. The sections under which this alteration was made are 3 and 4 of title 6 of the act referred to, and read as follows : " § 3 If the trustees of any such district refuse to consent, he may make and tile with the town clerk his order making the alteration, but reciting the refusal, and directing that the order shall not take efifect as to the dissenting district or districts until a day therein to be named, and not less than three months after the notice in the next section mentioned. " § 4 Within ten days after making and filing such order he shall give at least a week's notice, in writing, to one or more of the assenting and dissenting trustees of any district or districts to be afifectcd by the proposed alterations, that at a specified time and a named place within the town in which either of the districts to be afTected lies, he will hear the objections to the alterations. The trustees of any district to be affected by such order may request the supervisor and town clerk of the town or towns within which such district or districts shall wholly or partly lie to be associated with the commissioner. At the time and place mentioned in the notice the commissioner or commissioners, with the super- visor and! town clerks if they shall attend and act, shall hear and decide the matter; and the decision shall be final, unless duly appealed from. Such decision must either confirm or vacate the order of the commissioner, and must be filed with and recorded by the town clerk of the town or towns in which the district or districts affected shall lie." I must examine first what jurisdiction, in respect to territory, commissioners have. Section i of this title reads, " it shall be the duty of each school commis- sioner in respect to the territory within his district: I To divide it, so far as practicable, into a convenient number of school dis- tricts, and alter the same as herein provided.'' The significance of subdivision i of section i can readily be seen. The jurisdiction of a school commissioner to alter districts is thereby extended only over the territory of his own commissioner district. But school districts frequently lie in two or more school commissioner districts, and, in such cases, the jurisdiction of one commissioner not extending over the whole territory, section 6 of the same title provides, that " the commissioners within whose districts any such school district lies, or a majority of them, may alter or dissolve it." School district no. i, Stockport and Greenport, lies within two school com- missioner districts. For this reason one commissioner can not alter or divide it, but under the authority in section 6 " the commissioners, or a majority of them,'' may make any alteration or dissolution thereof. One not being a majority of two, it will require the concurrent action of both commissioners to make an alteration of this district. This presents the question as to when or by which order the alteration takes effect. A long line of decisions upon this point, in JUDICIAL DECISIONS : SCHOOL DISTRICTS — ALTERATION OF 637 which the effect of the two orders, provided for in cases similar to the one here, are ably discussed, strengthens me in the conclusion that the preliminary order provided for in section 3 is inchoate and of no effect whatever until the same has been duly confirmed as provided for in section 4. If, after making the first or preliminary order, no further proceeding is taken, the alteration is not affected. " The commissioner or the commissioners, with the supervisors and town clerks, if they shall attend, shall hear and decide the matter." " Such decision must either confirm or vacate the order of the commissioner." This language of the statute, and the construction that must be placed upon it is, that when a preliminary order for the alteration of a school district has been made, and the time fixed for the hearing of objections thereto, the commissioner, if the districts affected by the order lie in one commissioner district, or the commis- sioners, when the districts are located in two or more commissioner districts, shall hear and decide the matter and enter an order vacating or confirming the preliminary order. The commissioner " shall attend," the statute says. The attendance of the supervisors and town clerks is provided for, so that their respec- tive towns may have a voice in the decision of the matter, but the statute does not say they " shall attend." The absence of the town officers from the board will not in any way prevent the commissioner or commissioners from acting, or invalidate the proceedings taken by the commissioners at the time fixed for the hearing of the objections, otherwise regular. But if the commissioners do not attend, the town officers are not authorized by law to make any order in the premises, and the preliminary order must fall. In this case the school commissioner of the first commissioner district did not attend the meeting on the 8th of February 1886, for the purpose of hearing objections, and did not unite with the other commissioner in the con- firmatory order. The confirmatory order is the one by which the alteration of the districts is affected, and the first order, merely preliminary, being in fact but one step in the procedure for the alteration, and if not followed by the sub- sequent statutory requirements, it is void. The direction of the statute, the " commissioner shall attend," was not com- plied with. The school conmiissioner of the second commissioner district had no author- ity under the statute to make an order altering a school district lying wholly or partly in another commissioner district. The failure of the commissioner of the first district to unite in the confirmatory order renders the proceedings irregular, and the orders appealed from must be set aside. The disposition of the foregoing questions makes it unnecessary to examine the other objections raised by the appellants. The appeal is sustained, and the order appealed from hereby vacated and set aside. 638 THE UNIVERSITY OF THE STATE OF NEW YORK 3635 III tlie matter of the appeal of John C. Keller and Willis Baldwin, trustees of school district no. 2, town of Hunter, in the county of Cireene, v. Henry B. W'hitconih, school commissioner of the first commissioner district of Greene county. The power given to a school commissioner to divide a school district is purely statutory, and the commissioner must follow the provisions of the statutes literally and fully. Order vacated because of failure to do so. The advisal>ility of dividing a village into two districts, with two small schools, instead of ct)ntinuing as one district with a good-sized school, questioned and disapproved. Decided September 19, 1887 Clarence E. Bloodgood, Esq., attorney for appellant Hallock, Jennings & Chase, attorneys for respondent Draper, Superintendent This is an appeal by the trustees of district no. 2 of the town of Hunter, Greene county, from an order made by the respondent upon the 19th day of October 1886, and also from an order made by said commissioner on the 19th day of November 1886, confirming the first mentioned order, by which orders a portion of said district no. 2 was set ofif and constituted a separate school dis- trict, to be known as district no. 11. The appellants claim that the proceedings of the commissioner were irregu- lar, and that, whether they were or not, the order appealed from is inadvisable as being against the best interests of education in the locality. It is claimed that the proceedings were irregular, in that the first order was made without the consent of the trustees of the district affected, and that no such notice as the statute requires was given that the commissioner would hear objections, at a specified time and place, to the alterations made in the order. The notice given was as follows : To the Trustees of District No. 2, in the Toxvn of Hunter, Greene County, N. Y.: Take notice that I intend, on the 8th day of November next, at two o'clock in the afternoon of that day, at the residence of Samuel S. Mulford, in the town of Hunter. Greene county, New York, to make an order for the alteration of school district no. 2, in the town of Hunter, aforesaid, by cutting off a portion of the same and forming a new school district, to be known as district no. 11, of said town. The portion of said district no. 2, so to be cut off and to form said new district, is bounded and described as follows, viz : Bounded on the north by the north lines of lots nos. 2, 3, 4, 5 and 6, in great lot no. 24, west part of the Hardenburgh patent; east by the west line of the east half of said great lot no. 24, Hardenburgh patent; south by the height of lands next south of the Schoharie kill, and west by a line drawn parallel with said lot lines and crossing the high- way running through the village of Hunter at the division line between the lands of W'm. F. Greene and the lands occupied by William A. Douglass — excepting therefrom the house and lands on lot no. 5 of said great lot no. 24, west part of JUDICIAL DECISIONS : SCHOOL DISTRICTS — ALTERATION OF 639 Hardenbiirgh patent, formerly occupied by Michael Sax; also excepting there- from the farm and lands on the easterly side thereof, now occupied by Samuel Brown. You are therefore requested to meet without delay and to adopt a resolution consenting to the above proposed alteration, in which case you will please furnish me at the same time and place above mentioned with a copy thereof, certified under the hands of a majority of you, or to adopt a resolution applying to the supervisor and town clerk of Hunter aforesaid to be associated with me at the time and place above mentioned in determining on the propriety of such proposed alteration. In the latter case you will please transmit copies of such resolution, certified under the hand of a majority of you, to the supervisor and town clerk without delay, together with a notice of the time and place above stated at which such alteration will be made by me in case of their nonattendance. Dated October lo, 1886. Henry B. Whitcomb School Commissioner Section 4 of title 7 of the Consolidated School Act provides that " Within ten days after making and filing such order, he (the commissioner) shall give at least a week's notice, in writing, to one or more of the assenting and dissent- ing trustees of any district or districts to be affected by the proposed alterations, that at a specified time and at a place named within the town in which either of the districts to be affected lies, he will hear the objections to the alterations." It has always been held that the alteration of school districts can only be efifected by a strict construction of, and a rigid adherence to, all of the require- ments of the statutes relating to the subject. The several steps indicated in the statutes must be taken with care before the alteration can be efifected. For obvious reasons this ought to be so. The individual rights and interests which are involved in proceedings to alter school districts are too numerous and too important to be lightly dealt with. The courts have uniformly held that when power to afifect property is conferred upon those who have no personal interest in it, such power can be exercised only in the precise manner specified in the law or instrument conferring the power. This rule has always been rigidly adhered to by this Department in considering appeals from orders altering the boundaries of school districts. Now, applying these general principles to the present case, we find that the statute requires the commissioner to give notice of a time and place, when and where he will hear objections to the alteration. The gist and purpose of the requirement is that the trustee and other persons objecting to this change shall be clearly and plainly notified, in writing, of a time and place when they may have a public opportunity to interpose their objections. The statute likewise guarantees them the right of having the matter deter- mined only after such opportunity shall have been afforded them. If this requirement and this right were only technical, they would have to be complied with and protected; but it seems to me they are not technical. The law confers 640 TIIK UNIVERSITY OF THE STATE OF NEW YORK upon the objectors a substantial right to an exact and specific notice of their rights in the premises, and sound public policy requires that the requirement should be literally and fully observed. In my judgment, the notice givcH by the commissioner in this case, does not meet the requirement of the statute. The notice starts out with the declaration that, upon a day specified, " I intend to make an order for the alteration." The law provides that the commissioner shall first hear any objections offered, and then decide what he ought to do. It is true that subsequently the notice contains the request that the trustees shall adopt a resolution consenting to the alteration or applying to the supervisor and town clerk to be associated with the commissioner " in determining upon the propriety of such proposed alteration." But it nowhere informs them of their right to present their objections directly to him or to a board consisting of himself, the supervisor and the town clerk. I think the omission is fatal. The contention of the respondents that the appellants were not injured or misled by the defect in the notice, can not be sustained. They may have been. Ihe fact that the commissioner followed the form of notice laid down for his guidance in the Code of Public Instruction will go a long way towards exculpating him from any charge of blundering, but it will not make the notice a sufficient one. In the later editions of the Code the form of notice had not been changed as it should have been, to conform with the changes in the statute. 'Ihe conclusions above set forth, of course, render it necessary to sustain the appeal and set aside the orders appealed from. But the desire was expressed by both of the able counsel who appeared upon the argument that, in any event, the decision should not be allowed to turn solely upon the question raised as to the regularity of the proceedings, for the reason that, if the order was set aside, only because of an irregular proceeding, the ground w^ould have to be all gone over again in order to get a decision of the case upon the merits, and that time, trouble and expense would be saved by a determination of the case upon its merits now. In view of this I listened to exhaustive arguments, in which all that could well be said upon the merits of the case was ably presented. It appears that prior to 1880 the territory comprising district no. 2 consti- tuted three school districts, which were joined in one di.strict by the then school commissioner. It seems to be generally agreed that the consolidation would have been generally approved if the schoolhouse for the combined district had been located nearer to the center of the village of Hunter. The alteration now proposed makes the division line to run nearly through the center of the village. It would seem to be an arbitrary division. Why it should be run just there it is difficult to determine. The advisability, in an educational point of view, of dividing a single village into two school districts, is doubtful. Experi- ence shows that better results are obtained in large schools where opportunity is afforded for suitably grading the pupils, than in a small one where all ages and classes have to be gathered into the same room. It seems also that in 1882 application was made to the school commissioner to make the precise alteration from the order making which an appeal is now taken, and that from his refusal JUDICIAL DECISIONS I SCHOOL DISTRICTS ALTERATION OF 04I to do SO an appeal was taken to this Department and that the Superintendent (Gihnour) overruled the appeal. In view of these facts, reasons more weighty than those now advanced would have to be presented, and a substantial unanimity of desire on the part of the people of the district affected would have to be shown, before I should feel justified in sustaining the suggested division. The appeal is sustained and the orders appealed from are set aside and de- clared void and of no effect. 3620 In the matter of charges against Charles F. White. The order of a school commissioner dividing a large school district will be sustained when it appears that the proceedings were regular and that injustice has not been clearly shown, or that the action is manifestly against the educational interest of the district. Trustees are not bound to call a special meeting for the consideration of the question of dividing a district. Such a meeting would have been entirely proper, but this is a matter the responsibility for which rests with the trustees and the school commissioner. Neither malfeasance in office nor immoral character being shown, the trustees will not be removed from their offices. Decided July 16, 1887 Albert W. Seaman, Esq., attorney for respondent Draper, Superintendent The matter first above entitled is an appeal from the order of the respondent made on the 226. day of April 1887, dividing school district no. 2, of the town of Newtown, and setting off a portion of said district into a new school district, to be known as district no. 12. A very rancorous controversy has been going on in district no. 2 of the town of Newtown for a long time, which has been brought before this Depart- ment at numerous times and in a variety of forms. At the annual school meeting in the district, held August 31, 1886, action was initiated looking to the construction of a new schoolhouse. At subsequent special meetings this step was determined upon, and a new site was selected for the purpose. The supervisor of the town refused to consent to the change of site, and was overruled by the Department upon an appeal taken by \V. H. Proctor and others. Agreements were made for the purchase of a new site. Then a movement was started looking to the division of the district. The board of trustees is divided in opinion as to the advisability of such action. At a meeting of the board held on the nth day of April 1887, a petition was received from Joseph B. Denton and others, asking the board to consent to a division of the district. Two of the three members voted to give such consent; the third voted against it. Taking this consent as the basis of his action, the school com- missioner made his order dividing the district on the 22d day of April, from which order this appeal is taken. 21 64^ THE UMVEKSITV UF THE STATE OF NEW YORK An appeal is also pending from the neglect or refusal of the board of trus- tees to call a special meeting of the district to consider the matter of dividing the district, and charges are also pending against Trustees George \\'. Smith ami Charles F. White, upon which it is asked that they be removed from office. The voluminous papers bearing upon all of these proceedings have been examined with care, and extended arguments of the various counsel representing the different interests have been heard. The most important of all of the proceedings is the appeal from the order of the commissioner dividing the district. It was made u]5on the consent of a majority of the board of trustees of the district. Xo irregularity in the proceed- ings is shown. It is objected that the consent of the board preceded the order of the commissioner, but this was clearly right. The commissioner could not have made the order he did except after such consent had been given. It is objected also that there was no " deliberation '" in the board at the time of the action giving consent was taken. All of the members were present, and there was apj)arently as deliberate procedure as the heated circumstances would allow. It is not shown that all of the provisions of law governing the procedure were not strictly observed. It, therefore, is only left for me to determine whether the order appealed from was advisable. It is the practice of this Department to sustain the orders of school commis- sioners, altering school districts, where their proceedings are regular, unless the action taken is .-hown to be clearly unjust to some interest which may be involved, or is manifestly against the educational interests of the locality. It appears that the assessed valuation of district no. 2 before division was about $445,000. The assessed valuation in the two districts, after division, is respectively $260,000 and $184,000. One hundred and fifteen children of school age reside in the territory which has been set off. The fact, which is shown in the papers, that less than twenty of this number have heretofore attended the public school, seems best explained on the ground that school facilities have been either inadequate or inaccessible. The district is accumulating in popula- tion. By common consent added school accommodations are needed. A new schoolhouse upon a new site is to be erected. The site selected is some distance, though not great, farther from the proposed new district than the one hereto- fore occupied. It seems doubtful if the pupils of the old district could long be accommodated in one building. It likewise seems impracticable for all of the electors in so large a district to meet and transact business intelligently in a school meeting. These difficulties will increase and multiply. In view of these considerations, it is impossible to say that the commis- sioner did not exercise his discretion wisely in making the order appealed from. It IS certainly not shown to my satisfaction that he did not, and I am, therefore, unable to sustain the appeal. Desiring to dispose of all matters pending before the Department relating to this district, I also dismiss the appeal from the refusal of the board of trus- tees to call a special meeting of the district to consider the question of division. J UDICIAL DECISIONS : SCHOOL DISTRICTS — ALTERATION OF 643 and I dismiss the charges against Trustees Smith and White. It would have been entirely proper, and perhaps advisable, for the board to have called a meet- ing for the consideration of the matter. But it was a matter, the responsibility of which the law placed upon the trustees, and they had the legal right to follow their own judgment and act accordingly. No allegations are made against Messrs Smith and White which would justify their removal from office. No immoral character or malfeasance in office is shown. They have had part in the general conflict of opinion in the district, and perhaps have been headstrong in carrying out their opinions, but probably no more so than very many others have been or would have been in their places. The several above-entitled appeals and charges are therefore dismissed. 5440 In the matter of the appeal of Alfred G. Lewis from the dissolution and annexa- tion of school district no. 8, town of Geneva, Ontario county. Alteration of boundaries of district; desires of taxpayers not alone conclusive. Where an appeal is brought from an order dissolving a school district and annexing the terri- tory thereof to another district, the fact that the appellant is the owner of a considerable portion of the territory annexed will not control the decision of the appeal, if it appears that the people of the district have profited educationally by the order. Order modified so as to conform to wishes of residents. Where a district is dissolved and its territory annexed to a union free school district and it appears that the resi- dents of the district living outside of the city desire to retain the school district organiza- tion and those residing within the city desire to be annexed to the union free school district, comprising the greater portion of such city, the order should be modified so as to provide for the maintenance of a district outside of the city. Decided February 28, 1910 G. M. B. Hawley. attorney for appellants Draper, Commissioner The appellant, Alfred G. Lewis, owns a large tract of land located outside of the city of Geneva, in former school district no. 8, town of Geneva, county of Ontario. He paid more than one-quarter of the school taxes in such district, being assessed for school purposes in the sum of $56,270. He complains of an order granted by W. A. Ingalls, school commissioner of Ontario county, dissolv- ing such district no. 8, town of Geneva, and annexing the territory thereof to union free school district no. i, town of Geneva. The latter district comprises nearly all of the city of Geneva, although its boundaries are not coterminous with those of the city. It is clear that Commissioner Ingalls acted in good faith in making this order. Itjs probably true that a considerable portion of the district would be benefited by 'annexation to the union free school district. The educational interests of certain parts of district no. 8 situated within the city limits would doubtless be C44 THE UNIVERSITY OF THE STATE OF NEW YORK promoted by such annexation. The school commissioner, acting under the advice of the Department, directed the trustee of the district to call a special district meeting to vote ui)on a proposition of raising money to build a larger schoolhouse. or to have the district dissolved and annexed to school district no. i. Such a meeting was held October 11, 1909, and thirty votes were cast upon the question of dissolution and annexation, of which twenty-four were favorable and six opposed. The trustee of the district gave his consent to the action, and the board of education of district no. i also consented. The order dissolving the district and annexing its territory to union free school district no. I was entered October 23d. to take effect October 25, 1909. The ajjpellant insists that a large number of the qualified electors were not personally served with notices of the special meeting called to consider this ques- tion. The notices were served on all th-j qualified electors so far as known to the clerk of the district. It is apparent that a number received no notice, but the failure was not intentional nor was fraud shown on the part of the clerk. The meeting was legally held and was sufficient to give the school commissioner the required information as to the sentiment of the district in respect to annexation. After this meeting those living outside of the city proposed that the order of dissolution and annexation be set aside and a new order be granted dividing the district at the city line, and establishing a new district out of that part of the old district which was situated outside of the city. This proposition was not voted upon at the special meeting. The appellant caused petitions to be circulated among the taxpayers of the fonner district for the purpose of ascertaining what the district thought about this method of settling the controversy. It is appar- ent that the greater part of these taxpayers desire a division of the district, and the annexation of that part within the city to district no. i. The appellant asks that the order be annulled and that the school commissioner be directed to issue an orded dividing the district in accordance with this petition. The fact that the appellant is the largest taxpayer of the district, owning a considerable portion of the territory thereof, should not control the decision of this appeal. It will be his duty, as well as that of every other taxpayer, to pay what is required for the most advantageous advancement of the educational interests of the community. The petition asking the annulment of the order appealed from is signed by taxpayers and does not seem to have been presented to those electors who have children in attendance at school, or who rent taxable property- within the district. The opinions of such persons are entitled to the same consideration as are the opinions of those who pay taxes. An appeal based solely upon the assertion that the appellant's financial interests are adversely affected by the act conaplained of, will receive little attention, especially if it appears that the district has profited educationally by such act. Notwithstanding this defect. it clearly appears that nearly all of those living in the former district, outside of the city, are favorable to the establishment of a new district out of that terri- tory ; it also seems that a majority of those within the city are willing to be annexed to the city. JUDICIAL DECISIONS : SCHOOL DISTRICTS ALTERATION OF 645 The question of the effect of the annuhnent of this order and a subsequent division along the hue suggested, upon the educational prosperity of the com- munity, must be first considered. The assessed valuation of that part of district no. 8, lying without the city limits, is $99,750, and of that within the city limits is $85,904. There are at least sixteen pupils living within that part of the dis- trict outside of the city who have been attending the school in such district since its annexation to the city district. It is evident therefore that that part of former district no. 8 is strong enough financially and in number of pupils to maintain a thoroughly efficient elementary school. The educational strength of this com- munity will not be lessened by the maintenance of a small school, with a com- petent teacher, under a trustee who is reasonably desirous of promoting the educational welfare of his own and his neighbors' children. It would not be just to disregard the wishes of those living outside the city and within the confines of the former district, if such wishes may be carried out without seriously affecting the interests of the school or of the community. It is therefore incumbent upon me to sustain the appeal. The school commissioner should make a new order annexing to union free school district no. i all that part of district no. 8 which lies within the city of Geneva and altering the boundaries of district no. 8 so as to include only so much of its territory as lies outside of such city. The board of education of union free school district no. i was made a party to this appeal. The board did not answer, so that it may be assumed that they have acquiesced in the relief sought. The board will there- fore doubtless agree to the annexation of that part of district no. 8 which lies within the city limits. In sustaining this appeal the fact should be emphasized that the Commis- sioner of Education has not been influenced by the argument that tlie order appealed from has imposed an added burden of taxation for school purposes upon the taxpayers of the district. The tax of $6.78 per thousand is not too much to pay for the privileges of a school system such as that maintained by the city of Geneva. The taxpayers and patrons of the school, living in district no. 8 outside the city, desire to run their own school. The privilege will be granted them, but with the distinct understanding that liberal appropriations must be made for repairs and alterations, apparatus and equipment, and teacher's salary. The appellant and others who have joined with him in the petition will be held personally accountable for the maintenance of a first-class school in this district. If there be any failure in this regard the school commissioner will be directed to issue an order dissolving the district and annexing it to union free school dis- trict no. I. The appeal is sustained. It is hereby ordered. That the order executed by Willis A. Ingalls, school commissioner of the first school commissioner district, county of Ontario, dis- solving school district no. 8. town of Geneva, and annexing its territory to union fre'e ^.school district no. i, town of Geneva, which order was dated October 23, 1909, and filed in the office of the town clerk of such town on October 25, 1909, is herebv revoked and set aside. 646 THE L'NIVI:KS1TY of the state of new YORK It is hereby ordered. That the order executed by Willis A. Ingalls, forthwith take such action as may be required under article 2 of the Education Law to alter the boundaries of said school district no. 8, town of Geneva, and union free school district no. i. so that all of that part of such district no. 8, as lies within the limits of the city of (icneva, shall be annexed to, and become a part of, union free school district no. i. 5354 In the matter of the appeal of Benjamin F. ■Milks from the action of School Commissioner J. D. Jones of the second school commissioner district of Allegany county in making orders dissolving school district no. 6, town of Amity, and annexing portions thereof to school districts no. i, town of Scio, and no. 5, town of Amity The fact that certain residents of a district will be somewhat farther removed from a schoolhouse though still within a reasonable distance of one as such distances are uoually determined in rural districts should not be regarded as sufficient ground to defeat the plan to give a community affected the school facilities which would follow from the action complained of. Decided October 3, 1907 D. D. Dickson, attorney for appellant Jesse L. Grantier, attorney for respondent Draper, Commissioner (3n June 15, 1907, John D. Jones, school commissioner of the second school commissioner district of Allegany county, made an order dissolving school dis- trict no. 6. town of Amity. On the same date he also made concurrent orders annexing the northern portion of such district to district no. 5, Amity, and the southern portion of such district to district no. I, Scio. This appeal is brought by Benjamin E. Milks who was trustee of school district no. 6, .Amity, at the time the school commissioner made the order of dissolution. It appears that there had been considerable discussion previous to the issuance of these orders in relation to the annexation of the whole of district no. 6 to district no. i. To this proposition the residents of district no. 6 appeared to have been unanimously opposed. It appears that every resident voter of the district petitioned the school commissioner in opposition to such annexation. The commissioner did not make an order annexing the whole of such dis- trict to district no. i, Scio. He dissolved the district and annexed one portion to the district north of no. 6 and the other portion to the district south of it. There is nothing in the pleadings to show the exact attitude of the residents of no. 6 upon the orders which the school commissioner did make. No meeting of the voters of the district appears to have been held. The trustee was not directed by vote of the district to bring this proceeding. He undoubtedly represents the JUDICIAL decisions: SCHOOi districts ALTERATION OF 647 views of a majority of the voters of the district upon such questions. While there is nothing in the pleadings showing a specific declaration of the voters of the district upon the orders made the pleadings do seem to indicate that a decisive majority of the inhabitants of the district is opposed to such orders. During the school year ending July 31, 1907, the number of pupils attend- ing school in district no. 6 was only eleven. Two of these moved from the district during the year. The average attendance last year was less than eight. It appears that the number of pupils in attendance at school from such district and the average attendance thereof will be still less this year. The district must therefore be regarded as numerically weak. The school commissioner's rearrangement of the territory of this district has been such as to place all children within a reasonable walking distance of a school- house. None of the children will be required to walk more than two miles to attend school. The distance for many of these children will be much less. The highways are good hard roads and on which there is much travel. It is not shown tliat the orders complained of will operate as a hardship upon any of the children of the district. The prime object which the school commissioner had in mind when he made these orders was to establish a strong central school at Scio. The appeal of Melvin H. Pendleton from the dissolution of district no. 2, Scio. is closely related to this proceeding. The hamlet of Scio is located in the northwest corner of district no. i. The schoolhouse of no. i is located in the hamlet of Scio. Dis- trict no. 2, Scio, and district no. 6, Amity, join no. i, Scio. These two districts also extend to within a short distance of the schoolhouse in district no. I. Dis- trict no. I has a new modern schoolhouse with proper equipment. It has the facilities to accommodate all the children of the territory annexed by the order in question. The school is properly graded, the teachers employed therein are superior to those that are generally employed in rural schools. None of the rooms will be overcrowded. The educational needs of the community will be greatly promoted by the establishment of this strong central school through the consolidation of the districts in question. Sufficient property and sufficient pupils will be joined to enable the district to maintain an academic department. The school commissioner was justified in makir.g these orders to effect the results desired provided that thereby he did not impose an injustice or a hardship upon residents of the districts affected and even if a majority of the voters of such districts were opposed to such orders. The fact that two families will be some- what farther removed from a sclioolhouse though still within a reasonable dis- tance of one, as such distances are usually determined in rural districts, should not be regarded sufficient ground to defeat the plan to give the comnnmity affected the school facilities which should follow from the action complained of. The inconvenience which any of the residents of these districts may suft'er from the standpoint of distance to a schoolhouse will be overcome by the better school facilities which will be aft'orded. The school commissioner should be sustained herein. The appeal herein is dismissed. 648 THE UNIVERSITY OF THE STATE OF NEW VUKK 5341 In the matter of the appeal of John \'an Duscn et al. from the decision rendered by D. F. Ililer, school commissioner of the first school commissioner dis- trict of Steuben county in relation to the alteration of the boundaries of school districts nos. 13 and 5, town of Bath, Steuben county. When it appears that a portion of a school district should be annexed to an adjoining village district in order to afiford the residents of such portion of the district proper school facilities, and such action may be taken and still leave the district with sufficient property and sufficient children to maintain a good school, and the trustees of the districts affected give their written consent to such alterations, the school commissioner should make an order accordingly. Decided September 26, 1907 Thomas Shannon & Clarence Willis, attorneys for appellants Draper, Commissioner On September 17, 1906, 27 residents of school district no. 13, town of Bath, Steuben county, petitioned D. F. Hiler, school commissioner of the first school commissioner district of Steuben county, to so alter the boundaries of said dis- trict as to transfer therefrom the property owned by petitioners and situated therein to union free school district no. 5, town of Bath. Attached to such petition was the written consent of the trustee of school district no. 13 and the written consent of the board of education of union free school district no. 5. The school commissioner had the authority therefore to make the order at once and without giving a hearing upon the question. It apj-iears from the moving papers that the school commissioner did not render a decision on such petition until July 29, 1907. No explanation is given for a delay, by the school commissioner, of more than ten months in passing upon this important question. School district no. 5 is a union free school district maintaining a graded school including an academic department and is within the incorporated village of Bath. The territory which petitioners desired transferred is also within the said village. Good sidewalks are maintained from that section of the village to the schoolhouse. It also appears that public conveyances go from this section of the village by the schoolhouse and return several times during the day. Chil- dren could therefore find a means of conveyance on stormy days. Although residents of district no. 13 the children from this portion of the village generally attend the school in district no. 5 and pay the regular rates of tuition. The owners of property must also pay their taxes for school purposes in district no. 13. District no. 13 is a rural district in a farming region. The schoolhouse is about two thirds of a mile outside of the corporation limits. There are no side- walks and the roads are generally drifted in winter. It also appears that in going to the schoolhouse in district no. 5 the children may cross the railroad tracks at a guarded crossing, but that in going over the tracks on the way to and from school m district no. 13 they are required to use a crossing which is unguarded. JUDICIAL DECISIONS : SCHOOL DISTRICTS ALTERATION OF 649 It appears that all the interests of the residents of this section of the district are associated with the interests of district no. 5. Under all the circumstances it appears that the logical place for the terri- tory in question is in school district no. 5. The property might be transferred and still leave district no. 13 with an assessed valuation of $95,000. The school commissioner has declined to file an answer to this proceeding and it must therefore .be determined on the moving papers. In view of the fact that the trustee of district no. 13 gave his written consent to the alteration pro- posed and the district still possesses sufficient property to maintaui a good school, I do not understand why the school commissioner is unwilling to make the order. It appears clear that he erred in not making such order. Petitioners are entitled to relief prayed for. The appeal herein is sustained. It is ordered, That D. F. Hiler, school commissioner of the first school commissioner district of the county of Steuben shall without unnecessary delay, make an order altering the boujidaries of school district no. 13, Bath, and the consequent alteration of school district no. 5. Bath, so as to effect the transfer of territory from said district no. 13 to said district no. 5 as requested in the peti- tion hied with him on the 17th day of September 1906, and signed by John Scott and 26 other residents of said district no. 13, Bath. 4376 In the matter of the appeal of George Wolcott and others v. Ella Gale, school commissioner, second commissioner district of Tompkins county. Where a school district has a board of three trustees and an application is made to such trustees for their consent in writing to the alteration of their district, such trustees must meet and act as a board upon such application, and the fact of such meeting being held and consent given, should be set forth in the written consent signed by them, presented to the school commissioner. It appearing that no such meeting of the trustees was held, but the consent of two of such trustees was obtained at different times, and is not the act of the board; held, that the school commissioner obtained no jurisdiction to act in altering the boundaries of the school districts and such order must be vacated. Decided September _/, i8y5 C. R. Walcott, attorney for appellants Skinner, Superintendent Some time between June 24 and July 17, 1895, Ella Gale, as school com- missioner of the second commissioner district of Tompkins county, made an order, without being dated, but which by its terms was to take effect on July 17, 1895, and which order purported to have been made upon the consent in writing of the trustees of school district no. 9. town of Dryden, and no. 12, town of Caroline, county of Tompkins, altering the boundaries of said district no. 12 of 650 THK UNIVKRSITV OF THE STATE OF NEW YORK Caroline, bv setting off a certain farm belonging to one H. P. Banfield from said district, and annexing said farm to said district no. 9. thereby altering the boundaries of said district no. 9.- That said order was tiled in the office of the clerk of .said town of Caroline on July ij, 1895. On .August 30. i84, said school district did not have any bonded indebtedness outstanding within the meaning of the provisions of the Consolidated School Law. The questions presented in this appeal for my decision are. first, had School Commissioner West the legal power and authority, under the provisions of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894, to make the order, dated March 16, 1895. from which order the appeal herein is taken; and, second, if said commissioner had such power and authority, has there been a proper exercise thereof. Prior to June 30. 1894. there were no provisions of the school law forbidding the altering or dividing of school districts, having a bonded indebtedness out- standing, but this De])artment had uniformly held that any school district hav- ing a bonded indebtedness outstanding should neither be altered nor divided so long as such indebtedness remains outstanding. By section 6 of title 6 of said Consolidated School Law of 1894, chapter 556 of the Laws of 1894, that became operative on June 30. 1894, it was enacted, "but no school district shall be altered or divided, which has any bonded indebtedness outstanding." It is clear that since June 30, 1894. neither School Commissioner West nor any school commissioner in this State, has had any legal power or authority whatever to alter or divide any school district which has any bonded indebtedness outstanding ; but on the contrary, every school commissioner in the State is for- bidden to make any alteration or division of any school district having any such indebtedness outstanding. This Department has uniformly held that any change, however slight, in the existing boundaries of a school district, makes it a case of alteration. Admitting for the purpose of argument solely, that school district no. 3, of Southfield. on March 16, 1895. had neither "virtually " nor actually, any bonded indebtedness outstanding, it is conceded that school district no. 6, of Southfield, had. at the date aforesaid, a bonded indebtedness of $4500 outstanding. It is clear, by the order of Commissioner West of March 16. 1895 (if she had the legal authority to make said order), a portion of the territory forming JUDICIAL decisions: school districts — ALTERATION OF 655 part of said district no. 3, is taken from said district and added to said district no. 6, and the boundaries of district no. 6 are altered thereby as surely as the boundaries of district no. 3 were altered. I tind and decide, therefore. That School Commissioner West had no legal power or authority to make said order of March 16, 1895, but on the. contrary, as such school commissioner, she was forbidden and prohibited from making said order; that the appeal herein from said order must be sustained, and said order held to be illegal and void. The appeal herein is sustained. It is ordered, That the order made by Julia K. West, school commissioner of Richmond county, bearing date March 16, 1895, which order by its terms was to take effect immediately ; and which order was duly filed in the office of the clerk of the town of Southfield, Richmond county; and in and by which said order the boundaries of school district no. 3. of the town of Southfield, Rich- mond county, and school district no. 6, of the town of Southfield, Richmond county, were altered, and each of said districts was altered, as in said order set forth, be, and the said order is, hereby vacated and set aside, as wholly illegal and void; and that all and every act and proceeding had and taken by said School Commissioner West, relating to said school districts nos. 3 and 6, since March 16, 1895, ^^PO" the assumption that said order of alteration was legal and valid, be, and is, and are vacated and set aside as void. 4013 In the matter of the appeal of Robert Sagendorph and Charles Dingman v. Orville Drumm, school commissioner of the second commissioner district of the county of Columbia. Appeal from the refusal of a school commissioner to divide a district recently bonded to pay for a new school building, and annex a part to a district in which there is a good school building. Overridcd, commissioner's action sustained. Decided October 13, 1891 Andrews & Longley and J. L. Crandall, attorneys for appellants Hon. A. H. Farrar, attorney for the respondent Draper, Superintendent The appellants are residents of the southern portion of school district no. i, of the towns of Stuyvesant and Stockport, in the county of Columbia. The school site in said district has recently been changed to a point farther north than that formerly occupied. A new schoolhouse has been erected upon the new site and bonds have been issued to meet the expenses thereof. The appel- lants claim that this practically deprives them of school facilities in district no. i, aiki they ask that the southern portion of the district be cut off and annexed to district no. 3, of the town of Stockport. The trustee of one of the districts 656 THE UNIVERSITY OF THE STATE OF NEW YORK affected has given his consent to such chanp^e, but not so in the case of the trustee of the other district. The school commissioner has declined to make the pro- visional order cuntemplatcd by the statutes, and from his refusal this appeal is taken. I have given the papers careful examination, and have heard able counsel at length. I conclude that two or three families having children to send to school are farther removed from the schoolhouse in their district than before the change in site. Even before the change of site, they were farther from the schoolhouse than is desirable. I am not certain but that they ought to have some relief. It might be well to create a new school district out of parts 01 the two districts under consideration, but I do not feel justified in overruling the school commis- sioner upon the issue here presented. He is to be sustained unless it is clearly shown that his refusal to make the change requested operates very unjustly to j)arties aggrieved, or is manifestly opposed to the educational interests of the territory affected. The burden is upon the appellants to show this, and they do now show it to my satisfaction. The appellants would not be very much nearer a schoolhouse after the alteration they desire, than they are now. If the change were made, the sha])e of school district no. 3 would be irregular in the extreme. Again, it was held by Ruggles, Superintendent, in decision no. 3315, rendered December 10, 1883, that a district under bonds should not in equity be divided until the bonds were paid. I should not be willing to apply this rule in all cases. I think it may be said that, after a district has issued bonds for the erection of a .schoolhouse, a portion of it should not be cut ofif and attached to a district in which there is a good schoolhouse, with the effect of permitting the residents of the detached portion to escape their share of taxation for the improved school facilities. It was undoubtedly this that Superintendent Ruggles meant; but that would not be the case where a new school district was erected involving the necessity of building a new schoolhouse. The present case, however, seems to come entirely within the rule laid down in the decision of Judge Ruggles referred to, and I am not able to see that there are any special circumstances sufficient to make it an exception to that rule. Upon the whole, I conclude that the appeal must be dismissed, and it is so ordered. 4384 In the matter of the appeal of A. V. Van Liew, trustee, school district no. 13, town of Ulysses, Tompkins county, from action of local board, vacating order of Charles Van Marter, school commissioner, first commissioner dis- trict of Tompkins county, dated March 23, 1895, altering school districts no. 13 and no 15, town of Ulysses, Tompkins county. It appearing by the proofs presented to the local board that no valid reason existed for the alteration of the school districts made by the preliminary order of the school com- missioner; held, that the action of said board in vacating their order was proper. Decided October 3, 1895 JUDICIAL decisions: school districts ALTERATION OF 657 Skinner, Superintendent A petition signed by the appellant in the above-entitled matter and R. R. Updike as sole trustee of school district no. 15, town of Ulysses, and dated December 11, 1894, was presented to Charles Van Marter, school commissioner of the first commissioner district of Tompkins county, asking that the boundaries of district no. 13, of Ulysses, be altered, by transferring a certain farm known as the Ralph Updike farm, then owned by one W. C. Van Liew and situate in school district no. 15, of Ulysses, from said district and annexing the same to school district no. 13 of Ulysses, and consequently altering the boundaries of district no. 15; that on February i, 1895, no action having been taken by said school commissioner, said Updike as trustee of the district, withdrew his consent to said alterations of said districts; that on or about February 6, 1895, another petition, signed by the appellant herein, and twenty-four residents of said district no. 13, Ulysses, was presented to said commissioner requesting him to alter said district as aforesaid, that said school connnissioner made an order dated March 23, 1895, altering the boundaries of said school districts nos. 13 and 15, by transferring said farm of W. C. Van Liew from district no. 13 and annexing it to district no. 15, which order by its terms was to take effect on August i, 1895 ; that said commissioner gave notice, under the provisions of the school law, that on May 4, 1895, at the schoolhouse in district no. 15, he would hear objections to said order of March 23, 1895. and on said day said commissioner attended at said schoolhouse, and at the request in writing of said Updike, as trustee of school district no. 15, the supervisor and town clerk of the town of Ulysses, were associated with the school commissioner in the hearing of objections to said order; that said board, after hearing objections, voted to vacate said order of said commissioner; that on May 30, 1895, the appellant herein appealed from the action and decision of said local board. An answer to said appeal by Robert R. Updike, trustee of said district no. 15, has been filed. The appellant herein contends that said Updike, as trustee of school district no. 15, having consented in writing to the proposed alteration of the district of which he was trustee, he can not legally withdraw said consent. Such contention is not tenable. The consent of Updike was withdrawn before any action had been taken by the school commissioner under the petition of December 11, 1894, and before the petition of February 6, 1895, was presented to him. The consent or refusal to consent to the alteration of said districts by the trustees of said districts did not give jurisdiction to the school commissioner. Under the school law school commissioners have power to alter school districts with or without the consent of the trustees of the districts to be affected. It the trustees consent the school commissioner may make an order, making such alterations, to take effect on a day named, which order will be final, unless appealed from; but when said trustees of said districts or of any one of said districts to be affected refuse consent the school commissioner may make a preliminary order making such alterations; which order shall not take ettect 658 THE UNIVERSITY OF THE STATE OF NEW YORK until a day named therein, and not less than three months after the date of the order, and he must give notice of a time and place at which he will hear objec- tions to said alterations. At the time and place of such hearing, upon the written request of the trustees of any of the districts afifected the supervisor and town clerk of the town or towns in which said districts are situated, may be asso- ciated with the school commissioner, thus forming a local board, to hear objec- tions to said alterations. Said board must either confirm or vacate said pre- liminary order. If such preliminary order is confirmed a confirmatory order must be drawn and signed by the members of said board, which confirmatory order makes the alterations and not the preliminary order which is inchoate. If the local board vacates the preliminary order the whole proceedings fall. The papers herein do not show that any proofs were presented to said local board establishing any valid reason why such alterations should be made, nor that there is any valid reason why said farm should be transferred from district no. 15 to district no. 13. It is not shown that there are any children of school age residing on said farm. It is shown that the owner of said farm does not reside thereon, but lives with his father, and that he has no children, and that he lets the farm. The distance from said farm to the schoolhouse in no. 15 is substantially the same as to the schoolhouse in district no. 13, or at most but twenty rods farther. If the object of the alteration proposed is for the purpose of equalizing assessments, I would state that the altering of districts for that purpose only has not been sanctioned by this Department ; that may be an element for con- sideration, but should not be the controlling one. The appeal herein is dismissed, and the action of said local board, vacating said preliminary order of School Commissioner Van Marter, of March 23, 1895, is confirmed. 4353 In the matter of the appeal of William R. DuMond and Lincoln Butler from decision of local board vacating order of Frank L. Ostrander, school com- missioner, first commissioner district of Delaware county, altering boundaries of school district no. 6, town of Colchester, Delaware county. Where it is shown that an order of a school commissioner, altering the boundaries of school districts, is not for the best educational interests of the district affected thereby, the action of the local board in vacating said order will be confirmed. Decided May 6, 1895 F. W. Hartman, attorney for appellant Skinner. Superintendent On or about November 3, 1894, Frank L. Ostrander, school commissioner of the first commissioner district of Delaware county, made a preliminary order, JUDICIAL decisions: school districts — ALTERATION OF 659 with the consent of the trustee of school district no. 20, town of Colchester, Delaware county, the trustee of school district no. 6, town of Colchester, Dela- ware county, dissenting, altering the boundaries of school districts nos. 6 and 20 by setting ofif from district no. 20 into district no. 6 five parcels of land and including in district no. 6 lots 361 and 362 and a " gore " lot west of lot 361, which said lots had never been embraced in any school district in said town of Colchester; that said order was to take efifect on February 5. 1895; that said Commissioner Ostrander gave to the said assenting and dissenting trustees due notice under title 6 of the Consolidated School Law of 1894; that on November 20, 1894, at a time and place within said town of Colchester, specified in said notice, he would hear objections to the said alterations of the boundaries of said school districts ; that the trustee of said district no. 6 requested that the supervisor and town clerk of the town of Colchester be associated with said commissioner; that on said November 20. 1894, at the time and place specified in said notice the said local board, consisting of said commissioner and the supervisor and town clerk of said town, duly organized and proceeded to hear objections to said alteration; that the trustee of district no. 6 appeared in person and by counsel, in opposition to said order of said commissioner, and the appellant, Du Mond, herein, appeared in support of said order; that after hearing the proofs and testimony presented and the arguments of counsel said local board adjourned to meet at the office of the town clerk of the town of Colchester at Downsville on December 18, 1894. at 10 o'clock in the forenoon; that said local board met pursuant to said adjourn- ment and after due deliberation, voted to vacate said preliminary order of Com- missioner Ostrander of November 3, 1894. From said action and decision of the said local board the appeal in the above- entitled matter has been brought. An answer, by the persons composing said local board, has been made to the appeal, and to said answer the appellants herein have filed a reply. The papers and proof filed herein by the appellants and respondents contain statements relating to former appeals from orders made by school commissioners, and to an order made by Commissioner Ostrander since this appeal was taken that are not material to the question at issue raised by the appeal herein. The question for my decision in this appeal ii, whether or not, upon the facts established and admitted at the hearing had before the local board in December 1894, said board wisely exercised the power and authority it had to vacate the preliminary order made by Commissi 3ner Oitrap.der on November 3, 1894. , . , ( It appears that the appellants herein reside on lot no. 361 m the town ot Colchester, Delaware county, located in what is known as ' Pelncr Hollow"; that on the east side of Pelner Hollow, extending north from the county line between the counties of Sullivan and Delaware, there is a hilly or mountainous Fajige of land covered with forest, across lots 360, 370 359 i"to 347, and westerly across lots 348 and 339 into school district no. 20, town of Colchester, and thence south, beginning in the southerly portion of 340 and across lots 341 and 342 ui 66o THE UNnKKSITV OF THE STATE OF NEW YORK said district no. 20 and lots 343, 344 and 345 in district no. 14, town of Colches- ter; that there is a public highway commencing northerly of the schoolhouse in district no. 20. which extends in soutiierly direction through said district no. 20 and across (hstrict no. 14, and near the sciioolhouse in said district, down to said county line of Sullivan and Delaware counties; tliat commencing in the aforesaid highway on lot 340 in district no. 20 there is another public highway running cast across said lot 340. through the opening of said range of hills on the west- erly side of said Peltier Hollow, and thence southeasterly across lots 339 and part of lot 348 hi clistrict no. 20, and thence south across lots 348, 360, 361 and 3f)8 down to the public highway running northeasterly and southwesterly in Sullivan county, between the county line of Sullivan and Delaware counties and the Beaverkill river; that there is a public highway commencing at a point in the said public highway in Sullivan county north of the Beaverkill river easterly of the east line of lot 133 extended, running north to, and beyond, the schoolhouse in district no. 6, town of Colchester. It further appears that it is impracticable for the children of the appellants herein, or other children residing in said Pelner Hollow, to reach the schoolhouse in said district no. 6 on account of the hill range extending as aforesaid along the easterly side of said Pelner Hollow except by the public highway down said Pelner Hollow to the said high- way northerly of the Beaverkill river, and thence on and up the said road to said schoolhouse, a distance of about live miles. It was conceded by the appellant. I)i; .Mond, upon the hearing before said local board, that if the lots in Pelner Hollow were annexed to district no. 6 that a branch school must be maintained in I'elner Hollow for the accommodation of the persons of school age residing in that locality. It also appears that about the year 1886 it was assumed that the land in Pelner Hollow was within the boundaries of said school district no. 6, and a branch school of said district was established therein, in a building erected by the inhabitants of said Hollow, which building and the land upon which it was located was conveyed to said district so long as the same was used by said '. The district meeting refused to adopt a motion authorizing the trustees to consent to an alteration of the district so as to transfer certain lands from one district to another. JUDICIAL decisions: school districts ALTERATION OF 665 from which refusal an appeal is taken. Held, that this appeal is not the proper remedy. Application must first be made to the school commissioner. He can act without consent. From his determination an appeal will lie. Decided December i, 1887 George I. Rose, Esq., attorney for appellant Draper, Superintendent The appellants above named are owners of certain real estate located in district no. 2. of the town of West Bloomfield. Ontario county. For various reasons, which they indicate, they desire that the division line between district no. 2 and district no. 5. of said towia, shottld be so changed as to bring their lands within district no. 5. At the last annual meeting in district no. 2, it was moved that the district authorize the trustee to give his consent to such change. The meeting refused to adopt the motion. From stich refusal, this appeal is taken. I shall not consider the question as to whether the desire of the appellants should be granted. I can not properly do so before an application has been made to the school commissioner having jurisdiction, for the alteration. The law pro- vides a way for changing the boundaries of school districts without the consent of the trustees of the districts affected. The appellants must, at least, make an eft'ort to accomplish their desire through the action of the school commissioner, before they can present the question to the State Department. An appeal would lie from the refusal of the commissioner to consent. The appeal is dismissed. 3800 In the matter of the appeal of Joseph Horning and Roger McDermott v. Henry A. Soule, school commissioner of the first district of Cattaraugus county. It is not essential to the validity of proceedings to alter a school district that the trustees should either, in words give or refuse consent to the alteration. If they consent in writing the commissioner can take one course; if consent is not given, though no formal refusal is made, he can proceed in another way. Decided July 30, 1889 G. M. Rider, attorney for respondent Draper, Superintendent The appellant, Joseph Horning, is sole trustee of district no. 3, of the town of EUicottville, Cattaraugus county, and the appellant. Roger McDermott. is sole trustee of district no. 6, of the same town. The appeal is from an order of the school commissioner, made on the 7th day of February 1889, forming a new school district out of portions of the two districts which the appellants represent, together with a portion of district no. 10, of the town of Franklinville, and also from an order by the commissioner and town clerk confirming the first mentioned order. 666 THE UNIVERSITY OF THE STATE OF NEW YORK The appellants claim that they were not consulted hy the commissioner as to the advisabilitv of the alteration, and had no knowledge of it until the order of the commissioner had actually been "made. They also contend that if the alteration is made it will leave their own districts too weak to be self-supporting. Parties resident in the proposed new district answer and sustain the claim of the commissioner. It is admitted that no application has been made to the appellants for their consent to the order of the commissioner, but it is said that the reason of this is that the matter had been discussed in the neighborhood for a year; that the commissioner made a similar order nine months ago, and gave notice of a time and place to hear objections, but failed to prosecute the proceed- ing to a conclusion, and it accordingly failed because of the serious and long ill- ness of the commissioner, and that each of the appellants had openly and repeat- edly asserted that they would never consent to the alteration. This would seem a reasonable explanation of the seeming slight. But as a matter of law it is not essential to the validity of the proceedings that consent of the trustees of the ter- ritory affected should be asked and refused, in words, before the commissioner can proceed. The trustees might postpone action indefinitely by neither saying they would or would not, if that were the case. It is sufficient that they do not consent. I have given what the appellants have to say concerning the circumstances in which their districts will be left after alteration very careful consideration. One of the districts will be left sufficiently strong, beyond doubt or question, so far as valuation is concerned. The other is not as strong in that regard as it would be well. Rut other circumstances are to be considered. The educational advantages of the adjacent territory are to be taken into account. The commis- sioner seems to have acted deliberately. The matter has been under discussion a long time. The appellants do not make out a case sufficiently strong to satisfy me that the order of the commissioner should be overthrown. The appeal, therefore, must be dismissed. 3862 In the matter of the appeal of Thomas Riley, Calvin Sherman and Cyrus C. Terwilliger. as trustees of school district no. 16, of the town of Rochester, Ulster county v. E. D. Lounsbur}' and others, trustees of school district no. i, of the town of W'awarsing. Ulster county. \ppeal to compel the district from which a part was set of? and constituted separate, to comply with an alleged agreement or understanding to pay a proportionate share of the value of the district property remaining in the old district, to the newly created district. Held, that the Department has no jurisdiction in the premises. The advis- ability of detaching from a school district having an assessed valuation of $58,000, a portion which has a valuation of but $6000, and constituting the same a separate district, questioned. Decided March 5, i8go L. B. Haskin, attorney for appellants JUDICIAL DECISIONS : SCHOOL DISTRICTS — ALTERATION OF 667 Skinner, Superintendent It seems that by an order of the school commissioner of the third school commissioner district of Ulster county, made upon the consent of the trustees of the territory affected on or about the i6th day of December 1889, a portion of the latter district was set off and made to constitute the district first named. The division left the schoolhouse and all its appurtenances in the old district. The appellants claim that there was an understanding and agreement to the effect that the old district should pay to the new one its proportionate share of the value of the school property. The appellants have demanded this share from the respondents. The respondents deny this agreement and refuse to comply with it, although they admit that there was an understanding and promise that the old district should pay to the new one the sum of $75 as soon as they should open a school of their own. The amount in dispute between two districts is not great, but to a district having an assessable valuation of but $6000, as is the fact in the present case, it is of considerable consequence. This appeal is brought for the purpose of com- pelling the old district to settle with the new one, according to the appellants' understanding of what the agreement was. The circumstances of the new district seem to be somewhat hard. I can not help questioning the advisability of detach- ing from a school district having an assessable valuation of $58,000, a portion of which has a valuation of but $6000. It is admitted that the school facilities in the district as formerly constituted were good. It owned a good schoolhouse and site and had a graded school, which was liberally supported. It is said, however, that the portion detached was set off in consequence of the fact that the residents thereof were unwilling to pay their share of the expenses of maintaining such a school, and preferred to become a separate district in consequence. This being so, they have little ground for complaint, although that fact would hardly be sufficient ground upon which to support the action of the school commissioner ; but he was upon the ground, knew all the facts, and was better able to judge of the propriety of his action than I am here. I do not think it necessary to determine whether or not there was an agreement concerning the division of the school property, or, if there was such an agreement, what its terms were. I am clearly of the opinion that the appellants can not procure the fulfilment of such an agreement by an appeal to the Department. I think it may well be doubted whether they can do so by any proceeding; but I know of no authority of law which would support the Department in requiring a district to carry out such a promise. This is not an appeal from any action of a district meeting or district ofiicer. It is not shown that the district, or its officers, has either violated any law or failed to comply with any legal requirement. This being so, I think the appeal must fail. The appellants incidentally ask that, in the apportionment of State school moneys for the present year, they may be given their share. So far as the Department of Public Instruction is concerned, the apportionment for the present 668 THE UNIVERSITY OF THE STATE OF NEW YORK year has already been completed and promulgated. So far as the apportionment by the school commissioners of the county of Ulster is concerned, the district fails to siiow the facts which would entitle it to an allotment. For the foregoing considerations, the appeal must be dismissed. 3792 In the matter of the appeal of l^emon Thomson and others, residents of joint school district no. 10, towns of Greenwich, Washington county, and North- umberland, Saratoga county, from the action of the local board of said joint district, in refusing to ratify a commissioner's order, bearing date April 8, 1889, for the alteration of said district and the consequent alteration of dis- trict no. 17, town of Greenwich. In a joint school district, by a decision previously made, the school commissioners havin;? jurisdiction were directed to make a preliminary order for a division of the district by the county line, so that each part would come under the jurisdiction of a single com- missioner. The preliminary order having been made, but the consent of the trustees of all of the districts affected thereby not having been obtained, the order was made to take effect at a future day, and the local board, consisting of commissioners, supervisors and town clerks, was convened for the purpose of determining whether the preliminary order should be confirmed or not. The local board refused to confirm the order. For the reasons which induced a former decision directing the preliminary order in this matter, the commissioners are directed to confirm by a final order the change as pro- posed by the preliminary order. Decided July 13. 1889 Draper. Superintendent This is an appeal by resident taxpayers of joint school district no. 10, of the towns of Greenwich, county of Washington, and Northumberland, county of Saratoga, from the action of the local board in refusing to confirm a prelimi- nary order made by the commissioners having jurisdiction for a division of the district, and the annexation of a part to an adjoining district. The appellants are residents of that portion of the joint district situate in Washington county. The land is divided from that portion of the district lying in Saratoga county by the Hudson river. Commissioner Joseph W. Barbur has jurisdiction in Washington county, and Commissioner William X. Harris in Saratoga county. The schoolhouse in the joint district is located in the Saratoga portion of the district. A majority of the children of the district reside in Washington county, and in order to attend the public school of their district, are compelled to cross the river by a long bridge which is used for canal purposes. The bridge is not properly guarded with sufficient side railings, and in consequence of the bridge being used by canal boatmen, the children are often subjected to annoyance and forced to hear low and obscene language, too often indulged in by some persons employed on the canal. JUDICIAL DECISIONS I SCHOOL DISTRICTS — ALTERATION OF 669 At the meeting of the local board, held as provided by statute, there were present the school commissioners, the supervisor and town clerk of each of the towns in which the districts are situated. The vote upon the question of con- firming the prehminary order of the commissioners resulted in a tie, the members of the board residing in Washington county voting in favor of the order and consequent alteration, and those residing in Saratoga county voting in opposition thereto. It is a rule of this Department not to interfere in a proceeding of this nature where commissioners of a joint district do not agree upon an alteration, unless the propriety of the case is clearly manifest and where a refusal to do so would necessarily work injustice. By the alteration proposed the part of the district situated in Saratoga county would not be so weakened, either in the number ot children of school age or in taxable property, as to prevent the maintenance of a satisfactory school. The fact that a majority of the children of the joint dis- trict are now compelled to cross the river by the bridge above referred to, in order to reach the schoolhouse, carries considerable weight in my mind that the alteration should be made. It further appears that by the annexation of that part of the joint district situate in Washington county to an adjoining district in the same county, which is now without a school building, the same having been destroyed by fire, and the proposition that if the order is allowed, a new site will be selected which will be easily accessible to the children of the district, and upon which a new^ school building is to be erected, would seem to render this an opportune time for the change to be made. In view of these facts, and that the allegations of the appellant have not been controverted, I must sustain the appeal, and hereby direct School Commissioner William X. Harris, of the second district of Saratoga county, to join in an order with Commissioner J. W. Barbur of the first district of Washington county, mak- ing a final order for the change as proposed by the preliminary order, and cause the same to be filed and recorded by the town clerks of the towns in which the districts affected lie. 3516 John Armstrong v. John J. Callanan, school commissioner of the first commis- sioner district of Albany county. Commissioner's order declining to set off a taxpayer from one school district to another for the reason that such taxpayer supposed when he purchased lands he was mcluded in the district he asked to be attached to, sustained. Decided September 2^8, 1886 Draper. Superintendent . . This is an appeal bv Tohn Armstrong, an inhabitant and taxpayer of jomt afstrict no. 3 of the town of Coeymans. Albany county, and New Baltmiore, Greene county, from the action of School Commissioner John J. Callanan of the 6/0 THE UNIVERSITY OF THE STATE OF NEW YORK first commissioner district of Albany county, refusing to set off said appellant to an adjoining district. The grounds stated by the appellant for desiring to be set oft' are as follows : 1 That a railroad is operated through district no. 3, and between the property of ai)pellant and the schoolhouse, and that it is extremely dangerous for school children to cross and recross the tracks of the railroad company because of the frequent passage of trains of cars. 2 That the lands of appellant are rendered less valuable by reason of the same being included in district no. 3 ; that prospective tenants will not hire appel- lant's lands if it is discovered that the lands are included in district no. 3, and separated from the schoolhouse by the railroad tracks. The facts are : That appellant's lands are near the eastern boundary of district no. 3 ; that a railroad is now and for several years has been operated through the district very near appellant's lands ; that appellant supposed when he bought the lands, that he was included in district no. i, which is composed of land wholly east of said railroad land; that appellant has two children, each 16 years of age; that the railroad company protects persons passing at the crossing by gates and signals ; that appellant's children are often seen about the depot of the company near the crossing, and that they cross the tracks to and fro when not attending the school. The district to which the appellant seeks to be set off is possessed of a very- large amount of taxable property, while district no. 3 is much weaker. Other taxpayers are similarly situated in district no. 3, and object to any change in the boundary of the district. District no. 3 has a good school and an excellent teacher, and the school has been conducted with good results. Although the appellant's counsel has been repeatedly notified to perfect his appeal by furnishing a map and list of taxable inhabitants necessary for a com- plete understanding of the case, he has neglected to do so, and I am compelled to consider the case without the aid and information such map and list would afford me. The question is. Did Commissioner Callanan exercise proper discretion in refusing the request made to him by appellant? From the facts found, I am of the opinion that he did. But, moreover, had he granted the order changing the district, it would have been void without the concurrence of the commissioner of the adjoining commissioner district of Greene county, who has jurisdiction, together with Commissioner Callanan, in district no. 3, of which land in Greene county forms a part ; and even with the concurrent action of the commissioners granting the alteration, the consent of a majority of a board composed of the commissioners acting with the supervisors and clerks of the adjoining towns might be requisite, for the reason that the trustee of dis- trict no. 3 declined to consent to the proposed alteration. The appeal is overruled, and the action of the commissioner is sustained. JUDICIAL decisions; school districts — ALTERATION OF 6/1 5252 In the matter of the appeal of William McLaughlin, Michael McGinn and John T. Wright as trustees of school district no. 19, town of Skaneateles, X. Y., from the decision of J. J. Jewell, school commissioner of the second com- missioner district of the county of Onondaga, and H. T. Morrison, school commissioner of the first commissioner district of Cayuga county and others, in affirming an order made by said commissioners in altering school district no. 19 of the town of Skaneateles. A preliminary order changing the boundaries of a joint school district may be made when the territory transferred lies wholly in one school commissioner district by the school commissioner of the district in which such territory lies. The confirmatory order in such case must be a joint order by the commissioners in whose district the school districts affected lie. Decided April 10, 1905 C. R. Milford, attorney for appellants Johnson & Fuggle, attorneys for respondents Draper, Couunissioncr On November 15, 1905, School Commissioner Jewell of the second commis- sioner district of Onondaga county, and School Commissioner Morrison of tlie first commissioner district of Cayuga county, made a preliminary order altering the boundaries of school district no. 11, town of Skaneateles, Onondaga county, and town of Sennett, Cayuga county, by transferring a portion of the territory of said district no. 11, to school district no. 19, Skaneateles. School district no. II is a joint district. That part of such district which was in the town of Skane- ateles was in School Commissioner Jewell's district and that part of such district which was in the town of Sennett was in School Commissioner Morrison's dis- trict. The trustees of joint district no. 11 consented in writing to such altera- tion. The trustees of district no. 19, Skaneateles, refused to consent. The trustees of said district no. 19 appeal from the action of the school commissioners in transferring the territory in question from district no. 11 to district no. 19. Appellants allege that the proceedings by which the order was made were not conducted as the law requires and that the order is therefore void. It is claimed that the leading defects in such proceedings are as follows: 1 That School Commissioner Morrison had not jurisdiction and could not legally join Commissioner Jewell in making the order. 2 That the supervisor and town clerk of the town of Skaneateles were illegally associated with the local board which heard objections to the preliminary order of the commissioners. 3 That the order was not filed with the town clerks of the towns in which such districts are located as the law directs. -V The legal objections raised by appellants are not sound. Joint district no. ii is partly in the town of Skaneateles and partly in the town of Sennett. District no. 19 is wholly in the town of Skaneateles. That 6/2 THE UNIVERSITY OF THE STATE OF NEW YORK part of 110. II which was transferred to no. 19 is also wholly in the town of Skaneateles. Appellants claim that since the territory transferred and the district to which it was attached were wholly in School Commissioner Jewell's district that Commissioner Morrison could not legally jom in making the order. This claim is based on the provisions of subdivision 2 of section I, title 6 of the Consolidated School Law which reads as follows: In conjunction with the commissioner or commissioners of an adjoining school commissioner district or districts, to set otT joint districts composed ot adjoining parts of their respective districts, and separately to institute proceed- ings to alter the same in respect to tke territory within his ozvn district. This Department has held since the above subdivision was amended in 1895 that the preliminary order in such proceedings may be made when the territory- transferred lies wholly in one commissioner district, by the school commissioner of the district in which such territory lies. In this case Commissioner Jewell could have made the preliminary order. The ruling has always been however that the order affirming a preliminary order must be a joint order by the commis- sioners in whose district the school districts affected lie. It was therefore neces- sary that in this case Commissioner Jewell and Commissioner Morrison should jointly make the affirming order. (See decision no. 4449.) The fact that the preliminary order was a joint order does not invalidate it. The object of the preliminary order is to bring the question of the wisdom of making the proposed changes before the local board, for which provision is made by section 4 of title 6, for review and determination. Section 7 of title 6 of the Consolidated School Law provides as follows: W henever it may become necessary or convenient to form a school district out of parcels of two or more school commissioner districts, the commissioners of such districts, or a majority of them, may form such district; and the commis- sioners within whose districts anv such school district lies, or a majority of them, may alter or dissolve it. Under this provision of law the commissioners had authority to jointly make the preliminary order. District no. ii was a joint district and none of the terri- tory of that district could be transferred to any other district except upon the joint order of the t\vo school commissioners in whose districts said school district no. 1 1 was located. The order in this respect was therefore legal. Appellants claim that the supervisor and town clerk of the town of Sennett were not lawfully requested to join the local board which was to hear objections to the preliminary order and that such officers had no authority to act with such local board. Respondents claim such officers were properly requested to be asso- ciated with the local board and while the proof on this point is not clear the burden to show that such request was not properly made is upon appellants and they have not affirmatively sustained their contention. Appellants also raise the question of jurisdiction of the town clerk and supervisor of Sennett to act in the proceeding on the same ground on which they challenged the right of Com- missioner Morrison to join in the proceedings. District no. 11 was partly in the JUDICIAL DECISIONS : SCHOOL DISTRICTS ALTERATION OF 673 town of Sennctt. The law provides that " the trustees of any district to be affected by such order may request the supervisor and town clerk of the town or towns within which such district or districts shall wholly or partly lie, to be associated with the commissioner." District no. ii was therefore entitled to be represented on the local board by the supervisor and town clerk of the town of Sennett and such officers possessed the lawful right to be associated with the local board and participate in its deliberations. I think the pleadings clearly show that the orders were properly and legally made and filed as the law directs. The further question to be determined is whether or not the school commissioners and the majority of the local board exercised an improper and unwise discretion in making the order. Two school commissioners in making the order certify that the children of school age residing within the territory transferred are unable to attend school regularly because of the great distance they are required to travel to attend school in no. ii and often because of the impassable condition of the roads. They also certify that these children may receive proper and regular school privileges by being trans- ferred to district no. 19. It also appears that inspectors of this Department have recommended that such action should be taken. No unjust burden is imposed upon district no. 19 by this action. The pleadings show that district no. 19 has a good modern school building with a seating capacity of eighty-six and the average attendance of pupils in that district during the past year was fifty. The number of pupils of school age in the territory transferred is only fifteen and it is not probable that all of these will attend school. District no. 19 will therefore be able to accord school privileges to the additional pupils in that district caused by the transferring of the territory in question without any material additional expense or without any apparent embarrassment. The action of the local board in affirming the preliminary order of the commissioners is sustained. The appeal herein is dismissed. 22 SCHOOL DISTRICTS — BOUNDARIES Where inhahitants liavc laen properly set off from one district to another, and the town clerk has omitted to record the order, they will be regarded as inhabitants of the district to which they have been annexed after it has been acquiesced in for five years. Decided May I2, 1854 Rice, Supcr'uitciidcnt This is an ai)peal from the proceedings of a special meeting held on the 28th of March last, authorizing the trustees to levy a tax on the district to defray the exi)ense of moving the schoolhousc to the new site, or to let the job of moving the same to the lowest bidder. The appellants, in support of the appeal, allege that seven persons, who attended the meeting and voted, were not inhabitants of and legal voters in said district, having been annexed in 1839 to joint district no. i, Blenheim and Fulton, and there being no record in the town clerk's office of either of said towns of their subsequent transfer, either to district no. 5 or any other district. In reply to this allegation, the affidavits of the town superintendents of I'ulton and r.lenheim for the year 1849 ^^e produced, showing that the individuals referred to -and their property were, in the spring of that year, transferred by them from joint district no. i to district no. 5. and that the order made by them to that effect was transmitted or delivered to the town clerks of their respective towns for record. It also appears, from the affidavit of the appellants, that, from that period to the present, the persons so transferred have acted in and been regarded as inhal)itants of district no 5, and their children enumerated therein. Under these circumstances, and after an acciuiescence of five years, the proof of such transfer must be regarded as suflicient, notwithstanding the omission of the town clerks to record the same. 4241 In the matter of the appeal of board of education of union free school district no. I, Xunda, Livingston county, v. A. B. Dunn, school commissioner, second commissioner district, Livingston county. Where an appeal is taken from an order of a school commissioner defining the location of a farm, as regards the boundaries of certain school districts, on the ground that the order makes an alteration in school districts, the burden is upon the appellants to estab- lish their contention by preponderance of proof. Such appeal must be brought within thirty days from date of the order or a sufficient excuse must appear in the appeal for the delay. Decided April 25, 1894 Crooker, Superintendent This appeal is taken from the order of A. B. Dunn, school commissioner of the second commissioner district of Livingston county, made Jidy 3, 1893, decid- I674I JUDICIAL decisions: school districts BOUNDARIES 675 ing that a farm of one William Craig, consisting of 112 acres of land, situate in the town of Portage, Livingston county, was situated and formed a part of school district no. 3 of said town of Portage. The appellant alleges as ground of the appeal that the said order sets ofl" ;Said farm from union free school district no. I of Nunda to district no. 8 of Portage and that such order was made without the consent of the appellant. The appeal is supported by a number of affidavits of persons relative to the location of said farm in school districts as the affiants understood and recollect. An answer has been interposed by the respondent and is supported by affidavits of persons relative to the location of said farm. The respondent denies that he has set off said farm as alleged in the appeal herein, and alleges that said order simply decides a dispute in regard to the location of said farm, as regards the boundaries of certain school districts. It is admitted that the farm lies in the town of Portage, and that the records of said town were entirely destroyed by fire many years ago, and that the records of school district no. 16, of Nunda, the district in which the appellant claims said farm was situate at the time of the consolidation of certain school districts into union free school district no. i, of Nunda, by the establishment of a union free school therefor and therein, of which no. 16 was one, are lost and can not be found. The respondent, before answering the appeal herein, made a preliminary objection to the appeal, namely : that the said appeal was not taken within thirty days from the time the appellant had notice of the order appealed from, and no reason is stated in the appeal for the delay, as required by rule 4 of the rules of this Department relative to appeals. It appears that the order appealed from was dated July 3, 1893, and on August 22, 1893, a copy of said order, with the certificate of the town clerk of the town of Portage attached, to the effect that the same was a true and correct copy of the original then on file in his said office, was served upon Clarence L. Cuddeback, a member and the secretary' of the board of education, appellant; that the appeal herein was served upon the respondent on October 25, 1893 ; that said appeal was not received at the Depart- ment until November i, 1893. I am of the opinion that such preliminary objection is well taken and the appeal herein should be dismissed. Upon the question, in which school district the said Craig farm properly belongs, after a careful examination of all the proofs and papers presented, I have come to the conclusion, and do find and decide : That school district no. 2, town of Portage, known as the " Oakland dis- trict," many years ago included within its boundaries the territory bounded on the north by the Orton road, on the east by the town line between the towns of Portage and Nunda, and within which was that parcel of land now known as the Craig farm; that about the year 1840 school district no. 18 of the town of Fortage was formed and the territory in said district no. 2 of Portage, lying south of Orton road and west of the town line, between the towns of Portage and Nunda, including the parcel of land known now as the " Craig farm " was 6/6 THE I'NIVFRSITV OF THE STATE OF XEW YORK eml)raccd within the boundaries of and formed a part of said district no. i8; that in the rcninnbcring of the school districts in the town of Portage said district became, and now is. district no. 8 of said town ; that there is no proof that said Craig farm so as aforesaid within the district known as no. i8 and now no. 8 of J 'ortage, was ever set off from said district ; that for many years prior to the year 1876 there was a school district in the town of Nunda known as district no. 16, but there is no proof that any portion of the town of Portage was embraced within, or formed a part of said district, nor that said district was ever known as district no. 16 of Nunda and Portage; that said district no. 16 of Nunda became a jjart of union free school district no. i of Nunda, but there is no proof that at the time said district so became part of said union free school district the said Craig farm was situate within or formed a part of said district; that said C raig farm is not now, nor ever has been, situate within the boundaries of nor formed a i)art of said union free school district no. i of Nunda ; that the order or decision of Commissioner Dunn, appealed from, is not an alteration of the boundaries of any school district either in the town of Portage or Nunda, but simply decides in what school district said Craig farm is situate. The burden of proof is upon the appellant to establish the appeal herein and in this the appellant has failed and the appeal should be dismissed upon that ground. The appeal herein is dismissed. 4246 In the matter of the appeal of Rector Seymour, sole trustee of school district no. II, towns of Walton and Tompkins, Delaware county, v. E. E. Conlon, school commissioner, first commissioner district, Delaware county. Where a school commisMoner makes an order defining the boundaries of a school district, wlien in fact the order is an alteration of the school district and other school districts adjoining, and that fact being established upon an appeal from said order, said order should be vacated and set aside. Decided May 8, 1894 Marvins & Hanford, attorneys for appellant Crooker, Superintendent This is an appeal from the order of E. E. Conlon, school commissioner of the first commissioner district of Delaware county, made September 14, 1893, defining the boundaries of school district no. 11, towns of Walton and Tompkins, Delaware county. The contention of the appellant is that the boundaries of said school district are well defined and known, as shown by the records in the office of the town clerks of the towns of Walton and Tompkins, and if any persons are ignorant of such boundaries they are at fault in not carefully consulting such records, and JUDICIAL DECISIONS : SCHOOL DISTRICTS BOUNDARIES 677 that the order appealed from is in fact an alteration of said school district and other school districts adjoining. The respondent contends that by his order he has simply defined the bound- aries of said district. An appeal is pending before me of Abijah S. Wakeman and others, claiming to be residents of such school district, from the action and decision of the appel- lant in this appeal, in refusing to continue or establish a branch school at Wake- man Brook, claimed by the appellants therein, to be within the bounds of such district. My decision in the appeal herein will be decisive of the question raised by the respondent Seymour in the appeal brought by Wakeman and others, namely, whether the appellants, Wakeman and others, are residents of such district or not. The parties in each of the above-mentioned appeals have stipulated that I may consider both appeals upon the proofs and papers presented in each. The papers presented in the two appeals are very voluminous, and have been carefully examined and considered. From such examination and consid- eration it appears that the only lands about which the contention herein has arisen are those lying north of the Delaware river and situate in what is known as the Wakeman Brook locality. By the certified copy of the records in the office of the town clerk of the town of Walton, presented in this appeal, it appears that by an order made by the school commissioners of the town of Walton on April 27, 1829, the several school districts in said town were located. In said order district no. 6 of said town, is defined, "From the lower line of no. 5, down on both sides of the river (Dela- ware), to the lower line of John Barlow's farm, including the wild land on both sides of the river to the town line." The words, " including the wild land on both sides of the river to the town line," were inserted in said order on December 20, 1831, and such alteration became legal and valid from said date. From and after said December 20, 183 1, the lower line of district no. 6 of Walton has been and still is the lower line of John Barlow's farm, including land on both sides of the river to the town line between the towns of Walton and Tomp- kins, and the lower line of the John Barlow farm is the town line between Walton and Tompkins, and the line on the west side of the river between lots 207 and 208, Rapelyea Patent, starts from the river opposite the lower line of the Barlow farm and runs directly to the town line of Tompkins near the middle of lot 177 of the Rapelyea Patent. That on April 27, 1829, and December 20, 183 1, there was a school district, comprising within its boundaries, land situate in each of said towns of Walton and Tompkins, known as joint district no. 7, and by said order of April 27, 1829, that part of said district situate in the town of Walton was described and defined as follows : " From the lower line of district no. 6 on both sides of the river (Delaware) to the town line." That said " joint district" no. 7 was afterward renumbered and known as "joint" district no. 11. By an order made by D. W. Nichols, town superintendent of schools of the town 6/8 THE UNIVKKSITV OF THE STATE OF NEW YORK of Tompkins, in iS4<;. on file in the office of the town clerk of said town, that portion of said "joint" district no. 1 1, Tompkins and Wahon, situate in the town of Tompkins, is described and defined as beginning on the Delaware river at the north corner of lot subdivision i, northeast division of grand division i, Hardcnburgh Patent (this point was at the Barlow lower line, town line, on the east side of the river) ; thence southeast to the town line of Hancock, etc., including in said boundaries all of grand division i, southeast half of subdivision 2 and southeast half of northwest division of grand division 3, ITardcnburgh Patent, and lots 194, 195, iq6, 197, 198, 199 and 200, Rapelyea Patent. That said order, although not dated, was entered in said town clerk's office with other orders between February and May 9, 1849. That there is no order on file or on record in said town clerk's offtce of the town of Tompkins altering or changing the boundaries of said district no. 11 of Walton and Tompkins, north or west of the Delaware river, except an order, dated July 6, 1885, wherein lots 194, 195, 196, 197, 198, 199 and 200, in the Rapelyea Patent, were set off into district no. 25, town of Tompkins, except the order of Commissioner Conlon. from which this appeal is taken. I am clearly of the opinion that, from the copies of the records of the towns of Walton and Tompkins presented in this appeal, the boundaries of said school district no. 11, towns of Tompkins and Walton, are clearly and definitely described and defined, and while said boundaries may be in dispute by persons who have not examined such records carefully, such boundaries are not indefi- nite, but on the contrary are definite and certain. The order of Commissioner Conlon, of September 14, 1893, while expressly stating that no alterations of boundaries of said district no. 11 is intended to be made, but the present boundaries of such district are to be more clearly defined, is in fact an alteration of said district and of other districts adjoining no. 11, namely, districts nos. 6, 10, 12 and 25, and such alterations have not been made in accordance with the provisions of title 6 of the Consolidated School Law of 1864 and the amendments thereof. It seems from the proofs presented herein that the following named lots of land included by the said order of Commissioner Conlon as being within the boundaries of said district no. 11, Walton and Tompkins, lying north and west of the Delaware river, namely, lots nos. 165, 174, 208, 209, 210, 212 and 214, in the town of Walton, and lots nos. 164, 173, 176, 177 and 180, in the town of Tompkins, were never part of said district no. 11, Walton and Tompkins, but that said lots nos. 165, 174, 208, 209, 210, 212 and 214, in the town of Walton, are within district no. 6 of Walton, and lot no. 164, town of Tompkins, is within district no. 10 of Tompkins; lots nos. 173, 176, 177 and 180, town of Tompkins, are within district no. 12 of Tompkins. Sundry affidavits have been filed by the respondent, stating, in eflfect, that some of the above-named lots of land have been assessed in district no. 11 of Walton and Tompkins, and the taxes so assessed have been paid, and that so far as the afifiants had knowledge they supposed said lots were in district no. 11. JUDICIAL DECISIONS : SCHOOL DISTRICTS BOUNDARIES 6/9 Where the records of the boundaries of school districts are lost or destroyed, or the description of the boundaries of districts are indefinite and uncertain, resort may be had to such class of testimony to determine such boundaries; but where the records are in existence, and are definite and certain, such class of evidence is of doubtful value. Trustees of school districts are not infallible, and in many instances are negligent and careless in taking proper means to ascertain the boundaries of their respective districts. From the proofs presented in this appeal I am of the opinion that the appeal herein should be sustained, and the said order of Commissioner Conlon be vacated and set aside. Appeal sustained. It is ordered, That the order of E. E. Conlon, school commissioner of the first commissioner district of Delaware county, purporting to deinie the bound- aries of school district no. ii, towns of Walton and Tompkins. Delaware county, dated September 14, 1893, ^e, and the same is, hereby vacated and set aside. 4388 In the matter of the appeal of Perez Dimmick, trustee of school district no. 10, town of Middletown, Delaware county, v. Hugh Adair, school commis- sioner, second commissioner district, Delaware county. An order made by a school commissioner to amend the boundaries of a school district or to make an amended record of the boundary, where said order does not alter the boundaries of the district; such order will be sustained upon appeal. Decided October 8, 1895 F. M. Andrus, attorney for appellant C. Hull, attorney for respondent Skinner, Superintendent Hugh Adair, as school commissioner of the second commissioner district of Delaware county, on June 28, 1895, made an order, under the provisions con- tained in subdivision 2, section 13, title 5, of the Consolidated School Law of 1894, reciting that having examined the record in the town clerk's office of the town of Middletown, Delaware county, and finding that the record of the bound- ary between school districts nos. 22 and 10 therein is both defective and indefi- nite, and having learned that said boundaries are in dispute, and directing that the record of said boundary line between said districts be amended so as to read, as in said order stated. That said order also stated that it is not intended to alter any boundary line between said districts, but only to amend said defective and indefinite record of said boundary, and settle the dispute as to said boundary. Said commissioner had authority, without the previous consent of the trustees of said districts, to make said order, provided said order did not alter the boundaries of said districts. 680 THE UNIVERSITY OF THE STATE OF NEW YORK Perez Diininick as trustee of school district no. lo, of Middletown, has appealed from said order of Commissioner Adair, upon the grounds, as alleged by him therein, that said order alters the boundaries between said districts nos. lo and 22 and sets off portions of land from district no. lo into district no. 22. School Commissioner Adair has tiled an answer to said appeal, and the appellant herein has filed a reply to said answer. From a careful examination and consideration of the papers filed herein the following facts appear to be established: Messrs Slocum and Stone, as commissioners of common schools in said town of Middletown, by an order made and signed by them on October 22, 1842, and which order was recorded on October 27, 1842, in the office of the clerk of said town, established the boundaries of school district no. 22 of said town as follows: Resolved that district no. 22 shall be bounded on the easterly by the county line of Delaware and Ulster; on the west by the easterly line of James Tait; on the north and south by the height of land to the place of beginning; that Messrs O'Connor, Stone and Slocum, as such commissioners of common schools in said town, signed a paper on April 4, 1843, ^^^ which paper was recorded on the same day in the office of the clerk of said town stating, " we, the commissioners of the common schools, have this day resolved that Hiram D. Wood be set back in district no. 10 as heretofore has been"; that at different times since 1842 the boundary line between districts no. 10 and 22 (being the westerly boundary of no. 22, as stated in said order of Messrs Slocum and Stone of October 22, 1842) has been in dispute, and especially in the year 1887, when several actions were brought in the courts and appeals taken to this Department arising out of the controversies as to said boundary line; that in said 1887 a careful search was made in the office of the clerk of said town of Middletown for the records relative to the organization and alteration of the school districts in said town, but no such records could be found, but in a search among the records in a building in which such clerk's office had theretofore been kept a book was found containing the records relative to the school districts of said town, commencing with the reorganization of the districts made April 30, 1825, and containing such records down to and including the year 1850; that said record book was examined by said Commissioner Adair, in which he found said order of Messrs Slocum and Stone establishing said district no. 22 under date of October 22, 1842, but found no other order or orders relative to said district or its boundaries unless the resolution under date of April 4, 1843, relating to Hiram D. Wood can be deemed an alteration of the boundaries of said district; that said record book was then (in May or June 1895), in fair condition, con- sidering its age and use, some of the leaves therein being misplaced. The appellant herein alleges that on or about October 24, 1848, one Florus Searle was a town superintendent of schools in said town of Middletown and as such made an order relative to the boundaries of school district no. 10, of said town, and has annexed a copy of said alleged order to his appeal; that JUDICIAL DFXISIONS : SCHOOL DISTRICTS BOUNDARIES 68l said appellant alleges that by said alleged order of Searle a portion of school district no. 22 was annexed to school district no. 10. It also appears that on the record book of school district no. 10 for the years 1847, 1848 and 1849, at the back part of said book, and not in any pro- ceedings of said district recorded as occurring in 1848, is recorded in the hand- writing of one Grant, a former clerk of said district, but now deceased, a copy of said alleged order of said Searle, with the date of October 24, 1848, but with- out the signature of said Searle and without any certificate. It is conceded that at the examination by Commissioner Adair of said old record book in the office of the clerk of the town of Middletown, relating to school districts in said town, from April 30, 1823, and including the year 1850. there was no record of the alleged order made by said Searle on October 24. 1848; but it is alleged by the appellant that such an order was recorded in said book when found and examined in 1887. In support of this contention the ■ appellant has presented the affidavit of Alexander Sliter, who stated that in 1887 he was collector of said school district no. 10 and with one David Ham- mond examined said town record book and found therein the said order made by Searle, signed and attested by him, and that he (Sliter) compared the same with record of said order in district records of school district no. 10, and found them alike; also, affidavit of David Hammond to the same efifect. Annexed to the answer of Adair is an affidavit of said Hammond in which he states that in his affidavit annexed to the appeal in his statement that he found in a book the boundaries describing district no. 10 the same as are annexed to the appeal (copy of alleged order of Searle) he " meant the district book of district no. 10." That to said answer herein is annexed the affidavit of C. Hull, the attorney who examined said town record book in 1887, in which he alleges that he made a careful search in said record book at that time and knows that no such record (alleged order of Searle of October 24, 1848) was in it. It is clear to me from the proofs herein that no order of said Searle as town superintendent, made on October 24, 1848, was recorded in said town records relating to school districts either in 1887. when examined by Sliter, Hammond and Hull, nor in 1895, when examined by Commissioner Adair. The burden is upon the appellant herein to sustain his appeal by a pre- ponderance of proof, and he has failed to establish by such proof that any order was ever made by said Searle as town superintendent on October 24, 1848. and. filed with the town clerk of the town of Middletown. in relation to the boundaries of said school district no. 10 of said town. He has also failed to establish that one Florus Searle was a town superintendent of schools in said town in 1848. No copy of any order made by any school commissioner or town superin- tendent organizing said district no. 10 or making any alteration in the bound- aries of sa^id district subsequent to the organization is produced herein. Under the laws in operation when the office of town superintendent of com- mon schools existed such superintendents had power to form, alter and dissolve school districts and were required to describe and number such districts, and (')8j the L'NIVKKSITV UV THE STATE OF NEW YORK to deliver the description and number thereof, in writing, to the town clerk, immediately after the formation or alteration thereof. It seems that said superintendents did not have the power, in case the records of the boundaries of districts should be found defective or indefinite, or should be in dispute, to cause the same to be amended or an amended record of such boundaries to be made, as was given to school commissioners. As to said alleged order of said Scarle it is possible that in 1848 he was town superintendent of schools in Middletown ; that there were doubts as to the boundaries of school district no. 10 in said town ; that he prepared the order alleged to have been made by him and informed the then district clerk of said district and allowed him to copy the same; that subsequently he, for some reason, decided not to make such order. In the order made by Messrs Slocum and Stone, October 22, 1842, organiz- ing school district no. 22, the westerly line of said district is indefinite, while the easterly, northerly and southerly lines are certain and definite. It appears that James Tait owned or occupied land on the westerly side of district no. 22, but the easterly line of his land did not extend from the ridge or height of land, the northerly bouiulary, to the ridge or height of land, the southerly boundary. Commissioner Adair in his examination of said westerly line of said district, under said order of October 22, 1842, decided that it was the intention of said order to extend the easterly boundary of the land of said Tait in a straight line to the height of land forming the southerly boundary of said district no. 22, and made his order of June 22, 1895, amending the records of the westerly line of said district accordingly. I concur with Commissioner Adair in his decision. The aj)peal herein is dismissed and the order of said School Commissioner Adair of June 28, 1895, is confirmed. 3673 In the matter of the appeal of Peter Van Doren v. the school commissioner of Seneca county. An order of a school commissioner intended to determine indefinite and defective bound- aries will not be sustained when the order so changed districts as to take territory from one and add the same to another district, unless the several trustees have con- sented thereto, or the other statutory proceedings have been observed. An admission that the order being made only for the purpose of defining a boundary, yet effected an alteration, is fatal to it. The fact that the alteration only affected a small piece of territory of but little value is not of consequence. Service of copies of appellant's pleadings upon the former commissioner, whose order is appealed from, held unnecessary, he having ceased to hold that office and not being the real party in interest. Decided March 13, 1888 JUDICIAL DECISIONS : SCHOOL DISTRICTS BOUNDARIES 683 Draper, Superintendent This is an appeal from an order of Isaac H. Stout, as school commissioner of Seneca county, made on the 29th day of November 1884, fixing and describing the boundaries of school district no. 14 of the town of Covert. The ground of appeal alleged is that the order changed the boundaries so as to take territory from district no. 12, and add the same to district no. 14. The order of the commissioner was made for the purpose of fixing and defining an indefinite and defective boundary under the provisions contained in title 2, section 13 of the Consolidated School Act. It recited the fact that no change or alteration was intended ; yet it is admitted that, by inadvertence or error, a small parcel of land, alleged to be of little value, was transferred from one district to the other by the order. It is admitted, also, that the boundaries as fixed in the order appealed from are materially different from the boundaries, as they have existed for many years. But it is claimed that such alteration was effected not by the order, but by the operation of chapter 223 of the Laws of 1881. It is impossible for me to see how the order appealed from can be upheld. Indefinite or uncertain boundary lines may be fixed and determined without the consent of the trustees of the district aflfected or without the other statutory proceedings which are prerequisite to an alteration of districts. The law provides a simple and expeditious way for ascertaining and definmg an uncertain boundary line by a school commissioner, but it does not permit him to make an alteration in a boundary line without either the consent of the trustees of the districts affected or the approval of the board of officers authorized by law to hear objections and determine the matter. No principle is better established than that no alteration of a school district can be effected except by taking the several steps which the statute explicitly lays down. The admission that the order being made only for the purpose of definhig a boundary, yet effected an alteration, is fatal to it. The fact that the alteration affected only a small piece of territory, and that of small value, is not of conse- quence. Moreover, the alteration effected in the present case may not be inconse- quential, for I am not prepared to sustain the proposition that chapter 223 of the Laws of 1881 worked a permanent and lasting alteration of district boundaries when it was repealed the following year. I have had some hesitation about considering this appeal because of the delay in bringing it before the Department, the explanation of which is not very satisfactory. But as I can readily see why the fact that an alteration which was not intended by the commissioner might, not for a considerable time, come to be understood or appreciated by the people, I have thought it well to overlook the delay and consider the case. I have not lost sight of the objection of the respond- ents that the school commissioner had not been served with the papers, and, therefore, had not been made a party to the proceeding. I do not think it 684 THE UNIVERSITY OF THE STATE OF NEW YORK important that he should have been. He is not the real party in interest. The case has been cared for on the part of the respondents with sufficient ingenuity and thoroughness to negative the idea that any more help was necessary upon that side. The appeal is sustained and the order appealed from is set aside and held to be inoperative and of no effect. 4004 In the matter of the api)cal of Jacob J. Dillenback v. Charles E. ^^'hit^ey, as school commissioner of the third school commissioner district of the county of Jefferson. A school commissioner, proceeding according to section 13, subdivision i, title 2, of the Consolidated Sclux)! Act, made an order intended to define obscure boundary lines of school districts, but which in effect set off large farms from one district to another. Held, irregular and order set aside. Decided September 15, 1S91 H. E. & G. E. Morse, attorneys for appellant Draper, Superintendent This is an appeal from an order of the school commissioner of the third com- missioner district of the county of Jeft'erson, defining the boundary lines between districts nos. i and 4 of the town of Lyme in said county. The order was made on the 31st day of December 1890, being the last day of the term of said Whitney as school commissioner. This order could not have been intended to work any alteration in the boundary line referred to. If that was intended, it would have been necessary for the school commissioner to have received the consent of the trustees of the districts affected, and in the event of their refusal to give consent, he could only have made a provisional order; but he proceeded under section 13, subdivision i, title 2 of the Consolidated School Act, which only provides for defining an obscure boundary line. Proceeding in this way he could only seek out the line as originally run and describe and define it accordingly. The papers in the case satisfy me that more than this was done. Whole farms are transferred by the operation of this order from one district to the other, and what seems even more strange, their owners had no notice of the order or its effect for six months after its date. The order of any public officer, made without notice to interested parties, and upon his own motion or at the instigation of persons whose identity is not revealed, upon the last day of his official life, is to be closely scnitinized. It should not be made at such a time, except for the strongest reasons. No reasons are manifest for this action. If the boundary line is in question, is obscure or erroneously defined upon the public records, the incoming school commissioner could reinove the difficulty as well as the outgoing one, and certainly no action of such character should be taken without the knowledge of persons who would be interested therein. JUDICIAL DECISIONS: SCHOOL DISTRICTS — ^BOUNDARIES 685 The present school commissioner has made answer in the case, although he seems to have some question as to whether the order can be sustained. Among other things he sets up the fact that the residences of men whose farms are transferred from one district to the other, are nearer the schoolhouse in the district to which they are transferred than the schoolhouse in the district with which they have heretofore been affiliated. This possibly might be a reason for the alteration of a district boundary, but it is not a reason in support of the order now appealed from, which only assumes to define an obscure boundary. In view of these considerations, I feel constrained to sustain the appeal and hold the order appealed from to be void and of no effect. 3676 In the matter of the appeal of Walter A. Ling v. school district no. 8, town of Martinsburgh, Lewis county. A school commissioner's order will not be sustained, when by the order the boundary lines of districts are changed without the consent of the trustees of the districts affected thereby. Decided April 6, i8S8 Draper, Superintendent This is an appeal from a tax list made by J. H. Van Aernam, sole trustee of school district no. 8 in the town of Martinsburgh, Lewis county. The appellant is included in such tax list. He insists that he should be taxed in district no. 8 of the town of Turin, Lewis county, and that he is wrongfully upon the list in the town of Martins- burgh. It appears that the real estate in question has been taxed for many years in district no. 8, town of Martinsburgh. The only ground for the objection of the appellant to the validity of the tax list is an order made by Leonard T. Cole, school commissioner, on the 27th day of December 1887, in which he states that after a careful examination of school district boundaries, he finds that the lands of Walter A. Ling are not within the limits of school district no. 8 of the town of Martinsburgh, but they do belong to school district no. 8 in the town of Turin. The school commissioner had no power to change the boundary lines between district no. 8 in the town of Martinsburgh, and district no. 8 in the town of Turin, by a simple order under his hand, without the consent of the trustees of the districts affected thereby. No such consent was given. The commissioner does not assume to have changed or altered such boundary lines, but only to have defined a fixed but indefinite one. The proofs submitted upon this appeal by persons who have been conversant with the circumstances for a great many years, taken in connection with the fact that the lands of the appellant have been taxed for many years in district no. 8 686 THE UNIVKRSITY OF THE STATE OF NEW YORK ill the town of Martitisburgh, seem to be at variance with the conclusion of the commissioner. I can not see my way clear to uphold such an order made just at the expira- tion of the term of office of the commissioner, the advisability of which seems to be so strongly opposed by the proofs in the case. The appeal is therefore dismissed. 3929 In the matter of the appeal of Robert Douglass v. P. H. Martin, as trustee of school district no. 13. town of Massena, county of St Lawrence. General acquiescence for a long period of years, supported by parol evidence, that certain lands formed a part of a school district. Held, sufficient to sustain the theory that the lands in question were regularly set into the district and constitute a part thereof. It must clearly appear that two adjoining farms owned by the same person, lying in two districts and occupied as one farm, to authorize them to be assessed in one body in the district in which the occupant resides. Decided December i, i8''cidcd December 18, 1907 Harry W. Cox, attorney for appellant r)anicl II. O'Brien, attorney in person Draper, Commissioner Ap])ellant petitioned School Commissioner O'Brien to make an order trans- ferring his property from union free school district no. 7, town of West Turin, to common school district no. 6, town of West Turin. On October 18, 1907, Commissioner O'Brien rendered a decision on the question and declined to make the order. The commissioner filed a written opinion in making his decision. In such opinion the commissioner states in substance that there is no material dif- ference in the distance from the home of appellant to the schoolhouse in district no. 7 and to the schoolhouse in district no. 6; that the taxes in district no. 7 are much larger than the taxes in no. 6 and that this is the real motive for petitioning for such transfer; that if the property of appellant should be transferred to no. 6 appellant's children would continue to attend school in no. 7 because of the superior school facilities of that district ; and that no good educational reason exists for making the alteration of boundaries prayed for in such petition. Appellant sets forth in his moving papers the opinion of Commissioner O'Brien in denying the order of alteration. That opinion therefore becomes a part of this proceeding. Ap|)ellant does not object in any way whatever to the grounds upon which the commissioner predicated his decision. He does not deny that he will continue to send his children to school in no. 7 even if his property should be transferred to no. 6 nor does he deny that the question of taxation is the real motive which induced him to petition for an order changing the bound- aries of these districts. He does not claim that a good educational reason exists to justify the commissioner in making the order prayed for. Ai)pellant alleges the necessary statutory conditions to make such order legal and bases his rights to such order in substance upon the allegations that his property does not join the boundary line of no. 7 except at a point, that his property is surrounded upon two sides by the territory embraced in no. 6, that no. 7 is not in compact form and that his children are required to travel through no. 6 in order to reach the schoolhouse in no. 7. The only question entitled to consideration is the one charging that the property in question is not contiguous to the boundaries of school district no. 7. Upon the record this allegation is not sustained. It appears that in 1879 the school commissioner having jurisdiction made an order transferring certain prop- erty from no. 7 to no. 6. Such order, which is made a part of this proceeding, JUDICIAL DPX'ISIONS: SCHOOL DISTRICTS — BOUNDARIES 695 shows that portions of lots no. 80, no. 72 and no. 81 were transferred to no. 6. The boundary of no. 7 would therefore be as shown upon the map submitted in the answering papers. This shows that the property in question is not joined to district no. 7 by a mere point but that there is an actual line of contact of about 14 chains. It appears that the property set oft' by tiie order of 1879 from district no. 7 was owned by one Emory Allen but the order distinctly shows that all of lot 81 was not set off. It also appears that the Allen property and that portion of lot no. 81 not included in the order of 1879 have passed into one ownership and are known as the Allen estate. This however does not change the boundary of the district. The boundary of the district is that fixed by the commissioner's order even if tlie whole of lot 81 is owned by one person and assessed in school district no. 7 as land lying in one body. It is urged by appellant that the boundaries of no. 7 and of no. 6 are irregu- lar and that such boundaries would be more regular were the commissioner to make the order prayed for. In the original establishment of a district regard should be had to symmetry and compactness of territory. In an alteration of district boundaries regard should also be had for these conditions. A school commissioner in refusing to make an order simply to correct an irregularity in boundary lines and not serving any good educational purpose will not be overruled. I must therefore hold that the question was one upon which the school com- missioner could determine in his discretion and that he acted properly, legally and wisely in the matter. The appeal herein is dismissed. SCHOOL DISTRICTS — CONSOLIDATION 5191 In the matter of the dissolution of school districts nos. 19 and 24, town of Verona, Uneida county, and the annexation of such districts to school dis- tricts nos. 1 1 and 6 of Verona. An equitable adjustment of taxation should not be the controlling influence in the con- solidation of school districts. A school commissioner, however, could very properly take that question into consideration in arriving at his decision. A school commissioner's action in consolidating weak districts will be regarded wise and sustained when such action will result in giving all parties concerned better school facilities without imposing imjust burdens or hardships upon any one. Decided July 14, ipeal from the action of the school commissioner to the Commissioner of Education for an order directing the school commissioner to make such changes in his order estab- lishing the boundaries of district no. 19 as the circumstances in the case required. If it is established that an error has been made and a portion of district no. 26 has been included in district no. 19, such error may be corrected by the commissioner issuing another order transferring from the consolidated district such portion of that district as properly belongs to district no. 26. Such error, if it has been made, would not be sufficient ground for vacating the orders in question. No other irregularity in the proceedings in question is alleged. The plead- ings show that the school commissioner complied with every requirement of the law in making these orders and that all necessary papers were properly filed. AVERAGE ATTENDANCE 8 58 7 45 ASSESSED VALUATrON $39 316 96 80 311 34 16 03 80 52 $119 628 30 83 079 . . 96 55 $202 707 30 ()98 Tin: univi:k.sitv of thk state oi- m:w york Therefore, the only rcinaiiiiiit; qucslioii to be determined in this appeal is, Will the action of the comniissioner in dissolvins^' these two districts and annexing the territory thereof to district no. 11 promote the educational interests of the people embraced within such consolidated district? The numerical and financial strength of each of these districts for the school year ending July 31, 1904, is shown by the following table: DISTRICT No. 19 No. 24 No. 1 1 District no. 19 is weak financially and numerically. None of the children residing in this district will be required to travel an unreasonable distance to attend school in the consolidated district. District no. 24 has a smaller average attendance of pupils than district no. 19. No. 24 however is strong financially having an assessed valuation of more than twice the assessed valuation of district no. 19. The children of no. 24 will not be required to travel an unreasonable distance to attend school in no. 11. It appears, however as though some of the property in no. 24 would be located so as to give more convenient school facilities if it were transferred to district no. 12, Sconondoa. This is a question which may be settled in the future in accordance with such demands as those concerned may make and as the justice of the circumstances shall require. No. 11, before the annexation of the addi- tional territory in question was strong numerically but weak financially. The above table shows that the average attendance of the pupils in no. 11 was 80.52 or five times the combined average attendance of districts no. 19 and no. 24. The assessed valuation of no. 11 however is about one third less than the com- bined valuation of nos. 19 and 24. In other words no. 11 was compelled to educate five times as many children as nos. 19 and 24 with only two thirds as much taxable properly. It also appears that many persons not taxpayers reside in district no. 11 and send their children to school in that district, but are employed by a corporation located in district no. 19 and paying taxes in no. 19. The schoolhouse in no. 11 is easily accessible from all sections of the consolidated district. The public highways are in good condition and are much traveled. The schoolhouse in no. n is located in the village of Durhamville which is the outlet or trade center of the territory embraced in this consolidated district. The schoolhouse in no. 11 appears to be in good repair and to afford suitable and sufticient accommodations for the additional pupils required to attend school therein because of this consolidation. A better school is maintained in no. 11 than has been or possibly could be maintained in either no. 19 or no. 24. The JUDICIAL decisions: school districts CONSOLIDATION 699 appellants allege that one of the objects sought by this consolidation is to reduce the taxation in no. ii. They show that the taxation in no. 19 and in no. 24 has been much less than in no. 1 1 and for this reason they claim they should be permitted to continue their districts. They insist that the school commissioner had no right to take into consideration an equitable adjustment of taxation for school purposes in consolidating these districts. In this contention the appel- lants are wrong. An equitable adjustment of taxation should not be the con- trolling influence in deciding such questions. The school commissioner, how- ever, could very properly take that matter into consideration in arriving at his decision. Taking all the facts above recited into consideration I think the action of the commissioner in creating this enlarged district was wise and will result in giving all parties concerned better school facilities without imposing unjust burdens or hardships upon any one. The rate of taxation for those who reside in no. 19 and no. 24 will be somewhat greater but not sufficient to be at all burdensome. If the taxation is somewhat greater the benefits derived will be proportionately greater. The appeal herein is dismissed. This decision must be filed with the clerk of the town of Verona, Oneida county, and notice thereof be by him given to the appellants and respondent, with opportunity to examine the same, and copy thereof filed with the clerk of school district no. ii, town of Verona, Oneida county. 4481 In the matter of the appeal of William J. Dwyer and others v. Lincoln A. Parkhurst, school commissioner, second commissioner district, Madison county. Under the provisions of section 9, title 6, as amended by section 4, chapter 264, Laws of 1896, any school commissioner may dissolve one or more districts in his school com- missioner district, and may, from such territory form a new district; he may also unite a portion of such territory to any existing adjoining district or districts. Such action may be taken without procuring the assent or dissent of the trustee or trustees of the districts to be affected, or making any preliminary order, or giving any notice of any meeting to hear objections, if in his judgment such action was for the best educational interests of such district or districts; and from such territory form a new district, and may unite a portion of such territory to any existing adjoining district or districts. Any qualified voter of any of the districts affected, conceiving himself aggrieved, or injured, by reason of said order can appeal therefrom to the State Superintendent of Public Instruction. Decided October 6, 1896 Baldwin, Kennedy & Magee, attorneys for appellants S. M. Wing, attorney for respondent Skinner, Superintendent The appellants in the above-entitled matter appeal from an order made by Lincoln A. Parkhurst, as school commissioner of the second commissioner dis- 700 THE UNIVERSITY OF THE STATE OF NEW YORK trict of Madison county, on or about June 20, 1896, and which order was to take effect on June 25, 1896, dissolving school district no. 12, town of Sullivan; nos. I and 13. town of Fenncr, and no. 4, town of Lincoln, all in the county of Madison and said second conuiiissioner district, and erecting or forming a new school district, to be known as no. i, town of Fenner, which new district was to include therein the land and territory described in said order, which order was tiled in the office of the clerk of said towns of Sullivan, Lincoln and Fenner, respectively, on said June 25, 1896. The appellants allege, in substance, as grounds of appeal : 1 That said order is irregular and void for want of jurisdiction on the part of the commissioner of the subject matter embraced in the order. 2 That no greater educational advantage is to be derived from the proposed change of said districts. 3 That the change is unnecessary and uncalled for. 4 That the children outside of the village of Perryville will be compelled to travel long distances to attend school. 5 That the parents of children will be put to much inconvenience in getting their children to the school of the new district. 6 That the schoolhouses in the districts dissolved, which are now in good condition, would be abandoned and sold at a great loss. The respondent, Parkhurst, has answered the appeal, and to such answer the appellants have filed a re])ly. The following material facts are established: That in the winter of 1895 a"^ spring of 1896 the question of dissolving said school districts nos. i and 13. Fenner; no. 12 of Sullivan, and no. 4 of Lmcoln, and forming from the territory comprising said districts one common school district, was discussed by the inhabitants of said districts, and in the latter part of March 1896, a meeting of such inhabitants was held in the school- house in district no. 13 of Fenner, for the purpose of ascertaining their senti- ments in relation to such action, and that said Commissioner Parkhurst, who was present, might know the sentiment prevailing; that at said meeting twenty- three or twenty-four of the taxpayers and voters of said district were present, and a vote was taken that the said commissioner make an order dissolving said districts and erecting from the territory of such dissolved districts a new district; that at said meeting a petition was prepared asking said commissioner to take such proceedings, and which petition, signed by the trustees of each of districts nos. I and 13 of Fenner and no. 4 of Lincoln, and a large number of the voters of all of the districts to be affected, was subsequently presented to said commis- sioner for his action; that on or about May 22, 1896, said Commissioner Park- hurst, under the provisions of sections i to 6 of title 6 of the Consolidated School Law of 1894, made his order to consolidate said districts and form them into one common school district, which order was to take eft'ect on August 29, 1896; and on or about June i, 1896, under section 4 of said title 6 of said Con- solidated School Law, gave notice that on June 13. 1896, at the Cross hotel, in JUDICIAL DECISIONS : SCHOOL DISTRICTS — CONSOLIDATION /OI the village of Perryville, he would hear objections to said order ; that on said June 13, 1896, said commissioner and a large number of i)ersons residing in said school district, met at said hotel, and said commissioner stated to those present that at the making by him of the order of May 22, 1896, he did not know of the amendment made by chapter 264 of the Laws of 1896 to section 9, title 6, of said Consolidated School Law of 1894, and that he intended to annul said order of May 22, 1896, and proceed under the provisions of said section 9 as so amended; that said commissioner vacated and annulled said order, and subsequently made his order of June 20, 1896, from which order this appeal is taken ; that the total resident population of school age residing in the four school districts dissolved by said order, as reported by the trustees of said districts, respectively, for the school year ending July 31, 1896, was as follows: district no. i,*Fenner, 8; district no. 13, Fenner, 33; district no. 12, Sullivan, 19, and district no. 4, Lincoln, 11 ; that the average daily attendance at the schools in said districts during said school year ending July 31, 1896, was as follows: district no. i, Fenner, 2^^^; district no. 13, Fenner, iS^; district no. 12, Sullivan, Hyu, and district no. 4, Lincoln, 6xV; that the aggregate assessed valuation of taxable property in said districts is as follows: district no. i, Fenner, $33,800; district no. 13, Fenner, $51,700; district no. 12, Sullivan, $83,000, and district no. 4, Lincoln, $30,950 ; that some of the territory forming said districts has been annexed by said commissioner to district no. 7, Fenner, and district nO. 6,; Lincoln; that the schoolhouses in the following- named districts dissolved by said order are out of repair, and are not reason- ably comfortable for use by the pupils attending school therein, and can not be made so without a considerable expenditure of money upon each of them, namely, no. i, Fenner; no. 12, Sullivan, and no. 4, Lincoln. It further appears that of the affiants in the affidavits presented in support of the appeal herein, ten, at least, are nonresidents of and are not voters in any of the four districts dissolved, and twenty of them have no children of their own, or any children residing with them, who attend or who are of school age. It does not clearly appear how many children who attended the school in said dissolved districts would be obliged to travel a greater distance to attend the school in the new district, nor does it clearly appear that any children will be obliged to travel a greater distance than that which a portion of the children residing in all rural school districts are required to travel. Messrs Christman and Bellenger, who were in the districts dissolved, have been set off in school district no. 7, Fenner. Section 9, title 6, of the Consolidated School Law of 1894, as amended by section 4, chapter 254, Laws of 1896, which became a law on April 15, 1896, enacts : "Any school commissioner may dissolve one or more districts, and may from such territory form a new district; he may unite a portion of such terri- tory to any existing adjoining district or districts. When two or more districts shall be consolidated into one. the new district shall succeed to all the rights of. property possessed by the annulled districts." 702 THE UXIVEKSITY OF THE STATE OF NEW YORK Under the provisions of said section 9, above quoted, on and after April 15. ii-'yO, School Commissioner Parkhurst had authority and jurisdiction, either upon or witiiout any petition asking it, and without procuring the assent or dissent of the trustee or trustees of the districts to be affected, or making any preliminary order or giving any notice of any meeting to hear objections, if in his judgment such action was for the best educational interests of such districts, to make an order, to take effect on a day to be named therein, dissolving one or more school districts situate within his commissioner district, and from such territory form a new district, and may unite a portion of such territory to any existing adjoining district or districts. Such order could be appealed from to the State Superintendent by any qualified voter of any of the districts affected by the order if such person was injured thereby, and upon such appeal said order could be reviewed. From the proofs presented herein I am of the opinion that the order appealed from was for the best educational interests of the districts affected thereby, and that the authority vested in the school commissioner to make said order, has been wisely exercised. I decide: 1 That said order appealed from is regular and valid ; that School Com- missioner Parkhurst had jurisdiction over the subject matter, and had legal authority, under section 9, title 6, of the Consolidated School Law of 1894, as amended by section 4 of chapter 264 of the Laws of 1896, to make the order, under the objections of the qualified voters of the district affected by said order, or of the trustees of said district dissenting. 2 That better educational results will be derived by the dissolution of said school districts and the formation of a new district. The appeal herein is dismissed and the said order of School Commissioner Parkhurst, dated June 20, 1896, is confirmed. 4015 In the matter of the appeal of Frank R. Fillmore from an order of Adelia H. Wilson, school commissioner of the third commissioner district of Onondaga county. A school commissioner's order consolidating school districts set aside where it is clearly shown that the order is prejudicial to a large number of families having children of school age residing therein. Decided October 17, 1891 Draper, Superintendent This is an ap])cal from an order made by the school commissioner on or about the 9th day of August 189T, consolidating school district no. 14 of the town of DeWitt, Onondaga county, with school district no. 11 of the same town. It JUDICIAL DECISIONS : SCHOOL DISTRICTS CONSOLIDATION JOT, is claimed by the appellant that many of the children of school district no. 14 who attend the school, will be compelled to travel a road which runs throui^h the center of both districts, something over three miles, and that a great hardship would be done the inhabitants of that portion of the district lying farthest east in district no. 14, where there is a large number of children of school age. It is also alleged that a very long and steep hill would render the passage of children over this road dilhcult. It is suggested that a division of district no. 14, by which the inhabitants of the eastern portion could be attached to district no. 8 of the town of Alanlius, which adjoins district no. 14 on the east, would better accommodate the children of those families. This suggestion, however, is a matter to be addressed to the school commissioner, in the first instance, and it is not necessary for me to pass upon it upon this appeal. No answer has been interposed, but I am advised by the school commissioner that there is some question about the wisdom of the order, and that she antici- pates that the same will not be sustained. It seems to me from the facts presented, that the commissioner has been mis- led by some of the inhabitants of the districts affected, into making an order which is not for the best interests of a large number of the inhabitants of the district. I conclude, therefore, to sustain the appeal and set aside the order appealed from. 3847 In the matter of the appeal of John K. Larmon v. Joseph W. Barbur, school com- missioner of the first commissioner district of Washington county. A commissioner's order consolidating school districts, which has been regularly made, will be upheld unless it is shown by a preponderance of proof to be unwise, and is opposed to the best educational interests of the territory affected. Decided December 26, 18S9 Draper, Superinicndent This is an ap])eal from an order of the school commissioner of the first com- missioner district of Washington county, consolidating school districts no. i, of Cambridge, and no. 10, of White Creek, made on the i8th day of November 1889. Objection to the consolidation is made by the appellant and a considerable number of the residents of school district no. i, of Cambridge. They allege as the reason for their objection, that the consolidation will largely increase the school taxes in their district. They say that the district now maintains a satis- factorv school and has valuable property which it will lose the benefit of if the order of the commissioner is permitted to stand. They also say that the district has a library of 2700 volumes, school apparatus valued at $500, and receives annually for the tuition of nonresident pupils about $500. It 'is not alleged that the proceedings taken by the commissioner have not been- regularly taken, and in the manner provided by statute. The board of trus- 704 THE UNIVERSITY OF THE STATE OF NEW YORK tees in each district in September last, consented to the proposed order. This beinp so. the appellant has the burden of sliowing, by clear and overwhelming proof, that the order is opposed to the best educational interests of the territory affected, llavinj; lieen regularly made, it is to be sustained unless manifestly unwise. The appellant fails to make such a showing as will justify the setting aside of the order. It aj^pears thrft the incorporated village of Cambridge is entirely within the limits of the two districts. The entire policy of the school laws is in the direction of bringing all the pul)lic school interests of each city and incorj)orated village within a single management, for it is believed that larger .schools are more thoroughly organized, more perfectly graded, and productive of better results. The fact that one of the districts afTected receives nonresident tuition fees, aggregating $500 per annum, does not materially affect the question ; nor does the other fact, if it be a fact, that the school taxes will be increased in such district. It is by no means certain that that will be the case. In any event, it is clear that both of the districts affected are strong in amount of taxable prop- erty, the district here objecting having taxable property amounting to near $300,- 000 in value. It is abundantly manifest that the consolidated district is able to erect a handsome school building and organize a graded school, and if this is done, as is likely, it will prove highly advantageous to the educational interests of the vil- lage of Cambridge. There is no claim, so far as I have observed, that any patron of the school will be seriously inconvenienced in consequence of distance from the school building. The fact that a very large number, possibly more than half of the residents of one of the districts affected, are opposed to the consolidation, has been well considered. It is a weighty fact in the case, and has not been passed by lightly ; but I am constrained to believe that, when the new arrangement shall go into operation, it will be approved by substantially the entire population of the village. It appears that before the trustees of the respective districts gave their con- sent to the consolidation, the question was submitted to a vote of the legal voters of the two districts. A meeting was held on the 27th day of August, last, and the polls were kept open from 10 o'clock in the morning until 3 in the afternoon, for the purpose of taking an expression of the opinion of the qualified voters of the two districts. At such meeting, 382 votes were cast, of which 270 were in favor of consolidation, and no were opposed thereto. This shows a very strong sentiment in the village in favor of the action appealed from. It is usual in all such cases to find some opposition to action of this character ; but the time ordinarily comes, as I am confident it will in this case, when substan- tially the entire people are convinced of the wisdom of it. It is made to appear by the school commissioner that the buildings used for school purposes in both of the districts affected, are old and without any of the modern improvements for heating and ventilating, and are ill adapted for school purposes. Indeed all of the more weighty considerations seem to support the action of the commissioner, and the time for such action seems opportune. In JUDICIAL decisions: school districts — coxsoLiDATioN yo^ any event, the appellant fails to make a case which would justify the setting aside of the order appealed from. The appeal must, therefore, be dismissed, and the stay of proceedings granted herein, on the 30th day of November 1889, is hereby revoked and annulled. 3660 In the matter of the appeal of Charles Anderson, of school district no. 6, town of Bainbridge, county of Chenango v. Willis R. Hall, school commissioner. The action of a school commissioner in consolidating two school districts which were weak and unable to sustain good schools will not be disturbed, where it is shown that by the consolidation a district has been formed of sufficient strength to maintain a good school. The order of the commissioner consolidating districts should recite the fact that the trus- tees of the districts affected had consented to the order. The consent of a district meeting is not a compliance with the statute. Decided January 21, 1888 Draper, Su[^crintendent This appeal is taken by a resident of school district no. 6, town of Bain- bridge, Chenango county, from an order made by the school commissioner of the second district of Chenango county, consolidating school district no. 6 with school district no. 8 of that town. The order was made on the i8th day of May 1887, and went into effect on the 1st day of June 1887. It is alleged by the appellants that school district no. 6 had no trustee at the time the order was made, the person who held the office having removed from the district, and that the action of the district meeting in school district no. 6 at which a vote in favor of the consolidation was secured, was poorly attended, only three voters being in attendance and that the vote was not a fair and full expression of the voters of the district. The respondent, the school commissioner, alleges that before the order was made he obtained the consent of the sole trustee of each district, that before mak- ing the order he consulted with nearly every voter in school district no. 6 and found no opposition to the proposed order. That the consolidation is for the best interests of both districts, as each was weak and unable to sustain a good school and by uniting them a district of reasonable strength was formed. He also states that the old schoolhouse in district no. 6 is worthless. The appellants do not allege sufhcient grounds upon which to sustain their appeal. The statute provides that with written consent of the trustees of all dis- tricts affected thereby, the school commissioner may alter any school district under his charge. It appears such consent was obtained. At the time it was given the trustee of school district no. 6 was a resident of his district. 'The commissioner in his order instead of reciting the consent of the trustees, stated that both districts had given an affirmative vote on the question of annexa- ^3 706 Tilt: UXIVEKSITY OF THE STATE OF NEW YORK lion. Now. so far as tlie school commissioner's action is concerned, the vote of a district meeting would not comply with the statute, and while it is not expressly required, the order should have recited the consent of the trustees of both dis- tricts to be affected. But the fact appearing that the consent of the trustees was in fact obtained. I have concluded to dismiss the appeal. The school commissioner, however, is herel'y directed to procure and attach the written consent of the trustees to the order or make an amended order reciting such consent, within thirty days from this date. 3904 In the appeal of Piernard Done! and otliers v. Ezra B. Knapp. school commis- sioner of the second commissioner district of Onondaga county. Appeal from a commissioner's order consolidating school districts, the effect of consoli- dation being to greatly inconvenience children who would become patrons of the school. A majority of the electors of one of the districts is clearly opposed to consolidation. the districts affected l)y the order each being sufficiently strong to rriaintain proper schools. Appeal sustained. Decided August 29, 1890 Draper, Superiniendcnt This is an aj)peal from an order made by the school commissioner on the 24th day of July 1890, consolidating school districts numbered 2 and 3, of the town of Tully. The order was made upon the consent of the sole trustee in each district. The prevalent opinion in district no. 3 is evidently averse to the con- solidation. It seems that a meeting of the residents of this district was held on the 9th day of June, for the purpose of getting an expression of the feeling in the district touching the matter. Upon a vote being taken at such meeting 13 declared themselves in fa\-or of the consolidation and 31 against the same. The l^rincipal reason alleged by the appellants in support of their appeal is that their children will have to go much farther to school. It is admitted on all sides that they would certainly have to go a half mile farther than at present, and that in some instances children would have to go two miles and a half to reach the school in district no. 2. Both districts are reasonably strong both in the number of residents and in the value of property. No. 2 is much the stronger. The number of children attending school in this district last year was 122, and the assessable valuation was S342.500. The number of pupils registered in no. 3 last year was 29. and the assessal)le valuation $78,900. Thus at present, no. 2 stands in no need of the annexation of no. 3, and it seems to me that no. 3 is sitfFiciently strong to main- tain proper school accommodations. This being so, I think it follows that the question upon the desire of the majority of the residents of district no. 3, so far as there has been any expression of the desire of such majority, has been opposed to the consolidation or annexation. It seems to me advisable, therefore, that the order of the commissioner should not be upheld. JUDICIAL DECISIONS : SCHOOL DISTRICTS CONSOLIDATION JOJ I observe in the papers some statements to the effect that the schoolhouse hi district no. 3 is not in a suitable state of repair. While the result of my deliberation upon the matter will be to continue district no. 3 as at present con- stituted, it must be borne in mind by the residents of such district, that in case they fail to maintain a schoolhouse in suitable condition for a public school, and to maintain a school which will meet the needs of all the residents of the district, an order such as that to which they now so strenuously object, will of necessity be made sooner or later. The appeal is sustained. 5351 In the matter of the appeal of Melvin H. Pendleton from an order dissolvinsr school district no. 2. Scio, and annexing the territory thereof to school dis- trict no. I and district no. 3, Scio. When it appears that the action of a school commissioner in consolidating two districts promotes the educational interests of all parties concerned without placing improper burdens upon the residents of either district and without the operation of a hardship upon any of the residents of either district, his action should be sustained. Decided September 30, 1907 Draper, Commissioner On April 15, 1907, John D. Jones, school commissioner of the second school commissioner district of Allegany county, made an order dissolving school district no. 2, town of Scio, and annexed portions thereof to school districts no. I, Scio, and no. 2, Scio. A short time previous to the date on which these orders were made the school commissioner gave an informal hearing to a committee representing school district no. 2. It appears that all phases of this question were discussed at this hearing and the school commissioner planned to rearrange the territory of district no. 2 to meet the wishes of the residents of that district so far as possible. It appears that the general understanding at the termination of the hearing was that the school commissioner would soon make the orders. Such orders were made April 15th and the fact that they were made on that date must have been generally understood. This appeal however was not instituted until July 3d or nearly three months after the orders were made. The appeal should have been instituted within thirty days after such orders were made. This long delay in bringing the appeal is sufficient ground to warrant me in dismissing this proceeding. The greater portion of district no. 2 was annexed to district no. i. District no. I embraces the hamlet of Scio. The schoolhouse in this district is a new modern building recently erected at an expense of $12,000. It is located in the northwest corner of the district and the schoolhouse in district no. 2 is located in the northeast corner of that district. The dividing line between these districts is the Genesee river. The school buildings of these districts were located on 708 THE UXIVERSITV OF THE STATE OF NEW YORK opposite sides of the river and only about 200 rods apart. District no. 2 employed but one teacher. District no. i employs four teachers and maintains a graded school. The consolidation of these two districts will materially strengthen the educational facilities of this community. The social and business interests of the residents of district no. 2 center in no. i. Nearly all the children of district no. 2 are within a very reasonable distance of the schoolhouse in district no. i. It appears that only two families are about two miles from such schoolhouse. Good roads are maintained and are always open. None of the children will be required to travel more than 200 rods farther than they were required to travel to attend school in district no. 2. Appellants object to being taxed to pay the bonded indebtedness of district no. I incurred for the erection of the new building because they had no voice in authorizing the erection of such building. The residents of district no. i liqui- dated one sixth of the expenses of erecting this schoolhouse before district no. 2 was annexed thereto. The residents of former district no. 2 will have equal rights and privileges in and to this building. It is entirely just they should contribute their proportionate share towards its erection. It appears from these pleadings that the school commissioner has promoted the educational interests of all con- cerned by the action taken and he should be sustained. The appeal is herein dismissed. SCHOOL DISTRICTS — DISSOLUTION 5181 In the matter of the appeal of Ira R. Jones, sole trustee of school district no. il, town of Erin ; of David C. Jayne, sole trustee of school district no. 2, town of Erin; of Howard L. Burleau, sole trustee of school district no. 5, town of Erin; of Baldwin E. Snell, sole trustee of school district no. 7, town of Erin ; of Herbert Staples, sole trustee of school district no. 12, town of Erin ; of Erwin Hollenbeck, sole trustee of school district no. 13, town of Erin, and of Jacob Arthur Chase, sole trustee of school district no. 15, town of \'eteran, from the action of George Turner Miller, school commissioner of the sole school commissioner district of Chemung county in making certain orders abolishing said school districts, establishing new school districts and thereby altering the boundaries of other school districts. The original part of a section of law restated in an amendatory act speaks from the date of its original enactment and not from the date of the amended act. Under section 9 of title 6 of the Consolidated School Law a school commissioner may dissolve a school district without the consent of the trustees of the districts affected. There is some question as to the right of a school commissioner under such section to alter the boundaries of a union free school district without the consent of the trustees of such district. The arrangement of school districts must be such as will serve educational ends and best meet the convenience of the patrons of the schools. In the arrangement of school dis- tricts the wishes of the inhabitants are entitled to careful consideration from the school commissioner. Distances of two, three, and three and one-half miles are too great for small children or delicate children to travel each day over rough roads either by walking or riding to attend school. A school district though weak in numbers and in property value should not be dissolved unless the children residing in such district and required to attend school are placed within a reasonable distance of a schoolhouse. A school commissioner is not justified in disturbing the educational work of a whole town- ship by wholesale dissolution of school districts and rearrangement of school privileges without even consulting the inhabitants thereof, unless a substantial, even an over- whelming, educational reason exists for taking such action. Decided March 22, 1905 Richard H. Thurston, attorney for appellants George Turner Miller, attorney for respondent Draper, Commissioner During the latter part of July and the early part of August 1904. the respond- ent., school commissioner of Chemung county, made orders abolishing six school districts in the town of Erin and one school district in the town of \'eteran. Out of the territory comprising these seven school districts, two new districts were [709] 710 THE UNIVI^RSITY OF THE STATE OF NEW YORK erected and the remainder of such territory was annexed to adjoining districts. The principal portion of such remaining territory was annexed to the school district including the village of Horseheads and to the school district including the village of Hreesport. In abolishing these districts, in forming the two new districts, and in making the other alterations in district boundaries the school commissioner issued twenty-four orders. This appeal is brought to vacate all of these orders and to restore all the districts affected by such orders to their status previous to the issuance of said orders. The school commissioner made all of the orders in question under the pro- visions of section 9. title 6 of the Consolidated School Law. The consent in writing was not obtained from the trustees of any of the districts affected. School district no. i of the town of Horseheads is a union free school district wliose boundaries do not coincide with the boundaries of an incorporated village. Many of these orders alter the boundaries of that district. It is claimed by the appellants that section 9 of title 6 does not apply to union free school districts and that all orders made under the provisions of that section and which afifect union free school district no. i, Horseheads, are defective. It is argued by counsel for appellants that in making these orders the school commissioner was executing a general plan which had been deliberately formulated and that the issuance of all of these orders was essential to the consummation of that plan. It appears that seven of the orders relate to union free school district no. i, Horseheads, and that these orders are so interrelated to other orders as to afifect six other school districts. It is argued that if the orders afifecting district no. i, Horseheads, are defective as to that district, they are defective as to the other SIX districts which they afifect and that all correlative orders are also defective. In other words, counsel for appellants claims that these twenty-four orders are so interdependent that if one is defective they are all defective. It does appear that there is such a mutual relation between the several orders afifecting district no. I, Horseheads, and those affecting the other six districts that if the former orders are defective the latter must be defective also. Previous to the passage of chapter 264, Laws of 1896, the statute conferring authority to alter a common school district was sections 2, 3 and 4 of title 6 of the Consolidated School Law. This law provided two methods of altering a common school district — one with the written consent of the trustees of the dis- tricts afrected and one without such consent. It should be understood, however, that the term alteration as used in section 2 of title 6 has always been held to mean the transfer of real property from one district to an adjoining district. Previous to the passage of chapter 264 of the Laws of 1896 section 30 of title 8 of the Consolidated School Law provided for the alteration of union free school districts whose boundaries do not coincide with those of an incorporated village. Section 30 simply provided that a school commissioner might alter union free school districts in the manner provided in title 6. In other words, previous to the passage of chapter 264 of the Laws of 1896 the methods of altering a common school district and a union free school district were identical and the consent JUDICIAL DECISIONS :. SCHOOL DISTRICTS — DISSOLUTION 7II or refusal to consent of the trustees of the districts aflfected was the first step in a proceeding of alteration of district boundaries. There is a distinction between the alteration of a district and the dissolution of a district. Thus far we have considered the law relating to the alteration of districts up to i8')6 and up to that time the consent of the trustees of the districts affected . was an essential point. Section 6 of title 6 provides for the dissolution of common school districts and of union free school districts, but in each proceeding the consent of the trustee is required. As stated before, the orders in question were issued without the consent o;' the trustees of any of the districts afifected. As a school commissioner had not authority to make such orders previous to the enactment of chapter 264 of the Laws of 1896, the question to determine is, What power did the enactment of such law confer on school commissioners in the dissolution and alteration of school districts? Chapter 264 of the Laws of 1896 amended section 9 of title 6 of the Consolidated School Law by incorporating these words in that section: "Any school commissioner may dissolve one or more districts and may from such territory form a new district; he may also unite a portion of such territory to any existing adjoining district or districts." If this amended section applies to union free school districts, the school commissioner possessed legal authority to issue all of the orders in controversy. If it does not apply to union free school districts he did not possess such authority. Counsel for appellants contends that section 9 of title 6 does not apply to union free school districts. His argument is that section 30 of title 8 of the Consolidated School Law provides that union free school districts may be altered as title 6 provides that common school districts may be altered. This provision of section 30 was enacted in 1894 and it is claimed that the provisions of article 6 enacted at that time are the only provisions which apply to union free school districts. Amendments to title 6 enacted by the Legislature since 1894 do not apply to union free school districts unless it is expressly stated in such amend- ments that they shall apply to such districts. Section 30 originally provided that no union free school district having an outstanding bonded indebtedness should be divided or altered. This section was amended in 1899 by omitting from the section the words " or altered." In order to make this amendment the whole of section 30 was restated. Restating such section for the purpose of making an amendment thereto does not give to such section the effect of an original enact- ment. All of the original part of such section restated in the amendatory act speaks from the date of its enactment in 1894 and not from the date of amend- ment in 1899. As section 9 of title 6 was not in existence in 1894 and was not enacted until 1896, its provisions do not apply to union free school districts. This theory is supported by Cooley in his work on Constitutional Limitations (see p. 76, 6th ed.) and by the Court of Appeals of this State in Ely v. Holton, 15 n! V. 156; Moore v. Mansert, 49 N. Y. 332; Matter of Estate of Prime, 136 X. Y. 347; and Allison v. Welde. 172 N. Y. 421. 712 THE UN'IVEKSITY OF THE STATE OF NEW YORK This Department has repeatedly held that section 9. title 6 as amended by chapter 264, Laws of 1896, confers on school commissioners absolute power to dissolve a school district without the consent of the trustees. It has also held that when a commissioner has dissolved a district under this section he may annex the territory of such dissolved district to any adjoining district — either common school districts or union free school districts — without the consent of the trustees of the districts affected. This decision has been made on the theory that the annexation of territory from a dissolved district is not an altera- tion of a district under the provisions of sections 2, 3 and 4 of title 6 of the Con- solidated School Law. In view of the fact that no other provision is made for the alteration of union free school districts and also in view of the decisions of the Court of Appeals above cited there appears to be some question as to the soundness of such decision in relation to the annexation of such territory to a union free school district without the consent of the trustees of such districts. The action of the school commissioner in abolishing these seven school dis- tricts was taken without any consultation with the inhabitants thereof or without their knowledge even that such action would be taken. There was no demand, not even a request, from the residents of these districts for such action. On the other hand, these people were opposed to the dissolution of their districts. Xot a single oftker or resident of any of these seven districts has joined the respondent in his answer to these appeals. Nor does the school commissioner claini that the people desired the changes which he made. In most districts school meetings were held and the trustees authorized to employ counsel and appeal from the action of the commissioner to this Department. There appears to be no division of sentiment among the people of these districts. There does appear to be a unanimous sentiment in resisting this action of the school commis- sioner which seems arbitrary in the extreme. The people residing in these dis- tricts were entitled to a hearing at least at the hands of their commissioner before such wholesale rearrangement of school privileges was put into effect. Their wishes in this matter were also entitled to careful consideration from the school commissioner. The arrangement of school districts must be such as will serve educational ends and best meet the convenience of the patrons of the schools. 1 he territory embraced in these seven districts is located in a farming region. Many of the residents of these districts do not live on the main public roads. Many of the highways in these districts are rough and difficult to travel especially in the winter. In this section of the state it is not possible for children of tender age to travel long distances to attend school. These are conditions which the school commissioner should have taken into consideration in determining on the alteration or dissolution of such districts and the formation of new districts. These districts, however, appear to have been absolutely ignored by the commis- sioner in making the orders in question. Before the commissioner dissolved these districts nearly all the children therein resided within one and one-half miles of a schoolhouse. The salaries paid the teachers in these districts during the school year were as large as the salaries JUDICIAL decisions: school districts DISSOLUTION 713 paid in many districts having a larger assessed valuation. Part of these districts have recently made extensive repairs on their buildings so that such buildings conform to modern ideas of health and comfort. The people of these districts appear, therefore, to have willingly given proper support to their schools, to have maintained good schools, to have been interested in their schools, and to have been contented with their school privileges which appear to have been as good as those of the surrounding country. If the buildings of part of these districts were poor and in need of repairs as alleged by the commissioner, he was not justi- fied on that condition alone in dissolving these districts. He possessed ample power under the law to compel them to repair their buildings or to erect new ones. As these districts stand, under the orders of the commissioner, there are children in all of them who must travel two miles, three miles, and three and one-half miles in order to attend school. The distance from one section of one of the districts to the schoolhouse of such district is five miles. These distances are too far for small children or delicate children to travel each day over rough roads, either by walking or riding to attend school. The respondent alleges that these districts were weak and that the policy of the State has been to dissolve weak districts. He claims that the State recognized these districts as weak since the apportionment of district quotas is based on the assessed valuation of districts. He justifies his action in dissolving these districts on the ground that their assessed valuation is less than $40,000. His position on this point is neither right nor sound. If the State regarded districts having an assessed valuation of $40,000 or less as too weak to maintain schools and its policy is to dissolve such districts, why did the State raise the district quota to S 150 for all districts having an assessed valuation of $40,000 or less? What was the object of the State in making the quotas for such districts larger than it made the quotas for districts having an assessed valuation of more than $40,000? Was not this discrimination for the purpose of encouraging and fostering the weak districts instead of abolishing them? These districts were not strong districts but they maintained their schools without complaint. The most of these districts were sufficiently strong financially and numerically to do this. The majority of these districts had a registration of 14 to 19 pupils with an assessed valuation of $22,395 to $32,400. The controlling motive which guided the respondent in this matter does not appear to have been the benefits to be conferred upon the inhabitants of these seven districts by such changes in school district boundaries, but it does appear to have been his desire to strengthen the districts in which the villages of Brees- port and Horseheads are located. The commissioner acknowledges that these districts have a high tax rate, that such tax rates are burdensome, and that his desire to decrease such tax rates and especially the tax in the Breesport school district was one of the reasons which induced him to make these orders. He alhges other reasons but this appears to have been the controlling one. He had no moral or legal right to abolish seven districts and subject the inhabitants / 714 THE UNIVERSITY OF THE STATE OF NEW YORK tliereof to the inconvenience and hardships which must follow therefrom in order to reduce the tax rate of another district. A school commissioner is justified in dissolving a school district when such district is too weak numerically and financially to maintain a school and when the inhabitants of such district may be given better school facilities in adjoining dis- tricts. A school district though weak in numbers and in property value, should not be dissolved unless the children residing in such district and required to attend school are placed within a reasonable distance of a schoolhouse. A school is not to be absolutely condemned because it may be small in numbers. A small school is not necessarily or naturally a poor school. It is quite probable that some alterations of district boundaries could have been made in these districts to good advantage and possibly some of these dis- tricts could have been wisely abolished. However, a school commissioner is not justified in disturbing the educational work of a whole township by wholesale dissolution of school districts and rearrangement of school privileges without even consulting the inhabitants thereof, unless a substantial, even an overwhelm- ing educational reason exists for taking such action. Such reason does not exist in this case. The appellants are entitled to a restoration of their school districts. The appeals herein are sustained. It is ordered, That the orders of George Turner Miller, school commissioner of the sole school commissioner district of Chemung county, and each of them, made on July 28, 1904, in dissolving school district no. i, town of Erin, on August 12, 1904, in dissolving school district no. 2, town of Erin, on August 9, 1904, in dissolving school district no. 5, town of Erin, on August i, 1904, in dissolving school district no. ii, town of Erin, but describing no. 5, town of Erin, on August 2, 1904, in dissolving school district no. 7, town of Erin, on Augiist i, 1904, in dissolving school district no. 12, town of Erin, on August 10, 1904, in dissolving school district no. 13, town of Erin, and on August i, 1904, in dissolving school district no. 15, town of Veteran, be, and each of them is hereby vacated. It is also ordered. That an order made by the said George Turner Miller, school commissioner of the sole school commissioner district of Chemung county, on August 2, 1904, forming a school district designated no. 2, Erin, in the title and no. I, Erin, in the body of said order, be, and it is, hereby vacated ; and That an order made by the said George Turner Miller, school commissioner of the sole commissioner district of Chemung county on the 2d day of August 1904, in forming a new school district designated school district no. i, Erin, be, and it is hereby vacated. It is further ordered. That each and every order made by George Turner Miller, school commissioner of the sole school commissioner district of Chemung county, between July i, 1904 and September i, 1904, in altering the boundaries of school districts no. i, Horseheads, no. 3, Erin, no. i, Baldwin, and no. 16, Veteran, be, and each of them is, hereby vacated. JUDICIAL decisions: school districts — DISSOLUTION 715 5328 In the matter of the appeal of Martin W. Knight, sole trustee of school district no. 14, town of Hancock, from an order made by Frank L. Ostrander, school commissioner of the first commissioner district of Delaware county, con- firming an order made by him dissolving school district no. 14, town of Hancock, and annexing the territory of such district to union free school district no. 20, town of Hancock. To justify the dissolution of a school district possessing a sufficient number of children and the financial resources to maintain a satisfactory school when the residents of such district are unanimously opposed to such action, some overwhelming educational neces- sity should be shown to exist. Decided August 27, 1907 Wagner & Fisher, attorneys for appellant Freeman L. Taylor, attorney for respondent Draper, Commissioner On January 17, 1907, Frank L. Ostrander, school commissioner of the first school commissioner district of Delaware county, made an order dissolving school district no. 14, town of Hancock, Delaware county, and annexing the territory thereof to union free school district no. 20, town of Hancock. The order was made under sections three and four of title 6 of the Consolidated School Law. The order recited that the trustees of district no. 14 had not consented. The school commissioner fixed a date as required by section 4 when he would hear objections to such order. At the hearing before the school commissioner and in this proceeding the respondent raised the question of the jurisdiction of the school commissioner to make the order in question under sections 3 and 4 and also raised several questions of regularity of procedure. It is unnecessary to consider any of these technical questions. This case should be determined upon the question whether or not the school commissioner was justified under all the circumstances in dissolving no. 14 and annexing its territory to district no. 20. Union free school district no. 20 includes the greater portion of the .village of Hancock. This district maintains a graded school including an academic depart- ment and employs ten teachers. It has an assessed valuation of nearly $350,000. For ten years district no. 14 has contracted for the education of its children with district no. 20 instead of maintaining a home school. During the past school year it paid district no. 20 $600 for instructing its children. It has been cheaper for district no. 14 to operate under the contract system at this tuition than to maintain a home school. The cost per capita of maintaining the school in no. 20 is greater than the tuition per pupil which no. 14 has paid under the contract between these districts. The feeling on the part of district no. 20 aj^pears to be that if the children of no. 14 are to enjoy school privileges afforded by no. 20 the property of no. 14 sho^ild pay its proportionate share of the expense of maintaining such school 7^(> THE UNIVER?TTV OF TUE STATE OF NEW YORK privileges. This feeling has resulted in the agitation of tlie annexation of district no. 14 to district no. 20. District no. 14 has an assessed valuation of about $90,000 and 42 children of school age. ]t has sufficient assessable property and sufficient children to main- tain a school. A portion of this district is also within the limits of the village of Hancock. A bninch of the Delaware river separates the two districts. It appears that the schoolhouse in no. 14 is unfit for use. The district has preferred to con- tract with no. 20 instead of maintaining a home school because it has been cheaper and because the district has thereby avoided the expense of building a new schoolhouse. It appears therefore that the principal question involved is one of taxation or expense. However the residents of no. 14 appear to be unanimous in opposing the dissolution of their district and annexing it to no. 20. A petition signed by every voter of the district, protesting against the order of the school commissioner is included in the moving papers. I have repeatedly refused to sustain an order of a school commissioner dissolving a district possessing a suffi- cient number of children and the financial resources to maintain a satisfactory school when the residents of such district are unanimously opposed to such action. To justify the dissolution of a district under such circumstances some overwhelming educational necessity should be shown to exist. It is not shown to exist in this case. The annexation of district no. 14 to no. 20 is not essential to the educational needs of no. 20. No. 20 will be able to maintain just as good a school without the annexation of no. 14 as it would if such territory should be annexed. Appellant sets forth in his pleadings that district no. 14 is willing to erect and equip a new schoolhouse at a cost of $8000 and to employ two teachers. Respondent claims that this proposition is not made in good faith, that the annual meeting of this district in 1906 voted down a proposition to erect a new school- house and that the district is not willing to vote a proper tax for the erection of a new building. The school commissioner has full authority over this question. The schoolhouse is conceded to be unfit for use and not worth repairing. The school commissioner may therefore make an order condemning the schoolhouse and he may even name in such order the amount necessary to expend in the erec- tion of a new building suitable to the needs of such district. The appeal herein is sustained. It is ordered. That the preliminary order made by Frank L. Ostrander, school commissioner of the first commissioner district of Delaware county, on the 17th day of January 1907, in dissolving school district No. 14, town of Hancock, and in annexing the territory thereof to school district no. 20, town of Hancock, and the order made by the said Frank L. Ostrander, school commissioner of the first commissioner district of Delaware county, on the 24th day of April 1907. in confirming said preliminary order be, and each of said orders is, hereby vacated. JUDICIAL decisions: school districts — DISSOLUTION 717 5399 In the matter of the dissolution of school district no. 2, town of Schroon, county of Essex. Dissolution and annexation of school districts; opposition of electors of dissolved district, A school commissioner dissolved a district adjoining a union free school district and annexed the territory thereof to such union free school district. The action was taken by the school commissioner under section 9 of title 6 of the Consoli- dated School Law [Education Law § 27] which did not require the consent of the trustee of the dissolved district. Nearly all the qualified electors of such district were opposed to the dissolution. The union free school district had just built a new school- house and the district was bonded for $6000. The dissolved district was strong enough numerically and financially to maintain a good common school. It was held that where the practically unanimous opposition of the electors of a dissolved district is presented, together with the extension of an existing bonded indebtedness of one district over the territory of the district dissolved, the order of dissolution will be set aside unless it is apparent that the educational advantages of the new district are overwhelmingly superior to those afforded by the district dissolved. Decided December 29, 1908 Draper, Couiniissioner This is an appeal by Darius B. Squires, Leroy B. Crane and Henry Bohr- man, taxpayers in school district no. 2, in the town of Schroon, Essex county, from an order made by. Freeman C. Pond, school commissioner of the second commissioner district of Essex county, dissolving school district no. 2 of the town of Schroon and annexing a part thereof to school district no. i in such town and another part to school district no. 8 of said town. The order of dis- solution was made by the commissioner by virtue of the authority vested in him under section 9 of title 6 of the Consolidated School Law. The appellants are residents and taxpayers of that part of district no. 2 which is annexed to district no. i. District no. i is a union free school district having a school of fou? departments. The order dissolving such district no. 2 and altering the boundaries of districts nos. i and 8 of such town of Schroon was duly signed by said Freeman C. Pond on June 30, 1908, and filed in the office of the town clerk of the town of Schroon July 10, 1908. The form of this order is not attacked by the appellants. On the hearing before me the attorney for the appellants did not insist upon the objections raised in the petition to the sufficiency and regularity of the proceedings instituted by the school commissioner, and to the validity of the order entered in such proceedings. It only remains to be determined whether or not the commissioner was justified in dissolving district no. 2, and annexing the territory embraced therein to districts nos. i and 8. District no. i comprises the unincorporated village of Schroon Lake with a permanent population of about 450. The business and social interests of the communitv are centralized in this village. The principal roads leadmg to and from it are maintained in a passable condition at all times ot the year. The / ~l8 THE UNIVERSITY OF THE STATE OF NEW YORK assessed valuation of the real and personal property in this district is about $102,000, with a tax rate of $2.20 on the hundred. Prior to the making of the order dissolving district no. 2, and annexing a part thereof to district no. i, a new school building had been erected in the latter district, at a cost of about $6000, for the payment of which bonds were issued payable in 12 equal annual instalments. One of these instalments has already been paid. The new school building was erected quite near the boun- dary line between districts nos. i and 2 apparently for the better accommodation of the inhabitants of the latter district should the consolidation of the two dis- tricts be effected. District no. 2 has an assessed valuation according to the trustee's report for 1908, of $40,294, over half of which is assessed to nonresidents owning summer homes, cottages, hotels and boarding houses on or near the shore of Schroon lake. It would appear from the petition that nearly or quite all the qualified electors and taxpayers of district no. 2 are opposed to the consoli- dation. Forty-eight (48) of them, paying taxes on about 80 per cent of the entire assessed valuation of the district, signed a protest against it. Sixteen of these are nonresidents, owning summer cottages and homes within the district. These nonresidents own property in the district having an assessed valuation of $^2,350. The bonded indebtedness of district no. i was voted by the qualified electors thereof for the erection of a new school building without any special effort to ascertain whether the electors of district no. 2 would agree to join with them in sharing this burden. It seems to have been assumed that the consent of district no. 2 was immaterial. The order of dissolution and consolidation was subsequently issued. As a result the taxpayers in district no. 2 are made to assume an indebtedness without their consent. The school commissioner states that a number of taxpayers and residents in district no. 2 expressed their will- ingness to be taken into the new district. But there was no effectual effort made to secure an expression of the will of all the qualified electors and taxpayers of district no. 2 either by the commissioner prior to the execution of his order or by the trustees of district no. I prior to the location and erection of the new schoolhouse in that district. Two ver}- weighty objections against the validity of this order are thus pre.sented: (i) The practically unanimous opposition of the qualified electors and taxpayers, and (2 ) the extension of an existing bonded indebtedness of one district over another district without the consent of the latter. To overcome either of these objections it must clearly appear that the educational interests of district no. 2 are greatly advanced by the consolidation. Where both objec- tions exist a merely comparative superiority of subsequent school facilities over those existing prior to the consolidation, would be insufficient. Such superiority must be overwhelming — so insuperably great as to make it the absolute duty of the school commissioner in the promotion of the educational advantages of the JUDICIAL decisions: school districts DISSOLUTION /IQ district affected, to make the order of consolidation. It may be assumed that the school in district no. i will afford better educational facilities than that in district no. 2. District no. i has a new building with modern furniture and apparatus; the school is graded and taui^ht by four competent teachers. The school in district no. 2 is ungraded, with one teacher having an elementary license: nothing but elementary subjects are taught therein. The residents and taxpayers say they are willing to maintain a good common school and it is evi- dent that the financial resources of the district are sufficient for the purpose. I have held that where a district is sufficiently strong to maintain a good common school and the residents and taxpayers thereof are willing to contribute to its support, such district should not be dissolved and consolidated with another district against the wishes of a majority of such residents and taxpayers. (Appeal of Donel, no. 3904, August 1890; Appeal of Olenhouse, no. 4012, October 1891.) In the case at hand the children of the district will be required to travel increased distances to reach the schoolhouse in district no. i. These distances are not very considerable, and, but for the almost unanimous objection to consolidation on the part of the residents and taxpayers of the district, would not be material. In a case somewhat like this, decided by me as Superintendent of Public Instruction in 1891, I set aside a school commissioner's order, dissolv- ing a district, upon evidence that a respectable portion of the patrons of the scliool demands a continuance of the school facilities which had been afforded them by the dissolved district. (Appeal of Gulick, no. 4018, November 1891.) The fact that a district is relatively weak and that the school in the district to which it is to be annexed is larger and more liberally equipped, is not of itself sufficient to justify its dissolution when the evidence tends to show that nearly all of the patrons of the school object to such dissolution. This principle has been laid down by me in the case of the appeal of Fogarty (no. 3930, December 1890). Many other decisions of this Department might be cited supporting the proposition that dissolution is only favored where the district affected is weak either numerically or financially, and where the educational interests of the district would thus be greatly advanced. Where there is neither pronounced weakness nor any desire for dissolution and annexation on the part of the Deople of the district, the commissioner should not take such action unless the educational necessities of the district demand it. It can not be said that district no. 2 is weak in any sense. It has sufficient taxable property to properly main- tain a good common school. The people of the district are willing to be taxed for this purpose. The apparently almost unanimous desire of the residents and taxpayers of district no. 2 to continue their school in that district and their emphatic protest against the added burden of the bonded indebtedness of district no. i, incurred without their consent and without reference to their wishes, leads me to doubt the advisability of dissolving district no. 2 and annexing any portion of it to district no. i. The educational advantages derived from the consolidation are / 720 THE U.NIVEKSITV OF THE STATE OF NEW YORK not sufficiently great to justify the issuance of the order and I can not there- fore sustain it. I come to this conclusion reluctantly for I am sure that the school com- missioner issued the order complained of in entire good faith, believing that the educationaJ interests of the community affected would be materially advanced thereby. He claims that he was influenced in his action by the suggestions of members of the Department staflf. If this is to be mentioned it should also be said that the Law Division advised him that consolidation might be justified if provision were first made for tlie payment of the cost of the erection of the new building in district no. i by appropriation. However this may have been, I can not allow my decision of this appeal to be so controlled. The Commis- sioner of Education acts judicially in the determination of appeals brought to him under the law and his decisions should not be affected by the acts and state- ments of his subordinates. Owing to a misapprehension of the efifect of the order appealed from, the residents of district no. 2 have maintained a school during the pendency of this appeal. No stay was asked for or granted. The commissioner's order took effect from its entry, and from that date district no. 2 was dissolved and ceased to exist. The school maintained in that district subsequent to the date of the entr}' of the order was not legally a public school ; but owing to the peculiar circumstances of this case I have deemed it advisable to legalize the action of the district in respect to such school. The appeal herein is sustained. It is hereby ordered, That the order of Freeman C. Pond, school commis- sioner of the second commissioner district of Essex county, dissolving district no. 2. town of Schroon, Essex county, and annexing portions thereof to districts nos. i and 8 of such town, filed in the town clerk's office of such town on July 10, 1908, shall be and the same is, hereby set aside and declared of no effect. It is hereby further ordered. That all the actions and proceedings taken by district no. 2, and any of its officers, pertaining to the maintenance of a school in such district, from the date of the filing of such order, are hereby legalized, ratified and confirmed and declared to be of the same force and eft'ect as though such order had not been made. 5278 In the matter of the appeal of Arthur E. Duell as trustee of school district no. 7, town of Truxton, from the action of Ernest W. Childs, school com- missioner of the second commissioner district of Cortland county, in mak- ing certain orders dissolving said school district no. 7, Truxton, and annex- ing the territory thereof to adjoining districts. The dissolution of a school district and its annexation to another district is not justified by the fact that the older children in the advanced or academic grades would have the JUDICIAL decisions: school districts — DISSOLUTION Jli advantage of a course of study maintained for pupils of such grade. It is quite as necessary to provide adequate facilities for the younger children of the district as the older. A district having sufficient property and children to maintain an ideal country school should not be dissolved when such action is opposed by a majority of the residents of the district. Decided September 29, 1906 Davis & Lusk, attorneys for appellant William D. Tuttle, attorney for respondent Draper, Connnissioncr On j\Iay 21, 1906, School Commissioner Childs made an order dissolving school district no. 7, Truxton, and annexing all its territory to union free school district no. 6, Truxton. An appeal from the action of the commissioner in making such order was filed at this Department on June 29, 1906. On July 27, 1906, the school commissioner made an amended order which was in effect the same as the original order except that a small portion of the territory formerly comprising school district no. 7 was annexed to adjoining common school dis- trict no. 10, Truxton. An appeal from this order was tiled with the Commis- sioner of Education on August 27, 1906. The same questions are involved in both appeals and we will therefore combine the two proceedings and dispose of them in one decision. The school commissioner made these orders under the authority of section 9, title 6 of the Consolidated School Law. The jurisdiction of the commissioner to make said orders under such section of the law is challenged by appellant. Other technical questions of procedure are also raised by appellant. I do not deem it desirable to determine this appeal upon the questions of law which are raised. The questions raised in this appeal are such that it seems advisable to decide them upon the reasons which actuated the school commissioner for taking such action instead of his technical method of procedure. It appears that the schoolhouse in district no. 7 was in a dilapidated con- dition and not worth repairing. A special meeting of the district was held Alarch 6, 1906, to consider the question of erecting a new building. Commis- sioner Childs attended this meeting and advised the voters what the provisions of the school law were in relation to the erection of new buildings. A ballot was taken at that meeting on the propostion to erect a new schoolhouse and such proposition was carried by a vote of 25 to 16. It does not appear that the commissioner suggested at this meeting that it was advisable to dissolve the district. Between the date of this special meeting and the making of his first order on May 21, 1906, Commissioner Childs received a petition signed by 14 residents of the district requesting the dissolution of such district and the annexation of its territory, or such part as may be deemed advisable, to union fr^e school district no. 6, Truxton. The reason assigned in this petition for praying for such action is that the conditions which require a new schoolhouse / •J22 THE UXIVKRSITV OF THE STATK OF NEW YORK and improved grounds lead petitioners to believe that the " educational anci pecuniary " advantages of the inhabitants of the district require it. The school commissioner in making his order predicated it upon the petition. The question to be determined in this proceeding therefore is whether or not the action taken by Commissioner Childs in dissolving district no. 7. Truxton, was wise and will afford better educational facilities to the inhabitants of that district. The parties to this proceeding practically agree upon the essential facts involved in this controversy. District no. 7 had an assessed valuation of $72,374. There were at least forty-three children between the ages of 5 and 18 years residing in said district and of these twenty-nine attended school in such district during the past school year and the average attendance at such school was 19.24. It is also alleged by appellant and not denied by respondent that several of the children residing in school district no. 7 attended school else- where during the past year because their parents were opposed to the teacher employed in district no. 7. In district no. 7 all children resided within a walking distance of the schoolhouse and it appears that all of them were within one and one-half miles of the schoolhouse and a large majority within one mile. The distance which a large number of the children would be required to travel to attend school in district no. 6 is two and one-half and even three miles. These long distances for young children may render regular attendance upon school almost prohibitive. These children would also be required to travel over rough roads which drift in the winter. These facts show that district no. 7 was a strong rural district containing a sufficient number of children who regularly attended school and a sufficient amount of taxable property to maintain a good school without imposing undue burdens upon the taxpayers of the district. In fact, with a new schoolhouse which the voters have already authorized, this district may well be an ideal country district. The great majority of the residents of this district are opposed to its dis- solution and willing to make any expenditure necessary to maintain a satisfac- tory school. A petition protesting against its dissolution signed by thirty-one of the residents of the district has been filed at this Department. These petitioners represent a minority of the taxable property of the district but they represent thirty-five children of school age. It appears that nineteen children residing in district no. 7 attended school during the past year in district no. 6 and this is urged by respondent as a strong argument in supj^ort of his action. These nineteen children however were in the advanced and academic grades. It may be true that district no. 6 supports a better school than district no. 7 as it maintains an academic department. If all the children of no. 7 could attend no. 6 without any hardship they might receive better school privileges. But all of the circumstances are to be taken together. The dissolution of the district is hardly justified by the fact that the JUDICIAL DECISIONS I SCHOOL DISTRICTS — DISSOLUTION "JIT^ older children in the advanced or academic grades would have the advantage of the course of study in no. 6 maintained for pupils of such grades. It is quite as necessary to provide adequate facilities for the younger children of the dis- trict as the older. If there w^as evidence of a predominant wish in the district that the action of the school commissioner should be sustained with reason to believe that pro- vision would be made for carrying the younger children to the Truxton school the appeal would be dismissed provided it should be determined that the order of the commissioner is technically valid. But under all the circumstances I have concluded that it ought not to be sustained. The appeal herein is sustained. It is ordered, That the order made by Ernest W. Childs, school commis- sioner of the second commissioner district of Cortland county, on the 21st day of May 1906, dissolving school district no. 7, Truxton, and annexing the terri- tory thereof to school district no. 6, Truxton, and also the amended order made by the said School Commissioner Childs on the 27th day of July 1906, dissolving said district no. 7, Truxton, and annexing a portion of the territory thereof to district no. 10, Truxton, and the remaining portion to district no. 6, Truxton. be, and the same are, hereby vacated. 5456 In the matter of the dissolution of school district no. 17, town of Brownville. Jefferson county. Order dissolving school district; inconvenience of residents. An order dissolving a school district and annexing its territory to other districts will not be set aside on the sole ground that some of the residents of the district are inconvenienced by their assignment to other districts. As nearly, if not quite, a majority of the electors of the district favored the dissolution, and it appears that the school commissioner acted in good faith in behalf of what he considered the educational welfare of the community, his order will be sustained, unless it is shown by a preponderance of evidence that he committed an error. Decided June 9, 1910 Draper, Commissioner The appellant, Julius E. Maynard, was sole trustee of district no. 17, town of Brownville, county of Jefferson, and he complains of the action of the respondent, William J. Linnell, school commissioner of the third commissioner district of the county of Jeft'erson, in dissolving such district, and annexing portions thereof to districts nos. 7. 8, 10 and 14 of such town. District no. 17 was a fairlv strong district financially, having an assessed valuation of $31,390. There are fourteen children of school age in the district, but the average daily attendance has not exceeded four and a fraction during the past three years. / 724 THE UXIVERSITY OF THE STATE OF XEW YORK There has apparently been considerable friction in this district during recent years, caused chielly by controversies which have arisen at school meetings over contracting with other districts for the instruction of its pupils. At the last annual meeting it was voted to maintain a home school. Soon thereafter the schoolhouse burned. The papers in the case do not specifically allege that the buiUling was intentionally burned, although there is an intimation that persons in the district were responsible therefor. The appellant insists that a considerable number of persons in the district are jjrejudiccd by the school commissioner's orders, since, by the annexation of the portions of the district where they live to other districts, they will be compelled to convey their children to and from school, while formerly they lived within easy walking distance of the school. It is conceded that the appel- lant will be inconvenienced by the school commissioner's action. Three of the others who oppose the dissolution are adversely affected thereby. All of these live in the immediate neighborhood of the site of the schoolhouse in the dis- solved district; since the distribution of the territory of the dissolved district, these persons live somev.'hat over two miles from the schoolhouses in the dis- tricts to which they have been assigned. As near as can be made out from the papers in the appeal, there are three pupils who will be required to travel two miles or more to attend the schools in the districts to which they have been assigned. The apparent inconvenience occasioned to some of the residents of the district dissolved by their assignment to other districts, is not of itself suffi- cient to justify a reversal of the order of dissolution. It is not possible to dis- solve a district and annex its territory to other districts without adding more or less to the burden of those who lived in close proximity to the schoolhouse in the district dissolved. It is evident that nearly, if not quite, a majority of the electors of the district favor the dissolution. Many of these are parents of children who will be required to go a greater distance to reach the schools which they are to attend. If the school privileges of their children were injuri- ously affected by the orders appealed from, it is fair to assume that they would have entered their protest. The districts to which the territory of the dissolved district is annexed are numerically and financially stronger than the dissolved district. One of them maintains a graded school with an academic department. The roads leading through the districts to the several schoolhouses are well traveled and maintained in good condition. The hardships imposed upon the pupils in requiring them to attend the schools in the surrounding districts are not serious. In the absence of a more pronounced protest upon the part of the inhabit- ants of the dissolved district, the orders of the respondent must be sustained. If he had acted arbitrarily against the expressed wishes of a considerable majority of the qualified electors of the district, a different decision might have been rendered. The school commissioner has apparently acted in good faith in behalf of what he considers the educational welfare of the community. He JUDICIAL decisions: school districts DISSOLUTION' 725 has presumptively familiarized himself with local conditions. The burden is upon those who attack his orders to show that he has made an error. The appel- lant has not established by a preponderance of evidence that an error has been committed. The appeal is dismissed. 5459 In the matter of the appeal of John E. MehafTy and others from the action of school commissioner Forrest H. Gibbons in dissolving school district no. 14, town of Waddington, St. Lawrence county. Dissolution of district; inconvenience of appellants. The facts that appellants who appeal from an order dissolving a school district and annexing the territory thereof to other districts, are inconvenienced in respect to the greater distances between their residences and the schoolhouse in the district to which thcj- are annexed is not sufficient in itself to warrant setting aside the order appealed from. Disagreements among residents as cause for dissolution. Where it appears that the residents of a district have constantly disagreed as to school affairs, particularly in respect to contracts with other districts for the instruction of their children, and as to necessary repairs to the schoolhouse in such district, and as an apparent result of one of those controversies the schoolhouse was destroyed by fire, the school commissioner will be sustained in the exercise of his judgment that such district should be dissolved. Decided June 16, 1910 Malby & Lucey, attorneys for appellants Draper, Commissioner The respondent, Forrest H. Gibbons, school commissioner of the second school commissioner district of St Lawrence county, made and entered an order, to take efifect March 20, 1910, dissolving school district no. 14 of the town of Waddington, and annexing the territory thereof to school districts no. 12, town of Waddington, and nos. 24 and 31 of the town of Lisbon. The appellants appeal from such order. The record shows that the district dissolved had an assessed valuation ot $29,224. There were ten children of school age in the district, but only seven of them attended school. These seven children are the children of the appellants. The farms occupied by these appellants are annexed to district no. 24, town of Lisbon. By the change made, Mr Rutherford's one child will be required to travel a distance of about one and three-quarters miles to the schoolhouse in district no. 24, while the schoolhouse in district no. 14 was located only a short distance away. Mr Mehaiify's place is located about seven-eighths of a mile from the site of the schoolhouse in the dissolved district, and a little more than a mile from the schoolhouse in district no. 24. Mr McCreedy lives about two-thirds of a mile from the site of the schoolhouse in the district dissolved and about a m\k^ and a third from the schoolhouse in district no. 24. There is some conHict of opinion as to the character of the roads required to be traveled to reach the / 726 THE UXIVEKSITV OF THE STATE OF NEW YORK two schoolhouses. Both roads are dititicuk to travel during the winter months ; but it is not clearly established that the road to the schoolhouse in district no. 24 is so difticult as to seriously hinder the school attendance of the appellant's children. The appellants are somewhat inconvenienced in respect to the greater distance between their residences and the schoolhouse in district no. 24, but this ground of complaint is not sufficient in itself to warrant setting aside the order appealed from. A school district can not be dissolved and its territory annexed to other districts without adding to the distances from school of some of the residents of the district dissolved. It is not difficult to comprehend the cause which led the respondent school commissioner to dissolve this school district. The records and correspondence on file in this Department show that the inhabitants of the district have hal)itually disagreed as to its school affairs. The respondent has endeavored to eliminate the constantly recurring disagreements. The controversy arose, as in many other cases, between the parents of children of school age who desired their children to be taught in the home school, and other qualified electors who had no children and who sought to obtain a compliance with the laws relating to the maintenance of public schools at the least possible expense. The respondent endeavored to compel the district to suitably repair its schoolhouse. One special school meeting was held in 1908, and it was voted to repair; the next night the schoolhouse burned to the ground. In 1909, at the annual meeting, the district voted to contract for the instruction of its pupils. The trustee attempted to carry out the directions of the annual meeting, and pro- vided a conveyance to carry the pupils of his district. The arrangement was unsatisfactory to the appellants, and two of them, :\Ir McCreedy and Mr Mehaffy, refused to send their children to the school in the district with which the contract was made. They were both arrested and tried for a violation of the compulsory attendance law. The jury rendered a verdict of not guilty. The Department investigated certain charges made in respect to the contract for instruction, and refused to approve it because it was made with a district too remote from the residence of the appellants, there being other districts much more accessible. In March, 1910 a special meeting was called to vote upon the question of building a new schoolhouse. It was decided by a vote of 10 to 8 not to rebuild. The respondent asserts that the contract system as applied to this district has proven unsatisfactory, and that its continuance would increase the factional strife among the inhabitants of the district. The surrounding districts are affected by the controversy and have been reluctant to receive the pupils of the dissolved district, owing possibly, to the forcible opposition of the parents of such pupils to the making of contracts. The respondent has concluded that since the district has refused to rebuild its schoolhouse the district must either be continued as a contracting district, or be dissolved. The opinion of the respondent as to the advisability of such dissolution is entitled to great weight. He knows the inter- ested parties, and is familiar with the educational needs of the community. It JUDICIAL decisions: school districts DISSOLUTIOxX 'J2-J must be assumed that he would not, without some cause deemed sufficient by him, do away with the school organization of this district, against the emphatic pre- tests of these appellants. The appellants should not prevail against the respondent unless it is clearly established that the school facilities of the dissolved district and of the district to which its territory has been annexed, are materially injured by his order. It does not appear that such is the case. The papers indicate that the trustees and' many of the inhabitants of the districts whose boundaries are changed by the annexation of the territory of the dissolved district, are opposed to such annexation. The law permits a dissolution of a district and the annexation of its territory to other districts without the consent of trustees. The inhabitants of the districts affected may be aggrieved parties and could be heard on an appeal from the order annexing the territory of the dissolved district to their districts. But they are not parties to this appeal. They merely state their objection without giving a reason therefor. However much they may be prejudiced by the order appealed from, their objections will not be considered in the absence of proof of their alleged grievances. The school commissioner has evidently used his best efforts to maintain the integrity of this district. He has frequently advised the electors thereof to provide sufficient and appropriate school accommodations for their pupils ; they have persistently refused to take any such action. Under all these circumstances it must be held that he acted wisely in dissolving such district The appeal is dismissed. 5439 In the matter of the appeal of George D. Bender and others from the change of survey made by School Commissioner Sweet in school district no. ii, town of Bethlehem, county of Albany, in creating district no. 15. Division of districts. Where it becomes necessary for a school commissioner to divide a district into two districts and there is no controversy as to such necessity, the order of the school commissioner making such division will not be set aside where it appears that there is no material discrimination in favor of one district as against the other as to accessibility and the amount of the assessed valuation set apart into each district. Such order will not be disturbed where it appears that the educational interests of the inhabitants of the new district are promoted by the privilege afforded by establishing and maintaining a school in their midst while the school facilities of those remaining in the old district are not injuriously affected. Decided February 28, 1910 Bender & Hinman, attorneys for appellants William A. Glenn, attorney for respondents Draper, Commissioner ■ this appeal is from an order made by School Commissioner Newton Sweet of school commissioner district no. i of the county of Albany, and filed in the 728 THE UKIVERSITY OF THE STATE OF NEW YORK oftice of the town clerk of the town of Tletlilehem, on October 30, 1909, which order divided school district no. 1 1 and formed two new districts from the terri- tory thereof, to be known as school districts nos. 1 1 and 15 of the town of Bethlehem. I'ormer district no. 11 was a large district and financially and numerically strong, having an assessed valuation of $226,150 and fifty-eight children of school age, as appears from the reports for the preceding school year, on file in this Department. The schoolhouse in such district is old and inadequate to meet the needs of the district as it formerly existed. There are two hamlets or neighbor- hoods containing about an equal number of inhabitants, situated at almost the extreme ends of this district. One called Xormanskill is located along the Dela- ware turnpike as it crosses the stream of that name, while the other, called Els- mere, is about one and one-half or one and three-quarters of a mile farther along on such turnpike. The schoolhouse is on a high bluff a considerable distance back from the turnpike, and is very inaccessible. It is situated about 400 feet from the Xormanskill and about one and one-half miles from Elsemere. A question was raised as to the selection of a new site and the erection of a new schoolhouse. A special meeting was called to consider such question and a controversy arose as to the selection of a site for the new building. Those living in the Elsmere end of the district desired to change the site to one more convenient and nearer that place. Such a proposition was voted upon and defeated. The meeting then adjourned without further action as to the erection of a new building or the repair and improvement of the old. It was subsequently suggested that the district be divided. A number of conferences were held at which such suggestion was considered. Two of such conferences were held at the Department, and were attended by the school com- missioner of that district and by the Chief of the Law Division, representing the Department. It was agreed by both factions of the old district that a division was desirable. It was then sought to secure an agreement as to where the divid- ing line should be located. The parties interested were not able to agree as to the location of such line. It was then concluded that the school commissioner should exercise the jurisdiction conferred upon him by law and execute an order creating two districts out of former district no. ii and establishing the boundary line between such districts. It is from this order that this appeal is brought. There is no ciuestion involved in this appeal as to the propriety of a division of this district. It is doubtless impossible to harmonize the opposing factions; they can not both be equally served by existing conditions ; if the district is left as it was, equal justice to both would demand a new schoolhouse at a place much nearer Elsmere than the location of the present building. It was in apparent recognition of the justice of such a demand that the people of Normanskill apparently acquiesced in a division of the district. In view of this situation the only question remaining for determination per- tains to the fairness of the division of the territory of the old district between the JUDICIAL DECISIONS : SCHOOL DISTRICTS — DISSOLUTION 729 two new districts. The division line was run by a competent surveyor, and liis affidavit shows that there are 1228 acres in district no. 11, and 921 acres in' dis- trict no. 15. The appellants live in district no. 11. There are no residents set off in district no. 15 who complain of the unfairness of the division. There seems to be no complaint based upon the ground of inaccessibility. The schoolhouse in new district no. 11 remains as before, conveniently accessible to the inhabitants of Normanskill and vicinity, while the inhabitants of new district no. 15 may determine for themselves where their new schoolhouse shall be built. There is a sufficient number of children of school age in each district to maintain a good elementary school. Those desiring secondary instruction will continue as before in their attendance at high school in the city of Albany. The educational inter- ests of the two communities are not adversely affected by the division. The chief contention on the part of the appellants is that the division imposes an unequal burden of taxation upon them. There is some difference between the figures presented by the appellants and respondents as to the assessed valuation of the real property in the two districts. But even the appellants' statement shows that the valuation has been equally divided, there being according to such statement a valuation of $111,150 in district no. 11, and $1 11,600 in district no. 15. This does not show that the school commissioner has dealt unfairly with either district. District no. 11, in which the appellants live, retains the schoolhouse and all the property belonging to the old district. District no. 15 will be required to pur- chase a site and build a new schoolhouse. District no. ii may be required to expend some money in repairing the old schoolhouse, but the amount will be small compared with what w^ould have been required if the old district had not been divided. If the division had not been made, a new schoolhouse on a new site must have been provided, or an addition to the old schoolhouse must have been built so as to have given adequate accommodation to all the pupils of the district, with an additional teacher. The division obviates the necessity of employ- ing an additional teacher, for the present, at least. It is therefore difficult to see how the burden of taxation upon the taxpayers remaining in district no. 1 1 will be materially increased by the division of which the appellants complain. It does not appear that undue discrimination has been made against district no. II by the setting off of this new district. The educational interests of the inhabitants of new district no. 15 are clearly promoted by the privilege thus afforded of establishing and maintaining a school in their midst, which will be conveniently accessible to all of them. The school facilities of those remaining in district no. ii are not materially disturbed. Under the conditions existing, it is apparent that the financial resources of the district are not crippled. The resi- dents of the new district are earnest in their desire that they be given the privi- lege of maintaining a school of their own. Under all the circumstances it is advisable to sustain the order of the school commissioner. *" V The appeal is dismissed. 730 THE UNIVERSITY OF THE STATE OF NEW YORK 4707 In the matter of the appeal of John Neer and others v. Robert E. Sternberg as school commissioner, second commissioner district, Schoharie county. Where a school commissioner, under the provisions of section 9, of title 6, of the Con- solidated School Law of 1894, as amended by section 4, chapter 264, of the Laws of 1896, by his order, dissolves a school district and fails to provide in such order of dissolu- tion for uniting a portion of the territory of such dissolved district to any existing adjoining district or districts and fails to make an order concurrent with the order of dissolution for annexing such territory to such existing adjoining district or dis- tricts, the order is void for the reason that a school district is not legally dissolved until all its parts are annexed to one or more existing adjoining district or districts. Decided December 6, 1898 E. A. Dox, attorney for appellants Skinner, Superintendent This is an appeal from an order made by Robert E. Sternberg of the second commissioner district of Schoharie county, dated July 30, 1898, dissolving school district 10, Richmondville, Schoharie county, said order to take effect August i, 1898. The appellants allege as the principal grounds for bringing their appeal, in substance, that said order was not filed in the office of the clerk of the town of Fulton, in which town a part of the territory of school district 10 is situate; and that said order dissolves school district 10 without annexing its territory to any adjoining district or districts or making an order providing for such annexation. School Commissioner Sternberg has answered the appeal, and to his answer the appellants have made reply. It is admitted that School Commissioner Sternberg, on July 30, 1898, made an order dissolving school district 10, Richmondville, Schoharie county, such order to take effect August i, 1898, and filed said order July 30, 1898, in the olilice of the clerk of the town of Richmondville, Schoharie county ; that a portion of the territory of such district 10 was situate in the town of Fulton, Schoharie county, but that said order of dissolution was not filed in the office of the clerk of said town ; that said order did not annex any portion or portions of the terri- tory of such dissolved district to any one or more of the existing adjoining school districts, nor did Commissioner Sternberg make any order or orders annexing the territory of the dissolved district to any existing adjoining district or districts. Under the provisions of section 9 of title 6 of the Consolidated School Law of 1894, as amended by section 4 of chapter 264 of the Laws of 1896, any school commissioner has power to dissolve any one or more school districts within his commissioner district and from such territory form a new district or districts; and to unite a portion or portions of the territor}- of the dissolved district to any existing adjoining district or districts. Under the provisions of said title 6 it is the duty of school commissioners, in the formation, alteration and dissolution of school districts, to file the orders made by them, with all notices, consents and proceedings relating thereto with JUDICIAL decisions: school districts — dissolution 731 the clerk of the town or towns in which the territory or any part thereof embraced in or affected by such order or orders is situate, immediately after such formation, alteration or dissolution. This Department has uniformly held that a school district is not dissolved until all its parts are annexed to any existing adjoining district or districts. Commissioner Sternberg should have included in his order, dissolving school district 10, Richmondville, orders annexing the territory of such dissolved dis- trict to such adjoining district or districts existing to which he had determined to annex such territory, or he should have, concurrently with his order of dissolu- tion and dated on the same day as the order of dissolution, made an order annex- ing such territory to such existing adjoining district or districts and immediately filed the same, with his order of dissolution, in the office of the clerk of the respective town or towns in which the territory embraced in or afifected by such order or orders was situate. The note on page 247 of the Code of Public Instruction of 1887, quoted by Commissioner Sternberg in his answer, has no application to proceedings taken under section 9 of title 6 of the Consolidated School Law of 1894, as amended by section 4, chapter 264 of the Laws of 1896, but has reference to the provisions contained in sections 2, 3 and 4 of title 6 of the Consolidated School Act of 1864, where school districts are altered by transferring one or more parcels of land from one district to another district or districts, and such action, in fact, results in a dissolution of the districts from which such parcels are taken. Commissioner Sternberg states in his answer that orders annexing or uniting the territory of the dissolved district to existing adjoining district or districts could not be made without procuring a survey of such portions. When he decided to dissolve district 10 and to annex its territory to other districts, he should have taken, before making any order, the necessary steps to enable him to include in the order of dissolution, or in the concurrent order, a description of the territory to be united to the existing adjoining district or districts, stating to which district or districts such territory was united. This he failed to do. I decide : That the order of School Commissioner Sternberg, dated July 30, 1898, appealed from, was absolutely void for the following reasons : That said order, or a duplicate thereof, was not filed by him immediately with the clerk of the town of Fulton, Schoharie county, a portion of the territory of the district i>ro- posed to be dissolved being situate in said town ; that said order appealed from did not include therein the annexation of the territory of such dissolved district to existing adjoining district or districts, and that no order was made by him concurrent with said order of dissolution annexing such territory to such existing adjoining district or districts, and hence said school district 10, Richmondville, was not in law or in fact dissolved, but such district exists today the same as if said order appealed from had never been made : that the order was, at the time of'Jiling the same, and is void. The appeal herein should be sustained and the order appealed from set aside as absolutely void. 72,2 THE UNIVERSITY OF THE STATE OF NEW YORK It is not necessary for me, in the disposition of the appeal herein, to exam- ine or pass upon the other grounds stated therein. The appeal herein is sustained, and the order made by School Commissioner Sternberg, dated July 30. 1898, dissolving school district 10, Richmondville, Scho- harie county, is vacated and set aside as absolutely void. 4849 In the matter of the appeal of James Corscadden, of the town of Minerva, Essex county, v. Edward J. Owen, as school commissioner of the second commis- sioner district of Essex county. Any school commissioner, under section 9, title 6 of the Consolidated School Law of 1894. as amended by section 4, chapter 264 of the Laws of 1896, has authority to dissolve one or more school districts and from the territory of the district so dissolved, to form a new district or districts; he may also unite a portion of such territory to any existing adjoining district or districts. A school district is not legally dissolved until all its territory is included within a new district or united to an adjoining district or districts. This Department has uniformly ruled that in orders forming, altering or dissolving school districts the description of the territory affected or embraced in said order should be so complete and definite that a surveyor at any future day may be able to run its bound- aries without reference to any other document than the order forming, altering or dis- solving the districts affected; that for this purpose the exterior lines should be defined by reference to natural monuments, marked trees, creeks etc., or to township lines of historical notoriety, such as the lines of the great original subdivisions of tracts into lots, or the course of highways. When these fail the courses and distances as ascer- tained by the compass and chain should be given. Decided March 31, 1900 Charles P. Coyle, attorney for appellant E. T. Stokes, attorney for respondent Skinner, Superintendent This is an appeal by James Corscadden as trustee, etc., from two orders made December 28, 1898, by Edward J. Owen, as school commissioner of the second commissioner district of Essex county, namely, one order dissolving school district 3, Minerva, Essex county, and another order forming a new school district to be known as district 3, Minerva, Essex county ; each order was, by its tenns, to take effect immediately. The appellant is the trustee of district 3, which district the first order ap- pealed from herein, assumes to dissolve. The appellant alleges various grounds for bringing his appeal. Commissioner Owen has answered the appeal, and to such answer the appel- lant has replied, and to such reply a rejoinder has been made by the respondent, and to such rejoinder a rebutter has been filed by the appellant. The papers are voluminous, but contain largely matter not relevant to the question presented for JUDICIAL DECISIONS : SCHOOL DISTRICTS DISSOLUTION 733 my decision, namely, whether said two orders, made by Commissioner Owen, are in conformity with the provisions contained in title 6 of the Consolidated School Law of 1894, and the amendments thereof, and the rulings of this Department relating to the formation, alteration and dissolution of school districts. Section 9, title 6 of the Consolidated School Law of 1894, as amended by section 4, chapter 264 of the Laws of 1896, provides that any school commis- sioner may dissolve one or more districts, and may, from such territory, form a new district; he may also unite a portion of such territory to any existing adjoining district or districts. Under the above provisions of section 9, Commissioner Owen had authority to dissolve school districts 3 and 12, Minerva, Essex county, and from such territory, that is, the territory formerly comprising such districts 3 and 12, form a new district; or he could unite a portion or portions of such territory to any adjoining district or districts. Commissioner Owen did not have authority, under said section 9, or under any other provisions of said title 6, to dissolve district 3, and from the territory formerly comprising such dissolved district 3, to form a new district, and including within the boundaries of such new district any portion of district 12. no dissolution of such district 12 having been made. So long as district 12 exists, that is, is not dissolved, its boundaries can not be altered and a portion of its territory taken to form a new district erected from the whole or part of a district dissolved, under the provisions of said section 9. While district 12 exists, its boundaries can not be altered except as pro- vided in sections i, 2, 3 and 4 of title 6 of the Consolidated School Law of 1894 as amended. It would seem, from the proofs filed herein, that the object which Com- missioner Owen wished to accompHsh was to alter the boundaries of district 12 and the consequent alteration of district 3, by transferring certain parcels of land from district 12 to district 3. Such objects could have been accomplished, in proceeding in accordance with the provisions contained in sections 2, 3 and 4 of title 6. The order of Commissioner Owen, dated December 28, 1899, appealed from, assuming to dissolve district 3, is defective in not including therein a full description of the territory comprising such district, as shown by the records in the office of the clerk of the town of ^linerva, Essex county. The order of Commissioner Owen, dated December 28, 1899. appealed from, assuming to erect a new school district, states " that a school district be, and the same is, hereby created out of parts of territory heretofore forming the whole of the original district 3 this day dissolved by my order, and the following lots in township 26, Totten and Crosstield purchase {no%v a part of school dis- trict 12, and to which the trustee of said district consents by writing, hereto annexed), lots -/-J etc." , , r^ • • r^ • Assuming, for the purposes of argument only, that Commissioner Owen had authority to make such order, the order is defective in not stating xvhat part / 734 THE UNIVERSITY OF THE STATE OF NEW YORK ot the teriiiury heretofore forming original district 3 are included in the new district which he assumed, by such order, to erect. Such order is also defective in not complying with the uniform rulings of this Department that the description of a district erected should be so complete and definite that a surveyor, at any future day, may be able to run its boun- daries without reference to any other document than the order forming, alter- ing or describing it. For this purpose the exterior lines should be defined by reference to natural monuments, marked trees, creeks etc., or to township lines of historical notoriety, such as the lines of the great original subdivision of lotb, or the course of highways. When these fail, the courses and distances as ascer- tained by the compass and chain should be given. The order, assuming to erect such new district, does not give a description thereof, nor its exterior lines. For the foregoing reasons the two orders appealed from herein, made by Commissioner Owen, should be vacated and set aside. Under section i of article i of title 7 of the Consolidated School Law of 1894, when any school district shall be formed, the commissioner within whose district it may be, shall prepare a notice, describing such district, and appomt- ing a time and place for the first district meeting, and deliver such notice to a taxable inhabitant of the district. Cy section 2 of article i, title 7 of such law, it is the duty of the taxable inhabitant to whom such notice is delivered by the commissioner, to notify every other inhabitant of the district, qualified to vote at the meeting, by read- ing the notice in his hearing, or in case of his absence from home, by leaving a copy thereof, or so much thereof as relates to the time, place and object of the meeting, at the place of his abode, at least six days before the time of the meet- ing. The provisions above cited are substantially those contained in sections i and 2 of article i, title 7 of the Consolidated School Act of 1864. This Department has uniformly ruled that the commissioner must prepare the notice ; that the notice must contain a description of the new district as the same is contained in the order erecting it, which should be by metes and bounds ; that such notice should be addressed by name to a taxable inhabitant of the new district, and delivered to such inhabitant; and stating therein that such inhabitant was required to notify every person residing in the territory therein described who is entitled to vote at school district meetings under the pro- visions of the school law; that the meeting was for the purpose of electing officers, voting taxes, and transacting such other business as is permitted by laic: that the manner of serving the notice, as provided in section 2, article i, title 7, should be stated in the notice, and such notice dated. Annexed to the appeal herein as exhibit " B " is the notice of Commissioner Owen, as prepared by him, appointing a time and place for the first district meeting of the new district, assumed to have been erected by him. Such notice is not addressed to a taxable inhabitant of the new district, assumed to have JUDICIAL decisions: school DISTKICTS DISSOLUTION J^^ been erected; it does not contain a description of such district as contained in the order erecting it ; it does not require any one to notify the persons quaHfied to vote at such school meetings in such new district that the first district meeting of said district will be held at a time and place named, etc. There is no proof of the manner of service of such notice. Such notice is defective, not being in conformity with the provisions of the Consolidated School Law, relative to the first meeting in such new district, and the rulings of this Department thereunder. The appeal herein is sustained. It is ordered: That the two orders made by said Commissioner Owen, dated December 28, 1899, one assuming to dissolve school district 3, Minerva. Essex county, and one assuming to erect a new district comprising the territory of district 3 and portions of the territory of district 12, Minerva, Essex county, be, and the same are, hereby vacated and set aside. It is further ordered: That the proceedings taken at a meeting held January 6, 1900, at the house of Charles Dougherty or Doherty, claiming to be the first district meetino- of a new school district 3, Minerva, Essex county, be, and the same are, hereby vacated and set aside. 4904 In the matter of the appeal of Abram D. Stryker, Peter W. Miner and Benjamin F. Taylor as trustees of school district 4, Locke, Cayuga county, v. Edwin S. Manchester as school commissioner of the second commissioner district of Cayuga county. This Department has uniformly held that under section 9, title 6 of the Consolidated School Law of 1894 as amended by section 4, chapter 264, Laws of 1896, any school commis- sioner may dissolve anj' one or more school districts within his commissioner district and from the territory formerly comprising such district or districts so dissolved form a new district or districts or he may unite such territory to any existing adjoining dis- trict without obtaining the consent of the trustees of the districts to be affected; the remedy of any person who feels injured or aggrieved by such action is to appeal fmni the order of the commissioner to the State Superintendent of Public Instruction. The 'dissolution of such district or districts and the formation of a new district or di>tricts or the uniting of the territory of the dissolved district to an existing adjoining district is not an alteration of the school district, within the provisions contained in sections 2, 3 and 4 of title 6 of said school law and the acts amendatory tlureof, but such sections apply only where real property is taken from one district and united to some other district or districts and no dissolution of the district is made. Decided November 15, 1900 C. G. Parker, attorney for appellant S^lcinner, Superintendent This is an appeal by the trustees of school district 4. Locke, Cayuga county, from certain orders made on Tulv 5, 10m, by Edwin S. Manchester as school 736 THE UNIVF.K.SITY UF THE STATE OF NEW YORK coniniissioner, second commissioner district of Cayuga county, dissohing school district I, Locke, Cayuga county, and uniting portions formerly comprising such dissolved district to school district 4, Locke, and the residue of such territory to school district i, Moravia, Cayuga county. The appellants allege, in substance, as the grounds for bringing their appeal, that Commissioner Manchester did not have jurisdiction to make the orders appealed from ; that the commissioner should have proceeded under the provisions contained in sections 2, 3 and 4 of title 6 of the Consolidated School Law ; that such action is unjust to said district 4, Locke. The appeal herein was filed in this Department September 6, 1900. On Seplcinber 14, 1900, upon application of Commissioner Manchester I gave him permission to amend the orders appealed from, by describing more definitely the territory affected by such orders, and extending his time to make answer to the appeal herein. On September 21, 1900, I received from said commissioner a copy of such amended orders. On September 22, 1900, I received the answer of the commissioner to the appeal herein. By section 9 of title 6 of the Consolidated School Law of 1894, as amended by section 4, chapter 264 of the Laws of 1896, it is provided that any school commissioner may dissolve one or more school districts and from the territory formerly comprising the district or districts so dissolved, form a new district or districts, or he may unite a portion or portions of such territory to any adjoining district or districts. Since the amendment of section 9 by the Legislature in 1896, this Department has uniformly held that any school commissioner may dissolve one or more school districts within his commissioner district, and from the territory formerly comprising such district or districts so dissolved he may form a new district or flistricts, or he may unite such territory to any existing adjoining district without applying for or obtaining the consent of the trustee or trustees of the district or districts to be affected by such action on his part ; that the remedy by any person or persons who were residents and qualified voters in said district or districts at the time of such dissolution who felt aggrieved, that is, injured, by such order of dissolution is to appeal from such order to the State Superintendent of Public Instruction under the provisions contained in title 14 of the Consolidated Schod Law of 1894, and the rules of practice of this Department regulating appeals; that the dissolution of a district or districts, and the formation of a new district or districts from the territory formerly comprising such dissolved district or districts, or the uniting of such territory to any adjoining district or districts is not an alteration of districts within the provisions contained in sections 2, 3 and 4 of title 6 of the Consolidated School Law of 1894, and the acts amendatory thereof; but such sections apply only when a portion or portions of real prop- erty are taken from one district and united to some other district or districts, and no dissolution of a district is made. The object sought to be obtained by the amendments of said section 9 in 1896 was to enable school commissioners to dissolve school districts weak in school population or weak in average attendance upon instruction, or weak financially. JUDICIAL DECISIONS : SCHOOL DISTRICTS DISSOLUTION 737 without obtaining the consent of trustees of districts so affected, and if refused, the making of a preHminary order, and the subsequent action of a local Ijoard, but giving the right of appeal to the State Superintendent from such action of school commissioners. No appeal from said orders of Commissioner Manchester has been taken by any qualified voter of district i, Locke, dissolved, and it appears that the trustee of said district consented, in writing to the dissolution of the district, and the dis- position made by the commissioner of the territory formerly comprising the district. The appellants are trustees of school district 4, Locke, to which district property formerly in district i, of the assessed valuation of $5080 has been added by the orders appealed from. Such district has not been injured, that is, impaired, diminished, harmed or damaged by such addition of territory. It appears in proof that the aggregate valuation of said district 4 is $211,350. Of the grounds alleged by the appellants in their appeal for bringing their appeal, not one of them is established by proof. It appears in proof that district i, Locke, at the time it was dissolved by Commissioner Manchester, was weak in its total resident school population, hav- ing less than ten children of school age, and weak in the average attendance upon instruction in the school therein, the report of the trustee for the school year of 1 899-1 900 showing that the daily average attendance was about two. I decide (i) that the appellants herein have failed in establishing any griev- ance or injury sustained by school district 4, Locke, Cayuga county, by reason of the orders made by School Commissioner Manchester, appealed from, or any amendment of such orders; (2) that School Commissioner Manchester has wisely exercised the authority vested in him by the school law in making the orders appealed from, and the amendments thereof, and that the appeal herein should be dismissed, and the orders appealed from, and the amendments thereof should be affirmed. The appeal herein is dismissed and the orders of School Commissioner Man- chester, appealed from, are, together with the amendments thereof, hereby affirmed. . 3915 In the matter of the appeal of John E. Morris and others v. William R. Ander- son, school commissioner of the first commissioner district of Dutchess county. School commissioner's order against which no irregularity is averred, annulling school dis- trict and annexing its parts to other districts, upheld, when it was not clearly shown that residents of the districts would be greatly inconvenienced by its operation, and especially so in a district which will not maintain a suitable building for the school. Decided October 14, 1890 Draper, Superintendent This is an appeal from the order of the school commissioner, made on the 26th of July 1890, annulling school district no. 4 of the towns of East FishkiU 24 738 THE UNUEKSITV dl-" Tllli STATE OF NEW YORK and Beekman, and annexing portions of said district to district no. 2 of Beek- man. and no. 5 of East Fishkill. No irregularities in the proceedings of the school commissioners are alleged. The order was made upon the assent of the trustees of the three districts affected thereby. Some of the residents of district no. 4 now come in and object, alleg- ing that they have always maintained a good schoolhouse and a good school, and that the effect of the order will be to compel their children to go farther to school. The school commissioner shows, on the other hand, that the schoolhouse has been unfit for use for some time, and that he has repeatedly urged the district to construct a new one, and that they have continually neglected so to do. The district is not very strong in any event, and it is not shown that the operation of the order will greatly inconvenience the residents thereof. In all events, the school commissioner is upon the ground, is familiar with all the circumstances, and appears to have acted with deliberation and for good reasons. Before his order should be overruled by the Department, the appellants should present a clear and overwhelming case. The appeal is dismissed. 3685 In the matter of the appeal of V. R. Chnbbuck v. L. H. Barnum, ex-school com- missioner of the first commissioner district of Steuben county. -An order of a school commissioner annulling a district and dividing and annexing the terri- tory to other districts which has been consented to b)' all the trustees of the districts affected will be sustained, unless it is clearly shown by overwhelming proof that ti-.e action appealed from was inadvisable. Decided May 5, 1888 Draper, Superintendent This is an appeal from an order made by L. H. Barnum; late school com- missioner in the first school commissioner district of Steuben county, on the 3d day of December 1887, annulling school district no. 6, of the towns of Fremont and Howard, and dividing the territory of said district among adjoining school districts. The order was made upon the consent of all the trustees of the dis- tricts affected thereby. Objection is. raised thereto by Mr Chubbuck and some other residents of the district annulled. On the other hand the order is supported by many residents of the district annulled. I have read all the papers in the case with care, and fail to find sufficient reason for setting aside the order of the commissioner. The district annulled was very weak. It seems more than prob- able that the change will afford better school facilities for the residents thereof than they had before, although it is likely that a portion of them will have to go a longer distance. It is usual to support school commissioners in a matter of this kind, particularly when their order is based upon the consent of all of the trustees of the districts affected, unless it is clearly shown by overwhelming proof that the action appealed from ought not to have been taken. That fact is not made to appear to my satisfaction. The appeal is therefore dismissed. JUDICIAL decisions: school districts — DISSOLUTION 739 3916 In tlie matter of the appeal of William Kimball and others v. S. W. Maxon and Charles E. Whitney, school commissioners of the first and third commis- sioner districts of the county of Jefferson. School commissioner's order annulling and dissolving a school district, set aside, when it appears undisputably that the district is able to maintain a school, and the senti- ment of the district is substantially unanimous against the dissolution, and when the proposed dissolution would necessitate the children of the district going a long dis- tance to secure school privileges. When no reason for the making of the order is shown, the order should be vacated. Decided October 14, 1890 Porter & Walts, attorneys for appellants Draper, Superintendent This is an appeal from the order of the school commissioners, made on the 26th day of July 1890, annulling and dissolving school district no. 2, of the town of Brownville in the counfy of Jefferson. The appellants allege that the district referred to is abundantly able to maintain a school, that the sentiment of the district is substantially unanimous against the dissolution thereof, and that, if the order of the commissioners should be upheld, it would necessitate the children of the district going a long distance to school. The school commissioners make no answer, and I am, therefore, obliged to assume that the allegations of the appellants are true. If they are true, and if there was no other reason for making the order, it should be set aside. No such reason appears. The appeal is sustained, and the order referred to set aside and declared to be of no effect. 4012 In the matter of the appeal of George Olenhouse v. James R. Main, as school commissioner of the third commissioner district of Albany county. Order of a school commissioner annulling a district set aside for the reason that, upon appeal, it is conclusively shown that the district is the owner of a site and school- house, is free from debt, and maintains a school; that the taxpayers, with unanimity, are willing to support the school. It also appears that the district to which the com- missioner's order annexed the territory of the annulled district, is in debt for quite an amount. Decided October 6, 1891 R. H. McCormick, jr, attorney for appellant Draper, Superintendent -.This appeal by a taxable inhabitant and elector of school district no. 12, towti of Guilderland, Albany county, is from an order of School Commissioner ]\Iain, annulling district no. 12, Guilderland, and consolidating the territory / 740 THE UNIVERSITY OF THE STATE OF NEW YORK thereof with district no. 4 of the same town. It is alleged by the appellant that district no. 12 has existed for more than thirty years. The district owns a site and schoolhouse, and has heretofore maintained a school, and is willing to do so hereafter. For the accommodation of the children of the district a school should be continued therein. It further appears that district no, 12 is free from debt, while district no, 4 to which it is proposed to annex the territory of district no, 12 is in debt for quite an amount, for the expense incurred in building a school- house. If the consolidation is upheld, many of the children of the district will be compelled to travel from two to three miles to reach the schoolhouse in district no. 4. It also appears that there is a sufficient number of children residing in district no. 12 to warrant the continuance of a school therein. The taxpayers of the district are willing and able to maintain a school. No answer has been interposed. I have reached the conclusion from the evidence presented that district no. 12 should not be annulled, and I therefore sustain the appeal and set aside the order of James R. Main, school commis- sioner, filed June 28, 1891, with the town clerk of Guilderland, annexing district no, 12 of Guilderland, to district no. 4 of the same town. 4018 In the matter of the appeal of John A. Gulick v, Everett O'Neill, school commis- sioner of the first commissioner district of Wayne county. School commissioner's order dissolving a district set aside when it appears that the dis- trict is able to and docs maintain a satisfactory school, in a good, substantial building owned by the district, well equipped with modern school furniture and apparatus, and when very general objection is made by the patrons of the school to the order of dis- solution. The order did not annex all parts of the annulled district to another or other districts. Held, fatal to its validity. Decided November 10, 1891 Draper, Superintendent This appeal is brought by an elector of school district no. 22 of the town of Sodus, county of Wayne, from the following orders made by School Commis- sioner Everett O'Neill, of commissioner district no. i, Wayne county, namely: one dissolving school district no. 22, Sodus, in said county, bearing date August 25, 1891 ; another bearing the same date, annexing a part of the dissolved dis- trict to district no. 2 in said town; another, bearing the same date, annexing another part of district no. 22 to district no. 4 of said town; and another, bearing date September 17, 1891, annexing the remaining portion of district no. 22 to district no. 8 of the same town. To each of the above orders the consent of the trustee of district no, 22 was given. The trustee of each of the other districts affected, respectively consented to the order affecting his district, except the trustee of district no. 8 who refused his consent. In consequence of the refusal \ JUDICIAL decisions: school districts — dissolution 741 of the trustee of district no. 8 to consent, the latter order was not to take effect until the first day of January 1892. There are several objections raised by the appellant in opposition to the orders, but two of which need be now considered. 1 He insists that the order annulling district no. 22 was invalid for the reason that all the lands of the dissolved district have not been attached to some other district or districts. 2 That the action of the commissioner was not advisable, and contrary to the best educational interests of district no. 22. Upon the latter proposition I have given careful attention to the proofs sub- mitted. I find the fact to be that district no. 22 was a strong district, both in taxable property and in the number of children of school age ; that, according to the last assessment roll the taxable property was valued at $59,801.95. The num- ber of resident children of school age numbered forty-eight; that the district owns a good substantial schoolhouse, well equipped with modern school furniture and school apparatus; that a school taught by duly licensed teachers has been regularly maintained. It further appears that the dissolution is strenuously opposed by the patrons of the school, and the appellant insists that, if the orders of the commissioner are upheld, very many of the children will be required to travel long distances to reach the schoolhouses in the district to which the parts of the territory of dis- trict no. 22 are to be annexed. It also appears that a number who urged the commissioner to make the change are now opposed. I think the order dissolving district no. 22 is fatally defective. At the time of its issuance, no provision was made for the annexation of a portion of the territory of district no. 22 to another district. The order of dissolution dated August 25, 1891. was to take effect immedi- ately, and yet the order annexing a portion of its territory to district no. 8, was not issued until September 17, 1891, nearly a month later, and the trustee of district no. 8 having refused to consent to the annexation, the latter order was not to take effect until January i, 1892. In such cases the rulings of the Department have been that the operation of an order dissolving a district should also be suspended until the same date, so that if the order dissented from should be confirmed, all would go into opera- tion at the same time. Information has reached the Department that the local board has met and refused to confirm the order of Septeml)er 17th. But I ground my decision that the orders should be set aside upon the undis- puted evidence that a respectable portion of the inhabitants, patrons of the school, demand a continuance of the school facilities which have been afforded them by district no. 22. There has been no failure to maintain a school. The valuation of taxable property is such that the expense of sustaining a good school can not be burdensome, and the children should not be put to the incon- venience of traveling the increased distances to reach a schoolhouse which the upholding of the order would necessitate. The appeal is sustained. 742 THE UXIVERSITV OF THE STATE OF NEW YORK 3788 In the matter of the appeal of Henry Done, of school district no. 14, of the towns of Albion and Orwell, county of Oswego v. Ida L. Griffin, school commissioner of the third commissioner district of Oswego county. A school commissioner by an order dissolved a school district, assuming and believing at the time that the district was wholly within one town, when in fact it was composed of parts of more than one town. The order was held to be ineffectual for the reason that the dissolved district, or its parts, were not thereby annexed to other districts, and in view of the fact that the district maintains a good school, and that all but two of the voters are opposed to dissolu- tion ; it was held that the order of the commissioner should be overruled rather than perfected. Decided April 19, 1889 A. S. Barker, attorney for appellant Draper, Superintendent This appeal is taken by a taxpayer and legal voter of school district no. 14, of the towns of Albion and Orwell, county of Oswego, from an order of the respondent dissolving said district. The appellant alleges that W. F. Bragdon, who signed himself as trustee of school district no. 14, of the town of Albion, and who referred to the district as of the town of Albion, consented to the dissolution, and that the respondent made an order, a certified copy of which is attached to the appellant's papers, which bears no date, but was made to take effect on the 20th day of October 1888. Nothing is contained in the order which annexes the dissolved district, or its parts, to any other district. The appellant alleges that the voters of the dis- trict, with but two dissenting, are opposed to the dissolution of the same; that by the dissolution children of the district will be seriously inconvenienced, and compelled to travel a long distance to attend school, and in parts of the year will be unable to attend school ; tb.at a good school has been maintained in the dis- trict for many years and has been well attended by the children of the district; that the trustee who consented to the dissolution is a taxpayer in the district, but has no children of school age. From the answer interposed by the respondent, it appears that at the time ^he obtained the consent of the trustee and at the time of the making of the order, she was not aware that the district was composed of parts of the town of Orwell as well as of Albion, and the only grounds stated in support of the order are that the district is a small one, and the value of taxable property very light, and consequently the tax for maintenance of the school, burdensome upon the people of the district ; that the order was made after consultation with a number of prominent disinterested business men of the town of Albion. I have considered this case with a great deal of care, and would like to see my way clear to sustain the commissioner, but it appears to me that the com- JUDICIAL decisions: school districts — DISSOLUTIOxN 743 missioner did not fully understand the feeling of the people of the district, and was, as is admitted by the answer, unaware that the district included a portion of the town of Orwell, and the order so indicates, for it is entitled " in the mat- ter of the dissolution of school district no. 14 of the town of Albion, county of Oswego " ; and so recited in the body of the order. It is not claimed by the respondent that the district has not maintained a satisfactory school, and it appears by the pleadings of the respondent that the taxpayers, with the exception of two, do not complain or object to the burden which the maintenance of a school entails upon them. The inhabitants of the district seem to prefer the accommodation which a separate district and school affords them to a possible reduction of taxation which annexation to other dis- tricts might secure them. The order of the commissioner, which was filed in the office of the town clerk on the 13th day of October 1888, is overruled. . The appeal is sustained. 50^3 In the matter of the appeal of Robert A. Barton and others v. Everett A. Chick as school commissioner, third commissioner district of Jefferson county. Under the provisions of the Consolidated School Law a joint school district is one that lies in two or more commissioner districts. In the alteration or dissolution of a joint school district the commissioners of such district or a majority of them must act. In the dissolution of a joint district without the consent of the trustees, the supervisor and town clerk of each of the towns in which the district is situated must have notice of the time and place appointed by the commissioners to hear objections, ami have the right to act with the commissioners in the decision of the matter. Decided February 24, 1903 Breen & Breen, attorneys for appellants George H. Cobb, attorney for respondent Skinner, Superintendent This is an appeal from the action of a local board, consisting of Comtiiis- sioner Chick, the supervisor and the town clerk of the town of Brownville. Jefferson county, held September 15, 1902, in the village of Glen Park, in refus- ing to confirm an order made by Commissioner Chick July 21, 1902, to take effect November i, 1902, altering the boundaries of union free school district i. Brownville and Pamelia, Jefferson county, in taking from such district all the territory therein, situated in the village of Glen Park, and also all the territory lying north and northeasterly of said village, and forming a new school district to consist of such territory so taken from such union free school district i, to be" known as school district 20. Brownville, Jeflfcrson county. Commissioner Chick filed an answer to the appeal, and the board of education of such school 744 THE UNIVERSITY OF THE STATE OF NEW YORK district, excepting trustee Theron B. Hr.bbard, filed a separate answer. Edward MofFatt, supervisor, and Edward Everett, clerk of the town of Brownville, have each filed a separate answer to the appeal. The following facts are established : Union free school district i, Brownville and Pamelia, consists of lands situated in each of said towns, in the county of Jefferson, and the villages of Brownville and Glen Park, form a part of said district. The town of Pamelia is within the first commissioner district of Jefferson county, and for the year 1902 E. N. McKinley of Adams, was school commissioner of such commis- sioner district. The town of Brownville is within the third school commissioner district of said county, and in the year 1902 Everett A. Chick was the school commissioner of such district. On or about May 10, 1902, a large number of the residents of the village of < ilen Park presented to School Commissioner Chick a petition requesting him to alter the boundaries of union free school district i, Brownville and Pamelia, by setting oft' from such district the territory lying within the village of Glen Park, and forming a new school district, the boundary lines of vvhich should correspond to those of said village of Glen Park. July 21, 1902, Commissioner Chick made an order transferring from said district i all that part of such dis- trict then included within the corporate limits of the village of Glen Park, and also all of the territory of the district lying north, northeasterly and easterly of such village, then forming said district i, and from such territory so trans- ferred forming a new school district to be known as district 20, Brownville, Jefferson county; but in all other respects the boundaries of said district i of Brownville were to remain the same as prior to such order. The trustees of school district i, not having consented to such alteration, said order was not to take effect until November i, 1902. July 22, 1902, such order was filed in the office of the clerk of the town of Brownville, and a copy was served upon the trustees of such district i, with a notice signed by Commissioner Chick, that on September 15. 1902, at 10 o'clock a. m.. he would attend at the school building in the village of Glen Park and hear objections to such order and the proposed alterations, and that such trustees would request the supervisor and town clerk of the towns within which their district lay to be associated with him, at such time and place for the purpose of confirming or vacating such order. Septem- ber 15, 1902, at 10 o'clock at the school building in the village of Glen Park, there were present. Commissioner Chick, Supervisor Moffat, and Town Clerk Everett, of the town of Brownville, I. R. Breen, counsel for the petitioners, and George H. Cobb, counsel for the board of trustees of district i, and after hear- ing the parties for and against the order made by Commissioner Chick of July 21, 1902, due deliberation being had, said local board, by a vote of two to one, vacated said order of Commissioner Chick of July 21, 1902, and thereupon an order vacating such order of July 21, 1902, was made and signed by said com- missioner and the supervisor and town clerk of the town of Brownville. JUDICIAL decisions: school districts — DISSOLUTION 745 Under the provisions of title 6, of the ConsoUdated School Law of 1894, and the acts amendatory thereof, it is the duty of each school commissioner, in respect to the territory within his district, to divide it, so far as practicable, into a convenient number of school districts, and alter the same as therein provided. In conjunction with the commissioner or commissioners of an adjoining school commissioner district or districts, to set off joint districts composed of adjoin- ing parts of their respective districts, and separately to institute proceedings to alter the same in respect to territory within his own district. Under title 6 of the Consolidated School Law, a school district which lies in two or more commissioner districts is a joint district. Whenever it may be necessary or convenient to form a school district out of parcels of two or more school commissioner districts, the commissioners of such districts, or a majority of them, may form such district; and the commissioners within whose districts, any such school district lies, or a majority of them, may alter or dissolve it. Commissioner Chick, under subdivision 2, section i, title 6 of the Con- solidated School Law of 1894, as amended by section i, chapter 227, of the Laws of 1895, had authority separately to institute proceedings to alter the same in respect to the territory (that is, of the joint district) ivithin his ozvn district. The preliminary order in this proceeding should have been made by Commis- sioners Chick and McKinley, and the board of education of district i notified that it could request the supervisor and town clerk of the town of Pamelia, a^ well as the supervisor and town clerk of the town of Brownville, to be associated with such commissioners in affirming or vacating such preliminary order. Assuming, for the purposes of argument only, that Commissioner Chick had authority to make the order of July 21, 1902, the order is defective upon its face in not describing the territory affected by metes and bounds. I decide that the action taken by the local board, September 15, 1902, in vacating the order of Commissioner Chick, dated July 21, 1902, is approved, and the appeal herein shruld be dismissed. The appeal herein is dismissed. SCHOOL DISTRICTS — ORGANIZATION The inhabitants of joint school district no. 13 in the towns of Rome and Lee V. the commissioners of common schools of said towns. If a school district has been recognized as legal for a length of time, regularity in its organization will be presumed in the absence uf the proper record, and the commis- sioners of common schools can not form the district anew and order an election of ollicers under such circumstances, The facts of this case are staled in the Superintendent's order. Decided December 13, 1834 Dix, Superintendent On the 1st day of October last the annual meeting was held in joint school district no. 13. in the towns of Rome and Lee, and officers were chosen for the ensuing year. To the regularity of the proceedings, exceptions were taken, and an appeal was presented to the commissioners of common schools of the two towns, who met and decided that they had no power to entertain the appeal. On examination of the records of the towns, it appeared that district no. 13 was not recorded, with a proper designation of boundaries, in either; whereupon the commissioners proceeded on the 1st day of November (that day having been previously appointed for the purpose) to form a new district by making addi- tions to the district in question, and by making a specification of its boundaries. The district wa.«; then put on record in both towns, and a meeting was called in pursuance of tlu- provisions of section 55, page 477, i R. S. to choose district officers. The meeting was held on the 12th of November, and district officers were chosen. To this proceeding exception is taken by the officers elected at the annual meeting on the ist of October. By an examination of the reports made by the commissioners of common schools of the towns of Rome and Lee, in the office of the Superintendent, it appears that joint district no. 13 has been regularly returned by the commis- sioners of those towns since the year 1822 as an organized district, lying i)artlv in both towns, and that the public money has been apportioned to it according to law. A recognition of the district for so long a period can not with propriety be disregarded in consequence of a failure on the part of the proper officers to have it recorded. It was the duty of the commissioners, on being apprized of the fact, to meet together and declare the boundaries with a view to have them made a matter of record: but it can not be admitted for a moment, that the omission of the proper officers to comply with provisions of law, which are merely directory, is to vacate proceedings regularly conducted by the competent authority. It is true it does not appear, by the records, that the district was ever regularly organized in the manner prescribed by law; but notwithstanding [746] JUDICIAL decisions: school districts — ORGANIZATION 747 the statement given by the commissioners with regard to certain proceedings in both towns in setting off a part of each to the other, the Superintendent can not now permit the original formation of the district to be inquired into for the purpose of invalidating any thing that has been done within it since its organiza- tion. After the lapse of twelve years, during which the district has been returned by the commissioners of both towns to the Superintendent of Common Schools, and has complied with the directions of the statute so as to become entitled to the public money, regularity in its organization will be presumed ; and the commissioners will be so far bound by the reports of their predecessors that they will not be allowed to impeach the accuracy of those reports. It has been repeatedly decided that a district, which has been for a series of years recognized as valid, is to be regarded as such, although no record of it can be found ; and in such cases the commissioners have been directed, whenever the interposition of the Superintendent of Common Schools has been required, to meet and declare the boundaries of the district, and put them on record. In this case the commissioners have overstepped the limits of their authority, by treating the district as null, and ordering an election after forming it anew. They had power to annul tlie district ; but without doing so in a formal manner, it could not be reorganized and treated as a new district. They could not give the notice provided for in section 55 before referred to, because it was not a new district; nor could they issue a notice under the provisions of section 57 (same page) because neither of the contingencies, on which the right to issue such a notice is dependent, had occurred. It is alleged that several of the appellants, who were the officers chosen on the ist of October, were present and acquiesced in the proceedings of the commissioners. Admitting the fact, the difficulty still remains. There was a want of jurisdiction, so far as the order for a new elec- tion is concerned, and their consent could not give jurisdiction. They might have resigned, but could not by their consent give validity to any act on the part of the commissioners, not authorized by express provisions of law, which would abridge the period of their election to office. Notwithstanding the error of the commissioners, the Superintendent is well satisfied that they intended tu act for the best good of the district, and without any doubt as to the extent of their powers. It is hereby ordered, that so much of the proceedings of the commissioner^ aforesaid on the ist of November last, as relates to the boundaries of district no. 13 in Rome and Lee, be confirmed, and that said boundaries be continued as established bv them on that day. And it is hereby declared, that the proceed- ings of the meeting in said district on the 12th of November, held in pursuance of the order of the commissioners, are null and void; and that the persons chosen on the ist of October last are and will continue to be the officers of said district until the next annual meeting, or until vacancies occur. "48 THE UNIVERSITY OF THE STATE OF NEW YORK 4166 In the matter of the appeal of John France v. T. E. Finegan, school commis- sioner, second commissioner district, Schoharie county. In the formation of school districts this Department will not interfere with the discretion which the law reposes in the school commissioner where the convenience of individuals alone is afifected and where no material interest of such individual or of the district is involved. A merely factious opposition, founded on selfishness or feeling, or wilful- ness or fancied illusion, can not be successfully urged to defeat any public purpose good and desirable in itself. Decided March 2, 1893 Hon. John S. Pindar, attorney for appellant Hon. George M. Paliner, attorney for respondent Crooker, Superintendent On August 27, 1892, by the joint action and order of Commissioner Finegan, school commissioner of the second commissioner district of Schoharie county, and Commissioner Cary, school commissioner of the first commissioner district of Otsego county, which order was duly filed in the office of the town clerk of the town of Seward, Schoharie county, a new school district was formed and erected in said town and designated as no. 10, town of Seward. The territory comprising said new district was described in said order and consisted of parts of school district no. 14, of the town of Sharon; no. 6, of the town of Seward; no. 2, of the town of Seward, all in the county of Schoharie, and joint district no. 7, towns of Seward and Decatur, in the counties of Schoharie and Otsego. The trustees of the districts hereinbefore stated respectively consented in writing to the formation of said new district. That the order and survey of lands comprising said new district contained and embraced within its boundaries the residence and a large portion of the lands of John France, the appellant herein. That on August 29, 1892, Commissioner Finegan issued and delivered to one Eckerson a notice for the first meeting of the qualified voters of said new district, to be held at the house of one Eldridge, on September 8, it'92, at 7.30 p. m., for the purpose of electing officers of said new district, etc. That said notice contained a true description and boundaries of said new district, and was duly served by said Eckerson upon the appellant by reading the said notice to said appellant. That said appellant attended said district meeting on September 8, 1892. That on October 20, 1892, the trustee of said new school district no. 10 informed the appellant that the lands of the appellant were included in said new district. That on or about November 30, 1892, the appellant brought this appeal from the order of the said school com- missioners forming said new district. The appellant claims, as the principal ground of appeal, that he has one child of school age, and that such child can not attend the school in said new district without traveling more than two miles, and more than double the dis- tance that would be required to attend the school in district no. 7, in which district appellant formerly belonged. JUDICIAL decisions: school districts — ORGANIZATION 749 It appears from the papers filed in this appeal that said district no. lo, prior to the appeal herein, had purchased a site and erected a new schoolhouse thereon, at a cost of $iioo, of which sum $500 was assessed and collected. That said schoolhouse is situate within about twenty rods of the railroad depot at Seward, and near the Lutheran church. That by the public highway the distance from the house of appellant to said schoolhouse in district no. 10 is only about a quarter of a mile further than to the schoolhouse in said district no. 7. That the lands of one Gilbert France, at the time when the said order forming said district no. 10 was made and said district erected, adjoined the land of appellant, and extended from said lands of appellant to the aforesaid railroad station and church and the site of the new schoolhouse. That between the dwelling-house of appellant and the said railroad station, church and site of the present schoolhouse, there was at the time of the formation of said new school district, and had been for some time previous thereto, a beaten traveled track and road on which the appellant and the public traveled on foot and with teams. That on said road bridges have been built, and appellant has worked upon said road and assisted in building the said bridges. That said road is partly upon the land of said appellant and partly on the land of Gilbert G. France, and extends in a direct line from the residence of the appellant to what is now the site of the new schoolhouse ; the distance between the said two points being about half a mile. That prior to the formation of said new school district said road was the one used by the appellant in going to the railroad station, church etc. That on December 21, 1892, said Gilbert G. France made and acknowledged a deed to the appellant conveying to him and his assigns forever, a right of way over said lands traveled as aforesaid as a road, and to his servants and tenants, at all times, freely to pass and repass on foot and with horses, etc., carts, wagons, vehicles etc., subject to the rights of the public to use said way, and of the said Gilbert G. France, or his heirs or assigns, to use the same in common with the appellant, his heirs or assigns: and subject to the rights of said Gilbert G. France, his heirs or assigns, to dispose of the same to the public for a public road or highway. That said Gilbert G. France, by one Eldredge. his agent, tendered said deed to the appellant who refused to accept it, and thereafter the said Eldredge, as such agent, as aforesaid, in the presence and hearing of the appellant, placed said deed in the hands of one Arthur Fox, for the appellant, stating to the appellant that he could get said deed from said Fox at any time. The appellant alleges that he can not get to the aforesaid road on the lands of Gilbert G. France without crossing the lands of one Mereness, and that the wagon track from appellant's house over the lands of Mereness to the lands of France has been closed up with bars or fences nailed up. It is alleged by the respondent, and not denied by the appellant, that said Mereness is a young man about 22 years of age, and the son-in-law of the appellant ; that the record in the office of the clerk of Schoharie county, made as late as February 2, 1893, fails to show any conveyance of any land to said Mereness ; that if said 750 THE UXIVEKSITY OF THE STATE OF NEW YORK Mereness owns any land, as stated by appellant, his right to the same is derived from appellant, and that the same has not been made in good faith, but only temporarily, and for purposes of this appeal, and such transactions, in reference thereto, if any, have been made since the formation of said new school district, and the commencement of this appeal. The appeal herein must be decided upon the situation and condition of matters in said district, when the order forming and erecting said district was made. It also affirmatively appears that the assessed valuation of school district no. lo, is $48,810, and that of school district no. 7, is $79,561. In my opinion, the commissioners, in making the order and forming said school district no. 10, town of Seward, having received the written assent of all the trustees of the school districts to be affected, had jurisdiction, and that they exercised proper judgment and discretion in their action therein. The appellant is bound to sustain his appeal by a preponderance of proof, and in this he has failed. The appellant has failed to show that any material interest of his or of the district is involved by the action of the said com- missioners. This Department has held that it will not interfere with the discre- tion which the law reposes in the commissioners, where the convenience of indi- viduals alone is affected, and where no material interest of such individual or of the district is involved. While individual opposition to measures of public utility should be duly considered, that opposition should be allowed to have weight only as it has a substantial foundation in reason and justice. A merely factious opposition, founded on selfishness or feeling or wilfulness, or fancied illusion, can not be successfully urged to defeat any public purpose, good and desirable in itself. The appeal herein is dismissed, and the order of said commissioners of August 23, 1892, forming and erecting school district no. 10, town of Seward, Schoharie county, is confirmed. 3517 Asa Bishop from an order of Leonard Davis, school commissioner of the third commissioner district of Ulster county, New York, filed April 14, 1886. Formation of weak school districts will not be upheld when it is made to appear that the best interests of education do not warrant it. Decided November 16, 1886 Draper, Superintendent This is a proceeding by Asa Bishop, a taxable inhabitant and legal voter of school district no. 9, in the town of Olive, in the county of Ulster, appealing from an order of Leonard Davis, school commissioner of the third commissioner district of Ulster county, forming a new school district in the town of Olive, in said county, and altering school districts nos. 6, 8 and 9 in said town. JUDICIAL decisions: school districts — ORGANIZATION 75I The grounds of the appeal are: 1 That the formation of the new district is not desired by the majority of the inhabitants and taxpayers who are inckided in the new district. 2 That the districts from which the territory and taxpayers have been taken to form the new district are not sufficiently strong to sustain such loss without consequent injury to the school interests in those districts. 3 That when the commissioner granted the said order he was misinformed as to the wishes of the voters of the districts. 4 That the consent of the trustees of school district no. 8 was obtained by misrepresentation. 5 That school district no. 8 has been recently provided with a new school- house, and the district taxed therefor, and the taxpayers of district no. 8 who are included in the new district object to being included and compelled to again contribute toward the building of a new schoolhouse. An answer has been duly served which controverts certain allegations of the petition on appeal. But from all the proofs presented I am led to believe that at best but a weak school district has been formed by the order appealed from, and that the best interests of the people would not be subserved by weakening dis- tricts nos. 6, 8 and 9 both in taxable property and the number of school chil- dren as the order in question does. I sustain the appeal, and overrule the order of School Commissioner Leonard Davis filed on or about April 14, 1886. 4248 In the matter of the appeal of Eustace H. Wheeler, John H. Hautsch and Elnathan Eldert, trustees of school district no. 13, town of Hempstead, Queens county, v. John B. Merrill, school commissioner, second commis- sioner district, Queens county. Where an order is made by a school commissioner for the formation of a new school dis- trict from portions of the territory of two other school districts, and it appears upon an appeal being taken from the order, that the formation of the new district would not promote the best educational interests of the districts affected; that undue discrimina- tion has been made against one of the districts affected; that one of the districts would be crippled financially and the pupils in another district be required to travel a longer distance to attend school, or their school privileges be diminished, the order ot the commissioner should be vacated and set aside. Decided May 21, 1894 John Lyon, attorney for appellants Thomas B. Seamans, attorney for respondent Grooker, Superintendent . , ,. • j • The appeal in the above-entitled matter is taken from the prehmmary order of the respondent herein, bearing date July 20, 1893, which order was made 752 THE LTXIVERSITY OF THE STATE OF NEW YORK without the consent of the appellants, and was filed in the office of the town clerk of the town of Hempstead, forming a new school district, to be known as district no. 24, town of Hempstead, from a portion of the territory forming district no. 14, and a portion of the territory forming district no. 13, both of the town of Henijistead, of which latter district the appellants are the trustees, said order to take effect on October 25, 1893; and from the order of the local board, confirmatory of said order of July 20, 1893, which confirmatory order was filed in the office of said town clerk on September 21, 1893. An answer to the appeal has been interposed by the respondent. The main objection of the appellants to the orders appealed from is that it included within said new district no. 24, a strip of land 800 feet in width, from said district no. 13, lying northerly of and adjoining the Merrick and Jamaica plank road. The papers and proofs filed in this appeal show that prior to the date of said preliminary order of the respondent there were two school districts in the town of Hempstead with well-defined boundaries, said districts adjoining each other, and the territory of both districts being divided very nearly equally by the Southern Railroad of Long Island; that the greater portion of district no. 14 laid to the south, and all of district no. 13 laid to the north of said rail- road ; that the aggregate value of the taxable property in said district no. 14 was $251,300; that there were two schoolhouses in said district, one of which was built about five years ago and was used for a branch school, capable of accommodating about thirty-six pupils and was located near the railroad station at what is known as Valley Stream; that the number of children of school age in said district was about 300; that the trustees of said district consented that the northern portion of said district be taken to form the new district; that the Stog^'egate value of the taxable property in district no. 13 was $112,360; that it had one schoolhouse centrally located in which two teachers were employed, the principal being a normal school graduate; that the total number of chil- dren of school age residing in the district was 214, of which 135 attended at some portion of the last year, and that the average daily attendance the last year was 56; that the trustees of said district refused to consent that the strip of land in said district, 800 feet in width, lying north of the Merrick road, be taken to form the new district, but did consent that the portion of such district between said Merrick road and the south line of the district might be taken; that the inhabitants of said district no. 13 are principally engaged in farming; that the tax rate in said district the last school year was eight mills on the dollar. That upon the petition of certain persons and the consent of the sole trustee of said district no. 14, the respondent herein made, on July 20, 1893, his order, forming said new school district to be known as district no. 24; that the trustees of said district no. 13 having refused their consent to the alteration of said school district in the formation of said new district, a hearing was had \ JUDICIAL DECISIONS: SCHOOL DISTRICTS ORGANIZATION 753 by the respondent, the supervisor and town clerk of the town of Hempstead, at the request of the trustee of district no. 14, being associated with the respond- ent; that after hearing the parties said local board made its order, confirming said preliminary order of respondent. That it was shown upon said hearing that the aggregate assessed valuation of the portion of district no. 14 taken to form the new district is $71,400, and the aggregate assessed valuation of the property left in said district is $179,900: that the aggregate assessed valuation of the portion of district no. 13 taken to form said new district is $36,780, and the aggregate assessed valuation of the property left in said district is $75,600; that the aggregate valuation of that portion of district no. 13 taken, lying north of the Merrick road, is $16,530, and of that lying south of the Merrick road is $20,250; that if the Merrick road was made the northerly line of the new district the aggregate assessed valuation of property in district no. 13 would be $92,100; that the aggregate assessed valuation of the property included in said new district no. 24 is $108,180, and $22,530 greater than the aggregate assessed valuation in said district no. 13; that if the portion of land north of the Merrick road should remain in district no 13, the aggregate assessed valuation of said new district no, 24 would be $91,650; that every resident and taxpayer residing within and upon said strip of land 800 feet in width, embraced in the boundaries of the new district have protested against being annexed to the new district, and that in the entire territory proposed to be taken from district no. 13, there were, only two persons who signed the petition to be annexed to the new district, and both of them reside south of the Merrick road ; that of the petitioners for the new district, ten of them did not, at the time of signing the petition, reside within the territory of the proposed new district, nor do any of them now reside therein ; that the children residing upon the strip north of the Merrick road are within a short distance of the schoolhouse in district no. 13, and nearer than they are to the branch school south of the railroad, and nearer than they will be to any schoolhouse centrally located in said new district; that no claim was made before the local board that the school in no. 13 is not a good school, nor that the educational facilities will be better in the new district than in district no. 13, nor that the children living north of the Merrick road will be nearer a school ; that the north line of new district no. 24 is not defined by the course of highways, natural monuments and lot lines, but is a line from a point in the dividing line between districts nos. 13 and 16, 800 feet north of the northerly line of. the Merrick road, and running thence eastward in a line parallel with and north of the Merrick road to the center of Grassy Pond road. It also appears that prior to the order of July 1893, within the territory of said new district, several hundred acres of farm land have been purchased by different land companies, and cut up into lots and placed upon the market, and prospective purchasers of such lots objected to purchasing because of the want of proper school facilities. 754 THE UNIVERSITY OF THE STATE OF NEW YORK In the formation of new school districts, where tiie territory in existing school districts is taken to form such new districts, the object to be obtained is to promote the best educational interests of all the districts affected. No undue discrimination should be made against any one of the districts affected, nor should any district be crippled financially, nor should the pupils in any of said districts be required to travel a longer distance to attend school, or their school privileges be diminished. In taking the strip of land 800 feet in width north of the Merrick road from district no. 13 in the formation of the new district, an undue discrimina- tion is made against said district 13, and its condition crippled by reducing the aggregate assessed valuation in the sum of $16,530. Adding the aggregate assessed valuation of the portion of said district lying south of the Merrick road taken to form the new district, of $20,250, the total assessed valuation of property taken from such district is $36,780, leaving in such district property of aggregate assessed valuation of $75,580, while the new district would have property of the aggregate valuation of $108,180. That the pupils residing upon said strip of land north of the Merrick road are now nearer to a school- hiouse than they will be to any schoolhouse erected in the center of the new district, and until a new schoolhouse shall be constructed in such new district, will be without school facilities except such as may be afforded in the branch school at X'alley Stream Junction, having a seating capacity for about thirty- six pupils only. In the formation of the new district, if the Merrick road had been made the northern boundary thereof, a compact district of about 450 by 650 rods in extent would have been established, which, with a schoolhouse centrally located, would afford convenient school facilities to all residing within its limits, would not have made any undue discrimination against either of the districts affected, nor have seriously crippled district no. 13 financially, and would have promoted the best educational interests of all the districts affected. For the reasons hereinbefore stated I am of the opinion that it was an r.nwise exercise of the authority given to the respondent herein, in the forma- tion of such new school district, to include within the boundaries thereof said strip of land 800 feet in width lying north of the IMerrick road, and that the appeal herein should be sustained, and the order appealed from be vacated and .vet aside. Appeal sustained. It is ordered. That the preliminary order dated July 20, 1893, made by John B. Merrill, school commissioner of the second commissioner district of Queens county, forming a new school district in the town of Hempstead, Queens county, to be known and numbered no. 24 of said town, and the alteration of the boundaries of school districts nos. 13 and 14 in said town; and the order of the local board confirming said preliminary order, both of whicll orders were filed in the office of the clerk of the town of Hempstead, Queens county, be, and they hereby are, and each of them is, vacated and set aside. JUDICIAL decisions: school districts — ORGANIZATION /=,^ 4014 In the matter of the appeal of F. M. Henry v. Alson Cook, school commissioner of the second commissioner district of Lewis county. Upon an appeal from the refusal of a school commissioner to set off a portion of a school district and form a separate district, it is shown that the portion sought to be detached contains a sufficient number of children to warrant the maintenance of a school. The value of taxable property is sufficient to sustain a school without the tax being burdensome. The trustee of the district consents to the proposed alteration, and no objection is made thereto by any resident of the district. Held, that the new district should be formed, and the commissioner is directed to make the necessary order. Decided October 12, 1891 Draper, Superintendent This is an appeal from the refusal of the school commissioner to set off a portion of school district no. 8 of the town of Lowville in the county of Lcwi^. and form a new district out of the detached portion. The papers show that recently a new settlement has been developed in the northwest corner of the district, pursuant to the efforts of the Glen Wild Park Association. It is shown that there are fifteen children of school age residing in the portion of the district which it is proposed to set off. The assessable valuation of the present district is $43,865, and that part of the district which it is proposed to set off has a valuation of. $12,410. The sole trustee of district no. 8 consents to the change ; indeed, he is the appellant herein. The school commissioner makes no answer to the appeal. I find in the papers only a note from him in which he says that the children are no farther from school than in many country districts, and that nearly the entire district opposes the proposed change, and that he thinks yet a little time might better be allowed for further development. No opposition to the project is made by anybody in the district so far as the papers show. If the people who are directly interested have the energy to urge the matter, and others in the district do not take steps to oppose it, and if the trustee chosen by the district consent thereto, it would seem that the school commissioner might very properly accede to the request and grant the same. In view of all the circumstances, I have concluded to sustain the appeal, and the school commissioner is directed to make an order creating a new school dis- trict as proposed. 3S28 In the matter of the appeal of Rodolphus Francisco. Edwin R. Steenrod and Marvin Cook v. Sylvester Jagger, as trustee of school district no. 12, in the town of Colchester, Delaware county, and George D. Chamberlin, school commissioner of the first commissioner district of Delaware county. TRere must be a strong case and overwhelming proof to justify the Superintendent in overruling the action of two school commissioners in refusing to sanction the forma- tion of a new district out of parts of two school districts lying in different counties. Decided November 14, 1889 756 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Sul>ivi)itciidciit The appellants desire a new school district created out of portions of school district no. 12, Colchester, Delaware county, and school district no. i of Rock- land, Sullivan county. The trustee of no. 12, Colchester, refuses to consent to the change. The school commissioners in Delaware and Sullivan counties have met upon the ground, investigated and considered the matter, and determined that it was not advisable to make the order, for the present at least. Upon this state of facts, the appellants come to the Department. There are some informalities in the proceedings of the appellants. They have failed to make the school commissioner of Sullivan county a party to their proceeding, although that officer occupies a position in the matter inferior to no one else. There is a serious question raised as to the regularity of the service of the appellants' papers. Notwithstanding this, I have looked into the case. The circumstances would have to be extreme and the proofs overwhelming to justify the Superintendent in overruling two school commissioners and the trus- tee of one of the school districts affected, in refusing to sanction the formation of a new school district out of parts of two school districts lying in different counties. If they were to take the action, it would be in violation of all general principles governing such matters, and only because of a necessity so urgent as to know no law. The appellants fail to make out such a case. The appeal must be dismissed. 3851 S. C. Armstrong and others v. Loyal L. Davis, as school commissioner of Warren county, Charles W. Noble, as supervisor, and A. R. Noble, as town clerk of the town of Johnsburg, in said county, and their successors in office. A strong and clear case must be established to justify the Superintendent in overruling the action of the local board, in deciding not to confirm an order of a school com- missioner forming a new school district. The convenience of some at the cost of inconvenience to others, is not a sufficient ground. Decided January 3, 1890 Draper, Superintendent It seems that on the 17th day of June 1887, the school commissioner of Warren county made an order organizing a new school district to consist of parts of school districts nos. 2 and 12 in the town of Johnsburg, and no. 11 of the town of Chester in said county. Consent to such order not having been obtained from all of the trustees of the territory affected, the school commis- sioner and supervisor and town clerk of the town of Johnsburg sat to hear objections thereto, and decided not to confirm the same. From this action this appeal is taken. The matter has been under discussion for a long time. JUDICIAL decisions: school districts ORGANIZATION /O/ After the fullest consideration of the whole subject, I am of the opinion that the appellants do not establish a case which will justify me in overruling the conclusion arrived at by the commissioner, supervisor and town clerk. It is manifest that there are some residents of the neighborhood who are poorly sup- plied with school accommodations, and who would derive some advantage from the proposed change. It is by no means certain, furthermore, that, if the change should be made, some persons would not be as much inconvenienced as others would be helped. It seems to be simply a case of rival claims for closer access to a schoolhouse, and that whatever may be done to help one must necessarily be at the expense of another. A case is not established which is strong enough to justify the State Department in overruling the action of the local authorities. The appeal must be dismissed. 4317 In the matter of the appeal of Theodore Kane, trustee of school district no. 6, town of Ward, Allegany county v. Stephen Pollard, school commissioner second commissioner district, Allegany county. Where an orjler of a school commissioner, forming a new school district from portions of other school districts by which it will give better school facilities and increased con- venience to persons and pupils occupying the transferred territory, and at the same time leaves the districts from which the transferred territory was taken sufficient re- sources with which to maintain good and sufficient schools, this Department can iind no justification in setting aside his order. Decided February ), :S93 Reynolds, Brown & Reynolds, attorneys for appellant Smith, Rockwell & Dickson, attorneys for respondent Crooker, Superintendent The above-named appellant appeals from a preliminary order made on July 3, 1894, by the above-named respondent, erecting a school district to be known as no. 8, Scio, in the towns of Scio and Ward, Allegany county, from territory formerly parts of district no. 6, of Ward, and no. i, of Scio, and from the order of the local board made August 10, 1894, confirmatory of said preliminary order of July 3, 1894. The principal grounds for said appeal, as alleged therein, are: (i) a new district is unnecessary to meet the demands or necessities of the inhabitants in said district for educational purposes; (2) there is not sufficient property in said proposed new district subject to taxation whereby a proper school can be main- tained without great burden to the taxpayers thereof; (3) there are not suffi- cient pupils remaining in district no. 6 by which district school can be main- tained; (4) if district no. 8 is formed it will be impossible to maintain a district school in district no. 6 on account of insufficiency of pupils residing therein. 75^ THE UNIVERSITY OF THE STATE OF NEW YORK It is establishetl by the proofs presented herein, that school district no. 6, of Ward, Allegany county, was erected about fifty years ago; that at the forma- tion of the district a large portion of the territory embraced in said district in the southerly ind southwesterly parts thereof was forest; that the schoolhouse in said district was located and built in the northern part of said district over forty years ago. and since said schoolhouse was so located a greater portion of the southerly and southwesterly portions of said district have become cleared up and settled and that said schoolhouse is now a considerable distance northerly and northeasterly of the center of the territory therein in which the inhabitants of said district reside ; that a large number of children of school age residing in said district no. 6 are compelled to travel from two to three miles to reacli the schoolhouse in said district; that in the winter the roads leading to the school- house are filled with snow, and said roads in the spring and fall are almost impassable ; that there is no schoolhouse between that in district no. i, of Scio, an;! the schoolhouse in said district no. 6, of Ward, a distance of five miles ; that there are thirty-four children of school age residing within the territory of the proposed new district no. 8, of Scio, all of whom are two miles and over from any schoolhouse; that some years ago the subject of the erection of a new school district out of territory within said district no. 6, and the southerly and south- westerly portions of said district was agitated, but without any result to that end being accomplished. It further appears that prior to July 3, 1894, a petition signed by a large majority of the residents and taxpayers within the proposed new district, having forty-one children of school age, was presented to the respondent herein as such school commissioner, asking for the erection of such new district; that after giv- ing the subject examination and on July 3, 1894, the respondent herein made his order erecting said new district from territory formerly part of district no. 6, Ward, and no. i, Scio, to be known as district no. 8, Scio, said order to take effect on October 5, 1894; that the trustee of district no. 6, of Ward, not having consented to said order, said respondent, on July 3, 1894, gave notice in writing to the trustees of districts nos. 6, of Ward, and i, of Scio, respectively that on July 24, 1894. at ID o'clock a. m., at the office of the town clerk of the town of Scio in the village of Scio he would attend and hear objections to sai.l preliminary order made on July 3, 1894; that the date of said hearing was upon the request of said trustees postponed to August 10, 1894; that on August 10, 1894, there appeared said respondent and the supervisor and town clerk of each of tlie towns of Ward, Andover and Scio respectively, each and all of whom produced proof that they had been requested by said trustees of said school districts situated in their towns respectively, to be associated with the respondent as such school commissioner upon said hearing; that opportunity was given by said local board so organized to all persons who desired to be heard and to present their objections to said preliminary order, and after hearing all such persons as desired to be heard, and after due deliberation being had, the members of said local board voted unanimously to confirm said preliminary order of the said respondent. JUDICIAL decisions: school districts ORGANIZATION 759 dated July 3, 1894; that thereupon said confirmatory order of said preliminary order was drawn and signed by each member of said local board, to take effect on October 5, 1894, and which contirmatory order was duly filed. It also appears that the aggregate assessed valuation of the real and personal property in said school district no. 6, of Ward, prior to said order of July 3, 1894, was the sum of $48,947, and that there were fifty-four children of school age residing in said district prior to July 3, 1894; that the aggregate assessed valuation of the real and personal property on July 3, 1894, of that part of district no. i, Scio, taken to form said new district was the sum of $7800 with seven children of school age residing therein; that the aggregate valuation of the real and personal estate on July 3, 1894, in said new district no. 8, of Scio, was the sum of $26,365, and having forty-one children of school age residing therein ; that the aggregate valuation of the real and personal property in said district no. 6, after taking from said district the territory embraced in the new district no. 8, of Scio, is the sum of $29,707, with nineteen children of school age residing therein, as admitted by the appellants ; but I am satisfied by the proofs herein that there are between twenty and twenty-four children of school age in said district, with from six to twelve children who in a year or two will be of school age. There is no provision of the school law, or any rule of this Department, defining the number of children of school age required to authorize the forma- tion of a school district, or the number of such children requisite to maintain a school in a school district already formed. I am of the opinion that the proofs herein clearly show that there are a sufficient number of children of school age within the territory of new district no. 8, of Scio, to maintain a school therein, and that there is a sufficient number of children of school age within the territory of district no. 6, of Ward, as altered by the orders herein appealed from, to maintain a school in said district. I am of the opinion that the proofs herein clearly show the necessity of establishing a new school district to enable the inhabitants of the southerly and southwesterly portions of said district no. 6, of Ward, to send their children to school, by reason of the long distance such children were required to travel, and the hardship for such children to reach the schoolhouse in said district in the fall, winter and spring months on account of such long distances and the state of the roads. The proofs herein clearly show that both school district no. 6, of Ward, and no. 8, of Scio, are, and each of them is, financially able to maintain good schools in said districts respectively without such being burdensome to the taxable inhab- itants thereof. The qualified voters and taxpayers within said new district make no complaint of the burdens imposed upon them by the erection of the new dis- trict and it is the appellant herein who is troubled relative to the burdens imposed upon such residents and taxpayers of said new district. The appellant herein does not claim that district no. 6, of Ward, as altered by said order, of July 3, 1894. is not financially able to maintain a good school in said district without being burdensome to the taxpayers therein. 760 THE UNIVERSITY OF THE STATE OF XEW YORK This Department has held that where an order of a school commissioner forming a new school district from portions of other school districts by which it will give better school facilities and increased convenience to persons and pupils occupying the transferred territory, and at the same time leave the districts from which the transferred territory was taken sufficient resources with which to main- tain good and sufficient schools, it can find no justification in setting aside his order. On October i, 1894, upon application of the appellant herein, I made an order staying all proceedings under and pursuant to said order of Commissioner Pollard, of July 3, 1894, and the confirmatory order of the local board of August 10, 1894, until the hearing and decision of the appeal herein, or until a furtlier order shall be made by me in the appeal herein. The appellant herein has failed in sustaining his appeal and the said appeal should be dismissed. It is ordered, That the appeal herein be, and the same hereby is, dismissed. It is further ordered. That the said order made by me herein on October i, 1894, staying proceedings under the preliminary order of Commissioner Pollard of July 3, 1S94, and the order of the local board of August 16, 1894, confirming said order be, and the same hereby is, vacated and set aside; and said preliminary order of Commissioner Pollard of July 10, 1894. and order of the local board of August 10, 1894, confirming said preliminary order be, and each of them is. hereby confirmed. 5298 In the matter of the appeal of the board of education of union free school dis- trict no. 7, town of Clarkstown, county of Rockland, from the orders and decisions of School Commissioner Hopper, in altering the boundaries of said district. The action of a school commissioner in establishing a new school district which promotes the educational interests of the great majority of the residents of the territory affected will be sustained. It is not absolutely necessary that the contirmatory order shall be identical in terms with the preliminary order. Decided December 28, 1906 John E. Sickles, attorney for appellants Herman T. Hopper, attorney in person Draper, Commissioner On or about July 16, 1906, School Commissioner Hopper of Rockland county, made an order forming a new school district known as district no. 10, town of Clarkstown. This district was formed from portions of districts nos. 6, 7 and 8 of said town and the boundaries of such districts were therefore altered accord- ingly. The trustees of districts nos. 6 and 7 did not consent to the alteration of JUDICIAL decisions: school districts ORGANIZATION /6l i the boundaries of their respective districts and the school commissioner properly made his prelim.inary order under the provisions of section 3, title 6 of the Con- solidated School Law. The order appears to have been regularly made. Notice of a hearing on such order was given as required by section 4 of the same title. At this hearing the super\-isor and town clerk of the town were associated by request with the school commissioner. The hearing was adjourned from time to time and the opposing districts were given full opportunity to be heard. After the hearings were closed the board voted to affirm the order of the school com- missioner. The confirmatory order was then duly made by the school commis- sioner and the supervisor and town clerk properly joined in such order. It appears that the orders were properly executed and filed and that the proceed- ings were regular. Appellants raise one question of procedure that is entitled to consideration. It appears that the boundaries of district no. 10 as given in the preliminary order are not the same as the boundaries given in the confirmatory order. The" school commissioner amended his preliminary order by changing the boundaries of the proposed district. The actual change made in such bound- aries by the confirmatory order does not operate as any material hardship to dis- trict no. 7. It appears from appellants' map that the real effect of such change v.as to transfer the Powell or Armes property from no. 7 to the new district. It is not shown in which district the owner of this property prefers to be placed. It is not shown which of the schoolhouses of these two districts is the more accessible to children residing on such property and who might be compelled to attend school. It appears, however, from " Exhibit I " of appellants' pleadings that there are no children at present residing on such property who are re(|uired to attend school. Ordinarily the confirmatory order should be identical in terms with the preliminary order, but a slight change in the boundary of a new district, made for the purpose of equalizing the conditions between the districts affected is not good ground in itself for setting aside such order. If it were shown that such modification operated in some way as a hardship upon an individual or district a different question would be presented. The original or preliminary order is inchoate and of no effect whatever until the confirmatory order has been made. It must therefore be held that the order was properly made and the action of the commissioner sustained unless it is shown that upon the merits of the case the new district should not have been organized. The new district includes the hamlet of Bardonia. Bardonia is located on the New Tersey and New York Railroad and between New City and Nanuet. District no. 7 includes the hamlet of West Nyack. This hamlet is a station on the West Shore Railroad. It appears that the distance from Bardonia to the schoolhouses in the adjoining districts is about two miles. The children residing at Bardonia were required, in going to and from school, to walk over country roads a distance of four miles. The distance which nearly all of these children w£re required to walk could be reduced at least one half by the formation of a new district. It also appears that the line of travel is not from Bardonia to West Nyack and that generally the residents of Bardonia have no interests at 762 THE UNIVERSITY OF THE STATE OF NEW YORK West Nyack. The pleadings do not show the number of children in the new district who will attend school. There are twenty-three who were formerly in district no. 7 and a|)pellants' map would indicate that there are as many more at least from the other portions of the district. It also appears that the hamlet of Bardonia is growing from year to year. The people residing within the territory com{josing the new district desired to have a school established at this hamlet. They appear to have been unanimous in this desire. Many of them personally requested the school commissioner to form a new district and later petitioned him to take such action. District no. 7 opposes the formation of such district on the ground that it will weaken this district numerically and linancially. This district has an assessed valuation of more than $270,000. The assessed valuation of the property trans- ferred is a little over $30,000. The district will still have an assessed valuation of $240,000. The regii,tration in district no. 7 last year was one hundred and fourteen and the number of children of school age was one hundred and thirty. Deduct the twenty-three children transferred to the new district and the nuniDtT of children in no. 7 is one hundred and seven. The decrease in the number of children and in the property value of the district no. 7 will not be sufficient to interfere with the efficiency of the school which it will be able to maintain. District no. 7 offered to maintain a branch school for the primary grade at Bardonia or to convey the children from that section to and from the school- house in its district. This action on the part of no. 7 was an admission that the children at Bardonia did not have adequate school facilities. District no. claims that its loss in taxes through the action complained of will be about $234 annually. This amount however would not pay the additional expenses of main- tainmg a primary school or of properly conveying the children from Bardonia to and from school. From the financial standpoint therefore the establishment of the new school district will reduce the expenses to district no. 7 from what such expenses would be were the district to maintain a branch school or convey the Bardonia children. It is claimed by appellants that the school commissioner made his prelimi- nary order before receiving a petition from the persons interested in the forma- tion of a new district. It is immaterial when the commissioner received such petition. It was not necessary that a petition should be presented. The commis- sioner had ample authority to make such orders on his own initiation and without any petition. The fact, however, is that the people desiring a new district had personally importuned the commissioner to establish one. This was generally understood. The matter was presented to him in writing by a representative of the people interested. The commissioner told them to have a petition presented showing the sentiment of the people on such question. Before the petition was received he made the preliminary order. The petition was duly presented and considered by the board before the confirmatory order was made. The peti- tioners under all the circumstances were entitled to a new district. In the estab- JUDICIAL decisions: school districts ORGANIZATION 763 lishment of such district the school commissioner was promoting the best educa- tional interests of the great majority of the people affected. His action appears to have been judicious, regular and in good faith. He must be sustained. The appeal herein is dismissed. 3527 Jolm H. Keeler v. Charles H. Ide, school commissioner of the second commis- sioner district of Erie county. In forming a new district, the confirmatory order should be identical with the terms of the original order. But a person who secures a slight modification of an order and gives his acquiescence to such modification, is not in a position to question the validity of the confirmatory order because of such modification. Decided November 17, 1886 Draper, Superintendent This is an appeal from the order of Charles H. Ide, as school commis- sioner of the second commissioner district of Erie county, N. Y., in making an order, dated the i6th day of July 1886, forming a new school district out of parts of district no. 4, in the town of Hamburg, and district no. 3, in the towns of Evans, Eden and Hamburg, and also from an order made by the said school commissioner, together with the supervisor and town clerk of the town of Hamburg, made upon the 27th day of July, 1886, confirming the first mentioned order. Substantially the only ground upon which the appeal is taken is, that the order of the 27th of July was not identical in its terms with the order which it sought to confirm. It modified the boundaries of the new district in a slight particular. The appellant insists that this is fatal to the proceedings. Ordi- narily, it would be, but the fact is made clear to me that the modification was made in the interest of and for the sake of satisfying the appellant, and in the belief that it would prevent further controversy. The appellant was present at the hearing held by the commissioner, supervisor and town clerk, for the purpose of affording an opportunity to persons aggrieved to state their objec- tions, and acquiesced in the modification so far as it went, but desired more of a modification. He is not now in a position to raise the question. The members of the board say that they would have confirmed the original order precisely as it stood, but for the sake of suiting the appellant so far as they reasonably could. He can not be upheld in an effort to set aside the action of the board only because of a slight modification which he himself desired. 764 THE UNIVERSITY OF THE STATE OF NEW YORK 5107 In the matter of the appeal of WilHani Barss, Seymour Kniv.kerbocker, George Owens, \\'ill!am Higgins, Mrs Fannie Persons, Mrs William Higgins, Nelson West et al. as inhabitants and electors of alleged school district, no. 8, in the town of Chester, Warren county. Order establishing school district out of portion of dissolved district. An order of a school commissioner which establishes a new school district out of a portion of a district which has been dissolved, which does not dispose of the remaining territory of the dissolved district nor show the alteration of the boundaries of the other districts to which it is assumed such remaining territory has been annexed, is defective and must be set aside. Disorderly meeting; resolution legalizing act of trustee. A meeting is not necessarily illegal because disorderly. If a fair vote was taken upon a resolution, and the con- tending parties were equally blamable for the disorder, the action of the meeting will be sustained. A resolution accepting the act of a trustee in building a schoolhouse and authorizing the raising by tax of a sufficient sum to pay the cost thereof, legalizes the act of the trustee. Decided May 17, igcg John H. Cunningham, attorney for appellants L. L. Davis, attorney for respondent Draper, Cotiunissioner This is an appeal from an alleged order of James L. Fuller, school com- missioner of the second school commissioner district of the county of Warren, in establishing the boundaries of school district no. 6, town of Chester, county of Warren, and from the acts of a certain special meeting held in such district for the purpose of ratifying the acts of the trustee of such district in selecting a site and erecting a new school building thereon. The appellants also com- plain of the acts of the trustee in arbitrarily selecting a site and proceeding with the erection of a school building thereon. A number of other acts are complained of, but the disposition of the case will depend upon the legality of the school commissioner's act in establishing the boundaries of the district and of the act of the district meeting in ratifying the selection of the site and erection of a schoolhouse thereon by the former trustee. The papers on appeal do not clearly show material facts. There is much repetition, and constant jumbling of irrelevant assertions with material and essential allegations, so that it is exceedingly difficult to determine the rights of the respective parties. No maps are filed, or facts alleged showing how the appellants are injuriously afifected by the order of the school commissioner in setting off into the several districts the parts of the original district. The appellants rely on the general allegation that the order was "' against the best interests of the district and the promotion of education therein." They do show that the district was already weak and was further weakened by* the order, while the other district was stronger and was further strengthened thereby. But this does not necessarily establish the illegality of the order. JUDICIAL decisions: school districts — ORGAXIZATION 765 The appellants do not state how the respondent came to organize school dis- trict no. 6. The school commissioner in his answer alleges that his district was formerly part of joint district no. 6, towns of Chester and Minerva, counties of Warren and Essex, and that he and School Commissioner Pond dissolved this joint district by an order dated December 3, 1907. It would appear that soon after January i, 1908, the respondent Fuller made an order wherein he attempted to create out of a portion of such dissolved joint district a new district no. 6 in the town of Chester. This order was not tiled in the town clerk's office until September 22, 1908, and of course did not take effect until that time. Prior to that time, on January 18, 1908, under the direction of the respondent Fuller a meeting of the district was held and the district was organized by the election of district officers. It would seem to follow from the crude and confusing allegations contained in the petition and the respond- ent's failure to controvert them, that this meeting was open to all qualified voters residing within that portion of the dissolved joint district situated in the town of Chester. It also appears that persons were elected officers of the district at the annual meeting who were residents of that portion of the district set off by the commissioner's order filed September 22d. It would seem that those people residing in that part of the dissolved joint district situated in the town of Chester assumed that the school commissioner had established such part of such district as a new school district. There is nothing in the papers on this appeal indicating just what disposition was made of this part of the former district. The order filed September 22, 1908, does not show on its face the disposition of this territory. It is entirely inadequate as an order establishing the boundaries of school district no. 6, town of Chester, and does not conform to the requirements of the law relating to the alteration of the boundaries of the North Creek union free school district, or of school district no. 10, town of Chester. This order must be set aside and a new order entered which shall distinctly set forth the boundaries of these three districts, and if necessary a survey must be made defining such boundaries. The only other question worthy of decision is the legality of the resolutions adopted by the special meeting of the district held October 9, 1908. One of these resolutions accepted the act of a former trustee in erecting a school building on a site selected by him. and authorized the raising by tax of a suffi- cient sum to pay the cost of such building. Another resolution designated the site selected by the said trustee as the schoolhouse site for the district, duly describing such site by metes . and bounds as provided by law. The papers show that this meeting was disorderly; that the voters present were many of them the givers and takers of severe blows. It does not sufficiently appear whether the appellants herein were the aggressors or the aggrieved. Both sides were probably equally guilty. In any event a fair vote seems to have been ultimately taken and the resolutions were adopted. All of these appellants, except Owens and Mrs Persons, were permitted to vote. Some of them resided outside of the district as established by the respondent's order of Septem- 766 THE UNIVERSITY OF THE STATE OV NEW YORK ber 22(1, and it may be questioned whether they were legal voters at that meet- ing. Such order was in force at the time this meeting was held, and until set aside on an appeal duly brought, controlled the residence of persons at such meeting and their qualifications as voters based thereon. I therefore decide that these resolutions were legally passed at such meeting and that they are sufficient to establish the site described as the schoolhouse site of the district, and to legalize the acts of the former trustee in selecting such site and in pro- ceeding with the erection of a school building thereon. The appellants have not successfully attacked the order of School Com- missioners Fuller and Pond in dissolving joint school district no. 6, towns of Chester and Minerva. School Commissioner Fuller should have concurrently entered an order disposing of that portion of the dissolved joint district in the town of Chester by creating a new district or annexing it to other districts in such town or by doing both. He attempted to do this but his order was invalid and ineffective. It would be unjust to the district to hold that the invalidity of this order rendered void all acts of the district ; the qualified electors in the district had no means of knowing that the school commissioner had not per- formed his full duty. The appeal herein is dismissed except so far as it relates to the sufficiency of the order creating new district no. 6, town of Chester and annexing a por- tion of dissolved joint district no. 6, towns of Chester and Minerva, to North Creek union free school district and to district no. lo, town of Chester. As to such order the appeal is sustained. It is hereby ordered. That the order of School Commissioner Fuller form- ing new school district no. 6, town of Chester, and annexing portions of the dissolved joint district no. 6, towns of Chester and Minerva, to other districts, dated January 2, 1908 and filed in the office of the town clerk of the town of Chester be set aside ; and It is hereby further ordered, That the present school commissioner of the second school commissioner district, county of Warren, shall forthwith enter in the town clerk's office of the town of Chester, a new order clearly defining as required by law the boundaries of the new district attempted to be estab- lished by the order hereby set aside, and also the boundaries of those districts to which" portions of that part of dissolved joint district no. 6, towns of Chester and Minerva, were attempted to be annexed by the said order hereby set aside, and that the said new order so entered shall take effect as of the date of the original order. SCHOOL EQUIPMENT 3935 In the matter of the appeal of Robert S. Hilton v. Daniel Lockwood, sole trustee of school district no. 20, town of Westerlo, county of Albany. A trustee of a school district purchased for the district upon his own motion, and paid therefor, $15 for a set of school charts, for which he demanded reimbursement, and was refused. Held under the statute, to be entitled to his claim, and payment ordered. Decided December 3, 1890 Draper. Superintendent The appellant was trustee of school district no. 20, town of Westerlo, Albany county, from the annual school meeting of 1S89, at which he was elected, until August 5, 1890, when the above-named Daniel Lockwood became his successor as trustee. During appellant's term as trustee, he purchased one set of school charts which he furnished to the school of his district, the expense of which, $15, he paid and advanced for the district. He presented his claim therefor, to the annual meeting, where it was not allowed, and the trustee will not pay the claim. The law clearly authorizes a trustee to incur an expense of not to exceed $15 in any year for charts, without a vote therefor by a district meeting. The trustee did this, and paid the expense, $15, for which he is entitled to prompt reimbursement by the district. The trustee, if there are moneys in the collector's hands, is hereby authorized and directed to give an order to the appellant for $15. the sum claimed. If there be no money in the collector's hands, he will levy a tax upon the property of the district and liquidate the claim. The appeal is sustained. [767I SCHOOL FUNDS 3659 In the matter of the application of Thomas C. Arnow and others for the removal of Henry A. Smith, James Cox and others, from the ofhce of trustee of union free school district no. i, town of Westchester, Westchester county. At a meeting of a board of trustees in a union free school district held on the day pre- ceding the annual school meeting, at which school meeting a majority of a full board was to be chosen, drafts were ordered for the final payment of moneys not yet due on a building contract and were issued to the assignees or beneficiaries of the contractor before payments were due under the contract. In consequence of this action the dis- trict sustained loss at least to the extent of $650, the contractor liaving since failed to complete his contract. Held, That the fact that the payment was made on the day before an election at which a majority of the board was to be chosen, raised the inevitable inference that the act was not taken through inadvertence, but with gross negligence or deliberate purpose to effect some object other than to protect the public interests. Held, A member of the board who was not present at the meeting when an illegal pay- ment was made, can not in law be held legally and personally responsible for a loss occasioned the district, although evidence appears that he would have so voted had he also been present. Held, That the members of the board who voted for this illegal expenditure of money are liable for the loss to the district occasioned by their action, and they are required to pay or cause to be paid to the district the amount lost, or be removed from office. Decided January 5, 1888 Milton A. Fowler, attorney for complainants H. C. Henderson and Charles G. Banks, attorneys for respondents Draper, Superintendent This is an application for the removal of certain trustees from office. The ground of complaint alleged is that they have made payments to one George A. Xewbold, a contractor for the performance of certain work upon a new school building, in course of erection, in advance of the requirements of the contract, and that this fact, coupled with Newbold's abandonment of his contract before completion, has resulted in pecuniary loss to the district. The contract with Newbold provided for payments during the progress of the work, as specified portions thereof should be certified by the architect to be properly completed. By the contract the sum of $2225 was to be held back and paid to the contractor only upon the full performance of his contract. At the annual school meeting held August 30, 1887, five new members, a majority of the whole number, were elected upon the board. On the day before election, at a meeting at which five members were present, the board ordered drafts in favor of Newbold's assignees or beneficiaries for the sum of $1675 o" account of the final payment. The money was paid and he forthwith abandoned the contract. (768] JUDICIAL decisions: school funds 769 The board as newly constituted, received bids for the completion of the contract and let the work to the low^est bidder for the sum of $1200. Beyond this it was alleged on one side, and admitted on the other, that the board is liable to one Braithwaite for the sum of $700 on account of the Newbold contract, because of its having accepted an order given to Braithwaite by Newbold for painting upon the building. This order was for $1000 of v.'hich sum $300 was paid August 20, 1887. It therefore required the sum of $1900 to procure the completion of Newbold's contract, while he had been paid all of the contract price except $750. In other words, the district was out of pocket $1150 by reason of Newbold's failure to finish his contract and because of payment made before being due. The architect swears, however, that Newbold had performed " extra work " upon the orders of the board to the value of more than $500 which had not been paid. If this is not true, it at least is not controverted. This would reduce the net loss of the district to the sum of $650. On the other hand it is alleged that numerous defects have been recently discovered in Newbold's work by reason of a thorough examination of the building having been made by an engineer under the direction of the State Board of Health, and that it would cost $1000 to make these good. I think it is shown clearly enough that some very serious defects exist, but the sum necessary to make them good is not shown to any degree of certainty which will enable me to make it the basis of my action. Nor am I pre- pared to say that the respondents are personally liable on account of such defects. Therefore, while I deem it proper to say that I do not assume to pass upon any of these accounts with care, and that the proofs are not before me which would enable me to do so, and it is not necessary for me to do so upon a proceeding of this nature,. yet there is sufficient evidence here to satisfy me that the district lost at least the sum of $650 by reason of the acts complained of. Numerous other matters are set up in the papers and were discussed to a considerable extent upon the argument, but I think I have stated all that is material to the question before me. The respondents attempt to justify their action by showing that Newbold's contract was taken at a very low price and that they paid him money upon the certificates of the architect that the work had progressed sufficiently to justify such payments. I do not think that this is a sufficient answer. Whether the contract price was low or not, is immaterial. The contractor had given what is admitted to have been a good and sufficient bond for the performance of his agreement and the board was bound to see that it was carried out to the letter. They had no right to be generous with the money of the public ; members were not bound to recognize the certificate of the architect except as provided in the contract. The contract provided for the final payment of the sum of $2225 upon the full comple- tion of the contract. The board was in position to insure its completion and it surrendered that position. The fact that this was done the day before an elec- tion at which a majority of the board was to be chosen, and after the financial statement for the year had been made up and printed for presentation to the 25 7/0 THE UNIVERSITY OF THE STATE OF NEW YORK annual meeting, raises the inevitable inference that the act was not taken through inadvertence but with deliberate willingness to effect some object other than to protect the public interests. It does not appear that the respondents acted through corrupt motives or impulses, that they derived any personal profit or advantage from their acts, or that they deliberately intended to defraud the district. It does clearly appear that they have failed to exercise that care in the protection of the interests of the district which they were bound to exercise. Of the members of the board which made the payment to Newbold in advance of the requirements of his contract, Henry A. Smith, William Walsh, Henry Corkey and James Cox are still members. Cox and Corkey were present and voted for the payments to Newbold at the meeting on the twenty-ninth of August. Smith and Walsh were not present at such meeting, but they make affidavits in which they say they approved of the acts of their associates and would have voted for it if they had been present. I do not know of any principle of law, however, which would hold one legally and personally responsible for acts of their nature unless he was present at the meeting of the board and gave to them the sanction of his vote. I have concluded, therefore, to dispose of the case in the manner following and. It is hereby ordered, that Henry Corkey and James Cox pay or cause to be paid to the treasurer of union free school district no. i, of the town of West- chester, the sum of $650 before the expiration of twenty days from the date of this order or that at that time they be removed from their office as trustees in said district. 3714 In the matter of the appeal of John M. Pendleton and others v, school district no. 3, town of Castleton, county of Richmond. A district meeting is not authorized to allow a librarian a salary, and a vote to that effect is void. A vote granting the balance of district moneys to the trustees to use in their discretion is void. Decided October 3, 1888 Draper, Superintendent This is an appeal from the action taken at the annual school meeting in dis- trict no. 3 of the town of Castleton, Richmond county as follows : 1 From the vote of the inhabitants in granting $75 to the librarian as salary. 2 From the vote of the inhabitants in granting to the trustees a sum not exceed- ing $1000 for the purchase of a clock. 3 From the vote of the inhabitants in granting a sum not exceeding $60 for the purchase of and placing a telephone in the school building. 4 From the vote of the inhabitants granting the balance of surplus moneys to the trustees to use in their discretion. JUDICIAL decisions: school funds 771 Xo answer is interposed by the respondent, and I am obliged, therefore, to accept the statements of the appellants as facts. It has been repeatedly held by this Department that a common school district has no power to levy a tax for the purpose of paying a salary to a trustee. I know of no distinction, upon prin- ciple, which can be drawn between a tru.otee and any other district officer, and it would therefore follow that the action of the district meeting in granting $75 to the librarian as a salary was unauthorized, and is void. I know of no law which will prevent a school district from expending a reasonable sum of money for the purpose of purchasing a bell or clock. Of the wisdom of expending $1000 for such a purpose, I am unable to judge. If it should be considered extravagant by any considerable number of residents in the district. I should be inclined to advise the holding of a special meeting for the purpose of reconsidering the matter, but I am of the opinion that the district has the legal right to raise a rea- sonable sum of money for such a purpose. It seems to me that the district meet- ing had the power to authorize the expending of $60 for the use of a telephone. The district meeting could not place any amount of moneys in the hands of the trustees to be used in their discretion. The surplus funds coming over from last year's accounts must be held by the supervisor or collector subject to the draft of the proper officers, for lawful indebtedness of the district, and must go to the reduction of the amounts voted for the expenses of the coming year. The tax levy authorized by the district meeting, from the action of which this appeal is taken, must be for a sum no larger than that authorized by the district meeting after subtracting from the same the sum of $75 voted to be paid to the librarian as a salary, as well as all moneys voted to be used by the trustees in their discre- tion, and also the balance on hand at the time of the annual meeting, unless said balance was taken into account by the meeting. 3690 In the matter of the appeal of Lemuel H. Cunliff and others, trustees of school district no. 25, town of Hempstead, Queens county. N. Y. v. Martin V. Wood, supervisor, Edmund J. Healy, B. Valentine Clowes, Thomas D. Smith and John \\'. DeMott, justices of the peace, and Thomas V. Smith, town clerk, comprising the board of town auditors of the town of Hempstead, Queens county. In a case where a special statute, applicable to a particular town, provided that a certain trust fund should be apportioned among the school districts of the town in the same manner and upon the same basis as the State school moneys are apportioned, held, that such statute is to such extent "an act pertaining to common schools," and that the trustees of such funds are, so far as their apportionment of such funds among different school districts is concerned, subject to the general supervisory powers of the Superin- tendent of Public Instruction. Decided June 7, 1888 Asa Bird Gardner, attorney for petitioners A. N. Weller, attorney for respondents yjT. THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent Prior to April 1886, the village of Garden City constituted a part of school district no. i of the town of Hempstead, Queens county. By act of the Legisla- ture, the village then became a separate school district, known as district no. 25 of the town of Hempstead. It was duly organized and ofiicers elected in August fol- lowing. Prior to the setting off of the village into a separate school district, there had been maintained there a branch school. In the apportionment of public school moneys in the school year 1885-86, district no. i of Hempstead received such share as would have been payable to it if no separation had been made, while the new district received nothing. The matter was brought before me on appeal, and it was held that the new district was equitably entitled to share in the appor- tionment; that the statute gave the Superintendent power to adjust the matter if the facts were proved upon which he could do it intelligently and correctly, and that such a state of facts was proved. It was therefore ordered that district no. I should pay over to district no. 25 the proportional share of public moneys found to be due said district, or that said amount should be withheld from the share of one district and added to that of the other in the next annual apportionment. At the time of the presentation of the matter referred to the petitioners also asked that district no. i should be required to pay over to no. 25 a like propor- tional share in the income of a certain trust fund arising from the sale or rental of common lands of the town, of which the board of town auditors were trustees, and which chapter 591 of the Laws of 1870 directed should be distributed to the several school districts of the town of Hempstead " in the same manner and upon the same basis as the public school moneys of the State are apportioned." They showed that two apportionments from this trust fund had been paid to district no. I after Garden City became a separate school district and before the com- mencement of these proceedings, and that, in said apportionments, the old district received the share which seems equitably to belong to the new one, while the new district received nothing. The relief which was asked in connection with such trust fund was not afforded in the decision and order in the proceedings referred to, for the reason that it seemed to me that up to that time the board of town auditors had made no mistake. They had made their apportionment in the same manner and upon the same basis as the public school moneys of the State are apportioned, so far as they could be expected to know. It was assumed, when a decision was made by authority competent to make it, that an erroneous apportionment of public mone.vs had been made among the school districts of the town, and that after such error was corrected and set right, that the board would perceive that it also was in error in the apportionment of the trust fund, and that it would, after being apprised of the matter, also proceed to set the matter right. A doubt was also expressed of the power of the Department over the trust fund referred to. It is now shown that the order of the Department in relation to the public moneys has been brought to the knowledge of the board of town auditors, and a demand has been made that the share of district no. 25 in the apportionments JUDICIAL decisions: school funds 773 from the trust fund on December 21, 1885, and June 5, 1886, which was paid to district no. i, shall be paid over to no. 25, but that such demand has been refused. Thereupon the matter has been brought here and relief is asked. After hearing the argument of able counsel, I have given the matter vefy full examination. I find that section 8, chapter 591, Laws of 1870, provides that two-thirds of the accruing interest of the moneys arising from the sale of the common lands in the town of Hempstead, or so much thereof as may be neces- sary, shall be devoted to the support of the common schools of the town. Exactly how much, is to be determined by the board of town auditors after examining the last annual reports of the trustees and boards of education of the town, and whatever amount is devoted to such purposes is apportioned among the several districts in the same manner and upon the same basis as the public school moneys of the State are apportioned. My reading of the section leads me irresistibly to the conclusion that the only discretion vested in the board of town auditors is the fixing of the amount, witliin the limit named by the statute, which shall go for school purposes. They are to be guided in doing so by the reports of the trustees. When they have determined the amount, the law says just how it shall be dis- tributed, namely, in the same manner and upon the same basis as the State school moneys. It is a fact, which is undeniable, that the. two sums devoted to school pur- poses by action of the town auditors on the 21st of December 1885, and the 5th of June 1886, respectively, have not been, so far as districts nos. i and 25 are concerned, apportioned in the same manner and upon the same basis as the State school moneys have been apportioned in said districts. It is true that these sums have been distributed in the same manner and upon the same basis as the public school moneys were at first apportioned by the local officers charged with the duty of such apportionment, but it has been determined by authority, which all now concede was charged with the responsibility and duty of determining the matter, and that such apportionment was in justice and equity erroneous, and ought to be corrected. Such correction has not only been made by a reappor- tionment, but the payments to the respective districts have, in fact, been read- justed in accordance with such reapportionment. This being so, it seems clear to me that the directions of the statute, con- cerning that part of the income of moneys arising from the sale of public lands which has been devoted to school purposes, have not been complied with, and will not be until such moneys shall be reapportioned and readjusted in the same manner as has been done in relation to the State school moneys. This being so, it is no less clear to me that it is the duty of the board of town auditors to make such reapportionment and readjustment. I observe their allegations that they have no power in the premises; that they can neither compel district no. i to pay over to no. 25 what may belong to the latter, nor in their next apportion- ment withhold enough from the share of one and add it to that of the other to set the matter right. I can not adopt this view. It seems to me entirely too technical. The right to correct a manifest error, capable of correction, is inherent 774 THE UNIVERSITY OF THE STATE OF NEW YORK and always present. Suppose the auditors had ascertained that, through a mis- take in conipi tr.tion, a mere arithmetical blunder, they had paid a larger sum to one district and a correspondingly smaller sum to another district than each should have received. Would they contend in that case that they had no right to correct the mistake, no power in a subsequent apportionment to withhold from one and add to the other enough to set the matter right? If they had no power to right the wrong, why would they not be personally liable for the amount to which the district was entitled, and which it had not received through their mis- take? But there would be no doubt of their power to correct the error. If they could do it in that case, they can in this. Can they be required to do it? I entertain no doubt of it. What the law directs to be done and may be done, may be required to be done. Have the appellants or petitioners taken the proper steps to compel them to do it, when they come to this Department? The respondents say that the Superintendent of Public Instruction has no power to do anything in the premises. With a desire neither to assume any autliority which the office does not possess, nor to avoid any responsibility which the law does place upon it, I have endeavored to con- sider that question with care. No one can examine the general school laws of the State without being con- vinced that it is the purpose of the Legislature to provide an inexpensive, expeditious and conclusive way for determining all controversies in which school interests may become involved. This way lies in the statutory right of appeal to the Superintendent. The right is broad, extending to all school controversies. Title 12, section i of the Consolidated School Act, provides that "any person conceiving himself aggrieved in consequence of . . . any other official act or decision concerning any other matter under this act, or any other act pertain- ing to common schools, may appeal to the Superintendent of Public Instruction, who is hereby authorized and required to examine and decide the same." Is not chapter 591 of the Laws of 1S70, an act pertaining to common schools, when it directs the distribution of certain moneys in a certain way, among certain schools? The school system may be administered in different ways and by dif- ferent officers in different localities. Is not the apportionment of moneys, devoted to schools of the town of Hempstead, by certain town officers, no matter by what title they are called, an official act under a statute pertaining to schools? In my judgment, it is as much so as is the annual apportionment of the State school moneys by the school commissioners of the county of Queens. If so, then the act is one which may be brought up before the Superintendent upon appeal, and the statute not only authorizes, but requires him to examine and decide whether or not it was rightfully and properly performed. But there are statutory provisions specially treating of funds held in trust for the benefit of common schools. Title 3, sections 15, 16 and 17 of the Con- solidated School Act, after providing for the establishing of such trusts, and that no such trusts shall become invalid for want of a trustee, and that the Legisla- JUDICIAL decisions: school funds 775 ture may control and regulate the execution of all such trusts, contains this direc- tion, viz : " And the Superintendent of Public Instruction shall supervise and advise the trustees and hold them to a regular accounting for the trust property and its income and interest at such times, in such forms and with such authenti- cations as he shall from time to time prescribe." The board of town auditors is the custodian of certain funds. The law directs that a certain part thereof shall be devoted to school purposes, and leaves it to them to say how much, within specified limits. They say how much. The law says they shall then distribute it in a specific way. From the moment they have voted moneys to the schools as provided by law, such moneys belong to the schools, and until actually paid over to the school officers, they are held in trust for the schools by the board of town auditors. It seems clear to me that during such period the members of such board occupy the position of trustees of such funds for the use of the schools, and are subject to all provisions of law govern- ing such officers. The statute says that the Superintendent shall supervise and advise such trustees and hold them to an accounting, etc. In view of these considerations, I come to the conclusion that, in the appor- tionment and distribution of town moneys to schools of the town of Hempstead by the board of town auditors on the 21st day of December 1885, and the 5th day of June 1886, errors were committed by said board by reason of which school district no. i received more and school district no. 25 received less than they were respectively entitled to receive ; tliat it is the duty of the board of town auditors to correct such error in the apportionment and distribution, in the same manner a similar error in the apportionment and payment of the State school moneys has been directed to be corrected by order of this Department, made on the 30th day of November 1886, and filed in the office of the town clerk of said town; that said board has ample power to make such correction; that upon their failure to discharge such duty, to the injury of school district no. 25, that district had the right to bring the matter before the Superintendent on appeal, and is entitled to the exercise of his official powers in the premises. The appeal is therefore sustained, and it is Ordered, That the board of town auditors of the town of Hempstead shall, within twenty days from the date hereof, convene and correct an error in their apportionments of town moneys to schools made on the 21st day of December 1885, and on the 5th day of June 1886, respectively, so that said apportionments of town moneys shall be in the same manner and upon the same basis as the public school moneys of the State have been apportioned among the districts of said town, pursuant to an order made by the Superintendent of Public Instruc- tion on the 30th day of November 1886, and filed in the town clerk's office of the town of Hempstead on the 6th day of December 1886, and that, unless the payments to the school districts affected by such reapportionments shall sooner have been adjusted between such districts in accordance with such reapportion- ments, that said board, at the time of the next apportionment and distribution by 776 THE UNIVERSITY OF THE STATE OF NEW YORK them of town moneys to schools, shall withhold from any district which has been paid a larger sum than properly belongs to it, as shown by such reappor- tionments, the excess so paid, and shall pay to any district which has received less than its share, as shown by such reapportionments, the sum to which it may thereby be sh.own to be entitled. 4995 In the matter of the appeal of Smith Lent from certain proceedings of annual meeting held August 6, 1901, in school district no. i, Ossining, Westchester coimty. The members of a committee appointed at the annual meeting of a school district to ex- amine the annual report of the trustees of the district, and in performing such duty and reporting therein at an adjourned school meeting, do not act as the agents of the district, nor as district officers. Action of the adjourned school meeting in receiving the report and discharging the committee, was not an adoption of the report by the meeting. The action of a subsequent annual meeting of the district in appropriating the sum of $2278.99 for the payment by members of such committee for costs etc., al- leged to have been incurred by them in defending actions in the Supreme Court brought by two of the trustees against them for libel alleged to have been contained in such report, and authorizing the trustees of the district to levy a tax to collect such sum, was without authority of law. Decided March 11, 1902 Griffin & Young, attorneys for respondents Underbill, Ryder and Sheehan. Skinner, Superintendent This is an appeal from certain proceedings and decision of the annual school meeting held August 6, 1901, in school district i, Ossining, Westchester county, in the adoption of a resolution appropriating the sum of $2278.99 to pay the costs, charges and expenses of Abram C. Underbill, Edgar L. Ryder and Edward F. Sheehan in defending actions for damages for libel brought against them by the appellant herein in the Supreme Court of this State. The appeal herein was filed in this Department September 5, 1901 ; on Sep- tember 13, 1901, Messrs Sherwood, Palmer and Crow, trustees of such district, filed their answer to the appeal, and on September 24, 1901, Messrs Underbill, Ryder and Sheehan filed their answer to the appeal. On November 26, 1901, upon application, I named December 4, 1901, at ten o'clock a. m., at the Depart- ment of Public Instruction, in the capitol, in the city of Albany, N. Y., as the time and place I would hear oral arguments on behalf of the respective parties in the appeal herein. On December 4, 1901, an oral argument was made on behalf of the respondents. Underbill and others, who also furnished a written brief, but there was no appearance on the part of the appellant or the trustees of the district. On December 13, 1901, the appellant filed a brief, and on Jan- uar>' 3, 1902, he filed an additional brief. JUDICIAL DECISIOXS: SCHOOL FUNDS 'J';'] It is in proof that at the annual meeting held August i, 1899. in said school district, the appellant herein, then one of the trustees, read the capitulation of the annual report of the board of trustees, and stated the sum of $8000 would be necessary to be voted in addition to the amount that could be raised by law in order to carry on the schools for the ensuing year, and moved that said sum be appropriated, but the motion was, by the chairman of the meeting, ruled as out of order at that time; that a motion was adopted that when said meeting adjourned it be to August 22, 1899, at 7.30 p. m. ; that a motion was adopted that the report of the trustees be referred to a committee of five to report at the adjourned meeting to be held on August 22, 1899, and the chairman of the meeting appointed as such committee Messrs Abram. S. Underbill, Edgar L. Ryder, Edward F. Sheehan, Wilbur Foshay and Randolph Acker; that a ballot was taken for a trustee of the district in the place of the appellant herein, whose term of office expired, and Edward B. Sherwood was elected; that after the transaction of other business the meeting adjourned to August 22, 1899; that on August 22, 1899, said adjourned meeting was held and the respondent, Edgar. L. Ryder, read the report of the committee appointed to examine the annual report of the trustees, which report was signed by Messrs Underbill, Sheehan, Acker and Ryder, Mr Foshay of the committee not having acted ; that after the reading of the report Mr W. W. Ryder moved that the report be received and placed on file, and Justice Valentine having moved as an- amendment that the committee be discharged, the motion was adopted ; that a motion was adopted that the board of trustees be authorized to take necessary steps to recover any shortage in the school funds, and that the sum of $29 be paid to the expert employed by the committee in the examination of the accounts referred to such committee. It is also in proof that in the month of September 1899, the appellant herein and one Many each brought actions in the Supreme Court of this State against Underbill, Ryder and Sheehan, severally, for libel. Before the three actions brought by Many came on for trial he died, and thereupon each of said actions abated. The action brought by appellant against Underbill came on for trial in said court before Judge Marean and a jury on April 4, igoo, and the com- plaint of the appellant was dismissed, and thereupon said Lent appealed to the appellate division of the Supreme Court of the second department, and at the November term, 1900, the judgment of the trial term was alTirmed. The two actions brought by the appellant against Messrs Ryder and Sheehan, respectively, were tried in the Supreme Court in June 1901, before Justice Smith, who directed a verdict on the merits for each of the defendants therein. It appears that the complaint in each of said actions asserted tzvo causes of action, one for the original report made by the committee and read at the school meeting, and subsequently published, and the other for the statements contained ^n an article of the defendants published in a newspaper replying to a newspaper article by the plaintiff criticizing the original report. 77^ THE UNIVERSITY OF THE STATE OF NEW YORK On August 5, 1901, the respondents, Underbill, Ryder and Sheehan, deliv- ered to Trustee Sherwood a verified account, of which the following is a copy: Ossining, N. Y., July 2^, iqoi Sing Sing Free School District No. i of the Town of Ossining, to Messrs Underbill, Ryder and Siieeiian, Dr. To expenses incurred in the defense of the actions, Lent v. Underhill, Lent V. Ryder, Lent v. Sheehan, Many v. Underhill, Many v. Ryder and Many v. Sheehan, as follows : Griffin & Young, cash disbursements $204 49 Griffin & Young, for legal services 765 00 Hon. J, Rider Cady, for legal services 650 00 Henry C. Henderson, for legal services 500 00 Edgar L. Ryder, personal expenses to Poughkeepsie to obtain order. . 3 50 Romine Williams, serving papers 3 00 Mahlon Gobel, serving subpoenas 3 00 Morgan & Seabury, special counsel for Edgar L. Ryder 50 00 Benjamin Fagen, special counsel for E. F. Sheehan 100 00 Total $2278 99 At the annual meeting held on August 6, 1901, in school district i of Ossin- ing (formerly Sing Sing) Trustee Sherwood stated that he had received a bill or account of Messrs Underhill, Ryder and Sheehan, amounting to $2278.99, but no action would be taken thereon until the meeting had acted upon the matter, and the following resolution was presented to the meeting and adopted by a vote of 87 for and 45 against. Resolved, That an appropriation of $2278.99 be made to pay the costs, charges and expenses of the special investigating committee appointed at the school meeting of 1899, consisting of Abram S. Underhill, Edgar L. Ryder and Edward F. Sheehan, in defending themselves in the six suits for an alleged libel brought against them by Smith Lent and Joshua G. Many ; and that the trustees of Sing Sing free school district I, Ossining, cause the said sum of $2278.99 to be assessed upon and collected of the taxable property of said district, in the same manner as other taxes are by law assessed and collected. The principal ground alleged by the appellant for bringing his appeal is, that said school meeting had no power or authority to appropriate said sum of money or any other sum for the purposes stated in said resolution, or to levy a tax to collect said sum. The respondents. Underbill, Ryder and Sheehan, contend that as members of the committee appointed at the school meeting held in August 1899, to exam- ine the report of the trustees, they were district officers, or if not district officers, were agents of the district, and under the provisions of the Consolidated School Law of 1894, the annual school meeting had authority to appropriate money to pay the expenses incurred by district officers in defending suits brought against them, or in prosecuting suits. JUDICIAL decisions: school funds 779 Under the provisions of chapter 314 of the Laws of 1864, the then village of Sing Sing was formed into a permanent school district, which district is now designated as school district i, Ossining, Westchester county. Said chapter 314 of the Laws of 1854, was amended by chapter 325 of the Laws of 1857, chapter 199 of the Laws of 1S57, chapter 269 of the Laws of 1863 and chapter 687 of the Laws of 1900. Under the provisions of said acts the district is a common school district and its officers consist of three trustees, a district clerk and a treasurer of the trustees. The trustees are authorized to raise by tax annually moneys for the purchase of fuel, ordinary repairs and improvements of school property, and for the enlargement, rebuilding of school buildings or the erection of new buildings. Said act does not, nor does any amendment thereof, authorize the appropria- tion of money to pay the expenses of district officers, or of any agents of the district, in bringing or defending suits brought by or against such officers or agents. Under subdivision 15 of section 14, article i, title 7, of the Consolidated School Law of 1894, the qualified voters at district meetings in common school districts have the power to vote a tax to pay reasonable expenses incurred by district officers in defending suits or appeals brought against them for their official acts, or in prosecuting suits or appeals by direction of the district against other parties. Sections 4, 5, 6, 7 of article i, title 15, of the Consolidated School Law, cited by the respondents. Underbill, Ryder and Shcehan, do not authorize the adoption of the resolution appealed from as such sections are applicable only in actions brought by or against district officers. I decide that the respondents, Underbill, Ryder and Shcehan, in the exam- ination of the report of the trustees of school district i, Ossining, Westchester county, referred to them and Messrs Foshay and Acker, as a committee, at the annual meeting held August i, 1899, and in reporting thereon to the adjourned school meeting were not acting as district officers or agents of such district. The report made by such committee to the adjourned school meeting held August 22, 1899, was received but not adopted at such meeting, and such com- mittee was discharged by the meeting. The actions commenced in the Supreme Court by the appellant against the respondents. Underbill, Ryder and Sheehan. were not based wholly upon statements contained in said report but also from statements contained in an article published by them in one or more newspapers in the school district. The adoption at the annual meeting in school district i, Ossining, West- chester county, held August 6, 1901, of the resolution appealed from, appropriat- ing the sum of $2278.99 to pay the costs etc., of the respondents. Underbill, i^yder and Sheehan, in defending six suits for libel brought against them by Smith Lent and Toshua G. ^Lmy. and that the trustees of the district cause said /So THE UNIVERSITY OF THE STATE OF NEW YORK sum to be assessed and collected of the taxable property of the district as other taxes are assessed and collected, was without authority of law. The Legislature has the power to legalize the action of the annual meeting of such district in appropriating said sum of money and the assessment and col- lection thereof by tax upon the taxable property of the district. The adoption of such resolution was a decision of a school meeting, and under the provisions contained in title 14 of the Consolidated School Law of 1894 any person considering himself aggrieved in consequence of any decision by any school meeting may appeal to the State Superintendent of Public Instruc- tion, who is authorized and required to examine and decide the same. The appeal herein is sustained. It is ordered that the action of the annual meeting, held August 6, 1901, in school district i, Ossining, Westchester county, in the adoption of the follow- ing resolution : " Resolved, That an appropriation of $2278.99 be made to pay the costs, charges and expenses of the special investigating committee appointed at the school meeting of 1899, consisting of Abram S. Underbill, Edgar L, Ryder and Edward F. Sheehan, in defending themselves in the six suits for an alleged libel brought against them by Smith Lent and Joshua G. Many; and that the trustees of Sing Sing free school district i, Ossining, cause the said sum of S2278.99 to be assessed upon and collected of the taxable property of said dis- trict, in the same manner as other taxes are by law assessed and collected," be and the same hereby is vacated and set aside. 3837 In the matter of the appeal of J. F. Tracy v. John S. IMoot, trustee of district no. 33, of the town of Hector and county of Schuyler. Appellant alleges that the supervisor of the town of Hector did not comply with the statute in apportioning the income or proceeds of the sale of gospel and school lands among the schools of Hector. Held, that the appellant, not being a resident of the town, nor interested therein, can not be aggrieved thereby, and the complaint will not be con- sidered. The trustee deducted from a certain tax to be collected from the inhabitants of a town in a joint district an amount which had already been paid from moneys belonging to the schools of said town; held to be at least equitable and not a sufficient ground of appeal. Supervisors have no autliority under the statute to equalize an assessment upon personal property in districts composed of parts of two or more towns. Decided December 8, 1889 Draper, Superintendent This appeal is brought by a resident taxpayer of that portion of the town of Catharine which is included with a part of the town of Hector in school JUDICIAL decisions: school funds 781 district no. 33, of the towns of Hector and Catharine, Schuyler county. The grounds of appeal I find to be as follows: 1 The supervisor of the town of Hector did not apportion the income or proceeds of the sale of gospel and school lands as the statute contemplates. 2 That the trustee of said district had no authority to deduct from the amount of a certain tax, to be collected from the inhabitants of Hector in said district for district expenses, an amount which had been paid by the super- visor of said town of Hector for teachers' wages, upon an order of the trustee of said district from the income or proceeds of the sale of gospel and school lands. 3 That the trustee did not comply with the statute in assessing personal property in said district, having assessed the same as real estate, the tax upon which had been equalized by the supervisors as between the towns, they having found that the town valuations were not substantially just as compared with each other. The allegations of the appellant are not squarely controverted by the respondent. The first ground of appeal I do not propose to consider. The supervisor is presumed to have complied with the law, and whether he has properly apportioned the school lot funds among the schools of Hector, I am unable to determine from the data before me. No resident of the town of Hector complains, and the appellant, being a resident of another town, can not be aggrieved thereby. To the second ground of appeal, I am of the opinion that the action of the trustee was at least equitable. The money paid by the supervisor, for the debt of the district, belonged to the town of Hector, and the action of the trus- tee was simply to give the inhabitants of Hector the benefit of the same. The tax list, referred to in the third ground of appeal, was clearly defective. There is no warrant for taxing personal property except at its assessed valuation. It appears by the answer of the respondent that the supervisors who met to equalize the values of real estate, and determine what proportion of a tax each town of the district should pay, reached the conclusion by including per- sonal as well as real, at the suggestion of a resident of Catharine. This action was unwarranted but no appeal therefrom was taken. From an examination of the tax list in question, I find but two items of personal assessed, one of $4000 in Hector part, and one of $1200, to appellant, in Catharine. H the tax had not been collected and the warrant returned, I should require a correction to be made of the same. As it is, I have computed the tax of the appellant as it should have been, and find it to be $4.65 instead of the amount in the tax list of $5.68. The amount in dispute is small, but I have concluded to dismiss the appeal, upon the refunding by the district, to appellant, of the sum of $1.18, overpaid as stated. 782 THE UNIVERSITY Ol" THE STATK OF NEW YORK 3543 In a school district in which a branch school has been maintained, and subsequently that part of the district wliere the patrons of the branch school reside is formed into a separate district; held, that so much of the public moneys apportioned to the old district upon the statistics of the branch school will be ordered paid to the new district. Taxes levied and collected before the formation of the new district will not be so appor- tioned. There is no provision of law for a division of common property when a new district is set off from an old one. Decided November 30, 1886 Draper, Superintendent Prior to April 1885, the village of Garden City constituted a part of school district no. i of the town of Hempstead, Queens county. On the 20th of April 1885, the Legislature passed an act making the village of Garden City a separate school district, to be known as district no. 25 of the town of Hempstead. No meeting was held for the purpose of electing officers and organizing the new district until August 11, 1885. For several years prior to this, district no. i had maintained a school at Garden City, and, notwithstanding the act of the Legislature in April, this was continued and supported at the expense of district no. I till the end of the school year. At the close of the school year 1884-85, district no. i reported the maintenance of the school at Garden City during the preceding year, and in the annual apportionment of school moneys in the school year 1885-86, said district received such sum as would be payable in consequence thereof, while the new district no. 25, received nothing. District no. 25 brings the matter before this Department, and demands that district no. i shall be required to pay to it such sum of money as was apportioned to it in consequence of the maintenance of a school at Garden City during the preceding school year. It also appears that in February 1885, the board of education of district no. I levied a tax of fifteen cents on the hundred dollars, which amounted to the sum of $1351.35, of which sum Garden City paid her proportionate share, which was $229.20. Having parted company. Garden City now thinks and demands that the part which she has paid of this tax should be paid back to her. Again, chapter 591, Laws of 1870, provides for the distribution to the several school districts of the town of Hempstead of a certain portion of the income of a fund which has arisen from the sale or rental of common lands of the town, and directs that such distribution shall be calculated and determined "in the same manner, and upon the same basis as the public school moneys of the State are apportioned." After Garden City became a separate school district, and before the commencement of this proceeding, there were two of these apportion- ments; the first for the six months ending November i, 1885, and the second for the period ending May i, 1886, and at each time the sum of $6000 was distributed. Of these apportionments from this trust fund, district no. 25 JUDICIAL decisions: school funds 783 received only such an allotment as was based on school population, and nothing on account of " pupil attendance " or the " district quota," that share going to district no. i, pursuant to the school reports made at the close of the school year ending August 20, 1885. District no. 25 demands that district no. i shall be directed to pay over to her such sums as she received from these two distri- butions from this fund on account of the maintenance of a school at Garden City during the preceding school year. District no. i resists these several demands with energy. The trustees of that district in answering say that the school which they maintained at Garden City was only a branch of the school at Hempstead, and that they were not obliged to open, and that it was done only for the convenience of the former place, and that the report which they made at the end of the school year 1884-85 was such as they were required to make by law, and that the school moneys based upon such report which they have received are such and only such as the law gives them. In relation to the tax collected in February 1885, of which district no. 25 demands that the share which it paid shall be paid back, they say it was levied to meet current expenses for the ensuing year, and that Garden City received back her share in school privileges. They urge, also, that when a new district is set off from an old one, the property of the old district can not be divided; that here the new district was set off at its own desire, and that it must support itself as best it can until the time when its school reports, made pursuant to law, entitle it to share in public moneys. In illustration, it urges that when it opened the school at Garden City it was obliged to maintain it the first year with no apportionment of public moneys based on the report of a previous school year, and that now this district must do the same. The public moneys, apportioned on or before the 20th day of January in each year, are intended for teachers' wages for the school year in the middle of which the apportionment is made. The apportionment is made upon the school statistics for the preceding school year, for the reason that that is appar- ently the most reasonable basis for a general apportionment. Ordinarily, when a new district is set off, it is impossible to make any allotment to it during the first year of its existence, because there is no preceding year's statistics for a basis. That is not so in this case. The school at Garden City had been in operation for years. It had an individuality of its own. For statistical pur- poses it was the same school, was as perfectly and completely organized and was as separate and distinct from the Hempstead school before the new district was erected as afterward. Its register of attendance for the year 1884-85. kept as required by law and duly verified, is produced here. It shows that school was kept more than 23 weeks. Here is the basis upon which to determine what amount of public money belonged to it, equitably at least, for the year 1885-86. There can be no doubt but that any new district is, in equity, entitled To. share in the State school moneys, even during the first years of its organized existence. The difficulty is that the means of determining how much it should have are usually wanting. That difficulty does not exist in this case. District 7^4 THE UXIVERSITY OF THE STATE OF NEW YOKK no. I received at the apportionment in 1886 more than it was entitled to for the year 1885-86, and district no. 25 received less than its share, because the Garden City statistics were included in the report of district no. i at the close of the preceding year. This being so, and there being at hand the data from which to determine, with exactness, hoiv much was paid to no. i, which should, in fair- ness, have been paid to no. 25, the matter should be set right if there is lawful authoritv for so doing. The State school moneys are apportioned by the Superintendent of Public Instruction in the manner provided by title 3 of the Consolidated School Act of 1864. It was impossible to provide by statute for all exigencies which might arise, and it was necessary to vest some discretion in the Superintendent for the purpose of meeting exceptional cases. For instance, section 10 of title 3 directs the Superintendent to make a special apportionment to a district which has been excluded from participation in the general apportionment by reason of its failure to comply with some provision of law or requirement of the department when such omission was accidental or excusable. Section ii authorizes him to with- hold from any district in a subsequent apportionment any sum which has been given to it in excess of what it should have had at a prior apportionment. Section 12 provides that " if a less sum than it is entitled to shall have been apportioned by the Superintendent to any county, part of county or school district, the Superintendent may make a supplementary apportionment to it of such sum as shall make up the deficiency," etc. Reading the different sections together and having in view the general plan of apportionment which the Legis- lature was setting in operation, it is manifest that it was intended to clothe the Superintendent with authority to meet and adjust an inequality like the one here presented. Although the precise question here involved has never before been passed upon by the Department, the general authority requisite to meet it has always been exercised by it. I shall, therefore, direct that district no. i, Hempstead, pay over to district no. 25 such sum as it received in the apportionment of 1886, on the basis of the Garden City statistics; or, in case of failure to do so before the apportionment of 1887, that the same be deducted from the allotment to no. i, and added to that of no. 25. The demand of district no. 25, that it be repaid so much of the tax levied in February 1885, as was paid by Garden City, must be denied. This tax was raised before district no. 25 was set ofif. It was used, in part at least, to meet common expenses in which was included the expense of the school at Garden City. What was not so used, was district property at the time of the separation. There is no provision of law for the division of common property when a new district is set off from an old one, and in the nature of things there can not be. There is some reasonable question of the power of this Department to cor- rect the apportionment of the local trust fund applicable to school purposes as provided by chapter 591 of the Laws of 1870. The appellants cite section 17, JUDICIAL decisions: school funds yHs title 3 of the Consolidated School Act, which treats of trusts for school purposes, and provides that " the Superintendent of Public Instruction shall supervise and advise the trustees, and hold them to a regular accounting," etc. On the other hand, it is urged that the special act governing this particular fund takes it out of the provisions of the general statute. It is not necessary to determine this question at present, at least. The board of town auditors of Hempstead have, as yet, committed no error. They have complied with the law and followed the State apportionment. It is fair to assume that they will con- tinue to do so, and will make the correction which the State now makes, and it will be time to consider what course must be taken for relief in that direction when it shall have become certain that some steps are necessary. It is accordingly ordered that the board of education of district no. i, Hempstead, pay over to district no. 25, Hempstead, known as the Garden City district, the sum of $66.12, the same being the amount of one district quota apportioned to no. i, Hempstead, in the annual apportionment made by the Superintendent of Public Instruction to January, 1886, and reapportioned by the school commissioner of the second commissioner district of Queens county, in March 1886, for the year 1885-86, on the basis of one duly qualified teacher employed for the legal term of school in the Garden City school for the school year beginning with August 21, 1884, and ending August 21, 1885; and such further sum as shall be certified by the said school commissioner that district no. I, Hempstead, received for the Garden City schools for the year 1885-86, on the basis of the number of resident children, the daily average attendance of such children, and for libraries, for the school year 1884-85. But in the event of there being no moneys in the hands of the board of education of district no. I, Hempstead, or under their control, and available for this purpose, then the said school commissioner shall deduct for district no. 25, Hempstead, in the annual apportionment to be made by him in March 1887, from the school moneys to be apportioned to said district no. i, for the year 1886-87, the total amount of public school money said district no. i received from Garden City school in the annual apportionment of 1886, and apportion the same to district no. 25, together with the amount that no. 25 is to receive for the year 1886-87. SCHOOL FURNITURE 4629 In the matter of the petition of James F. Ryther, as school commissioner of the second district of Erie county, for the removal of F. B. Abbott from office as sole trustee of school district no. 2, East Hamburg, Erie county. School commissioners, in orders made by them under the provisions of subdivision 3, sec- tion 13, title 5, of the Consolidated School Law of 1894, requiring trustees of school districts to provide new furniture for the schoolhouse, may designate the kinds of furniture to be provided, and that it shall be new and of modern style. When new desks are ordered, trustees have the authority to decide as to the number neces- sary to furnish adequate accommodations for all the scholars attending the school, and whether such desks shall be single cr double. 1 he proper course to be taken by a school commissioner when trustees neglect or refuse to obey a proper order to purchase new furniture, is to apply, by petition, to the State Superintendent of Public Instruction, setting forth the facts, for an order for such trustees to show cause before him why such order should not be obeyed. If no suf- ficient cause is shown the Superintendent may, by his order, direct that if such order of the commissioner is not obeyed within the time fixed therein, such trustees will be removed from office. Decided January 28, 1898 Skinner, Superintendent This is a petition by James F. Ryther, as school commissioner of the second commissioner district of Erie county, for the removal of F. B. Abbott from ('ffice as sole tnistee of school district 2, East Hamburgh, Erie county, for neglect of duty and wailful violation of an order made by the petitioner as such school commissioner on August 28, 1897, for the purchase of new furniture for the schoolhouse in such district. Such order of commissioner Ryther directed trustee Abbott to purchase new single desks, teacher's desk and blackboard for the schoolhouse in such district at an expense not to exceed $100. Trustee Abbott has answered the petition herein, and to such answer the petitioner has replied, and to such reply the respondent has filed a rejoinder. Many exhibits have been filed by the respective parties, and the papers filed are quite voluminous. The respondent admits that he has not complied with such order of the petitioner in the purchase of new single school desks, but alleges that he has pur- chased about twenty double second-hand school desks; that desks should be provided for forty scholars, and that forty new single desks can not be placed in the schoolroom without the closing of necessary passageways, etc. nor could [786] JUDICIAL decisions: school furniture 787 such desks, with a teacher's desk and blackboard, be purchased at an expense not exceeding $100. The contention of the petitioner is that from the average attendance at the school in such district desk room for forty pupils is not required, and that a sufficient number of single desks can be placed in such schoolroom without obstructing any passageways, and such new desks, teacher's desk and blackboard of the latest style could be purchased for $100. I am unable, from the proofs presented, to decide which of such contentions is well taken. It appears that at the time the petitioner herein made his order directing the respondent to purchase such new single desks the furniture or desks in use were carpenter made, of old style, and not such as are in general use in the schools in the State. The petitioner herein very properly deemed it best that new, modern furniture should be purchased by the respondent for use in the schoolhouse in the district of which he was trustee. I am of the opinion that, under the provisions of subdivision 3 of section 13, title 5 of the Consolidated School Law, the petitioner did not have authority to designate in his order that the desks to be purchased should be either single or double desks, but that they should be new and of modern style, provided that the expense of such new furniture should not exceed $100; that the respondent had authority to determine the number of desks necessary to furnish adequate accommodation for all the scholars attending such school, and whether such desks should be single or double. When, under the provisions of the school law, a school commissioner directs the trustee or trustees of a school district to purchase new furniture for a school- house, such trustee or trustees, if aggrieved by such order, may apply to him to modify or revoke such order or appeal from such order to the State Superin- tendent of Public Instruction under title 14 of the Consolidated School Law. The proper course to be taken by a school commissioner when such trustee or trustees refuse or neglect to obey a proper order for the purchase of new furniture for a schoolhouse is to apply by petition to the State Superintendent of Public Instruction, setting forth the facts, for an order for such trustee or trustees to show cause, if any there be, before the State Superintendent, why such order should not be obeyed. If, upon the hearing before the State Superin- tendent, no sufficient cause can be shown, he may make an order that if such order is not obeyed within a time to be therein stated, that such trustee or trustees be removed from office. The petitioner herein asks that I remove the respondent from office as trustee of such district for not obeying such order of the petitioner for the purchase of new furniture, and for neglect of duty. Under section 13, title i of the Consolidated School Law, I have power, when proved to my satisfaction that a school commissioner or other school of&er has wilfully disobeyed any decision, order or regulation made by me, to remove such school officer from office. I have also power to remove any 78S THE UNIVERSITY OF THE STATE OF XEW YORK school otiiccr who it is proved to my satisfaction has been guilty of any wilful violation or neglect of duty. This Department and the courts have held that " wilful " means " intentional," and not a " mistake," " misapprehension," " inadvertence," " error in fact," " lack of judgment," etc. etc. ; that the officer must fully know and understand what his duty under the law is, and knowingly and wilfully does directly the reverse. I can not find, from the proofs herein, that trustee Abbott has been guilty of wilful neglect of duty. The petition herein is dismissed, but such dismissal shall not operate to preclude the petitioner herein, as such school commissioner, if he shall deem the furniture in the schoolhouse in school district 2, East Hamburgh, Erie county, unfit for use and not worth repairing, from directing that new furniture shall be provided as he may deem necessar}', provided that the expense of such new turniture shall not, in any one year, exceed the sum of $ioo. 4197 In the matter of the appeal of F. S. Pond, trustee of school district no. 18, town of Tompkins, Delaware county, v. E. E. Conlon, school commissioner, first commissioner district, Delaware county. An order of a school commissioner, condemning desks and seats in schoolhouse and direct- ing the trustee to purchase new desks and new seats, will be sustained upon an appeal unless it is shown either that it was not made with authority and that he proceeded irregularly or else that it was clearly unjust and opposed to the best educational in- terests of the district. Decided November 2, 1893 Crooker, Superintendent This is an appeal from an order made by the respondent, as school commis- sioner of the first commissioner district of Delaware county, dated September 5, 1893, condemning the desks in the schoolhouse in district no. 18, town of Tompkins, Delaware county, and directing the appellant, as trustee of said school district, to remove from the said schoolhouse all the desks that are by said order condemned, and to purchase for and seat said schoolhouse with a sufficient number of suitable desks of modern design to duly accommodate all pupils who shall attend said school, at said schoolhouse, the amount to be expended not to exceed the sum of $100, and ordering that said order shall be fully obeyed within thirty days from the date thereof. The appellant alleges that the assessed valuation of the taxable property in said district is $27,325. made up of farms and small holdings; that there are about thirty-five pupils of school age who reside in the district; that there is a fair school building on the schoolhouse site, and in good repair; that the seats complained of are ordinary wooden seats and desks, and need but slight repairs to make them suitable for use, and to put them in good condition, and that an JUDICIAL decisions: SCHOOL FURNITURE 789 outlay of ten dollars in materia! and work would put them in as good condition for school work and practical service as desks of modern design. That the esti- mated cost of taking out the present seats and desks and putting in new ones would be in the neighborhood of $150, and that the taxation of such a sum upon the district would be a great burden and extravagance in the present hard times. That at the annual school meeting, in said district, the question of a change of desks was discussed, and a vote taken which resulted in 5 votes for a change and 16 votes against. That at a special meeting of the district, held on September 21, 1893, by a vote of 14 to 5, the appellant was directed to appeal from such order of Commissioner Conlon. The appellant avers that he has always been ready to repair said desks and would have repaired them before had he not been stopped by the service upon him of said order of said Conlon. The respondent shows that for the past three years he has watched the pro- ceedings of the voters of said district in the matter of reseating the schoolhouse, hoping that the district would, of their motion, reseat said schoolhouse without requiring him to act in the matter. That on June 15. 1893, he visited the school- house in said district and made a careful and critical examination of the seats and desks therein, made measurements, tested the seats by sitting in various ones, and while there, made the following record : " Schoolhouse must be reseated ; old seats are loose from floor; made of plain boards and posts nailed together; seats too high; small children's feet do not touch the floor; seat part seventeen and one-quarter inches high ; desk part so high that small children can not reach to work thereon, while sitting; too high for an adult to write with convenience or comfort : back of desk about vertical, and all seats are badly cut, marred and disfigured, and some of them are falling to pieces: there are twenty-one double desks in schoolhouse." The respondent avers that the foregoing statement so made by him is true. That the respondent on August 3. 1893. addressed a letter to the then trustee of said district, requesting him to call up the matter of reseat- ing said schoolhouse and have vote taken thereon at the annual meeting of the district on August 22, 1893. The respondent avers that the statement of appel- lant, that it will cost $150 to reseat said schoolhouse is erroneous: that first- class double desks can be purchased for from three dollars and fifty cents to three dollars and seventy-five cents each, and that twenty such desks will be ample to accommodate all the pupils who will attend said school, and that eighty-five dollars will cover all necessary expenses incurred in carrying out the order made by him. To the answer of respondent are annexed the afiidavits of four qualified voters of the said district, sustaining the statements of the respondent as to the character and condition of the desks, and averring their judgment to be that such conditions can not be overcome or removed by repairing such desks. There are also annexed to said answer the affidavits of Alice M. Skinner and Sadie B. List, each of whom has taught the school in said district, affirming the state- ments of the respondent as to the condition of said desks, and the repairing of the desks will not make them suitable or comfortable for the pupils attending said school. 790 1HE UNIVERSITY OF THE STATE OF NEW YORK The appellant has filed a reply to the answer of the respondent in which he states that he believes that the respondent is an interested party in compelling the appellant to reseat said sehoolhouse, for the reason that when the respondent served the order appealed from, by mail, he inclosed with it a copy of a circular of the United States School Furniture Company, having written upon it the following: "A. J. Devereaux, Agent, Binghamton, N. Y.," which the appellant says he believes was a suggestion to buy of a party with whom the respondent was financially interested, etc. The respondent in his rejoinder to such reply, alleges, under oath, that he has never received, either directly or indirectly, any money or valuable thing, emolument, reward or promise of reward of any kind or nature, whether as a consideration for his influence in the sale or use of any furniture of any kind whatever for use in any school, and that his purpose in sending the circular was for the purpose of assisting the appellant in obeying said order and giving him information where such furniture might be purchased, and for no other purpose. To the reply of appellant is annexed an affidavit of himself and ten other voters of said district, containing statements to the effect that the desks and seats in the sehoolhouse are not, in their opinion, in so bad a condition as shown by respondent and can be repaired at a small expense so as to be just as good as new seats, etc. There are also annexed the affidavits of two teachers and a car- penter to the same effect. In his reply the appellant alleges that the teachers, List and Skinner, whose affidavits are annexed to the answer herein, are disappointed applicants for posi- tions as teachers in the school. Both Miss List and Miss Skinner deny, under oath, that they are disappointed applicants as teachers in said school. It can not be assumed that even if they were disappointed applicants, that for this reason they would swear to anything they did not know or believe to be true. The order of the commissioner should be sustained unless it is shown, either that it was not made with authority, and that he proceeded irregularly, or else that it was clearly unjust and opposed to the best educational interests of the district. The burden of proof is upon the appellant to show this, if he can. After a careful examination and consideration of the papers filed in this appeal, I do not find that appellant makes such a case as will justify me in setting aside the order appealed from. There is no allegation that the proceedings of the commissioner have not been regularly taken, and it is certain that he had full statutory authority to make just such an order as he has made. It is impossible for me to say that he has not exercised a sound discretion in the premises. Acting, as I believe, for the best interests of education in said school dis- trict, and in harmony with the spirit which demands better school accommoda- tions in the public schools of this St^te, I dismiss the appeal herein, and confirm the order of Commissioner Conlon, appealed from, and do hereby order and direct the said trustee of school district no. i8, town of Tompkins, Delaware county, to comply with the terms in said order contained, extending the time, however, for the completion of said work until December 15, 1893. JUDICIAL decisions: school furniture 791 3848 In the matter of the appeal of Charles A. Sly, sole trustee of school district no. 2, of the town of Nanticoke, in the county of Broome, v. James L, Lusk, school commissioner of the second commissioner district of Broome county. An order of a school commissioner requiring the reseating of the schoolhouse will be up- held unless it is clearly unjust and opposed to the educational interests of the district, or was made without authority, or that the proceeding was irregular. Decided December 31, 1889 Draper, Superintendent This is an appeal against an order of the commissioner, requiring the reseat- ing of the schoolhouse in the district above named, made on the 5th day of October 1889. The trustee alleges that the seats now in use are sufficient, and that the order of the commissioner is unnecessary and oppressive. He presents a lengthy statement touching the affairs of the district, and also the affidavits of several persons whose credibility I do not doubt, to the effect that the desks in the schoolhouse are in fair condition, and sufficient for the needs of the school. On the other hand, the school commissioner shows, not only by his own statements, but by the statements of teachers who have heretofore been employed in the district for a long time, to the effect, that the desks are made of plain boards, are straight in the back, and some of them coming to pieces, and also that they are very badly marred and disfigured. The commissioner states that he has visited the district twice recently, and has personally and critically exam- ined the building and its furnishings. He shows that the district has an assess- able valuation of $55,000, and is, therefore, abundantly able to provide desks of modern construction. The order of the commissioner is to be upheld unless it shows, either that it was made without authority, and that he proceeded irregularly, or else that it was clearly unjust, and opposed to the best educational interests of the district. The burden of proof is upon the district to show this, if it can. After reading the papers with care, I do not find that the district makes such a case as will justify me in setting aside the order of the commissioner. There is no allega- tion that his proceedings have not been regularly taken, and it is certain that he has full statutory authority to make just such an order as he has made. It is impossible for me to say that he has not exercised a sound discretion in the premises. It is more than likely that, after the order shall have been car- ried out, the entire district will congratulate itself upon the fact that it was made. The appeal is dismissed. 792 THE UNIVERSITY OF THE STATE OF NEW YORK 3744 In the matter of the appeal of Harvey Foks and others v. E. B. Knapp, school commissioner of the second district of Onondaga county. An order of a school commissioner directing the reseating of a schoolliouse will be upheld in a proper case, even though the objectors constitute the larger portion of the tax- payers. It was alleged that the seats in use had been recently repaired, and of the same size and con- struction as those in otlier districts. Held, that repairs to unsuitable furniture might not remove the objections thereto. It is argued that no scholar has ever complained of the condition of the seats as uncom- fortable. Held, untenable. Pupils are not the best judges of what the school accom- modations should consist. Decided December 31, iSi^S C. R. Milford, attorney for appellants E. B, Knapp, attorney in person Draper, Superintendent This is an appeal by several inhabitants of school district no. 9, of the town of Skaneateles, Onondaga county, from an order of School Commissioner E, B. Knapp, bearing date November 12, 1888, directing that the schoolhouse in said district be reseated, and condemning the seats and desks in use as unfit for use and not worth repairing. The objections to the order on the part of the appellants are: 1 That within the period of fifteen months the seats and desks in use had been remodeled and changed at the suggestion of the respondent, and that at the time of the order referred to, they were in as good condition as they were inmiediately after the repairs were made. 2 That no scholar has ever complained of the condition of said seats as being uncomfortable. 3 That the seats are, in the judgment of the appellants, as good for school purposes as those directed to be furnished by the order of the respondent. 4 That to remove the present seats and desks would greatly injure and destroy in part a new floor which has recently been placed in the school building. 5 Ihat the seats and desks now in use are of the same general size and construction as those in use in most of the district schools, and that they are in better condition than those of other district schools in the vicinity. 6 Ihat other repairs to the schoolhouse which were more necessary for the comfort and health of the pupils than the patent seats would be, had been ordered at the last annual meeting, and that to add to that expense the sum of $100 for new seats would be a hardship and burden to the taxpayers of the district ; that there are several other objections which my decision of this appeal will obviate. The respondent has filed an answer and also the aftidavits of several residents of the district, controverting some of the allegations of the appeal. After carefully considering the objections set forth herein, I have concluded to sustain the commissioner's order. The Legislature has wisely conferted upon school commissioners the authority to order new school furniture at a cost not JUDICIAL decisions: school furniture 793 to exceed the sum of $ioo, whenever he considers the furniture in use as unsuit- able and not worth repairing. The objection that repairs had been made to the furniture at the suggestion of the commissioner, is controverted ; but assuming that some repairs were made to unsuitable furniture, I can readily understand that such repairs might not remove the objection thereto. The ground alleged that no pupil has complained of the furniture I do not consider of moment. The pupils of a school are not the best judges of what the school accommodations should consist. It is not a tenable ground of objection that the seats condemned are as good as those in use in many of the district schools, for it is generally understood that a large number of the public schools are not provided with suitable furniture and the knowledge of this fact was the inducement for the adoption of the law which conferred the power upon school commissioners to order the purchase of suitable furniture. I can not under- stand why the removal of those old seats and desks and the substitution of others would necessarily injure to any great extent, the flooring of the building; neither do I consider the tax of $ioo in the district having $115,000 worth of taxable property to be a very severe burden. The objection that the electors of the district who favor the substitution of new seats pay a very small portion of the tax, is not a tenable objection. This appeal is from the action of the commissioner acting within the scope of his authority, and not the action of the inhabitants of the district. Acting, as I believe, for the best interests of education in the district, and in harmony with the spirit which demands better school accommodations in the public schools of the State of New York, I overrule this appeal and the objections made to the commissioner's order, and hereby direct the trustee to comply with the terms therein, extending the time, however, for the completion of said work until the 15th day of January 1889. 3772 In the matter of the appeal of David M. Vunk v. Jacob Shults. as trustee of school district no, 18, of the town of Virgil, in the county of Cortland. A public officer can not be in any wise personally interested in the performance of work with w^hich he is officially charged. Held, that a school trustee clearly has no right to charge for his personal services rendered upon district work. The right of a school trustee to cause repairs to or purchase furniture for a school build- ino- to the extent of $100, when ordered to do so by a school commissioner, sustained. A tax°list ^vhich does not specify in the heading thereof the items for which the tax is to be collected, held defective, and the trustee directed to withdraw and correct the same. Decided March 27, 1889 William D. Tuttle, attorney for appellant H. A. Dickinson, attorney for respondent Draper, Superintendent ^ , , . This is an appeal from the action of the respondent m makmg and placmg in the hands of the collector, a tax list for the collection of the sum of Sy:,7-^7, 794 THE UXIVERSITV OF THE STATE OF NEW YORK expended by the trustee in repairing the schoolhouse and purchasing furniture for the same. The appellant claims that the trustee proceeded to repair the schoolhouse without due authority from the district meeting; that he performed services upon the building personally and charges for his time, and that he has purchased furniture without authority. He also alleges that the tax list is incor- rect in form, inasmuch as it does not specify, in the heading, the purposes for which the tax is to be used. The respondent, in his answer, claims that the repairs were authorized by the district meeting. He admits that he performed some personal service in con- nection with the work, for which he charged a reasonable sum. He alleges that the furniture was purchased under the order of the school commissioner, who had legal authority to direct such purchase. He admits also that the tax list may be incorrect in form. The action of the district meeting concerning repairs to the schoolhouse was not clear, but I am satisfied that the trustee acted in good faith in making the repairs, and there appears to have been no objection raised to his course until after the work was completed, and at a time when such objections, under all the circumstances, must be held to be too late to be availing. The action of the district meeting clearly shows that the district intended to repair the schoolhouse, and I think also that it may be said that they intended to leave the extent of the repairs to be determined by the trustee. As in all similar cases it is probable thai he found more repairs necessary, after commencing operations. than had been anticipated. I think the action of the district meeting was suffi- cient to justify him in repairing the building, and can not find that he did so to an unreasonable or unnecessary extent. The trustee clearly has no right to charge for his personal services in con- nection with that work. A public officer can not be in any wise interested in the performance of a work with which he is officially charged. The trustee should not have had anything to do with the work except to bargain for its proper per- formance and see that the agreement was carried out and all the interests of the district protected. The school commissioner had the authority to direct the trustee to repair or purchase furniture to the extent of $ioo. That authority is expressly con- ferred upon him by the statute. The tax list is probably defective in its form and should be withdrawn and corrected. The trustee is therefore directed to withdraw the tax list from the hands of the collector, deduct from it the amount charged for his personal services, correct the heading so that it will conform to the requirements of the statute, and again take measures to secure the raising of the tax necessary to meet the other expenses involved. Except as to matters about which specific direction is given, the appeal is dismissed. JUDICIAL decisions: school furniture 795 3978 In the matter of the appeal of Gustav A. Schmidt, August Ressiga and Edward Rooney, school trustees of the fifth ward of Long Island City v. the board of education of Long Island City. Appeal from the action of a board of education in entering into a contract for heating and ventilating a school building. Dismissed for the reason that the appeal was not timely taken. The work under the con- tract objected to had been substantially completed. Decided May 7, 1891 Frank E. Blackwell, attorney for appellants W. J. Foster, Corporation Counsel, attorney for respondent Draper, Superintendent A new school building has recently been erected in the fifth ward of Long Island City. The heating and ventilating apparatus in said building was sup- plied by the Pierce, Butler & Pierce Manufacturing Company, under a contract entered into between the board of education of Long Island City, and said company. This appeal is brought to restrain the city authorities from paying the contractors for such apparatus, on the ground that, under the statutes apply- ing thereto, such contract could only have been made by the appellants as trus- tees of the fifth ward with the approval of the board of education. It is claimed by the appellants that the contract assumed to be made by the board of educa- tion, is wholly void, as being without authority, and that any payment under such contract is unlawful. The case has been carefully presented and closely argued by able counsel. I have given it such consideration as I have been able. It is apparent that the provisions of the charter of Long Island City, of the general school laws relat- ing to the duties of trustees and of the special acts providing for the erection of new school buildings in said city, are somewhat incongruous; It is somewhat doubtful whether, by any process of logical reasoning, these several statutory provisions may be brought into harmonious relations with each other. In any event, I do not deem it necessary to undertake to do so in order to dispose of the pending case. The rules of the Department require that appeals shall be brought within thirty days from the time of the action appealed from. The contract entered into by the board of education was awarded on the 12th day of September 1890. If the board of trustees of the fifth ward felt that their functions were being usurped by the city board of education, and desired to bring the matter before the State Superintendent for review, it should have been done within thirty days from the awarding of the contract. Even though it be claimed that the appellants had no actual notice of the awarding of the contract, it is in proof that the work was commenced in the latter part of December, and that the members of the board of trustees were in the building and saw the work in 796 THE UNIVERSITY OF THE STATE OF NEW YORK progress, and talked with the workmen durnig the month of January. They did not bring their appeal until the middle of March. By that time the work cf the contractors had been substantially completed. The appeal is, therefore, too late to claim the consideration of very complicated law questions at this time. 1 have, however, deemed it well to look into th.c matter far enough to see whether any fraud is claimed by the appellants as against the contractors. There is no such claim advanced. It appears in the papers that tk.e plans for heating apparatus were approved by both the board of education and by the appellants, in connection with the general plans for the erection of the building, and that no change has been made. It is also shown that the board of education duly advertised for bids for the performance of the work ; that the board requested the appellants to meet upon two different occasions and open the bids, but that appellants refused to so meet with the respondents. It is also shown that there were several bidders, and that the Pierce, Butler & Pierce Manufacturing Com- pany was the lowest bidder. It is not pretended that the work has not been properly performed. In view of these facts and of the lateness of the appeal, I do not deem it necessary to more fully consider the matter. The appeal is dismissed, and the injunction granted upon the 17th day of March 1891, is hereby revoked. 3729 In the matter of the appeal of Ezra Whedon, Isaac Sherwood and others v. Willis A. Parsons, trustee of school district no. 10, town of Camillus, Onondaea county. An order of a school commissioner directing that a furnace be purchased in order to ren- der a schooIhou.se comfortable and fit for use, upheld. Decided November 16, 1888 Driscoll Si Goold, attorneys for the appellants Jones & McGowan, attorneys for the respondents Draper, Superintendent It appears that at the annual school meeting held in the above named dis- trict on the 28th day of August 1888, it was decided that $400 be raised by tax for repairs to the schoolhouse and outbuildings and for necessary expenses for maintaining the school during the coming year. A question was then raised as to providing a better method of heating the schoolhouse. Some were in favor of providing a furnace and some were opposed to such step. Without reaching a determination an adjournment was taken until the Friday evening following, when they reconvened and by a vote of 17 in the affirmative and 18 in the negative determined that the furnace should not be procured. Subsequently the school commissioner of the district investigated the matter and concluded that JUDICIAL decisions: school furniture 797 the heating apparatus was entirely inadequate to the needs of the school and that something must be done to provide for the comfort of teachers and pupils, and he made an order dated October 8, 1888, in which he recited that upon an inspec- tion of the building he found it in bad condition and mifit for occupation, and tliat he deemed the amount provided for repairing the building to be inadequate and ordered that the sum of $200 in addition to the sum directed to be raised by the district meeting, should be raised — $100 for repairs upon the building and outbuildings and $100 for school furniture. Under the authority thus con- ferred upon him the trustee proceeded to procure a furnace for heating the building, and in his answer to the appeal states that the same is now in place and operating satisfactorily. From this action this appeal is taken. The only question involved is whether the school commissioner had authority to make the order upon which the trustee relies. Section 3 of title 2 of the Consolidated School Act confers upon the school commissioner power to direct trustees to make any alteration or repairs on the schoolhouse or outbuildings which shall in his opinion be necessary for the health or comfort of the, pupils, provided the expense thereof does not exceed the sum of $200 in any one year, unless an additional sum shall be voted by the district. The same section also empowers the commissioner to direct the trustee to make any alterations or repairs to school furniture, or to direct that new furniture shall be provided when he deems necessary, provided that the expense of such alterations, repairs or additions do not in any one year exceed the sum of $100. It seems to me that these provisions of the statute are adequate to confer upon the commissioner the power which he exercised in the present case. It was unmistakably the purpose of the Legislature to empower school commissioners to see to it that adequate and convenient accommodations are provided for the health and com- fort of the teachers and pupils in the public schools. After fully reading the papers submitted in the present case I am unable to say that the power conferred upon the commissioner was not properly exercised. From the foregoing considerations I find it necessary to dismiss the appeal. SCHOOL GROUNDS, ETC. 5305 In the matter of the appeal of Charles Decker et al. from the action of the annual meeting and of the trustee of school district no. i, town of Rotter- dam, county of Schenectady. School authorities should aid in the preservation of trees upon school grounds and should plant trees upon such grounds whenever there is opportunity to do so and when addi- tional trees will add to the beauty and attractiveness of the grounds. School authorities will be prohibited from cutting trees upon school grounds unless good cause exists therefor. Decided January 31, 1907 A. T. Blessing, attorney for appellant A. T. G. W'emple, attorney for respondent Draper, Commissioner School district no. i, Rotterdam, has a large district site containing about two acres and on this site are about one hundred and thirty natural trees. The annual meeting of this district held in August 1906, adopted a resolution author- izing the trustee to dispose of the wood on the school ground as he deemed for the best interest of the district. The trustee advertised to sell part of the timber standing upon the school grounds. Appellants thereupon brought this proceed- ing and petitioned for an order restraining the trustee from cutting such timber until this appeal could be determined. The order was granted. Appellants allege that the annual meeting was not well attended and that a majority of the voters of the district are opposed to cutting these trees. They allege, in substance, that these trees protect the building from severe winds in the winter, afford shade in the warm weather, and contribute largely to the ornamentation and attractiveness of the grounds. Respondent asserts that it was not his intention to cut all the trees but claims that in one section of these trees there are several liable to fall because of old age; that some have been blown down and that others are so near the schoolhouse and are so tall that it is unsafe to permit such trees to remain standing and that as a protection to the building and the children these trees should be cut. For several years this Department has not only encouraged all school dis- tricts in the State to plant trees but has endeavored to interest the public gen- erally in relation to the utility and beauty of trees along public highways and in other public places. School authorities should aid in the preservation of trees upon school grounds and should plant trees upon such grounds whenever there [798] JUDICIAL decisions: school grounds, etc. 799 is opportunity to do so and when additional trees will add to the beauty and attractiveness of the grounds. I directed an inspector of this Department to meet the parties to this pro- ceeding at the school grounds and determine whether or not it appeared advisable to cut any of the trees in question. The report of such inspector shows Ihat it is advisable to cut some of these trees. An agreement was reached between all parties as to the trees which should be cut, and the trees which are not to be cut were properly marked. None of the ninety-five trees indicated in the map of appellants are to be cut. In the northeast corner, the section shown on the map of respondent, it appears as though all trees might be cut except the following : the chestnut tree on the line between the school grounds and the Wemple farm, the oak tree between the schoolhouse and the said chestnut tree and which oak tree is also near one of the new outbuildings, the three hemlock trees near the rear line and the five pine trees which were marked. These trees which are not to be cut would be greatly improved if the dead limbs and branches were cut out. The whole appearance of the grounds would also be greatly improved if the underbrush and dead material among the trees should be cut, carried out and burned. As to the limitations herein expressed, the appeal is sustained. As to all other matters involved, it is dismissed. 3895 In the matter of the appeal of Fred C. Hodges v. R. F. Brown, as trustee of school district no. 12, town of Adams, Jefferson county. School districts are governed bv the same rule regarding the construction and maintenance of division fences, that all other owners of property are. The owners of adjoining lands 'if inclosed, can be required to construct one-half of the dividing fence, or con- tribute in that proportion toward the same. Decided July 26, 1890 Draper, Superintendent At the annual school meeting held in district no. 12, town of Adams, county of Jefferson, August 6, 1889, a resolution was adopted to fence the schoolhouse lot on three' sides, and the sum of twenty-five dollars was appropriated to meet the expense thereof. The trustee has neglected to include the amount so voted in a tax list and has neglected to cause the fence to be constructed. No answer has been interposed. The trustee, however, makes certain requests to find, in determining the appeal, namely : 1 Is a tax to raise money to build a fence around a school lot legal, when the site has never been inclosed? 2 If such a tax is legal, is the tmstee required to build the entire fence or onlv one-half thereof? 8oo THE U.VIVERSITY OF THE STATE OF NEW YORK Appellant asks that the trustee be required to carry out the directions of the district meetinj;. The allegations of the appellant, not being denied, are presumed to be admitted. The item voted at the annual meeting is perfectly legitimate. Upon the second request to find of the trustee, my decision is that school districts are governed by the same law in regard to division fences between the school lot and adjoining owners as are all other property owners. The owners of adjoining lands, if inclosed, can be required to construct one-half of the dividing fence, or contribute toward the same, and it is the duty of the trustee to see that the rights of the district in this respect are pro- tected. Because a fixed sum has been voted, it would not necessarily follow that the entire amount must be expended. The trustee is to expend so much thereof as may be necessary. The appeal is sustained. 3790 In the matter of the appeal of George A. Signor v. George T. Dan, trustee of school district no. 13, of the town of Colchester, county of Delaware. .\ trustee has no authority to purchase land, or to bind a district to maintain a division fence, nor to charge for personal services in making repairs. Decided April 25, 1889 Draper, Superintendent This is an appeal by a resident taxpayer of school district no. 13, of the town of Colchester, Delaware county, N. Y., from the action of the trustee in issuing a tax list and warrant for the collection of certain items which the appellant alleges are neither authorized by law nor by the vote of a district meeting. It appears from the papers that the entire tax list has been paid with the exception of the appellant's tax, and that he delayed taking an appeal until nearly one month after the tax list had been placed in the collector's hands. This delay, on the part of the appellant, has made the decision of the appeal very embarrassing to me, for the reason that if any of the items of the tax list were found to be unauthorized, it would necessitate the refunding of the portion of the tax paid by each of the taxpayers of the district, who had paid. The appellant alleges that the trustee has made repairs to the water-closet and built a new one on land which did not belong to the district; that he did a portion of the work himself, has charged an exorbitant price for the same, and that the work luis been imperfectly done; that the school commissioner of the district does not approve of the expenses incurred in providing suitable water- closets for the school district; that the trustee has constructed a fence for the district, which should have been paid for in part, by adjoining owners; that he did so without the vote of a district meeting; that for some repairs made to the schoolhouse by the trustee, the charge is exorbitant. JUDICIAL decisions: school grounds, etc. Soi The trustee for answer, alleges that he has acted in perfect good faith, and, as he believes, in accordance with the law which required the construction of several privies; that it had been customary in the district for the trustee to do work of the kind he did, and it was almost a necessity for him to do so because of his inability to secure other help. It is also made to appear that the work upon the privies and repairing was done by direction of the school commis- sioner, and that he, as trustee, has acquired title to the land along which the fence was built, and the condition of the deed was that the district should build and maintain the fence ; that additional land was absolutely necessary in order that the law in relation to separate privies could be comi)lied with. A copy of the deed is shown among the respondent's papers, and also evidence that the same has been recorded in the county clerk's office of Delaware county. It does appear that the commissioner has not approved of the bill for repairs, and that the present commissioner deems the charge exorbitant. I am satisfied that the trustee has acted in good faith in his attempt to comply with the provisions of the law, but that he has exceeded his authority, namely : in contracting for and purchasing land for the district, and agreeing to construct and maintain as a consideration for the purchase, a division fence 255 feet in length. All this would have been entirely proper if a district meet- ing had authorized it, and repairs to any extent could have been voted by a district meeting. The trustee had authority to make repairs upon his own motion to the schoolhouse, the expense of which, in any one year, should not exceed $20, and he could make repairs by direction of the school commissioner, both to the outhouse and the schoolhouse property, the expense not to exceed $200 in any one year. I have concluded to make this disposition of the case: The present trustee of district no. 13, Colchester, is hereby directed to at once call a special meet- ing of the inhabitants, the meeting to be held within fifteen days from the date of this decision, to act upon the question, '* Shall the action of the respondent, in entering into a contract with A. L. Signor, and the acquiring of title there- under of certain land for an addition to the schoolhouse site, be ratified and approved and the property accepted by the district upon the condition contained in the deed, which requires the construction and maintenance of a division fence?" If the meeting will approve of the action of the respondent, then I direct that the tax list and warrant be so amended as to deduct from the amount to be raised, any amount which the respondent has charged for his personal services while filling the office of trustee. The items charged for members of his family who also worked for the district, I do not deem exorbitant, and they may be included in the tax. If the district meeting will not approve of the action of the trustee in purchasing the real estate on the condition mentioned, that item also will have to be omitted from the tax list. This will necessitate the establishment of a new rate of taxation, and any amount which may have been paid by the 26 8o2 THE UNIVERSITY OF THE STATE OF NEW YORK taxpayers in excess of the amount which will be so established, must be refunded. The trustee of the district will deliver the corrected assessment list and warrant, after renewal, to the collector, with directions to enforce the same against the appellant. DIVISION FENCES Decided October 26. 1866 Rice, Superintendent In regard to division fences, a school district is subject to the same liabilities as any other owner of real estate. If the district chooses to let the site lie open to the highway, you can not compel them to build or maintain any portion of a division fence. If. however, you build such fence, and the district afterward incloses the school lot, you can compel the inhabitants to refund half the expense of building the line fence. 3101 FENCING SITE Decided June 13, 1881 Gilmour, Superintendent The discretionary powers conferred upon the trustee do not include the right to fence the schoolhouse site. SCHOOLHOUSES The president and directors of the Bank of Orleans v. the trustees of school district no. i in the town of Barre. There can be no partnership in the erection of a district schoolhouse. The facts of this case are stated in the Superintendent's order. Decided January 12, 1835 Dix, Superintendent The Superintendent of Common Schools has examined the statement of facts agreed on by the trustees of school district no. i in the town of Barre, and the president and directors of the Bank of Orleans, in relation to the assessment of a tax on the property of said district for the purpose of erecting a schoolhouse. The proposed schoolhouse is intended to be part of a building to be used as an academy as well as a schoolhouse, and the sum of $2000 is intended to be raised by subscription to complete it. Much as the Superintendent is disposed to confirm the proceedings of the inhabitants of the district, by whom they have been adopted with great unanimity, he is constrained to set them aside by a rule which can not, in his opinion, be safely departed from in any case, without authority from the Legislature. By a decision of the Superintendent heretofore published with the school laws, it is settled that there can be no partnership in the erection of a schoolhouse which will prevent the district from controlling it entirely for the objects of the district school. This principle he feels bound to enforce in all cases which come before him. To sanction a departure from it would establish a precedent which might lead to great embarrassment and possibly to abuse. If in any case the interest of a district should require such an arrangement as is contemplated by the inhabitants of this district, application must be made to the Legislature for the proper authority. The Superintendent deems it proper to add. that he should have confirmed the tax but for the single fact that the schoolhouse is proposed to be united with an academy. The wealth of the district justifies the amount of the proposed expenditure; and it is no objection, in his mind, that a large proportion of the tax falls on a moneyed institution, which not only has the ability but the directors of which express a willingness to contribute to the erection of a schoolhouse for the district. It is hereby ordered, that so much of the proceedings of the special meet- ing in school district no. i, on the 23d of December last, as authorizes a tax of $1500 to be levied, with a view, as is admitted, to be applied to the erection of a building for a schoolhouse and academy, in pursuance of a resolution passed at a meeting of said district on the /th of October last, be and it is hereby set aside. 8o4 THE UNIVERSITY OF THE STATE OF NEW YORK This decision is not intended to affect the right of the inhabitants of said district, by virtue of the certificate of the commissioners of common schools heretofore given, to meet again and vote the same amount for the purpose of erecting a building to be used solely as a district schoolhouse. Trustees will not be required to let the building of a schoolhouse to the lowest bidder, unless so instructed by a vote of the inhabitants. Decided January 30, i860 Win Dyck, Superintendent By a vote of the inhabitants at a meeting duly convened, the trustees were directed to build a new schoolhouse. They accordingly gave notice that they would receive proposals for building a house of given dimensions. The appel- lant put in a bid at $340. Other bids were put in, among them one by Mr Davis at $350, which was accepted by the trustees. The appellant asks that the award be set aside, it not being given to the lowest bidder. Had the district directed the trustees to let the contract for building the house to the lowest bidder, there would appear on the part of the trustees a departure from the authority with which they were vested, which would demand interference. But such is not the case, the trustees being left free to make such contract as they might deem most advantageous to the district. Nor did the notice which they gave place them under any obligation to the appellant in con- sideration of his bid being lower than that of any other. They were left free to make the award as they should deem most advantageous. It devolves upon the appellant to show either a legal claim by virtue of the notice given, or that the district is likely to suffer injury from the action of the trustees. A district can not be compelled to rebuild where schoolhouse has been destroyed; but where it for a long time refuses to do so, may be annulled and attached to others ad- joining. Decided February 7, 1866 Rice, Superintendent There is no law by which a district can be compelled to rebuild, where the schoolhouse has been destroyed ; but a trustee is empowered to hire rooms tem- porarily, for the accommodation of the children, whenever he shall deem it necessary. This he can do without a vote of the district. If the district refuses to build for an unreasonable length of time, the school commissioner of the district will examine into the case, and report, as to the expediency of annulling the district and attaching it to those adjoining. JUDICIAL decisions: schoolhouses 805 4845 In the matter of the appeal of Edward Posson v. board of education of union school district no. 12, Ridgeway and Shelby, Orleans county. Under the Consolidated School Law of 1894 and the amendments thereof, it has been the settled policy of the State that each of the school districts therein should become the owner, either by purchase or by building upon a suitable site or sites, the schoolhouse- or houses, or school building or buildings thereof; that the leasing and renting of rooms and buildings for school purposes, are not authorized except under extraordi- nary conditions and to provide for emergencies. Decided March 15, 1900 Simonds & L'Hommedieu, attorneys for respondent Skinner, Superintendent This is an appeal from the action of the board of education of union free school district 12, Ridgeway and Shelby, Orleans county, in hiring for the school year of 1899-1900, a certain building for school purposes, as is claimed by the appellant, in violation of the powers and authority possessed by said board under the provisions of the Consolidated School Law. Issue has been joined herein and the pleadings and proofs are voluminous. It is admitted by the parties to this appeal that on August 7, 1899, the board of education adopted, by a majority vote, the following resolution: "Whereas, the necessity of again hiring the Eagle street school building still exists, because of the expected crowded condition of the Central school during the coming school year, be it, and it is hereby resolved, that the board of education hire the Eagle street school building during the school year of 1899 and 1900 at the annual rent of $150, on the condition that it be put in repair satisfactory to the board." It is also admitted that on October 20, 1899, the following resolu- tion was adopted by said board : " Resolved that the resolution appealed from by Edward Posson, adopted by this board August 7, 1899, be amended by strik- ing out the figitres $150 and substituting therefor the figures $1." It is also admitted that subsequent to the adoption of such resolutions, the board of edu- cation had entered into a lease of the building described therein with the owners and representatives of the owners of such building for the school year of 1899- igoo, and that a school under the control of such board is being conducted therein as one of the public schools of district 12. The Eagle street school building described in these resolutions is the building the leasing of which is the subject of this appeal. It appears from the proofs herein that the " Eagle street school building " is a wooden building situated near an alley with horse sheds on one side and barns on the other, having been moved to its present location in 1836. and that a portion thereof has been hired by various boards of education of district 12 since about August 25, 1885, and that for the past fourteen years, during which time it has been leased by successive boards of education, a public school, under 8o6 THE UNIVERSITY OF THE STATE OF NEW YORK the charge of such board, has been coiKkicted therein; that such building is not properly ventilated, heated or lighted, and the seats therein are uncomfortable. The board of education of said union school district 12 are limited in their power to lease property for school purposes by subdivision 6 of section 15 of article 4, title 8 of the Consolidated School Law, which provides as follows : " The board of education of every union free school district shall severally have power, and it shall be their duty, to hire any room or rooms in which to maintain and conduct schools when the rooms in the schoolhouse or houses are overcrowded, or when such schoolhouse or houses are destroyed, injured or damaged by the elements, and to fit up and furnish such room or rooms in a suitable manner for conducting a school or schools therein." This statute became operative June 30, 1894, and from that date all boards of education in union school districts organized under the general law could not legally hire any rooms or buildings in which to maintain and conduct a school unless at the time of such hiring the existing school buildings owned by the dis- trict were overcrowded or some of its school buildings had been injured or destroyed by the elements. Such is clearly the limitations upon their power contained in the statute herein referred to. Since the enactment of that statute it has been the settled policy of the State that all localities must own the school buildings in which their schools are conducted and that the leasing and renting of property for school purposes was not authorized except under extraordinary conditions, and those conditions must be such as are enumerated in the statute. Numerous decisions to that effect have been made by this Department. The proofs herein show that in the year 1897-98 additional school buildings were built and furnished to this district at an expense of about $28,000, and it may fairly be assumed that in 1898 the district owned ample school rooms to accommodate all the children of school age residing in the district, and hence no emergency existed that required the hiring of the building in question. It is also clear from a careful reading of the resolution adopted August 7, 1899, that in the opinion of the board of education the emergency which would authorize the hiring of property for school purposes by the board of education in this district did not then exist; indeed, the respondents in their answer state that the " special emergency occurred soon after the appeal herein was taken." The testimony relating to the overcrowding of the schoolhouses owned by this district is so conflicting, especially taken in connection with the fact that the leasing of this property has been continuous since 1885, that I can not bring myself to believe that the school buildings owned by such district were so over- crowded as to recjuire or authorize the leasing of this building for school purposes. It appears from the proof herein that there is a room in one of the school- houses in this district at present leased by the board of education to two young ladies in which a private kindergarten school is conducted, and that there is also a large assembly hall in the Central school building owned by the district, which if fitted up and furnished would provide rooms to accommodate all the JUDICIAL decisions: schoolhouses 807 children residing in this district without any necessity of leasing property for school purposes. The assessed valuation of this district from the last annual report made by its officers appears to be $2,218,185. A community of such recognized intelli- gence and abundant financial ability should provide adequate and commodious school buildings owned by the district, and not be a tenant of individual land- lords, and certainly not when it possesses property which it is itself leasing to other tenants. Ample provision exists in the school law for providing school facilities adequate to the needs of this district. I therefore decide : 1 That union school district 12, Ridgeway and Shelby, Orleans county, must, in accordance with the provisions of the Consolidated School Law, own the buildings in which the schools therein are conducted, save only when temporary hiring of rooms or buildings is made necessary by some emergency provided for in the school law. 2 That the board of education should not continue the leasing of buildings for school purposes beyond the present school year, and that it is their duty, and they are hereby ordered and directed, to prepare and submit to a special meeting of the district duly called, or to the annual meeting to be held on the first Tues- day of August 1900, resolutions authorizing the construction of any additional school buildings and furnishing the same, which in their judgment, may be neces- sary to properly accommodate the children of school age residing within such district. 3731 In the matter of the appeal of Charles McCoy and Chauncey J. Fox v. union free school district no. i, town of Ellicottville, county of Cattaraugus. The action of a district meeting granting an extra allowance to contractors who have built a new schoolhouse can not be sustained, unless notice by the board of education stating that such tax will be proposed, and specifying the amount and object thereof, shall have been published, etc. Decided November 17, 1888 Scott, Laidlaw & McNair, attorneys for the appellants Armisah Ward, attorney for the respondent Draper, Superintendent It seems that the district above named has recently erected a new school- house, the work being done by Messrs Stokes & McMahon as builders, under an agreement to perform the same for the sum of $12,749. The work was com- pleted and the builders were paid the contract price in July last. At the time of this settlement the builders presented a claim against the district amounting to $613.68 for extra labor and materials, over and above such as they were required to supplv under their contract. The board of education paid them the 8o8 THE UNIVERSITY OF THE STATE OF NEW YORK sum of $166.82 and they delivered to the board their receipt in full, covering both the contract price and their claim for extra services, and material. They insist, however, that it was understood that they should present their claim for the balance, amounting to $446.86 to the annual school meeting, to be held in the district on the 28th day of August 1888. That there was such an understand- ing is disputed by the appellants, but I do not consider the point material. They, in fact, did present their claim to the annual meeting, and the meeting resolved to pay the same and directed a tax should be levied in order to raise the money. From this action of the district meeting this appeal is taken. The appellants urge that the appeal should be sustained for the following reasons: (i) that the items charged were not extras ; whatever was done, was done under contract ; {2) that there had been a full and satisfactory adjustment and final settlement between the parties; (3) that the district owed them nothing; (4) that no notice was given prior to the district meeting, stating that such tax would be proposed at such meeting, and specifying the amount or object thereof. I shall first consider the last objection raised by the appellants. If it is valid it will be unnecessary for me to go into the merits of the controversy. Section 10 of title 9 of the Consolidated School Act provides that "A majority of the voters of any union free school district other than those whose limits correspond with an incorporated city or village present at any annual or special district meeting, duly convened, may authorize such acts and vote such taxes as they shall deem expedient for making additions, alterations or improvements to or in the sites or structures belonging to the district, or for the purpose of other sites or structures, or for a change of sites, or for the erection of new buildings, or for buying apparatus or fixtures, or for paying the wages of teachers and the neces- sary expenses of the schools, or for such other purpose relating to the support and welfare of the school as they may by resolution approve; and they may direct the moneys so voted to be levied in one sum or by instalments but any addition to, or change of, site or purchase of a new site, or tax for the purchase of any new site or structure, or for the purchase of an addition to the site of any schoolhouse, or for building any new schoolhouse, or for the erection of an addition to any schoolhouse already built, shall be voted at any such meeting, unless a notice by the board of education, stating that such tax will be proposed and specifying the amount and object thereof, shall have been published once in each week for the four weeks next preceding such district meeting, in two newspapers if there shall be two, or in one newspaper if there shall be but one published in such district; but if no newspapers shall be published therein, the said notice shall be posted up in at least ten of the most public places in said district, twenty days before the time of such meeting." It is not pretended that such notice as that contemplated in this statute was given prior to the action of the district meeting. It seems to me that this statute is fatal to the action of the district meeting. It may be true that the action appealed from was not technically for any one of the purposes enumerated in this statute, but that it comes within the general scope and intent of the JUDICIAL DECISIONS : SCHOOLHOUSES 809 statute, it seems to me there can be no doubt. The money ordered to be raised was for the payment of a claim growing out of the erection of a new school- house. I think the people of the district were justified in relying upon this pro- vision of the statute to prevent any action of that nature without such prelim- inary notice as the statute prescribes. It therefore follows that I must sustain the appeal and perpetually enjoin the board of education from levying or collect- ing a tax pursuant to the action appealed from. My arriving at this conclusion will not bar the claimants against the district from procuring a determination of the justice of their claim. They can either present the same to a special district meeting after proper notice, or they can bring an action against the district in the courts. The appeal is sustained and the action of the district meeting is declared null and void. 5194 In the matter of the appeal of Jeremiah P. Conklin, J. Whitman Baker and Joseph M. Edwards, trustees of school district no. 3, town of East Hampton, Suffolk county, from the action of a special meeting of said district held June 29, 1905, in voting to rescind the action of a previous meeting in voting; $5000 for repairs etc. A district meeting voted to repair a schoolhouse but the trustees had awarded no con- tracts and a district liability had not been created. Such district could legally change its plans and vote a tax for the erection of a new building. if a district meeting votes a tax for the purpose of repairing a schoolhouse such action cat. not be reconsidered after the expiration of 30 days unless the district votes in good, faith to erect a new building and authorizes a tax therefor. Decided August 15, 1905 Draper, Commissioner A special meeting of the legal voters of school district no. 3, town of East Hampton was regularly called for May 11, 1905, to consider the advisability of making repairs to the schoolhouse and authorizing an appropriation therefor. The meeting appointed a committee to act wath the trustees in preparing plans for the proposed improvements. The meeting appears to have given the question; of repairs careful attention and to have regularly adjourned from time to time. At a meeting held May 25, 1905, plans and specifications prepared by an archi- tect for an addition to the building were submitted and adopted. An appropria- tion of $5000 was voted for making such repairs. At a meeting held June 15, 1905, the wisdom of erecting a new building: instead of enlarging the present building appears to have been discussed. Arc informal ballot was taken on the question to ascertain the sentiment of the dis- trict and 19 votes w^ere cast in favor of erecting a new building and 13 votes m favor of erecting the addition already authorized. At a meeting of the district held June 29, 1905. the following resolution was adopted: "Resolved, That all 8lO THE UNIVERSITY OF THE STATE OF NEW YORK acts, resolutions, appropriations, plans and specifications relative to the building on or addition to the present schoolhouse in the village of Amagansett, New York, be now rescinded." No other action in relation to the matter was taken at that meeting or so far as the pleadings herein show at any subsequent meeting. It appears that at the time of this meeting no contracts had been let for the repairs authorized by the di.-trict May 25th. No district liability would have followed by a change of plans to provide for the erection of a new building. Had this meeting made an appropriation for the erection of a new building and taken such other action necessary to prepare for the erection of such building its action would undoubt- edly have been lawful. No action of this character was taken and the meeting even adjourned sine die. The action of the meeting, therefore, in voting to favor the erection of a new school building can not be regarded as having been taken in good faith. Without providing for the erection of a new building this meeting could not legally rescind its former action in voting an appropriation of $5000 for repairs to the building. Section 18 of title 7 of the Consolidated School Law provides that a vote to repair or erect a schoolhouse or to erect an addition to a schoolhouse shall not be reconsidered except at a meeting held within 30 days from the date on which such vote was adopted. The vote by which the appro- priation of $5000 for the erection of an addition to the schoolhouse in question was reconsidered took place at a meeting held 49 days after the date of the meeting at which such appropriation was made. The action of such meeting was in violation of law and therefore void. No answer has been filed to this appeal and the allegations contained in the moving papers must be regarded as admitted. The appeal herein is sustained. It is ordered, That the board of trustees of school district no. 3, town of East Hampton, be, and they hereby are, ordered to proceed to erect the addition to the present school building as directed by a special meeting of such district on May 25, 1905, and to raise the said appropriation of $5000 as directed by that meeting. 5179 In the matter of the appeal of Edwin L. Rymph for the removal of Louis J. Cobey, sole trustee of school district no. 3, towns of Hyde Park and Pough- keepsie, Dutchess county. When a district meeting appoints a building committee to assist the trustees in making certain repairs and the district subsequently decides not to make such repairs but authorizes the erection of a new building and does not continue such building committee it is held that the duties of such committee ceased. A building committee can a-ct in an advisory capacity only. A building committee may advise trustees or make suggestions as to the procedure in erecting a building, but the responsibility, under the law, of erecting such building rests upon the trustee and he rnay proceed as his judgment directs even in opposition to the wishes or recommenda- tions of a building committee. JUDICIAL decisions: schoolhouses 8ii A school district meeting can not restrict the powers of a trustee in determining the number of teachers to be employed and the compensation of such teachers. The law imposes this duty on a trustee. If authorized expenditures made by a trustee are excessive or improper objection should be made at the meeting of the district when the trustee makes a report thereon. If no objection is made and such report is accepted by the district, such acceptance will be regarded as a concurrence in the judgment and authority of the trustee in making such expenditures. A trustee should not proceed with the erection of a building to cost an amount in excess of the funds available until he calls a special meeting of the district and receives instruction therefrom or until a further appropriation is made. When a trustee violates no instruction from the district but exercises his best judgment on the course to pursue, even if that judgment is faulty, it does not constitute sufficient cause for removal from office. Decided February 23, 1905 Homer E. Briggs, attorney for appellant Hackett & Williams, attorneys for respondent Draper, Commissioner This proceeding is brought to remove Louis J. Cobey from the office of trustee of school district no. 3, towns of Hyde Park and Poughkeepsie. It is alleged that Mr Cobey has illegally, wastefully and excessively expended the funds of the district and that he has wilfully refused to obey instructions given him by the district. Thirty-five legal voters of the district join Mr Ryniph in this petition and 26 legal voters of the district join Mr Cobey in his answer to such petition. This district has three schoolhouses. One is known as the Violet avenue schoolhouse, one as Mount Hope schoolhouse, and one as the Chapel Corner schoolhouse. One cause of much of the trouble in this district is a misunderstanding between a building committee and the trustee. At a special meeting of the dis- trict held September 16, 1902, the chairman was authorized to appoint a build- ing committee " to assist the trustee with the super\'ision of the repairs and the enlargement to the Mount Hope schoolhouse." The records of the meeting show the chairman appointed as such committee: John A. Roosevelt, Frederick R. Newbold and William R. Wright. At this special meeting the collector reported that after paying the running expenses of the district there would be a balance of $250. The meeting directed the trustee to raise by tax $250 and to use such other amount remaining on hand after payment of all other school expenses, for the enlargement and repairs to the Mount Hope schoolhouse. The district, therefore, contemplated and authorized an addition and repairs to the Mount Hope building to cost about $500. It appears that Mr Roosevelt went to Canada shortly after the appointment of this committee and that upon his return he was ill for some time. It also appears that Mr Newbold went to Eutope and that neither of these members rendered any service on such com- Sl2 THE UNIVERSITY OF THE STATE OF NEW YORK inittee or were ever consulted in relation to the work of such committee. The only member of such committee who rendered any service was Mr Wright. No repairs were made during the year to the Mount Hope schoolhouse. At the annual meeting in August 1903 Mr Wright as the building committee made a report recommending that a new schoolhouse be built on the property adjoining the present site. This annual meeting directed that a special meeting be held August 11, 1903, to consider among other things the proposition to build a new schoolhouse at Mount Hope. Such special meeting decided to build a new schoolhouse. Neither the annual meeting of 1903 nor the special meeting of August II, 1903, authorized the continuance of the building committee appointed at the special meeting of September 16, 1902, or the appointment of a new committee. The records of these meetings or the pleadings in this pro- •ceeding do not show that any discussion took place at either meeting in relation to the continuation of such building committee. That committee was appointed for a definite purpose, namely, " to assist the trustee with the supervision of the repairs and tlu- enlargement to the Mount Hope school." No work in con- nection with such repairs or enlargement at the Mount Hope building was done for one year and at the expiration of that time the district decided not to do ihe work which this committee was appointed to assist the trustee in supervising. Therefore, the duties of the committee ceased. Such committee was not author- ized to assist the trustee in any manner whatever in building the new school- liouse authorized at the special meeting of the district August 11, 1903. When a eyond this, I am led to give considerable weight to the fact which appears in the papers, and is not controverted, that the clerk's record shows that a special meeting was held in this district on the 31st day of March 1888, for the purpose of considering the question of building a new schoolhouse, and that at said meet- ing the resolution to build was defeated by but one majority, and that a sub- sequent special meeting was held on the 14th day of April 1888, to consider the question of repairing the schoolhouse, and that at said meeting the vote stood II in favor of repairing and 20 opposed thereto. This action of the district meetings indicates a strong sentiment in the district in favor of new schoolhouse. I am confident that such a sentiment would not exist if there were not strong reasons for it. In any event, it is not shown to me that the school commissioner has not exercised the power which the law confers upon him properly, and the burden is upon the appellant to show that. The appeal is therefore dismissed. 3869 George Flack, trustee of school district no. 17, town of Hartland, county of Niao-ara v. Robert C. Woods, school commissioner of the second commis- sioner district of Niagara county. The action of a school commissioner condemning a school building and ordering the erec- tion of a new one sustained, no abuse of power or discretion being shown. Decided April n, 1890 Draper, Superintendent Appellant appeals from an order of the respondent bearing date August .27, 1889, condemning the schoolhouse in district no. 17, in the town of Hart- knd, Niagara county. The grounds of the appeal are that the inhabitants of the district prior to the service of the commissioner's order, had adopted a S50 THE rNIVKKSITY OF THE STATE OF NEW YORK resolution to repair the schuolhouse and place the same in a proper and suitable condition, and to raise the sum of $150 to meet such repairs; that the school building is worth repairing, and with the repairs contemplated, would meet the requirements of the district; that a majority of the inhabitants of the district who are taxpayers are poor people, and will be distressed if compelled to pay at this time the necessary tax to rebuild the schoolhouse. A number of affidavits are offered in support of the above objections to the commissioner's order. Upon the part of the commissioner, the respondent herein, it is shown by the affidavits of the largest taxpayers in the district, mechanics and others who are familiar with the circumstances, and acquainted with the condition of the .schoolhouse, that the present schoolhouse has been in use many years, and is in a dilapidated condition, and, if the use of the present building is continued, it will be a source of constant expense to the district for repairs. It appears that the commissioner, before making the order condemning the house, in conjunction with the trustee of the district, and several of the citizens thereof, made a thorough examination of the building, its foundation and sn])ports, and agreed that the building should be condemned upon the ground that it was not worth repairing, and in its present condition, unfitted for use as a school- house. In a proceeding of this nature the law confers upon the school commissioner original jurisdiction, and it is not the policy of this Department to interfere with the exercise of his power, except upon grounds showing an abuse of dis- cretion. I am unable to find any such abuse in this proceeding. The com- missioner is clothed with the power of condemnation without reference to the wealth or poverty of the district afitected. It has been the experience of this Department that good schoolhouses, with satisfactory schools, are essential to the welfare of communities. Well-appointed school buildings and satisfactory schools are found to be very great inducements to families proposing to locate in localities. In this case I am clear that the action of the commissioner should be upheld. The trustee of the district is, therefore, directed to forthv/ith pro- ceed to carry out the directions of the commissioner's order. The appeal is overruled. 5015 In the matter of the appeal of G. M. Barney v. Oscar AI. Burdick as school commissioner, second commissioner district of Allegany county. Orders made by school commissioners under the provisions of subdivision 4, section 13, title 5 of the Consolidated School Law of 1894, as such section was amended by section I of chapter 512 of the Laws of 1897, condemning schoolhouses, must state that such schoolhouse is deemed "zcholly unfit for use and not worth repairing." Decided September 17, 1902 Jesse L. Grantier, attorney for appellant JUDICIAL decisions: schoolhouses ' 851 Skinner, Superintendent This is an appeal from an order made by Oscar M. Burdick, as school commissioner of the second commissioner district of Allegany county, dated June 22, 1902, condemning the schoolhouse in union free school district i, Andover, Allegany county. The appeal herein was verified by the appellant July 30, 1902, and proof of service of a copy of the appeal on Commissioner Burdick July 30, 1902, is annexed to the appeal. The appellant alleges that he learned of said order of Commissioner Burdick on or subsequent to the 4th day of July 1902. The main grounds alleged by the appellant for bringing the appeal are, in substance, that said order of the commissioner is indefinite and uncertain and does not state that he deemed the schoolhouse in the district wholly unfit for use. and not worth repairing. On August 6, 1902, Commissioner Burdick filed an answer to the appeal, in which he claims that his order is in accordance with the provisions contained in subdivision 4 of section 13, title 5 of the Consolidated School Law of 1894, and the acts amendatory thereof ; that the appeal herein was not taken within thirty days after knowledge of said order came to the appellant. In subdivision 4, section 13, title 5 of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894, as such subdivision was amended by section i, chapter 512 of the Laws of 1897, it is enacted that every school commissioner shall have power, and it shall be his duty, by an order under his hand, reciting the reason or reasons therefor, to condemn a schoolhouse, if he deems it ivholly unfit for use and not worth repairing, and to deliver the order to the trustees, or one of them, and transmit a copy to the Superintendent of Public Instruction. The following is a copy of the order of said commissioner, from which the appeal herein is taken : To the board of education, Andover High School: I Oscar M. Burdick. school commissioner of the second district ofAlle- crany county, by virtue of power in me vested, as defined in title 5, section 4, as amended by section i, chapter 512 of the Laws of 1897, do hereby condemn the school building of district i, Andover, this commissioner s district, as wholly inadequate to accommodate the pupils attending said school. The building was built without reference to proper heating and ventilating, and is therefore not only insufficient in size and arrangement, but is also unsani- tary and detrimental in every particular to the wants of the pupils I would therefore advise that said building be done away with, and a new buildino- erected capable of meeting the requirements of the law, and increasing the health and safety of the pupils in future years, said building to cost not less than $10,000. Given under my hand this 27th day of June 1902. Oscar M. Burdick School Commissioner 85- THE UNIVERSITY OF THE STATE OF NEW YORK Commissioner Burdick fails to state that he deems said schoolhouse " wholly unfit for use and not zvortli repairing," but on the contrary alleges that he con- demns the school building " as wholly inadequate to accommodate the pupils attending said school." Said school building may not have proper heating facilities, and not be properly ventilated, and not be large enough to accommodate the scholars of school age residing in the district, without being repaired or added to, and proper heating apparatus and ventilation provided, and still said building not be " wholly unfit for use and not worth repairing." This Department has uniformly held that an order of condemnation of a schoolhouse by a school commissioner, upon appeal, will be vacated where it does not conform to the requirements of the statute. (See decision of Super- intendent Weaver, March 9, 1870; decision of Superintendent Gilmour, Decem- ber 21, 1874; decision 4989, December 30, 1901, by me in Neugen, trustee, school district 4, Broadalbin, Fulton county v. Willis E. Leek, school commis- sioner.) I decide that the appeal herein was duly taken; that the order of Commis- sioner Burdick, appealed from, does not conform to the requirements contained in subdivision 4, section 13, title 5 of the Consolidated School Law of 1894, as amended by section I, chapter 512, Laws of 1897; that it does not appear that the school building in school district i, Andover, Allegany county, was, on June 27, 1902, " wholly unfit for use and not worth repairing." The appeal herein is sustained. It is ordered that the order made by Oscar M. Burdick, school commis- sioner of the second commissioner district of Allegany county, on June 27, 1902, condemning the school building in school district i, Andover, Allegany county, be, and the same is, hereby vacated and set aside. 4250 In the matter of the appeal of William V. Mathewson, trustee school district no. 13, town of New Berlin, Chenango county, v. Dennis Thompson, school commissioner, first commissioner district, county of Chenango. Where a school commissioner, having made an order condemning schoolhouse and having approved of certain plans and specifications submitted to him for the repairs of the schoolhouse and the sum voted by the district to pay for such repairs, and having sub- sequently made an order revoking and setting aside his former order and condemning the schoolhouse, an appeal having been taken from the latter order, and it appearing upon said appeal that in making said order appealed from, said commissioner unduly and unwisely exercised his power and discretion in the maUer, such order appealed from should be vacated and set aside. Decided June i, 1894 George W. Marvin, attorney for appellant George W. Ray, attorney for respondent JUDICIAL decisions: schoolhouses 853 Crooker, Superintendent This appeal is taken from the order of the respondent, dated February 12, 1894, revoking and setting aside an order and consent, made by him, dated Jan- uary 22, 1S94, in which he approved of certain plans and specifications submitted to him for repairing the schoolhouse in district no. 13, town of New Berlin, Chenango county, and of the sum voted by the district for such repairs, and directing a tax to be levied therefor; and in which order, dated February 12, 1894, he condemns the schoolhouse in said district as wholly unfit for use and not worth repairing, and states as his opinion that the sum of $780 will be neces- sary to erect a schoolhouse capable and sufficient to accommodate the children of said district. The appeal is founded upon various grounds stated therein, the principal ones being that the respondent in his order of January 22, 1894, in approving of the action of the special meeting of said district, held on January 16, 1894, relative to repairing said school and of the plans and specifications for such repairs, and the sum voted to be raised for such repairs, acted under a full knowledge of the subject matter; and that said order of February 12, 1894, was improvidently granted, wasteful and extravagant in that it contemplated a com- plete destruction of the present school building and of the materials therein, thus subjecting the district to an unnecessary and burdensome tax. It appears from the proofs presented herein that the territory forming said school district no. 13, New Berlin, consists principally of farming land, the exception being a summer hotel known as the " Chenango Lake Hotel," a saw mill, grist mill and planing mill combined, and a post office, all of which are located within fifty rods of the schoolhouse of said district; that there is no village situate within or near the boundaries of said district ; that the number of children of school age residing within said district is about 18, and the whole number attending the school therein, at the term of school ending on December 22, 1894, was 15, I of whom was a nonresident; that the aggregate assessed valuation of the taxable property in the district is $22,225 ; that the schoolhouse in said district was constructed in the year 1859, is a wooden building of the dimensions of about 22 by 26 feet on the outside and about 21^ by 25 feet on the inside, about gJ4 feet high in the clear, and has a seating capacity suflicient to afford ample accommodation for 40 pupils with seats and desks, with ample passageways, platform, stove and recitation seals, after taking out entry- ways and clothes closets; that the said schoolhouse is not in proper repair or condition for the maintenance of a school therein, and that its condition and the necessity of making repairs thereon or constructing a new schoolhouse in place of the present schoolhouse has been the subject of consideration and discussion in said district for some time; that in September 1893, in an interview between the appellant and respondent, the appellant stated to the respondent that it was advisable to repair said schoolhouse, and the cost of such repairs would exceed .-the sum which he (the appellant) was allowed to expend without a vote of the district, and requested the respondent to examine the schoolhouse and in case a school meeting should be called to assist him (the appellant) at such meeting; 854 THE UNIVERSITY OF THK STATE OF NEW YORK thvit the appellant had drawn a call for a special meeting of the voters of said district to vote u])on the question as to whether the schoolhouse should be repaired or a new schoolhouse be built, which draft was shown to the respondent and verbally approved by him; that on or about December 10, 1893, the respond- ent went to said school district and to said schoolhouse without notifying the appellant, and in the absence and without the knowledge of the appellant, made an examination of said schoolhouse, and on December 15, 1893, made an order condemning said schoolhouse as wholly unfit for use and not worth repairing, and certifying that in his opinion the sum of $750 would be necessary to erect a schoolhouse in said district capable of accommodating the children of the dis- trict, which order was filed with the clerk and trustee of said district and a copy thereof sent to the Superintendent of Public Instruction; that on January 5, 1894, the appellant gave notice of a special meeting of said school district to be held on January 16, 1894, for the purpose of taking into consideration and voting upon the question of building a new schoolhouse or repairing the one now used for school purposes and for voting tax, etc., said call being an exact copy of the draft of call exhibited to the respondent by the appellant at their inter- view in September 1893; that said special meeting was duly held on January 16, 1894, and the appellant submitted to the meeting plans and specifications that he had caused to be prepared for repairing said schoolhouse, with the estimated cost thereof ; that said meeting voted by ballot upon a resolution whether a new school- house be built or the old one be repaired, in favor of repairing the present school- house by a vote of 9 in favor of repairing and 3 in favor of a new schoolhouse ; that said meeting unanimously adopted the following plans and specifications for repairs to said schoolhouse: New roof, cove siding, windows, casings, floors, doors, chimney, ceiling of Georgia pine, seats and desks, building paper for out- side foundation to be laid in mortar, three windows each at the sides of the room and none at the rear end, clothesroom, entry way and partitions as now, or nearly so, as in the old house, the ceilings to be properly oiled and outside to be properly painted with two coats or more if needed, such repairs to be made of good material and to be done in a good workmanlike manner and the school- house to be properly ventilated, heated and lighted as follows: windows to be lowered from tops and raised from bottoms and a register in ceiling over the stove, the room to be heated by a stove in about the same position as the present one; the light will come from three windows on each side; that upon a vote by ballot a resolution was adopted by 10 votes in the affirmative and 2 in the negative levying a tax for the sum of S562.50 for paying the expense of such repairs; that the meeting adjourned for two weeks; that on January 20, 1894, the appellant delivered to and left with the respondent personally a copy of the proceedings of said special meeting of January 16, 1894, which the respond- ent retained, and on January 22, 1894, the appellant and respondent met at Nor- wich, X. Y., went to the law office of George W. Marvin and the respondent requested said Marvin to draft an approval of said action so taken at said special meeting of said district for him to sign ; that said Marvin drew a paper, stating JUDICIAL decisions: schoolhouses 855 in substance that the inhabitants of said school district at a meeting regularly called and held had voted to repair the present schoolhouse therein in a certain manner with certain specifications as to ventilation and to expend the sum of $562.50, or so much thereof as may be necessary to make such repairs, and that a minute of such proceedings, properly signed by the proper officers, is hereto attached ; that the same having been read and examined by him (the respondent) that he (the respondent) as commissioner etc., does hereby consent to and approve of the repairs and specifications therefor, for the repairs of said school- .house as voted at said meeting, and also that a sum not exceeding $562.50 be raised by tax and expended in making such repairs according to the plans and specifications named in said minutes thereto attached, such repairs to be made by or under the directions of the trustee in said district, and ordering that the same be done soon as possible after May i, 1894; that to said paper, consent or order was attached a copy of the proceedings of the special meeting of said district held on January 16, 1894, signed by the chairman of said meeting and the trustees and clerk of the district; that paper or order was dated January 22, 1894, and, after the same was examined by the respondent, was signed by him as school commissioner of the first commissioner district of Chenango county ; that, at the request of the respondent, the appellant permitted him to take said paper home with him to make a copy thereof, and on January 26, 1894, received said paper from said Marvin, to whom the respondent had delivered said paper to be delivered to the appellant; that after the making and signing of the said paper by respondent, the appellant made out a tax list and assessment for the sum of $555.67 upon the taxable property of said district, and delivered the same, with his warrant, to the collector of said district; that the adjourned special meeting of said district was held on January 30, 1894, at which the said paper or order of January 22, 1894, signed by the respondent, was presented and recorded in the school register, and the trustee was empowered to have the work of repairs to the schoolhouse let by contract, that suitable blinds be put on the windows on the outside, an eave trough be furnished for west side of house if necessary, or grading be done to avoid water striking against the house ; that if necessary the building be raised; that the size of the schoolhouse remain as at present: that a modern blackboard be placed at the south end of schoolroom ; that if new studding be necessary it be procured; that privies be constructed in accordance with the law; that all material that will answer without detriment to the new work be used, in the judgment of the building committee; that on February 12, 1894, the respondent made his order revoking his order of January 22, 1894, and condemning said schoolhouse, which is the order appealed from by the appel- lant as trustee of said district, pursuant to a vote of said district at a special meeting held therein on February 21, 1894, directing said appeal to be taken. It also appears from allegations contained in the affidavits in support of this appeal, and which are not denied, that for some years one Loomis, the pro- •prietor of the summer hotel near the schoolhouse, has been urging the voters of the district to build a new two-story school building, thereby afifording facilities 856 THE UXIVKRSITV OF THE STATE oF NEW YORK for a public hall in said building, to be used for religious meetings, concerts and other gatherings, and that said district, while willing to repair the present school- house or build a new schoolhouse of sufficient dimensions for school purposes and to acconir.Hvlate the children attending the school, have steadily refused to construct a two-story building. There is a conflict of opinions, as set out in the affidavits on both sides, of carpenters as to the amount of and value of the material in the present scliool- house that can be used in a new building or repairing the old one. I am of the opinion that it is established that if the present building should be sold, as it stands, that not more than twenty-five dollars could be obtained for it, and that if the schoolhouse is repaired in accordance with the plans and specifications adopted, material in the value of $75 to $100 in the present building could be used advantageously in making such repairs. Under the provisions of section 13 of title 2 of the Consolidated School Law of 1S64 and the amendments thereof, every school commissioner shall have the power, and it shall be his duty, by an order under his hand, reciting the reason or reasons, to condemn a schoolhouse if he deems it wholly unlit for use and not worth rej)airing; such order, if no time for its taking effect be stated therein, shall take effect immediately ; he shall also state what sum, not exceeding $800, will, in his opinion, be necessary to erect a schoolhouse capable of accommodat- ing the children of the district. Immediately ui)on the receipt of such order the trustee or trustees shall call a special meeting of the inhabitants for the purpose of considering the question of building a schoolhouse thereon, and such meeting shall have power to determine the size of the schoolhouse and the material to be used in its erection and to vote a tax to build the same; but shall have no power to reduce the estimate made by the commissioner by more than 25 per centum of such estimate. Where no tax for building such house shall have been voted by such district within thirty days from the time of holding the first meet- ing to consider the question, it is the duty of the trustee or trustees to contract for the building of the schoolhouse and to levy a tax for the same. I he [)ower conferred upon school commissioners by the section above cited is an arbitrary one. and the exercise of such power is usually reserved until after a district has refused to build, or it becomes apparent that it is not the iiUcntion of the inhabitants to take any steps in the proper direction. Such orders, under the school law and decisions of this Department, are not irrevo- cable and may be amended or revoked by the commissioner, and an appeal may be taken therefrom to me. Indeed, many of such orders, u!)on consultation with school district officers and voters, and upon further consideration or review, or a fuller statement of the situation of matters in the district, have been revoked or amended. W hde under the school law it is the duty of the trustees of a district, after an order for the condemnation of a schoolhouse is served upon them, to immedi- ately call a special meeting of the inhabitants for the purpose of considering the question of building a schoolhouse, such trustees are not prohibited from calling such meeting for the purpose of considering the construction of a schoolhouse, JUDICIAL decisions: schoolhouses 857 or repairing the schoolhouse. If, however, the order of condemnation shall not be appealed from, or altered, modified or revoked, so much of the action of the special meeting for the repairs of the schoolhouse would not be operative, and if the voters of the district failed to consider the question of the construction of the schoolhouse under an order of confirmation not appealed from or modified, altered or revoked, and vote a tax to build the same, and no tax was voted within thirty days after the time of holding the first meeting to consider the question, it is the duty of the trustees to proceed, under the provisions of law above cited, and their failure to do so would be a wilful violation and neglect of duty on their part. At a special meeting in said district, held on January 16, 1894, the question of building a schoolhouse was considered, in voting upon the resolution of building a new schoolhouse or repairing the present, and decided to repair by the affirmative vote of two-thirds of the whole number of votes cast. It adopted plans etc., for such repairs and voted to raise the sum of $562.50 to pay for the same, and adjourned for two weeks; that on January 20, 1894, the appel- lant delivered personally to the respondent copies of the proceedings of said meeting for the approval of the respondent, and the respondent named January 22, 1894, at the law office of Mr Marvin, in Norwich, as the time and place to meet the appellant upon the matter of such approval; that the appellant and respondent did meet at the time and place appointed and said Marvin, at the request of respondent, drew a paper in which such proceedings of said special meeting were approved by the respondent, and the paper was signed by him on January 22, 1894; that the respondent, with the consent of the appellant, retained such paper, having annexed thereto a copy of the plans etc., adopted for the repairs of the schoolhouse, for the purpose of making a copy and subsequently delivered it to Mr Marvin, who, on January 26, 1S94, delivered it to appellant. The respondent, when he signed such order and approval on January 22, 1894, had been a school commissioner for three years, and had occasion to visit the schoolhouse in said district on several occasions; he made a special visit in December 1893, prior to making his first order for the condemnation of the schoolhouse; he had knowledge of the style of the school building, its capacity and its condition; that the district was comprised of a farming locality remote from any village, had but about twenty children of school age residing therein, with an average school attendance of about nine, and that there was no prospect of any large increase in numbers; that the aggregate valuation of taxable prop- erty was about $32,000; that he had had, for several days, a full copy of the proceedings of the special meeting of the district of January i6th, showing that two-thirds of the voters present were opposed to building a new schoolhouse, and a full copy of the plans and specifications of the manner of repairing the school- house, and the amount of money to be expended in such repairs; that upon such knowledge and the facts presented to him he made such order and approval. In my opinion, the action of the respondent in said order and approval, ""signed by him on January 22, 1894, was a wise exercise of power and discretion on his part, and I hold that said order and approval were a revocation of the order of December 15, 1893, condemning said schoolhouse. 858 Tin-: UM\ I-KSII N- OF Till-. STATK OF Ni:\V YORK The respoTuknt, on l\bruary 12, 1894, made the order appealed from herein, revoking his order and api)roval of January 22, 1894, and again condemning said schoolhousc. The respondent alleges in his answer that he revoked his order of approval of the proposed repairs, on application of three persons, named by him, who were residents and taxpayers of the district ; but he does not make proof of any fact brought to his attention relative to the sentiment in the district upon the question of repairing or building that was not before him upon the applica- tion made to him for his order or approval of January 22, 1894, contained in the proceedings of the district meeting of January 16, 1894, nor of anything brought to his knowledge different from that before him when, on January 22, 1894, lie approved of the action of the district meeting in repairing the school- house. L'pon the papers and proofs presented herein, I am of the opinion that the said schoolhousc, if repaired in accordance with the plans and specifications adopted at the meeting of the district, will be practically a new schoolhouse, affording ample accommodation to the pupils residing in said district, and be convenient and comfortable for use, well lighted, ventilated and warmed; that it was an undue and unwise exercise of power and discretion on the part of the respondent in making such order of February 12, 1894, and that the appeal herein should be sustained, and said order of respondent be vacated and set aside. Appeal sustained. It is ordered, That the order made by Dennis Thompson, school commis- sioner of the first commissioner district of the county of Chenango, dated Febru- ary 12, 1894, condemning the schoolhouse in school district no. 13, town of New Hcrlin, Chenango county, and revoking a former order or approval of the action of the special meeting of said district, held on January 16. 1894, which order or approval was dated January 22, 1894, be, and the same hereby is, vacated and set aside. 5076 In the matter of the appeal of William S. Carr and Frank E. Doolittlc as resi- dents and legal voters in and William S. Carr as trustee of school district 6, Elmira, Chemung county v. Jess S. Kellogg as school commissioner of Chemung county. Where in any common school district the schoolhouse therein has been condemned by the school commissioner having jurisdiction as totally unfit for use and not w^orth repairing and subsequently at a duly called and held school meeting of the district a new school- house site is designated, the consent of the school commissioner to the change of site is not necessary under the provisions of section 19, article 2, title 7 of the Consolidated School Law for the reason that there was not at the time of the designation of such new site any schoolhouse within the meaning of the school law situated upon or in process of erection upon the site then owned by the district. Decided May 18, 1903 Roswell R. Moss, attorney for appellants Jess S. Kellogg, respondent in person JUDICIAL DECISIONS : SCHOOLHOUSES 859 Skinner, Superintendent This is an appeal by William S. Carr and Frank E. Doolittle as residents and legal voters in and William S. Carr as trustee of school district 6, Elmira, Chemung county from the decision of Jess S. Kellogg as school commissioner of Chemung county refusing his consent to change the site of the schoolhouse of such district. The appeal herein was filed in this Department June 23, 1902 and July 2, 1902 Commissioner Kellogg filed his answer thereto. The main grounds alleged by the appellants for bringing the appeal herein are that Commissioner Kellogg did not wisely exercise the discretion given him under the Consolidated School Law in such refusal to consent to such change of site, and at the time the district designated such new site and Trustee Carr applied for such consent there was not a schoolhouse erected or in process of erection upon the site then owned by the district and therefore no consent of the commissioner was required to a change of such site by the district. The respondent asks that the appeal herein be dismissed on various grounds alleged in his answer. It is in proof that some fifty years ago school district 6, Elmira, Chemung county was duly organized, a school site designated and a schoolhouse erected thereon. From the time of such organization of such district until a few years ago the site upon which the schoolhouse was situated, as regards the school popu- lation in the district, was near the center of such population. In the past few years such school population has largely increased in the eastern and southern portions of the district and has almost entirely ceased in the northern and west- ern portions. The records of this Department show that the number of children enrolled in the district for the school year 1900-1 was 69, the number that attended 49 and the average attendance 33. In the school year 1901-2 the num- ber enrolled was 86, the number that attended 42 and the average attendance 35. In subdivision 4, section 13, title 5 of the Consolidated School Law of 1894, as such subdivision was amended by section i, chapter 512, the Laws of 1897, it is enacted that a school commissioner, by an order under his hand reciting the rea- son or reasons, may condemn a schoolhouse, if he deems it wholly unfit for use and not worth repairing, and it is his duty to deliver the order to the trustee or one of them and transmit a copy to the Superintendent of Public Instruction. Such order, if no time for its taking eft'ect be stated in it, shall take efifect imme- diately. He shall also state what sum will in his opinion be necessary to erect a schoolhouse capable of accommodating the children of the district. Immediately upon receipt of said order the trustee or trustees of such district shall call a special meeting of the inhabitants of said district for the purpose of considering the question of building a schoolhouse therein etc. August 7, 1901 School Commissioner Kellogg of Chemung county filed in this Department a copy of an order made by him dated August 5, 1901 in which he ■"certifies that August 5, 1901 he made an examination of the schoolhouse in school district 6, Elmira and after reciting the condition of such schoolhouse he stated 860 THE UNIVERSITY OF THE STATE OF NEW YORK that he deemed it wholly unfit for use for school purposes in such district and not worth repairing and thereupon ordered that such schoolhouse be and the same was condenuied. He further certified that the sum of $3600 would in his opinion be sufticient to build a schoolhouse for the needs of said district. Xo appeal has been taken to me from such order of condemnation, and such order remains in full force and effect. April 22, 1902 at a special meeting held in such district, called by the trustee of the district for the purpose " of selecting, designating and describing a new site for a schoolhouse for the district " a resolution was adopted by a vote of 54 ayes and 52 noes, the vote thereon being ascertained by taking and recording the ayes and noes of the qualified voters present and voting thereon, such reso- lution designating such new site by metes and bounds. Subsequently to such special school meeting. Trustee Carr communicated the proceedings taken thereat to Commissioner Kellogg and requested the consent of the commissioner to such change of the site. On or about May 10, 1902 Trustee Carr received from Commissioner Kellogg a letter dated May 10, 1902 inclosing his (Kellogg's) decision in writing under date of May 3, 1901 refusing, upon various reasons stated therein, to give his consent to such change of site. There- upon June 2T„ 1902, the appellants herein brought their appeal from such decision of Commissioner Kellogg. 1 lie respondent asks that the appeal herein be dismissed for the reason that it was not taken within thirty days after the appellants had knowledge of such decision. Rule 5 of the rules of practice of this Department regulating appeals to the State Superintendent provides that such appeals must be sent to this Department within thirty days after the making of the decision or the per- formance of the act complained of or within that time after the knowledge of the cause of complaint came to the appellant or some satisfactory excuse must be rendered in the appeal for the delay. The appellants have rendered in their appeal a satisfactory excuse for their delay in bringing their appeal and there- fore the application of the respondent to dismiss the appeal is denied. In section 19, article 2, title 7 of the Consolidated School Law of 1894 it IS enacted, " so long as a district shall remain unaltered the site of a schoolhouse owned by it, upon which there is a schoolhouse erected or in process of erection, shall not be changed nor such schoolhouse be removed unless by the consent in writing of the school commissioner having jurisdiction; nor with such consent unless a majority of all the legal voters of said district present and voting, to be ascertained by taking and recording the ayes and noes at a special meeting called for that purpose, shall adopt a written resolution designating such new site and describing such new site by metes and bounds." As the order made by Commissioner Kellogg August 5, 1902 condemning the schoolhouse in district 6, Elmira, Chemung county, which order took effect immediately, has never been revoked, at that date there ceased to be any school- house erected or in i>rocess of erection in such district within the intent and meaning of said section 19 above cited. When Commissioner Kellogg was JUDICIAL DECISIONS I SCHOOLHOUSES 86l requested to consent to a change of the schoolhouse site of such district there was a building owned by the district, but such building had been condemned August 5, 1901 by competent authority " as wholly unfit for use and not worth repairing " as a schoolhouse or for use for school purposes and such building is not a schoolhouse under the Consolidated School Law. I decide that the consent of School Commissioner Kellogg to the change of the schoolhouse site of district 6, Elmira, Chemung county was not required under the provisions of section 19, article 2, title 7 of the Consolidated School Law for the reason that at the time such site was changed and such consent asked there was not a schoolhouse then erected or in process of erection upon the site then owned by such district. Admitting for the purposes of argument only that the consent of Commis- sioner Kellogg to the change of site was required under said section 19, I decide that the decision of the Commissioner, refusing to consent upon the grounds stated by him, was an unwise exercise of authority on his part and his decision should be vacated. The growth of the district in its western portion and its educational needs require a larger site for a schoolhouse than that now owned by the district and one located nearer the center of such school population. The appeal herein should be sustained and the decision of Commissioner Kellogg, refusing to consent to such change of site, should be vacated and set aside. The appeal herein is sustained. It is ordered: That the decision of Jess S. Kellogg as school commissioner of Chemung county dated May 3, 1902 refusing to consent to the change of the schoolhouse site designated and adopted at a special meeting held April 22, 1902 in school district 6, Elmira, Chemung county be and the same is hereby vacated and set aside and altogether held for naught. 5074 In the matter of the appeal of Hiram Lovell and George W. Hoffman 2d from special school meetings held March 5, April 15 and April 22, 1902, in school district 6, Elmira, Chemung county. Where in a common school district the schoolhouse therein has been condemned by a school commissioner having jurisdiction as wholly unfit for use and not worth repairing and no appeal has been duly taken from such order of condemnation, such building ceases to be a schoolhouse of the district within the meaning of the provisions of the Con- solidated School Law relating to the change of a site of a schoolhouse "upon which there is a schoolhouse erected or in process of erection." Decided May 12, 1903 -. Lattin & Mills, attorneys for appellants Roswell R. Moss, attorney for respondents 86j the UNIVEKSITV UF TllK ^JAll. (H- NEW VOKR Skinner, Superintendent This is an appeal from the proceedings of a special meeting held March 5, 1902, an adjourned special meeting held April 15, 1902, and a special meeting, held April 22, 1902, in school district 6, Elmira, Chemung county. The apj)ellaius also ask me to decide the proceedings of a special meeting held on April 18, 1900, and those of the adjourned meeting held on May 10, 1900. were legal and to take into consideration other meetings held in such dis- trict during the year 1900. The appeal herein was filed in this Department May 14, 1902. June 23, ic;o2. William S. Carr and Frank E. Doolittle filed an answer to the appeal. July S, 1902, the appellants filed a rei)ly and August 18 the respondents filed a rejoinder and Septemher 13, 1902, the appellants filed a surrejoinder. The appeal herein was submitted to me May i, 1903, in an oral argument made by the attorneys for the respective parlies. The appellants allege various grounds for the appeal from the special school meetings held March 5, April 15 and April 22, 1902. The appellants allege that at the special meeting held in said district March 5, 1902, business was transacted other than that specified in the notice calling the meeting. The notice for such meeting was dated February 27, 1902, and stated that a special school meeting of the electors of the district would be held on March 5, 1902, at 8 p. m. for the purpose of " considering the question of building a new schoolhouse in said district." It appears that on the evening of March 5, 1902, between 90 and 100 of the qualified voters of such district assembled and after the meeting was organ- ized a resolution was ofTered by Mr Doolittle to the effect that at the end of the then school year the schoolhouse and site of the district be abandoned for school purposes ; a new schoolhouse be built on a new site, such site to be located not more than 100 feet west of Hendy avenue ; and the sum of $2800 be appropriated for the school building, and the further sum of $1000 or as much less as is necessary be appropriated for the purchase of such site, the sum.s of money to be raised in the manner to be determined at an adjourned meet- ing to be held on the third Tuesday of April ; and that a committee be appointed to select a site, agree upon a price and report at such adjourned meeting for confinnation or rejection. A motion was made to amend such resolution to the effect that the district erect a new school building on the property owned by the district, but upon a vote the amendment was defeated and thereupon the resolution of Mr Doolittle was adopted by an aye and no vote of 56 ayes and 42 noes, and a committee consisting of three persons was appointed and the meeting adjourned to April 15, 1902, at 8 p. m. April 15, 1902, an adjourned meeting was held at which the report of the committee on site was read by the chairman. The chairman exhibited plans for schoolhouses furnished by the State Superintendent of Public Instruction. A motion to adopt the plan fur- nished was adopted and the meeting adjourned without day. JUDICIAL decisions: schoolhouses 863 April 16, 1902, Trustee Carr issued a notice for a special scliool meeting to be held at the schoolhouse in said district April 22, 1902, at 8 p. m., for the jjurposes of selecting, designating and describing a new site for the schoolhouse in such district. Such notice was duly posted in accordance with a resolution adopted at the annual meeting held in said district August 6, 1901, under the ])rovisions contained in section 6 of article i, title 7 of the Consolidated School Law of 1894, authorizing the inhabitants of any district, at an annual meeting, to adopt a resolution prescribing some other mode of giving notice of special meetings than that prescribed in said section 6. April 22, 1902, over 100 voters of such district assembled in the building formerly used as the schoolhouse of the district and organized by the choice of William S. Carr, chairman ; Charles Camp, district clerk, acted as clerk. Mr Doolittle offered the following reso- lution : Resolved, That the site for a new schoolhouse in district 6, Elmira, be changed from its present situation to that designated property in said district described as follows: commencing at a point eighty-two (82) feet from north line of tobacco shed line owned by B. G. Smith at the center of Hendy avenue ; thence north two hundred (20Q) feet on Hendy avenue; thence east to W. F. Campbell line three hundred (300) feet, more or less, as measured by site committee: thence south two hundred (200) feet to a stake; thence west three hundred (300) feet to the place of beginning, being the same premises conveyed to the said B. G. Smith by George W. Hoffman and wife by deed dated April 18, 1898, and recorded in the Chemung county clerk's office April 20, 1898. An aye and no vote was taken upon the adoption of such resolution which resulted in 54 votes aye and 52 votes no. Thereupon the meeting adjourned without day. Under section 6, article i, title 7 of the Consolidated School Law of 1894 a special district meeting shall be held when called by the trustees. The notice thereof shall state the purposes for which it is called, and no business shall be transacted at such special meeting except that which is specified in the notice. Said school law also requires that the designation of a schoolhouse site for a school district can only be made at a special meeting, duly called for that purpose, by a written resolution in which the proposed site shall be described by metes and bounds, and which resolution must receive the assent of a majority of the qualified voters present and voting, to be ascertained by taking and record- ing the ayes and noes. The special meeting called for March 5, 1902, was, as stated in the notice, for considering the question of building a new schoolhouse in the district. The meeting did not take any action authorizing the building of a schoolhouse for the district upon its present site, but considered a proposition of obtaining a new schoolhouse site and erecting a new schoolhouse thereon. At the adjourned meeting held April 15, 1902, no action was taken with reference to the erection of a new schoolhouse. '"'. The special meeting held April 22, 1902, was called for the purpose of desip-natino- a new site for a schoolhouse and the meeting when assembled 864 TIIK UNIVERSITY (IF THE STATE OF NEW YORK designated such new site by a written resolution describing the site by metes and bounds, and such resolution received the votes of a majority of the quali- fied voters of the district present and voting, such vote being ascertained by takine and recording the ayes and noes. A vote to change a schoolhouse site may be taken at a district meeting, duly called and held for that purpose, before the consent of the school com- missioner having jurisdiction is applied for. School meetings have the power to alter, repeal and modify their proceed- ings from time to time as occasion may require or it shall be decided. The power to repeal proceedings must be exercised before they have been carried into etYect whereby other parties have acquired rights or incurred responsibilities. Any resolution directly or necessarily repugnant to a previous one repeals it, whether the intent to rei)eal is stated therein or not. I am not aware of any provision of the school law that prevents a school district meeting adjourning for more than a month. Subdivision 3, section 34. article 4, title 7, of such law enacts that it shall be the duty of the district clerk to affix a notice, in writing, of the time and place of any adjourned meet- ing when the meeting shall have adjourned for a longer time than one month, in at least five of the most public places in such district at least five days before the time appointed for such adjourned meeting. This Department has held that the failure of the clerk to post such notices would not of itself invalidate the proceedings taken at such adjourned meeting. The contention of the appellants that subdivision 7, section 14, article i, title 7, of the Consolidated School Law of 1894 and section 19, article 2, title 7. of said law or either of them requires that notice of a special meeting called to designate a new site for a schoolhouse in a district must contain therein a description of the proposed site is not tenable. Said sections only require that the notice shall state that the meeting is called for the purpose of designating such new site but the meeting must adopt a resolution designating such new site by metes and bounds. Subdivision 7, section 14, article i. title 7, of such law relates only to the designation of school sites in the formation of new school districts. It is claimed as there is no comma after the word purpose in sub- division 7 the notice calling the special meeting must contain a resolution describ- ing the proposed site by metes and bounds. The courts have held that " there is no punctuation in a statute which ought to rule ; the general rule is that punctuation is not part of a statute;'' in matter of application of Brooklyn Elevated Railroad Company, etc., 125 N. Y. 434. I must decline to express any opinion as to the proceedings taken at school meetings held in said school district 6 in the year 1900, copies of which are annexed to the appeal herein. The records of tliis Department show that August 5, 1901, Jess S. Kellogg, as school commissioner of Chemung county, condemned the schoolhouse in school district 6, Elmira. Chemung county, as wholly unfit for use and not worth repairing. No appeal was taken to me from such order, and such order JUDICIAL decisions: sciioolhouses 865 remains in full force and efifect. It was the duty of the trustee of the district to have called a special meeting of the qualified voters of the district for imme- diate action for the construction of a new schoolhouse, but such action does not appear to have been taken. I am clearly of the opinion that after the expira- tion of thirty days after the date of the order there ceased to be any school- house within the meaning of the school law erected upon the site owned by the district or in process of erection thereon. There is now and has been since September 5, 1901, a building owned by the district which had theretofore been condemned by competent authority as " wholly unfit for use and not worth repairing " for maintaining a school therein or for school purposes, but such building is not a schoolhouse under the school law. The appeal herein is sustained as to so much thereof as is taken from the proceedings of the special and adjourned special meetings, held in school dis- trict 6, Elmira, Chemung county, on March 5, and April 15, 1902; and as to all other matters such appeal is dismissed. It is ordered. That the proceedings of special meetings held in school dis- trict 6, Elmira. Chemung county, March 5 and April 15, 1902 be and the same are vacated and set aside. 28 SCHOOL MONEYS 5092 In the matter of the appeal of C. B. Stoddard from certain proceedings of annual meeting held August 4, 1903 in union free school district 3, Cohoc- ton, Steuben county. Moneys lost or embezzled by district officers are recoverable in the first place from such officers and secondly from the sureties in the official bond given by such officers. The school districts in this State are municipal corporations except as to the power of re- funding an existing bonded indebtedness and the boards of education of union free school districts are bodies corporate. The treasurer of a union free school district is a public officer having custody of public moneys, the property of the district. The Court of Appeals of this State in the appeal of George S. Tillinghast as county treasurer of the county of Madison v. J. Herman Merrill, supervisor of the town of Stockbridge and others, 131 N. Y. reports, page 133 etc. held " public officers having the custody of public moneys are ex virtute officii in- surers of the same and are liable for a loss thereof although occurring without their fault or negligence." The action of the qualified voters in union free school district 3, Cohocton, Steuben county, in adopting a resolution that the trustees be authorized to add to the tax levy $247.30 to be placed in the hands of the new treasurer such sum or so much thereof as may be needed to be used to reimburse the present treasurer for the loss on account of the failure of the Shults bank, was without authority of law. Decided October 8. 1903 , Skinner. Superintendent This is an appeal from the proceedings taken at the annual meeting held August 4, 1903, in union free school district 3, Cohocton, Steuben county, authorizing the trustees of the district to add to the tax list to be issued by them the sum of $247.30. such sum or so much thereof as may be needed to be used to reimburse the present treasurer C. L. Shattuck for loss on account of the failure of the Shults bank. The appellant is one of the members of the board of education of such dis- trict and Messrs Otto. Wolfanger, Gray and Clement, the other members of such board have joined with the appellant in the allegations contained in the appeal. The appeal contains a statement that the allegations in the appeal herein, with a letter of mine dated August 18, 1903 to the appellant Stoddard, have been read to Treasurer Shattuck and he (Shattuck) stated that he did not care to make any answer thereto or to join in or object to the appeal herein. It appears from the records of this Department that school district 3, Cohocton. Steuben county is a union free school district, organized under the general school law. whose limits do not correspond to those of any incorporated village or citv and having a board of education consisting of f^ve members Section 7, article i, title 8 of the Consolidated School Law of 1894, as amended [8661 JUDICIAL DECISIONS : SCHOOL MONEYS 86/ by section i, chapter 466 of the laws of 1897, provides that boards of education of union free school districts whose limits do not correspond to those of an incorporated village or city shall have power to appoint one of the taxable inhabi- tants of their district treasurer and fix his compensation who shall hold such appointment during the pleasure of the board. Such treasurer shall within ten days after notice in writing of his appointment execute and deliver to said board of education a bond with such sufficient penalties and sureties as the board may require conditioned for the faithful discharge of the duties of his office and, in case such bond shall not be given within the time specified, such office shall thereby become vacant and said board shall thereupon, by appointment, supply such vacancy. It further appears that C. L. Shattuck has been treasurer of such district for the past three years by virtue of the appointment or appointments of the board of education ; but it does not appear as to whether said Shattuck ever executed and delivered to such board any bond or bonds for the faithful dis- charge of the duties of such treasurer. He deposited the moneys which came into his possession, as such treasurer, in the W. J. Shults & Co. bank of Co- hocton. During the month of June 1903 said bank suspended payment of its liabilities and its affairs are in process of settlement in the bankruptcy court with the prospect of paying a dividend of about 20 per cent upon its indebted- ness. At the time of the failure of such bank Treasurer Shattuck had on deposit therein, of the moneys received by him and deposited by him as treasurer of the district, the sum of $247.30. At the annual meeting held in such district August 4, 1903 the following resolution was presented : " that the trustees be authorized to add to the tax levy $247.30 to be placed in the hands of the new treasurer and such portion as may be needed shall be used to reimburse the present treasurer, C. L. Shattuck, for the loss on account of the failure of the Shults bank." The vote upon this resolution was taken by ballot and resulted as follows: Whole number of votes cast 62, of which 35 were for and 27 against the resolution, and such reso- lution was declared adopted. It was claimed at the annual meeting August 4, 1903 by the persons who voted for such resolution that the provisions contained in subdivision 15 of sec- tion 14, article i, title 7 of the Consolidated School Law of 1894 in relation to the power given to inhabitants of common school districts at school meetings therein, namely, " to vote a tax to replace moneys of the district lost or embezzled by district officers," authorize the adoption of such resolution. This contention is not tenable. It did not appear as a fact that any moneys of the district had been lost or embezzled by any district officers. It was conceded that Treasurer Shat- tuck was solvent and financially responsible for the entire amount of money of the district which remained on deposit in the bank of Shults & Co. at the time of the failure of the bank, namely, $247.30, and Shattuck had never stated that he could not or would not make such amount good to the district. Moneys lost or embezzled by district officers are recoverable in the first place from such officers and secondly from the sureties in the official bonds given 868 THE UNIVERSITY OF THE STATE OF NEW YORK by such officers. But before it would be possible in a suit at law to regain the money so lost or embezzled, the district may be required to pay debts and lia- bilities that could not be postponed and hence the propriety of the provision con- tained in subdivision 15 above cited. The proofs herein show that there was no immediate or urgent liability of such district but on the contrary there was at the time such meeting was held approximately $500 the property of the district in the hands of the treasurer not on deposit in Shults & Co.'s bank. The school districts in this State are municipal corporations, except as to the jjower of refunding an existing bonded indebtedness, and the boards of educa- tion of union free school districts are bodies corporate. The treasurer of a union free school district is a public officer having the custody of public moneys the property of the district. The Court of Appeals of this State, in the appeal of George S. Tillinghast as county treasurer of the county of Madison, respond- ent V. J. Merman Merrill, supervisor of the town of Stockbridge et al. appellants, decided December i, 1896, reported in 131 New York reports on pages 135 etc. held : " public officers having the custody of public moneys are ex virttite ofncii insurers of the same and are liable for a loss thereof although occurring without their fault or negligence." I decide. That the action of the annual meeting, held August 4, 1903, in union free school district 3, Cohocton, Steuben county, in the adoption of the following resolution, namely. " that the trustees be authorized to add to the tax levy $247.30 to be placed in the hands of the new treasurer, and such portion as may be needed, shall be used to reimburse the present treasurer, C. L. Shat- tuck. for the loss on account of the failure of the Shults bank," was without authority of law. The appeal herein is sustained. It is ordered, That so much of the proceedings of such annual meeting as relates to the adoption of such resolution, be, and the same is, hereby vacated and set aside. 4441 In the matter of the petition of Charles H. Simpkins for the removal from office of Harvey S. Hempstead as trustee of school district no. 3, town of Coeymans, Albany county. Under the school law the supervisors of towns and collectors of school districts are the legal custodians of the public moneys of the State apportioned to the school districts and of moneys collected upon tax lists by the collectors or received by them from county treasurer or boards of supervisors for taxes returned; and such moneys can only be paid out by the supervisors and collectors upon the written order of the trustees or a majority of the board of trustees to the order of the person or persons entitled to receive the same. Trustees of school districts have no lawful authority to receive or to retain in their custody any of such moneys. Decided April 9, 1896 Andrew Vanderzee, attorney for petitioner Lewis Cass, attorney for respondent JUDICIAL decisions: school moneys S69 Skinner, Superintendent The petitioner in the above-entitled matter asks for the removal of the above-named Hempstead as trustee of said school district for wilful violation and neglect of duty as such trustee. From the papers presented herein the following facts are established : That at the annual school meeting held in said district, said Hempstead was elected as trustee of said district and acted as such during the school year of 1894-95 ; that at the annual school meeting held in said district in August 1895, said Hempstead was elected as trustee and ever since has been, and still is, acting as such trustee; that on or about August 10, 1895, the said Hempstead obtained from Helen S. Willis of the village and town of Coeymans, agent for certain insurance companies, a policy of insurance for the sum of $1000 upon the schoolhouse in said district, the premium etc. therefor to be paid, amounted to the sum of $15; that on or about September 19, 1895, said Hempstead pre- sented to Dwight Butler, collector of said school district, an order of which the following is a copy: " Ravena, N. Y., September 19, 1895. To Dwight Butler, collector of taxes, school district no. 3, town of Coeymans : Pay to Helen Willis the sum of $22.50 on premium on insurance on schoolhouse in said dis- trict. H. S. Hempstead, sole trustee," and said Hempstead then asked said Butler to pay to him (Hempstead) the said $22.50, stating he wanted it to pay the insurance premium to Mrs Willis, and thereupon said Bulter paid to said Hempstead said sum of $22.50, and took said order and filed the same among his vouchers of payments for said school district; that at some date between September i and November 8, 1895, the said Willis and Hempstead had a con- versation at which said Hempstead stated in substance that said premium could not be paid for the reason that there were no funds on hand available for that purpose, and said Hempstead paid to said Willis the sum of $7.50 owing by him for insurance upon certain property belonging to him ; that on or about November 8, 1895, said Willis had an interview with Butler, collector of said district, and then asked Butler whether he had received an order for her, to which Butler replied: "Yes, have you not received your money?" to which she replied, " No," and thereupon said Butler produced and exhibited to said Willis the said order of Hempstead, dated September 19, 1895 (of which a copy is hereinbefore given), and stated that he had paid to said Hempstead the said sum of $22.50; that said Willis then informed said Butler that the insurance premium, etc., was not $22.50, but $15, and took a copy of said order; that on the same day and after the said interview with Collector Butler, said Willis had an interview with said Hempstead at which he stated in substance, " I am sorry that we had to keep you waiting so long for this order," and thereupon gave to said Willis an order upon said Collector Butler for the sum of $15, signed by said Hempstead as trustee ; that said Willis then exhibited to said Hempstead the aforesaid copy of the said order for $22.50, and asked Hempstead " What about this order?" and said Hempstead, after looking at said copy of order, said to Willis, "Give me that other order and I will pay you the $15 out of my own S70 THE UNIVERSITY OF THE STATE OF NEW YORK pocket," whereupon said Willis delivered to Hempstead said order for $15 given her hy liini, and Hempstead paid to her the sum of $15 in cash; that said Willis never authorized said Hempstead to draw said order for $22.50, either directly or indirectly, and never knew of the existence of said order until November 8, 1895; that the total sum due and owing to said Willis for insurance, including policy and premium, was the sum of $15 and no more, and she had no other charge against said district. That on or about October 15. 1895, the said Hempstead, as such trustee, at his request, received from Collector Butler the sum of $80, giving to said Butler his (Hempstead's) receipt as trustee, the said Hempstead stating to said Butler that said sum of money was for the purpose of paying for things he had bought for the schoolhouse. That on or about December 4, 1895, said Hempstead received from Thomas F. Mason, deputy county treasurer for John Bowe, county treasurer of Albany county, a check of said Bowe, no. 2312, dated on that day, drawn upon the Albany City National Bank, for the sum of $60.02, to the order of Dwight But- ler, collector, school district no. 3, Coeymans ; that said check was for certain taxes returned by said collector as unpaid under the provisions of the Consoli- dated School Law ; that on said December 4, 1895, the said Hempstead indorsed the said check, " Dwight Butler, Collector, District No. 3, Coeymans," and also " H. S. Hempstead," and received from said bank said $60.02; that said Hemp- stead has not paid said sum of $60.02 or any part thereof to said Collector But- ler. That in the month of May 1895, there was in the possession of Henry Slingerland, of Coeymans, the sum of $9.66 of moneys deposited with him by the supervisor of the town of Coeymans, and on May 25, 1895, said Hempstead, as trustee of said school district no. 3, Coeymans, requested said Slingerland to inform him if there was any public money due to said district in his hands deposited by said supervisor, and said Slingerland examined the account of the supervisor with said district and found that the sum of $9.66 was due said dis- trict, and thereupon, at the request of said Hempstead, gave to Hempstead his check for said sum of $9.66, which check was duly paid after having been indorsed by said Hempstead. That about January i, 1895, said Hempstead, as such trustee, made a con- tract with Patrick J. Sweeney, of the city of Albany, for a heater for the school- house in the district for the sum of $200, and the heater was placed in said schoolhouse; that on or about March 5, 1895, Hempstead delivered to Collector Butler an order signed by Hempstead, as trustee, for the sum of $200, payable to P. J. Sweeney, and requested said Butler to pay him (Hempstead) the $200, as he was going to Albany and would pay said Sweeney said $200 for the heater, and said lUitlcr paid Hempstead said $200; that on or about April 2, 1895, said Hempstead paid P. J. Sweeney $100 in money and gave Sweeney his (Hemp- stead's) note, as trustee, for $100; that said Hempstead paid upon said note at different times and in divers sums the aggregate sum of $75 ; that on or about February 6. 1896, said Hempstead, as such trustee, gave to said Sweeney an JUDICIAL decisions: school moneys 871 order upon Collector Butler for the sum of $25, in which order it was stated that the sum stat.ed therein was for repairs to said heater; that said order was presented to said Collector Butler for payment and the payment thereof refused by him and said order remains unpaid, and there still remains due and unpaid to said Sweeney said sum of $25 ; that at the time said order of $25 was given to said Sweeney there was no sum due to him for repairs to said heater. The respondent, Hempstead, has attempted to give an explanation of the aforesaid transaction with Mrs Willis, but such explanation is without merit. So far as the papers herein show, said Hempstead has unlawfully in his pos- session the sum of $7.50, the property of said district, and which sum should be in the possession of the collector, Butler. The respondent, Hempstead, alleges that said sum of $80, so as aforesaid received by him from said collector, " has been expended for the sole benefit, use and profit of the district as will fully appear in his report at the next annual meeting of said school district." Such explanation is without merit, and is no excuse for the unlawful action on his part in drawing and receiving said money from the collector of the district. In relation to the $60.02 received by the respondent, Hempstead, upon the check of County Treasurer Bowe, said Hempstead contends that he was author- ized by Collector Butler to indorse the name of Butler upon the check, which contention said Butler alleges is untrue. The respondent herein alleges that he informed Collector Butler he would deliver to him said sum of $60.02 at any time he (Butler) would call for it. So far as this proceeding is concerned, it is immaterial whether the respondent had authority to indorse the name of the col- lector upon the check or not, that is a matter to be settled in the criminal courts ; but the respondent admits having in his possession the money, which it is his duty to pay over to the collector, who is the only legal custodian thereof, without waiting for the collector to come to him (Hempstead) for it. In relation to the receipt by the respondent of said sum of $9.66 from the supervisor of Coeymans, he acted in violation of the school law, as he should have drawn his order upon the supervisor in favor of the teacher to whom the district was indebted. The acts of the respondent in relation to the matter with Sweeney in the payment for the heater was in violation of the school law. The respondent should have drawn his order upon the collector in favor of Sweeney and delivered the same to Sweeney. Under the school law the supervisors are the legal custodians of the public moneys of the State apportioned to the school district, and said supervisors can only pay out said moneys upon the orders of the trustees or a majority of the trustees in favor of qualified teachers ; the collectors of the school districts are the legal custodians of all moneys collected by them upon the tax list issued to them or received from county treasurers or boards of supervisors for taxes returned, and such moneys can only be paid out by such collectors upon the ••Avritten order of the trustees, or a majority of the board of trustees, to order of the person or persons entitled to receive the same. Trustees of school dis- 872 THE UNIVERSITY OF THE STATE OF NEW YORK tricts have no lawful authority to receive or retain in their custody any of said moneys. Under the school law I have the power, whenever it shall be proved to my satisfaction that any school ofliccr has been guilty of any wilful violation or neglect of duty under the Consolidated School Law, or any other act per- taining to common schools, to remove such school officer from office. The respondent, Hempstead, has been a trustee of school district no. 3, town of Coeymans, Albany county, since the commencing of the school year 1894-95. and, it is presumed, knows what the law relating to his duties as such trustee is. I do fmd and decide that Harvey S. Hempstead, as trustee of school dis- trict no. 3, town of Coeymans, Albany county, has been proved to my satisfac- tion guilty of wilful violation and neglect of duty under the Consolidated School Law. The petition herein should be sustained. Whereas, It having been proved to my satisfaction that Harvey S. Hemp- stead, trustee of school district no. 3, town of Coeymans, Albany county, has been guilty of wilful violation and neglect of duty as such trustee, under the Consolidated School Law, I do hereby remove said Harvey S. Hempstead from office as trustee of school district no. 3, town of Coeymans, Albany county. 3543 Charles W. Rodman, George N. Gardiner and Edmund Sherer, trustees of school district no. 25 of the town of Hempstead, Queens county v. Thomas H. Clowes, Robert Seabury, John B. Mesereau and Henry Powell, trustees of district no. i of the town of Hempstead. APPORTIOXMEXT OF SCHOOL MONEYS In a school district in which a branch school has been maintained, and subsequently that part of the district where the patrons of the branch school reside is formed into a separate district, so much of the public moneys apportioned to the old district upon the statistics of the branch school will be ordered paid to the new district. Taxes levied and collected before the formation of the new district will not be so appor- tioned. There is no provision of law for a division of common property when a new district is set off from an old one. Decided November 30, 1886 Draper. Superintendent Prior to April 1885, the villa.f^e of Garden City constituted a part of school district no. i of the town of Hempstead, Queens county. On the 20th of April 1885. the Legislature passed an act making the village of Garden City a separate school district, to be known as district no. 25 of the town of Hemp- stead. No meeting was held for the purpose of electing officers and organizing JUDICIAL DECISIONS : SCHOOL MONEYS 8/3 the new district until August ii, 1885. For several years prior to this, district no. I had maintained a school at Garden City, and, notwithstanding the act of the Legislature in April, this was continued and supported at the expense of district no. i till the end of the school year. At the close of the^ school year 1884-85, district no. i reported the maintenance of the school at Garden City during the preceding year, and in the annual apportionment of school moneys in the school year 1885-86 said district received such sum as would be payable in consequence thereof, while the new district, no. 25, received nothing. Dis- trict no. 25 brings the matter before this Department, and demands that district no. I shall be required to pay to it such sum of money as was apportioned to it in consequence of the maintenance of a school at Garden City during the preceding school year. It also appears that in February 1885, the board of education of district no. I levied a tax of fifteen cents on the hundred dollars, which amounted to the sum of $1351.35, of which sum Garden City paid her proportionate share, which was $229.20. Having parted company, Garden City now thinks and demands that the part which she has paid of this tax should be paid back to her. Again, chapter 591, Laws of 1870, provides for the distribution to the several school districts of the town of Hempstead of a certain portion of the income of a fund which has arisen from the sale or rental of common lands of the town, and directs that such distribution shall be calculated and determined " in the same manner, and upon the same basis as the public school moneys of the State are apportioned." After Garden City became a separate school district, and before the commencement of this proceeding, there were two of these apportionments; the first for the six months ending November i, 1885, and the second for the period ending May i, 1886, and at each time the sum of $6000 was distributed. Of these apportionments from this trust fund dis- trict no. 25 received only such an allotment as was based on school population, and nothing on account of " pupil attendance " or the " district quota," that share going to district no. i, pursuant to the school reports made at the close of the school year ending August 20, 1885. District no. 25 demands that district no. i shall be directed to pay over to her such sums as she received from these two distributions from this fund on account of the maintenance of a school at Garden City during the preceding school year. District no. I resists these several demands with energy. The trustees of that district in answering say that the school which they maintained at Garden City was only a branch of the school at Hempstead, and that they were not obliged to open it, and that it was done only for the convenience of the former place, and that the report which they made at the end of the school year 1884-85 was such as they were required to make by law. and that the school monevs based upon such report which they have received are such and only xsuch as the law gives them. In relation to the tax collected in February 1885, of which district no. 25 demands that the share which it paid shall be paid 874 THK I M\l KSITY OF THE STATE OF NEW YORK back, they say it was levied to meet current expenses for the ensuing year, and that Garden City received back her share in school privileges. They urge, also, that when a new district is set off from an old one, the property of the old district can not be divided; that here the new district was set off at its own desire, and that it must support itself as best it can until the time when its school reports, made pursuant to law, entitle it to share in public moneys. In illustration, it urges that when it opened the school at Garden City it was obliged to maintain it the first year with no apportionment of pub- lic moneys based on the report of a previous school year, and that now this district must do the same. The public moneys apportioned on or before the 20th day of January in each year, are intended for teachers' wages for the school year in the middle of which the apportionment is made. The apportionment is made upon the school statistics for the preceding school year, for the reason that that is appar- ently the most reasonable basis for a general apportionment. Ordinarily, when a new district is set off, it is impossible to make any allotment to it during the first year of its existence, because there is no preceding year's statistics for a basis. That is not so in this case. The school at Garden City had been in operation for years. It had an individuality of its own. For statistical pur- poses it was the same school, was as perfectly and completely organized and was as separate and distinct from the Hempstead school before the new dis- trict was erected as afterward. Its register of attendance for the year 1884-85, kept as required by law and duly verified, is produced here. It shows that school was kept more than 28 weeks. Here is the basis upon which to deter- mine what amount of public money belonged to it, equitably at least, for the year 1885-86. There can be no doubt but that any new district is, in equity, entitled to share in the State school moneys, even during the first years of its organized existence. The difficulty is that the means of determining how much it should have are usually wanting. That difficulty does not exist in this case. District no. i received at the apportionment in 1886 more than it was entitled to for the year 1885-86, and district no. 25 received less than its share, because the Garden City statistics were included in the report of district no. i at the close of the preceding year. This being so, and there being at hand the data from which to determine, with exactness, how much was paid to no. i, which should, in fairness, have been paid to no. 25, the matter should be set right if there i.s lawful authority for so doing. The State school moneys are apportioned by the Superintendent of Public Instruction in the manner provided by title 3 of the Consolidated School Act of 1864. It was impossible to provide by statute for all exigencies which might arise, and it was necessary to vest some discretion in the Superintendent for the purpose of meeting exceptional cases. For instance section 10 of title 3 directs the Superintendent to make a special apportionment to a district which has been excluded from participation in the general apportionment by reason of its failure to comply with some provision of law or requirement of JUDICIAL decisions: school moneys 875 the Department when such omission was accidental or excusable. Section II authorizes him to withhold from any district in a subsequent appor- tionment any sum which has been given to it in excess of what it should should have had at a prior apportionment. Section 12 provides that " if a less sum than it is entitled to shall have been apportioned by the Superin- tendent to any county, part of county or school district, the Superintendent may make a supplementary apportionment to it of such sum as shall make up the deficiency, etc. Reading the different sections together and having in view the general plan of apportionment which the Legislature was setting in operation, it is manifest that it was intended to clothe the Superintendent with authority to meet and adjust an inequality like the one here presented. Although the precise question here involved has never before been passed upon by the Department, the general authority requisite to meet it has always been exercised by it. I shall therefore, direct that district no. i, Hempstead, pay over to district no. 25 such sum as it received in the apportionment of 1886, on the basis of the Garden City statistics ; or, in case of failure to do so before the apportion- ment of 1887, that the same be deducted from the allotment to no. i, and added to that of no. 25. The demand of district no. 25, that it be repaid so much of the tax levied in February 1885, as was paid by Garden City, must be denied. This tax was raised before district no. 25 was set ofif. It was used in part at least, to meet common expenses in which was included the expense of the school at Garden City. What was not so used, was district property at the time of the separation. There is no provision of law for the division of common property when a new district is set off from an old one, and in the nature of things there can not be. There is some reasonable question of the power of this Department to correct the apportionment of the local trust fund applicable to school purposes as provided by chapter 591 of the Laws of 1870. The appellants cite section 17, title 3 of the Consolidated School Act which treats of trusts for school pur- poses, and provides that " the Superintendent of Public Instruction shall super- vise and advise the trustees, and hold them to a regular accounting," etc. On the other hand, it is urged that the .special act governing this particular fund takes it out of the provisions of the general statute. It is not necessary to determine this question at present, at least. The board of town auditors of Hempstead have, as yet, committed no error. They have complied with the law and followed the State apportionment. It is fair to assume that they will continue to do so, and will make the correction which the State now makes, and it will be time to consider what course must be taken for relief in that direction when it shall have become certain that some steps are necessary. It is accordingly ordered that the board of education of district no. i, Hempstead, pay over to district no. 25, Hempstead, known as the Garden City .district, the sum of $66.12, the same being the amount of one district quota apportioned to no. i, Hempstead, in the annual apportionment made by the 876 THK LMVERSITY OF THE STATE OF NEW YORK Superintendent of Public Instruction to January 1886, and reapportioned by the school commissioner of the second commissioner district of Queens county, in March 1886, for the year 1885-86, on the basis of one duly qualified teacher cmi)loyed for the legal term of school in the Garden City school for the school year beginning with August 21, 1884, and ending August 21, 1885; and such further sum as shall be certified by the said school commissioner that district no. 1, Hempstead, received for the Garden City schools for the year 1885-86, on the basis of the number of resident children, the average daily attendance of such children, and for libraries, for the school year 1884-85. But in the event of there being no moneys in the hands of the board of education of dis- trict no. 1, Hempstead, or under their control, and available for this purpose, then the said school commissioner shall deduct for district no. 25, Hempstead, in the annual apportionment to be made by him in March 1887, from the school moneys to be apportioned to said district no. i, for the year 1886-87, the total amount of public school money said district no. i received for the Garden City school in the annual apportionment of 1886, and apportion the same to district no. 25, together with the amount that no. 25 is to receive for the year 1886-87. SCHOOL PROPERTY— USE OF The trustees of school district no. 4 in the town of Champion, ex parte. Schoolhouses can not be used for any other than common school purposes, excepting by general consent. A. vote of a majority of the inhabitants does not render it proper to use schoolhouses for any other than their legitimate purposes. Decided February 19, 1833 Dix, Superintendent This was an appHcation to the Superintendent for his opinion upon the following questions : 1 Whether the trustees have a right to hold the schoolhouse of their dis- trict open for any religious or temperance meetings, when not encroaching on school hours. 2 Whether a vote of the majority of the taxable inhabitants in any dis- trict shall decide as to the duty of trustees on the question above mentioned. I The trustees of each school district have the custody and safekeeping of the district schoolhouse. They have the custody of it for the purposes specified in the act from which they derive their authority ; and they have, therefore, strictly no more right to allow it to be used for religious meetings, than the trustees of a religious society would have to allow the church or meeting house to be used for keeping a school. There would be no impropriety in allowing either to be used for one purpose or the other, if no objection were raised by the district or the society. But where controversies grow out of the application of a schoolhouse to purposes not contemplated in establishing it, it is the duty of the trustees to confine its use strictly to the legitimate objects. 2 I do not consider the voice of a majority of the inhabitants of a district as a proper criterion for determining the propriety of applying a schoolhouse to other uses than those for w^hich it was designed. The law has determined this question. It can not with strict propriety be applied to other than common school purposes. It may be otherwise used by the general consent of the parties interested. But if such use were likely to distract the district, by breeding dissensions, and a respectable minority should apply to me for an order to con- fine the schoolhouse to its legitimate purposes, I should not consider myself at liberty to deny the application. The trustees therefore should so act as to render any such application to me unnecessary. [877] 878 THE UNIVERSITY OF THE STATE OF NEW YORK 3651 In the matter of the appeal of Marquis Baker, a legal elector of school district no. 12, town of Marccllus, Onondaga county, N. Y. v. Seymour Hull, as sole trustee of said district. When a schoolhouse is used for religious services by permission of trustees, and such use is objected to by a legal voter of the district; held, that such use must be discontinued. Decided December 8, 1887 Draper, Supcriutcndent This is an appeal by a resident and legal voter of school district no. 12, town of -Marccllus. county of Onondaga, from the action of the trustee in per- mitting the use of the schoolhouse in said district to be used for other than school purposes. The appellant alleges not only that the building is used for religious services, but that the fuel of the district is consumed at such religious services, and district school furniture is damaged, and school books mutilated. The answer of the trustee admits the fact that the building is used for a Sunday school composed of children who attend the public school, but denies the other allegations mentioned above. In deciding this appeal it will not be necessary to pass upon the disputed que.stions of fact. The question of the right to allow a schoolhouse to be used for other than school purposes is not new, and unless such use is objected to, this Department never interferes to prevent the use for any praiseworthy cause; but when the question is raised, we are at once confronted with the law which prohibits the use of the school building for other than school purposes, unless all the trustees of a district consent thereto, and when the consent of all is obtained, the statute provides that such use shall only be for the purpose of " giving and receiving instruction in any branch of education or learning, or in the science or practice of music." It is true, the trustee adroitly seeks to bring the use to which objection is made, within the law, by alleging that maps of the ancient world are studied, and the children instructed in the history of the ancient world and its people, but the fact remains that the use is for religious purposes, and not for such educational purposes as the statute clearly refers to. It is the settled policy of the Department to sustain trustees in permitting the use of school property for other purposes than those recognized by the school laws, so long as the residents of the district do not object. It can go no further. The Superintendent would be very glad if all of the residents of the district here in question would consent to the careful use of the property for the purpose suggested. The use may, however, have been so abused as to justify the objection. In any event, the appeal must be sustained, and such ' use in the future, or until objection is withdrawn, must be prohibited. JUDICIAL DECISIOiNS: SCHOOL PROPERTY — USE UF 879 4021 In the matter of the appeal of John Costello and others v. the trustee of school district no. 12, of the town of Pompey, county of Onondaga. A school district trustee permitted the school building to be used for religious purposes. Its use did not interfere with the school, was not detrimental to the property, and was an accommodation to people living remote from an established church. Held, not a case for interference with the discretion of the trustee. Decided Noveml^er 16, 1891 Draper, Superintendent This is an- appeal from the action of the trustee of school district no. 12 of the town of Pompey, county of Onondaga, in permitting the schoolhouse to be used for the purpose of holding religious meetings therein. It is alleged by the appellant that the use complained of has depreciated the value of the property; that fuel provided by the district has been used, and that the seats and desks have been so separated for the accommodation of adults as to greatly inconvenience the younger pupils of the school. An answer has been interposed by the trustee, and it is therein admitted that, for many years, the schoolhouse has been used for union religious services in which people of all denominations participate. It is denied that the seats have been separated, as alleged by the appellant, and the respondent insists that they remain today as they were when placed in the schoolhouse originally. He denies that fuel has been used without compensation to the district. It is shown by the respondent that the nearest church to the schoolhouse is three and a half miles away, and that such church is usually without a pastor or preacher, and that the next nearest church is four miles away. It is insisted by the respondent that instead of the property being depreciated by the use complained of, its value has been enhanced, and that the persons so using the building are interested in keeping it clean and neat and pleasant. It seems clear to me from the proof presented, that the use of the school building to which the appellant objects, does not in any manner interfere with the use of the building for public school purposes, nor does it appear to me that any injury or loss to the district has resulted or is likely to result from such use. It appears that the holding of religious services in the district is an accommodation to a very large proportion of the inhabitants of the district, and in view of all the circumstances, I have concluded that there is no case presented which requires me to interfere with the discretion of the trustee in the matter, and I therefore overrule the appeal. 88o THE UNIVKKSITV OF THE STATE OF NEW YORK 3707 III the matter of the appeal of James Cogan, Oliver Sancomb, Dennis Gregory and James G. Knox v. Pier Coolidge, trustee of school district no. 11, town of Ellenburgh, Clinton county. The use of a schoolhousc with the trustee's consent for religious purposes will not be denied, where it is made to appear that no damage has been done to the public property, or to the i)roperty of pupils in consequence of such use. Decided .\ugust 2~, 1S88 Draper, Superintendent The trustee of the district above named has permitted the schoolhouse in said district to be used for religious meetings on the Sabbath. Objection is made by the appellants hereto to such use, and this appeal is brought for the purpose of preventing the schoolhouse from being used for such purposes hereafter. The statute provides that the custody of the schoolhouse shall be in the trustee. This Department has always held that trustees might permit the use of schoolhouses which they have under their care for religious services where no hann is thereby done to the building or furniture or other property of the district. The appellants in the present case assert that the property of the district and of pupils attending the school has been damaged and destroyed by such meetings, and that fuel belonging to the district has been used at these meetings. But this is denied; the trustee and several credible witnesses swear that no use whatever has been made of the fuel of the district; no fire has even been necessary during the time that such meetings have been in progress, and they also seem to show that no damage has been done to the public property or to the property of pupils in consequence of the use com- plained of. Therefore, following the long established holdings of the Department upon the question at issue, I have come to the conclusion that the appeal must be dismissed, and it is so ordered. 4653 In the matter of the appeal of John Shettler v. Prentiss Angel, as trustee of school district no. 13, Cameron, Steuben county. When the schoolhouse in any district is used for any other purpose than for a school, and for holdmg school meetmgs therein, or in any manner that interferes with its use for school purposes, or where the property of the district is injured by such use, or w-here there are differences of opinion among the qualified voters of a district as to the advisability of using the schoolhouse for other than school purposes, or where any one or more of the qualified voters of the district object to such use. it becomes the duty of the State Superintendent of Public Instruction, upon appeal to him, to strictly observe and enforce the provisions of the school law. Decided May 13, 1898 D. M. Darrin. attorney for appellant JUDICIAL decisions: school property USE OF 88l Skinner, Superintendent This is an appeal from the action of the trustee of school district 13, Cameron, Steuben county, in permitting the schoolhouse in the district to be used for other than school purposes. The material facts alleged in the appeal are not controverted by the respondent in his answer, namely, that the respondent, as trustee of such dis- trict, permits the schoolhouse therein to be used for religious meetings and Sunday schools, and that the appellant, a resident of, and taxpayer in, such district, objects to such use. The respondent contends that under section 52 of article 6, title 7, of the Consolidated School Law he, as trustee of such district, may freely permit such schoolhouse, when not in use for the district school, to be used for holding and conducting Sunday schools therein, for the reason that instruction is given and received therein in a branch of education or learning. This contention is not tenable. The branches of education and learning in which instruction may be permitted under such section 52, means secular education or learning as is taught in the schools and academies and colleges, and does not mean religious instruction and learning as taught in Sunday schools and in religious meetings. The holding of Sunday schools and religious meetings in schoolhouses is frequently the source of dispute in every district in which they are so held, and such disputes are detrimental to the best educational interests of such districts. When the schoolhouse in any district is used for any other purpose than for a school, or in any manner that interferes with its use for school purposes, or where the property of the district is injured by such use, or where there are differences of opinion among the qualified voters of a district as to the advisa- bility of using the schoolhouse for any other than school purposes, or where any one or more of the quahfied voters of the district object to such use, it becomes the duty of the State Superintendent of Public Instruction, upon appeal to him, to strictly observe and enforce the provisions of the school law. See the following decisions: No. 3577, by Superintendent Draper, July 21, 1887; 4334, Johnson v. Winston, by Superintendent Crooker, :March 7, 1895; 4419, Martin and others v. Weaver, by Superintendent Skinner, January 16, 1896; 4450, Mayer v. Barnes, by Superintendent Skinner, May 11, 1896. The appeal herein is sustained. It is ordered, That Prentiss Angel, as trustee of school district 13, Cameron. Steuben county, forthwith notify the persons conducting and attending such Sunday schools and religious meetings heretofore held in the schoolhouse in such district, that no further or other religious meetings and Sunday schools shall or will be permitted to be held in said schoolhouse ; and that the permission and consent heretofore given by him that such religious meetings and Sunday schools be so held, is revoked, canceled and withdrawn. It is further ordered. That said Prentiss Angel, as such trustee, be, and he. hereby is, enjoined and restrained from permitting or consenting to the hold- .>.>_■ TIIK LNUKKSITY OF THE STATE OF NEW YORK ing of any religious meetings and Sunday schools in the schoolhouse in said district 13, Cameron. Steuben county, from and after the date at which he shall receive notice of my decision and orders herein. 4522 In the matter of the appeal of Enos Smith v. Elihu D. Conklin, trustee, school district no. i, towns of Canisteo, Jasper and Greenwood. Steuben county. Where an appeal is taken to the State Superintendent of Public Instruction from the refusal of the trustee or trustees of a school district to permit the use of the schoolhouse for religious nuctinys and Sunday schools, or for any other than school purposes, and it appears liiat any qualitied voter of the district is opposed to such use or that such use causes contentions and dissensions in the district, or where the property of the school district or of the pupils attending the school, is injured by such use it becomes the duty of the State Superintendent to strictly observe and enforce the provisions of the school law upon the subject. Decided December 4, 1896 Almon W. Burrell, attorney for appellant Milo M. Acker, attorney for respondent Skinner, Superintendent This appeal is taken from the refusal of the trustee of school district no. i, towns of Canisteo. Jasper and Greenwood, Steuben county, to permit the school- house to be used for religious meetings on Tuesday and Friday evenings. It appears, from the proofs presented herein, that for many years the school- house of the district has been used on Sundays for Sunday school and other religious services, with the permission of the trustee, and without opposition on the part of any qualified voter of the district, and since this appeal was taken, has continued to be so used with the permission of the respondent herein as trustee; that since August i, 1896, public religious meetings conducted by religious societies of the neighborhood have been held in the schoolhouse on Tuesday and Friday evenings; that for the period of about six weeks, commencing on Sep- tember 7. 1896, one John H. Goff taught the school in the district, and the respondent was informed by said Gofif that the persons attending the meetings held on Tuesday and Friday evenings were soiling and defacing the schoolhouse and property, and that some of the persons attending such meetings were in an intoxicated condition; that the schoolhouse would be left after such evening meetings without being swept, and with the mud and dirt not taken care of ; that a large amount of tobacco juice was on the floor; the erasers and blackboards were used, and in one or two instances, chairs and other property were broken and damaged. It further appears that the respondent, having knowledge of the condition in which the schoolhouse was left after such evening meetings had been held JUDICIAL DECISIONS : SCHOOL PROPERTY USE OF 883 therein, and after considering the statements made to him by Goff, decided that it was for the best interests of the school property and the children attending the school, that the schoolhouse be closed against the holding of such evening meetings therein, and thereupon locked the door of the schoolhouse and out- buildings against said evening meetings, and gave notice to the appellant herein that no evening meetings would be permitted to be held in the schoolhouse. Under the school law the trustee or trustees of every school district are the custodians of the schoolhouse or houses in their respective districts, but for school purposes only, that is, for maintaining schools therein and for school dis- trict meetings. The only provision of the school law which authorizes trustees to permit the use of a schoolhouse for other than school purposes is contained in section 52, article 6, title 7, of the Consolidated School Law of 1894, and is as follows: " The trustees, or any one of them, if not forbidden by another, may freely permit the schoolhouse, when not in use for the district school, to be used by persons assembling therein for the purpose of giving and receiving instruction in any branch of education or learning, or in the science or practice of music." The " branch of instruction and learning " contained in said section is secu- lar education and learning such as is taught in the schools, academies and col- leges, and not religious instruction or learning. The societies or persons permitted to use the schoolhouse for holding meet- ings must furnish the fuel and light used at such meetings, and after the close of the meetings should sweep and clean the schoolhouse. The trustees of the district have no legal authority to permit the use of the property of the district for heating and lighting the schoolhouse for such meetings, or to sweep and clean, at the expense of the district, the schoolhouse after such meetings have been held. This Department has uniformly held that where an appeal is taken from the refusal of the trustee or trustees of a school district to permit the use of the schoolhouse for other than school purposes, and it appears that any qualified voter of the district is opposed to such use, or that such use causes contentions and dissensions in the district, or where the property of the school district or of the pupils attending the school is injured by such use, it becomes the duty of the Department to strictly observe and enforce the law governing the matter. The appeal herein is dismissed. 4419 In the matter of the appeal of Peter M. Martin and others v. Erwin Weaver, trustee school district no. 7, town of Rush. Monroe county. To authorize the trustee of a school district against the objection of any one or more of the qualified voters therein, to permit the use of the schoolhouse for holding religious '• meetings and Sunday schools, or for any other purpose than for school purposes, he must find some provision of law giving him such authority. When a school buildmg 884 THE l-NIVERSITY OF THE STATE OF NEW YORK is used for any ullur than school purposes or in any manner which interferes with its use for school purjKises or where the property of the district is injured by such use, or where there are differences of opinion among the inhabitants of the district as to the advisability of using the schoolhouse for any other than school purposes, it becomes the duty of the State Superintendent of Pul)lic Instruction, upon an appeal being taken to him, to strictly observe and enforce the provisions of the school law governing such use. Decided January i6, 1896 William Carter, attorney for appellants Skinner, Supcriutcudcnt The appellants in the above-entitled matter appeal from the action of the respondent in permitting the nse f)f the schoolhouse in district no. 7, town of Rush, Monroe county, for the holding therein of religious meetings and Sun- day school. An answer has been made to the appeal by the respondent, Weaver, the trustee of the said district. It appears that the respondent, as such trustee of said district, has permitted the use of the school building in said district for religious meetings and for I^unday schools; that on or about October 19, 1895, a paper, signed by thirteen of the residents and qualified voters of said district, stating that they objected to the use of said school building for any purpose not warranted by law, and specially objected to its use for religious meetings, and demanding that such use be prohibited by the respondent as trustee, was delivered to the respondent as trustee: that on or about October 22, 1895, a paper signed by thirty-five of the residents and qualified voters of said district, asking that the schoolhouse con- tinue to be used for religious purposes; that for several years said schoolhouse has been used for religious meetings and Sunday schools with the permission of the respondent and his predecessors in office as trustees of said district; that said religious meetings are not held by any one sect or denomination, but are union services participated in by persons of various religious denominations; that the village of West Rush is located in said school district, containing quite a number of people desirous of attending religious services, and that there is no hall or other suitable building for use for such purposes ; that the persons attend- ing such religious meetings have, at their own expense, placed in saitl school- house a cabinet organ, lainps and window shades, which can be used, if desired, in conducting the school of the district ; that the fuel and lights used at such religious meetings are furnished by and at the expense of the persons attending such meetings. It also appears that the schoolhouse has been cleaned at divers times by persons interested in said religious meetings and also swept at diflferent times, and the window shades washed; but it does not affirmatively appear that after each of said meetings or Sunday schools were held, that the schoolhouse was thoroughly cleaned, swept and put in order by or at the expense of the persons interested in said meetings. JUDICIAL DECISIONS : SCHOOL PROPERTY USE OF 885 It does not appear that the schoolhouse, or its furniture, aside from the natural wear and tear incident to its use for said meetings and Sunday schools, has been injured. Schoolhouses are constructed and maintained by school districts for the purpose of public education by qualified teachers in the schools conducted therein, and also to furnish a place for the holding of school meetings, and for no other purpose. By subdivision 6 of section 47, article 6, title 7, of the Consolidated School Law of 1894, the custody and safekeeping of the district schoolhouse or houses, their sites and appurtenances, in the respective school districts of the State, are given to the trustee or trustees of said districts respectively. The respondent herein, as sole trustee of said school district no. 7, of Rush, under the school law, is the custodian of the schoolhouse and appurtenances of said district ; but such schoolhouse, etc., does not thereby become his private property, and he can not put it to any use which he sees fit ; he is to manage it as the representa- tive of the school district, and for school purposes only, and so that the instruc- tion of the pupils in the school shall not be embarrassed by any use of the house other than for school purposes, and that the property of the district, and the furniture, books and papers belonging to the school or the pupils, shall not be injured or destroyed. No use of the schoolhouse should be permitted or tolerated by him which may or does give occasion to a controversy among the inhabitants of the district. To authorize the respondent herein, against the objection of any one or more of the qualified voters in said district, to permit the use of the schoolhouse for any other purpose than for school purposes, he must find some provision of lav^' giving him such authority. Section 52, article 6, title 7, of the Consolidated School Law of 1894, gives authority to the respondent herein, as sole trustee of said district, to freely permit the schoolhouse therein, when not in use for the district school, to be used by persons assembling therein for the purpose of giving and receiving instruction in any branch of education or learning, or in the science or practice of music. The respondent herein contends that said section 52 gives him authority to permit religious meetings and Sunday schools to be held in the schoolhouse in said district, for the reason that " instruction in the principles of Christianity is the highest form of education." Such contention is not well taken. The school law refers wholly to secular as distinguished from religious education or learn- ing. The Legislature intended in its use of the words, " in any branch of educa- tion or learning," that such branches of education and learning as are taught in the common and higher grades of schools, and in academies, colleges and uni- versities should be understood and not instruction in religious education or learn- ing as taught in Sunday and church schools and in the churches. Even under said section 52 the respondent, as such trustee, can not make any permanent con- - tract for the occupation of the schoolhouse, but can simply give a license revoca- 886 THE UNIVERSITY OF THE STATE OE NEW VOUK ble at pleasure. Strictly speaking, he can grant no right to use the schoolhouse for any other than educational purposes; and can only, by his acquiescence in any such use, estop himself from bringing an action for the act of entering the schoolhouse, which would otherwise be a trespass. My predecessors in office have, in many cases, refused to interfere with the action of trustees in permitting schoolhouses to be used for religious meetings; but each case has been decided upon the facts as established therein. No such refusal to interfere has been made in any case in which the action of the trus- tee or trustees has given occasion to a controversy among the inhabitants of the district. It appears from the papers presented in this appeal that out of the forty- eight residents and qualilied voters of the district who have expressed their opinion as to the act of the respondent, thirteen, more than one-fourth, are opposed to the use of the schoolhouse for holding religious meetings and Sun- day school. The action of the trustee has occasioned a controversy among the inhabitants of the district. The holding of religious meetings in schoolhouses is almost always the source of dispute in every district in which such a meeting is held, and such dis- putes are detrimental to the best educational interests of such districts. I am not in favor of the use of the schoolhouses for holding meetings for any purpose or purposes whatever other than those recognized by the school law, no matter how laudable the purposes of such assembly of persons may be. I am clearly of the opinion that when a school building is used for any other purpose or in any manner which interferes with its use for school purposes, or where the property of the district is injured by such use, or where there arc dif- ferences of opinion among the inhabitants of the district as to the advisability of using the schoolhouse for any other purpose than school purposes, it becomes the duty of the State Superintendent of Public Instruction, upon appeal, to strictly observe and enforce the provisions of the school law governing the matter. The appeal herein is sustained. It is ordered, That said Erwin Weaver, as such trustee of school district no. 7, town of Rush, Monroe county, forthwith notify the persons conducting and attending said religious meetings and Sunday school, heretofore held in the schoolhouse in said district, that no further or other meetings and Sunday schools shall be or will be permitted to be held in said schoolhouse in said district, and that the permission and consent heretofore given by him, that such religious meetmgs and Sunday school be so held, is revoked, canceled and withdrawn. It is further ordered, That said Erwin Weaver, as such trustee, be, and he hereby is, enjoined and restrained from permitting or consenting to the holding of any religious meetings and Sunday schools in the schoolhouse in said district no. 7, town of Rush, Monroe county, from and after the date at which he shall receive notice of my decision and orders herein. JUDICIAL decisions: school PROrERTY — use OF 887 4450 In the matter of the appeal of Joseph S. Mayer v. Cassius H. Barnes, trustee, school district no. 2, town of Scriba, Oswego county. This Department has uniformly held for many years that when upon an appeal it is estab- lished that a school building is used for any other purpose or in any manner which interferes with its use for school purposes, or giving and receiving instruction in any branch of education or learning, or the science or practice of music, or where there are differences of opinion among the inhabitants of the district as to the advisa- bility of the use of the schoolhouse for any other than school purposes; or where the property of the district or of the pupils is injured by such use, it becomes the duty of the State Superintendent of Public Instruction to strictly observe and enforce the provisions of the school law relating to such use. Decided May 11, 1896 Skinner, Superintendent The appeal in the above-entitled matter is taken from the action of the trustee of school district no. 2, town of Scriba, Oswego county, in permitting the use of the schoolhouse of said district for meetings of the Ontario lodge of Independent Order of Good Templars. The pleadings herein consist of the appeal, answer, reply and rejoinder. The facts material to the issue, as appear from such pleadings, are as follows : That the Ontario lodge of Independent Order of Good Templars, a secret society or association having its password, grips etc., holds weekly meetings in the schoolhouse of said district, with the permission of the trustee of said dis- trict, and have been so held for some considerable time; that at such meet- ings, when the initiation of members takes place, none but members of the order are admitted, and that at other meetings all persons so desiring are admitted; that a petition signed by twenty-one persons who claim to be voters and tax- payers, has been presented that the schoolhouse be closed against the meetings of said order, and a petition signed by thirty persons, who claim to be taxpayers in said district, but six of whom it is stated upon the petition are nonresidents of said school district, leaving the names of twenty-four residents of the district, is also presented, asking that the said order be permitted to hold its meetings in said schoolhouse. It is alleged by the respondents herein that of the twenty-one persons sign- ing said petition that the schoolhouse be closed against the said meetings of said order, eleven are not qualified voters in said school district. Admitting, for the purpose of argument only, that said allegations are true, it appears that of the thirty-four qualified voters of said district contained in the two petitions, more than one-fourth and nearly one-third are opposed to said order holding its meet- ings in said schoolhouse. A large portion of the matters contained in the papers filed in this appeal are not relevant to the question at issue herein. 888 THE UNIVERSITY OF THE STATE OF NEW YORK 1 As to the action of the annual school meeting held in August 1895, upon the two resolutions olTered, namely, one oi)posed and one in favor of permitting the schoolhouse in said district to be used for the meetings of said order, or for other use than for school purposes. By subdivision 6 of section 47, article 6, title 7 of the Consolidated School Law of 1894, it is enacted that it shall be the duty of the trustee or trustees of every school district, and they shall have power to " have the custody and safekeeping of the district schoolhouse or houses, their sites and appurtenances."' Whether the said annual school meeting voted in favor of or against permitting the use of the schoolhouse for any other than school purposes is wholly immaterial, and the action of the meeting was but an expression of opinion on the part of those present and voting, and would not he lawfully binding upon the trustee of the district any more than a vote of said meeting directing the trustees to employ as teacher a person named by the meet- ing, or that the trustee should pay a sum fixed by the meeting as compensation for the services of a teacher. The school law gives to the trustee of the district the custody and safekeeping of the schoolhouse etc., therein and the voters of the district can not change the powers and duties of said trustee in that regard by any action they may take. 2 As to whether or not Mrs Mary O'Hara signed the petition against per- mitting the use of the schoolhouse for meetings of said order under a misappre- hension of the nature of the petition. It appears that Mrs O'Hara has signed both petitions. The erasure of her name from the petition against such use of the schoolhouse would not. in any way, affect the question at issue, as out of thirty-three voters expressing their wishes, nine, more than one-fourth, are opposed to said use of the schoolhouse. 3 As to whether or not any rent has been paid by said order for its use of the schoolhouse ; or whether the order has paid any part of the compensation of the janitor; or has paid for fuel and light used at its meetings; or allowed the school to use the organ owned by it, etc., are not, nor is any or either of them, material in determining the question at issue. The question presented herein for my decision is. Had or has the trustee of school district no. 2, town of Scriba, Oswego county, authority under the school law to permit the schoolhouse of said district to be used by the Ontario lodge of Independent Order of Good Templars for holding its meetings? Public schoolhouses are constructed and maintained by school districts for the puri)ose of public instruction by qualified teachers in the schools conducted therein, and also to furnish a place for the holding of school district meetings. Under the provisions of the school law the trustees of school districts are charged with the custody and safekeeping of the district schoolhouse or houses, their sites and appurtenances, in the respective school districts for the purpose of public instruction and for school district meetings. The respondent herein. Cassius H. Barnes, as sole trustee of school district no. 2. town of Scriba, Oswego county, under the school law, is the custodian of the schoolhouse, site and appurtenances in said district. Such schoolhouse etc., JUDICIAL DECISIONS : SCHOOL PROPERTY — USE OF 889 does not thereby become his property, and he can not put it to any use, or permit it to be used for any purpose that he sees fit. His custody and safekeeping thereof must be exercised by him as the representative of the school district, and for school purposes only. No use of the schoolhouse should be permitted or tolerated by him which does or may give occasion to a controversy among the inhabitants of the district. The respondent herein, to authorize him to permit the use of the school- house for any other than for school purposes, against the objection of any one or more of the qualified voters in said district, must find some provision of law giving him such authority. Under section 52, article 6, title 7, of the Consolidated School Law of 1894, the respondent herein, as sole trustee of said district, has authority to freely permit said schoolhouse therein, when not in use for the district school, to be used by persons assembling therein for the purpose of giving and receiving instruction in any branch of education or learning, or the science or practice of music. The Legislature clearly intended by the use of the words " in any branch of education or learning " such branches of education or learning as are taught in the common or higher grades of schools, and in academies, colleges and universities. It is clear, from the proofs herein, that the Ontario lodge of Independent Order of Good Templars at their meetings, do not give, nor do the persons assembled thereat receive, instruction in any branch of education or learning within the meaning intended by the Legislature as contained in said section 52. Superintendent Draper in July 1887, in his decision of an appeal taken to him where the question was presented whether a district meeting or the trustee can, over the objection of any interested party, let school property for use at certain times by a temperance lodge or society said, " The persons who were permitted to use it did not assemble for the purpose of giving and receiving instruction, but for the promotion of temperance. However laudable the pur- pose of their assembly, it is not a purpose recognized by the State. I am, there- fore, of the opinion that the leasing complained of was unlawful, and that the appeal must be sustained." It is clear from the proofs herein that not only the objection of one inter- ested party in said district is mAde to the meetings of said order in said school- house, but that nearly one-third of the qualified voters of said district object to said use of said schoolhouse, and that the action of the respondent herein in permitting such use has occasioned a controversy among the inhabitants of said district. This Department has uniformly held for many years, that when upon appeal it is established that a school building is used for any other purpose, or in any manner which interferes with its use for school purposes, or giving and receiving instruction in any branch of education or learning, or the science or I'M-actice of music or where there are diflFerences of opinion among the inhabitants of 'the district as to the advisabilitv of using the schoolhouse for any other than iyjU THE UNIVEKSITV OF TlIK STATE OF NEW YORK school purposes, or where the properly of the district, or one of the pupils is injured by such use, it becomes the duty of the State Superintendent of Public Instruction to strictly observe and enforce the provisions of the school law gov- erning the matter. The appeal herein is sustained. It is ordered, That Cassius H. Barnes, as trustee of school district no. 2, town of Scriba, Oswego county, forthwith notify said Ontario lodge of Inde- pendent Order of Good Templars, or the officers thereof that no further or other meetings of said Ontario lodge of Independent Order of Good Templars shall be or will be permitted to be held in the schoolhouse in said district, and that the permission and consent heretofore given by him that said lodge may hold its meetings therein is withdrawn, canceled and revoked. It is further ordered. That said Cassuis H. Barnes, as such trustee, be, and he hereby is, enjoined and restrained from permitting or consenting to the said Ontario lodge of Independent Order of Good Templars meeting in or holding any meetings in said schoolhouse in said district, from and after the day or date on which he shall receive notice of my decision and orders herein. 3577 George LeFever v. Reuben Milgate, sole trustee of district no. 9, towns of Clarksville and Portville, Allegany and Cattaraugus counties. The trustee is the legal custodian of the schoolhouse, but it is not his private property and he can not put it to any use he sees fit. As a general rule, it is to be used only for school purposes. The use of a schoolhouse for any purposes other than those permitted by statute, however laudable, can not be sustained when objected to by interested parties. Decided July 21, 1887 I"". \V. & E. F. Kruse, for appellants Draper, Superintendent This is an appeal of a resident and taxpayer in the above-named district from the action of the sole trustee of the district in renting the schoolhouse for one evening in each week to a temperance society, known as " Pleasant Valley Division, Xo. 107, of the Sons of Temperance," which society upon such evenings occupies the building exclusively, permitting none but members to be present, and pays for such use to the trustee a small stipulated amount. The trustee in his answer admits the leasing and the use of the building as alleged. He says that at the last annual school meeting it was agreed, by the electors present, that the building should be rented for the purpose complained of by the appellant. This is denied. The record of such action is not produced, and severa. persons, including the chairman of the meeting, swear that no such JUDICIAL decisions: school property — USE OF 891 action was taken. There seems to have been considerable interest in the district over the question, and the fact probably is that it was made an issue in, and was understood to be determined by, the election of the trustee. I consider it immaterial in any event. There is really no dispute as to the facts, and the question is presented whether a district meeting or the trustee can, over the objection of any interested party, let school property for the exclusive use at certain times of such an organization as that mentioned in the appeal. The law constitutes the trustee the custodian of the schoolhouse. But it does not thereby become his private property, and he can not put it to any use which he sees fit. He is, as a general rule, to manage it as the representative of the district, and for school purposes only. He must find some express pro- vision of statute authorizing him to permit it to be used for any other purpose before he is justified in doing so, provided objection is made by any interested party. The only provision of the statute of such a nature is found in section 52 of title 7 of chapter 555 of the Laws of 1864, which allows the trustee "to permit the schoolhouse, when not in use by the district school, to be used by persons assembling therein for the purpose of giving and receiving instruction in any branch of education or learning or in the science or practice of music." It can not be claimed that the leasing in the present case was for such a pur- pose as is here mentioned. In this case the house was given over to the use of a secret society. The people of the district who were not members of the society were excluded. The persons who were thus permitted to use it did not assemble for the purpose of giving and receiving instruction, but for the pro- motion of temperance. However laudable the purpose of their assembly, it is not a purpose recognized by the State. I am, therefore, of the opinion that the leasing complained of was unlawful, and that the appeal must be sustained. It may be proper to say, however, that it has always been the practice of this Department to refrain from preventing the use of school property for other than school purposes, when such other use does not interfere with the use for which such property is maintained, and when such other use is acquiesced in by the taxpayers and electors of the district. This has, unquestionably, been a wise policy. Frequently, in the rural school districts, the schoolhouse is the only suitable place in the district for holding a meeting of any character, and such policy has greatly promoted the convenience as well as the intellectual and moral activity of the people of the district. But when a school building is used for any other purpose, or in any manner which interferes with its use for school purposes, or where there are differences of opinion among the people of the district as to the advisability of using the schoolhouse for any other purpose than school purposes, it becomes the duty of the Department to strictly observe and enforce the laws governing the matter. The appeal is sustained, and the injunction granted on the 24th day of "March 1887, is made perpetual. 892 THE UNIVERSITY OF THE STATE OF NEW YORK 4164 In the matter of the appeal of Albert B. Brown v. J. F. Stilson, trustee, district no. 8, city of Rome, Oneida county. Schoolhouscs may l)e used out of school hours and when not in use for district purposes for religious meetings, Sunday schools, lectures or any other moral, literary or useful purpose, with the approbation of a majority of the district and consent of trustees. Where an appellant does not show that any injury has resulted or does result to the schoolhouse, or to the district from the holding of said meetings for religious purposes, there is not presented any grievance demanding the interposition of this Department. Decided February 15, 1893 Crooker, Superintendent This is an appeal from the action and decision of the respondent in per- mitting the schoolhouse in school district no. 8, city of Rome, Oneida county, to be used for other than educational purposes as against the objection of the appellant. The appellant shows that on October 25, 1892, the appellant served upon the respondent a notice not to allow the schoolhouse in said district to be used for other than school purposes from the date of said notice. The appellant also makes an aftidavit of the service of stich notice and avers that the respondent has disregarded said notice and continues to allow said schoolhouse to be used for other than educational purposes, to wit, for religious purposes. That (leponent was present at the said schoolhouse on Sunday, November 8, 1892, and that preaching was held therein, and that the respondent was present and consented to and took part therein. It is not alleged in said appeal that any injury, damage or loss has been sustained by the district in consequence of the use of said schoolhouse for other than educational purposes. The appeal is not supported by any proof or affidavit other than that of the appellant. The answer admits that said schoolhouse has been, and is, used for other than educational purposes and shows that the schoolhouse in said district is situate several miles from a church in which a Sunday school or religious meet- mg.s are held; that for many years it has been the custom to hold religious meetmgs in said schoolhouse; that about ten years ago, at the request of the people residing in said district, a union Sunday school was organized and said school held regularly on Sunday in said schoolhouse; that said school com- menced with eleven scholars and has increased to fifty-five scholars, having a regular average attendance of thirty-five scholars, said scholars being child'^en of persons belonging to diflferent religious denominations ; that at the religious meetmgs, which are regularly held in said schoolhouse, one Rev. Mr Deckel-, of Lowell, Oneida county, is the stated preacher, and said meetings have been largely attended by the people residing in said district, the most of whom are patrons of the district school and taxpayers in the school district That prayer meetings are held in said schoolhouse once each month, and a religious meeting is held in said schoolhouse once in each month by the Youn^r People's JUDICIAL decisions: school property — USE OF 893 Society of Christian Endeavor. That said rehgious societies have purchased and placed in said schoolhouse a cabinet organ, the free use of which is made by the district school every day in which said school is in session. Said Sun- day school has also provided said schoolhouse with window shades, lamps and other fixtures and furniture. That said schoolroom is cleaned once every week by the Sunday school, and said religious societies furnish the fuel and lights used by them, no fuel etc., of the district being used at said religious meetings. That no injury has been done to the said school building or fixtures, nor to any school books or property of the pupils therein. That a large bell, mounted upon the schoolhouse, is in use by the district school, and said bell was purchased by the inhabitants and not by the district. It does not appear from the papers presented upon this appeal that any other person than the appellant has objected to the use of said schoolhouse for said religious meetings, but, on the contrary, the affidavits of twenty qualified voters, in addition to that of the respondent, are presented approving of such use and the action of the respondent in permitting the same to be so used. Trustees are charged with the custody of the schoolhouse for the purpose of public instruction, and it is their duty to exercise a general supervision over its care and management that the instruction of the pupils in the school shall not be embarrassed by any use of the house other than for school purposes, and that the property of the district, and the furniture, books and papers belong- ing to the school or the pupils shall not be destroyed or injured. Any use of the house in subordination to these restrictions, and not inconsistent with the main purposes for which it was designated may be allowed by the trustees under section 52 of title 7 of the Consolidated School Laws of 1864. Superintendent Van Dyck, on March 15, 1859, held: " The quiet assembling of orderly persons for religious instruction, not at unreasonable hours can not be a serious injury to the schoolhouse, nor to educational interests, generally, of the district. At all events, I am not disposed to interfere with the discretion of the trustees in regard to a proper custody of a schoolhouse, until the abuse of that discretion is clearly proven by evidence showing that positive injury and damage have resulted from allowing the schoolhouse to be used for other than school purposes." Superintendent Van Dyck, on January 7, i860, said: "I am disposed to hold, with a previous opinion of this Department, found in Randall's School System, 220, that the schoolhouse may be used, out of school hours and when not wanted for district purposes, for religious meetings, Sun- day schools, lectures, or any other moral, literary or useful purpose, with the approbation of a majority of the district, and consent of trustees." The decision of Superintendent Van Dyck, of March 1854, was concurred in by Superintendent Weaver, in October 23, 1868. Superintendent Gilmour, in June 1870, held: " The trustee is the legal custodian of the schoolhouse, and whenever he permits it to be used for purposes lawful and commendable in .themselves, which do not interfere with the school, nor injure the district prop- erty, this Department will not interfere in the matter." 8,^4 THK rSlVEHSITV OF Till-: STATK UK NEW YORK I fully comiir with my predecessors in office in their opinions and decisions as above quoted. As the appellant herein docs not show that any injury has or does result to the schoolhousc, nor to the district, from the holding of said meetings for religious purposes, there is not presented any grievance demanding the inter- position of this Department. Appeal dismissed. 4334 In the matter of the appeal of Byron Johnson v. William D. Winston as trustee of school district no. lo, town of Marcy, Oneida county. In an appeal from the action of a trustee of a school district in permitting a branch or lodge of the society or association known as " The Patrons of Industry of the State of New York," to hold meetings in the schoolhouse in his district : held, that the action of the trustee was without authority of and in violation of the school law of the State. Decided March 7, 1895 E. A. Warren, attorney for appellant Crooker, Superintendent The appellant in the above-entitled matter appeals from the action and decision of the respondents herein, as trustee of school district no. 10, town of Marcy, Oneida county, in permitting certain persons claiming to be members of an order, society or association under the name of the " Patrons of Industry of the State of New York," or a branch or lodge thereof, to meet in, and hold meetings in the schoolhouse of said district; and upon the request of the appel- lant herein that said respondent as such trustee deny said order, society or asso- ciation the further use of said schoolhouse, the action and decision of said respondent as such trustee refusing to grant such request. It appears, from the proofs presented herein, that the appellant herein is a qualified voter in, and a taxable inhabitant of, said school district no. 10, town of Marcy. Oneida county; that the respondent herein, William D. Winston, IS, and has been since the annual school meeting in said school district, held in August 1893, the sole trustee of said school district; that some time in the spring of the year 1894, a person calling himself Norman Smith and claiming to be grand organizer of the " Patrons of Industry of the State of New York," dehvered a lecture in the schoolhouse of said district upon the purposes and objects of said society or association and the benefits to be derived from mem- bership therein ; that said organization was a secret one and the members thereof were required to keep such secrets although no oath was required; that the payment of a membership fee of $1 for those joining that night was required, and $2 for joining thereafter, with small dues payable once in three months ; but women were only required to pay half price and a failure to pay dues w # JUDICIAL DECISIONS : SCHOOL PROPERTY — USE OF 895 terminated such membership; that all persons under 14 years of age were excluded from membership ; that a paper was passed around at such meeting to obtain the signatures of those willing to join said organization, and after signatures had been obtained, those not signing were requested to and did leave said schoolroom ; that a branch or lodge of said Patrons of Industry was there- upon organized, the respondent herein becoming a member, some of the members therein being residents and qualified voters of said district, and the other mem- bers being nonresidents of said school district; that with the permission of the respondent herein, as trustee of said district, said branch or lodge of the Patrons of Industry so organized, has held its meetings in said schoolhouse on two nights in each month upon the agreement that said members thereof furnish the fuel and lights and clean the schoolhouse; that on or about September 20, 1894, the appellant herein personally served upon the respondent herein as such trustee a written notice requesting him to deny said branch or lodge of Patrons of Industry the further use of said schoolhouse, which request the respondent herein refused, stating, in substance, " that they could use it as usual " ; that said brance or lodge still uses said schoolhouse for its meetings with the permission of the respondent herein as such trustee. The respondent in his answer to the appeal herein alleges that the object of said organization, as set forth in the preamble to the constitution, is for the " promotion o-f the interest of farmers and employees and for the good of the nation," and that during its meetings various subjects of public interest are discussed by the members. The respondent has annexed to his answer herein the written consent of twenty qualified voters of the district that said trustee may permit said Patrons of Industry to occupy said schoolhouse at such times as will not in any way interfere with the school, provided said Patrons shall not ill use the schoolhouse, and shall provide their own fuel and lights, and keep the schoolhouse neat and clean. The appellant herein objects to such use, and annexed to his reply herein are the affidavits of four other qualified voters objecting to such use of said schoolhouse. It appears, therefore, that there are differences of opinion among the qualified voters of said district as to the advisability and legal authority of permitting the use of said schoolhouse by said Patrons of Industry, or for any other than school purposes. It is not alleged or proved that there is or are no suitable building or build- ings other than said schoolhouse, in said school district, in which said Patrons of Industry could meet and hold their meetings. Subdivision 6 of section 47, article 6, title 7 of the Consolidated School Law of 1894, enacts that the trustee or trustees of every school district shall have the custody and safekeeping of the district schoolhouse or houses, their sites and appurtenances, and such has been the law of the State for forty years. The provisions of law above cited constitute the trustee or trustees of school districts the custodian or custodians of the schoolhouse or houses, and their sit&s and appurtenances, for the purposes of public instruction and for holding 896 THE UNIVERSITV OK TllK STATE OF NEW YORK the annual and special school meetings of said district under the school law, and for no other purpose. By said provisions of law such school property does not become the private property of the trustee or trustees, and he or they can not put it to any use which he or they see fit. In 1855 Deputy Superintendent Smitli decided " 'I'hat the trustees of each school district have the custody and control of the schoolhouse for the purposes defined and specified in the act conferring the authority. In general, schoolhouses are built for the purposes of public instruction by teachers holding regular certificates of qualification, and also to furnish a place for the holding of school district meetings, and for no other l>urpose. In short, the employment of schoolhouses for such objects (that is, other than school purposes) is only tolerated by general consent. This Depart- ment never raises the question*. It is, however, under the necessity of sustain- ing the objection when it is made." By section 52, article 6. title 7 of the Consolidated School Law of 1894 it is enacted, " The trustee, or any one of them, if not forbidden by another, may freely permit the schoolhouse, when not in use for the district school, to be used by persons assembling therein for the purpose of giving and receiving instruc- tion in any branch of learning or education or in the science or practice of music." Section 52 above quoted is precisely the same as section 52 of the sixth article of title 7, of the Consolidated School Act of 1864. Said section 52 contains the only purposes under the school law for which trustees of school districts had the legal right to permit the schoolhouse under their authority and control to be used, other than those of holding the schools and school meetings of the di.strict, until the Consolidated School Law of 1894 went into operation. Said section 52 was enacted to prevent the disputes continually arising about the right and power of the trustees to permit the schoolhouse to be used for any purpose but a common school. Even under the provisions of said section 52 the trustee or trustees of a district can not grant any right to use the district property for any other than educational purposes. As trustees are forbidden to lease or contract the rijrht of occupation and use of schoolhouses and appurtenances, or any part thereof, when allowing the use of said property under section 52, they can only acquiesce in said use and by such acquiescence estop themselves from bringing an action for the act of entering the schoolhouse, which would otherwise be a trespass. Prior to the enactment of section 52, sixth article, title 7, of the Consoli- dated School Act of 1864, chapter 555, of the Laws of 1864, a trustee or trus- tees of a common school district had no legal power or right to consent, or permit the use of the schoolhouse, its site and appurtenances, or any part thereof, for any purpose whatever except for public instruction, in the mainte- nance of a school or schools therein and for annual and special school meetings of the district. Since the passage of chapter 556 of the Laws of 1894, pursu- ant to the provisions of said section 52, the sole trustee of a district or a board of three trustees, if none of them objected, had and have the power to freely permit the schoolhouse in their respective districts, when not in use for a district JUDICIAL DECISIONS : SCHOOL PROPERTY USE OF 897 school, to be used by persons assembling therein for the purpose of giving and receiving instruction in any branch of education or learning, or in the science or practice of music. Such instruction given and received, or any branch of edu- cation or learning, etc., etc., by lectures or instruction in music or other methods, must be free to the qualified voters of the district and the children residing therein of school age, and not restricted to the persons who may be members of any society or association, secret or otherwise. By section i6 of title 5, and section 2, title 10, of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894, trustees of school districts have the power and it is their duty, to grant the use of school buildings for all exam- inations appointed by school commissioners under the provisions of the school law, and in which to hold teachers institutes. To sum up, a trustee or trustees of a school district has not and have not any legal right or power whatever to consent to or permit the use of the schoolhouse, school site and appurtenances, in his or their school district, or any part thereof, for any purpose whatever except for the purpose of public instruction, the conduct of the school therein, and for the school meetings of the district, and the purposes mentioned in sec- tion 52, article 6, title 7 ; section 16, title 5, and section 2, title 10, of the Con- solidated School Law of 1894. It does not clearly appear from the proofs herein, what are the objects and purposes of the Patrons of Lidustry, and the meetings held, however laudable they may be, but it clearly appears that the purposes of the meetings held in the schoolhouse in district no. 10, Marcy, are not for giving and receiving instruc- tion in any branch of education and learning, or in the science or practice of music; and admitting for argument only that such are the purposes of said meetings, such meetings are not open to all of the qualified voters of the dis- trict and the persons residing therein of school age, but are restricted to those who are under the constitution and laws thereof, members of such society or organization. There are other good reasons, aside from the absence of statutory authority, why trustees should not consent to or permit the meetings of such society in the schoolhouse of the district. Such meetings created dissensions and contro- versies among the inhabitants of the district ; one-fifth are opposed to such nieetings. That conceding the society provides for its own fuel and lights, and cleans the schoolhouse, there is a continual wear and tear of the schoolroom and furniture by reason of said meetings, which must be borne by the taxable inhabitants of the district, in keeping such furniture and schoolroom in repair. The attorney for the appellant had suggested that such use of the schoolroom might cause complication and loss to the district in the contract of insurance of the schoolhouse and furniture. I assume that the schoolhouse and furniture in said district are (and if not, should be) insured from loss or damage from fire. The policy issued for such insurance states the use to which the building is to be put, namely, for school purposes ; a meeting of said society is held in said school, and on the evening or night of such meeting the schoolhouse and 29 898 THE UNIVERSITY OF THE STATE OF NEW YORK furniture are daniat;cd or destroyed by fire; the trustee presents a claim against the insurance company under said poHcy for the loss or damage sustamed by the district; the insurance company ascertaining that on the night of the fire the schoolhouse was occupied by the Patrons of Industry and not for school purposes, refuses to pay; an action is brought, in which the district is defeated. An action, possibly, might be maintained by the district against the trustee for the loss sustained by the district by reason of the neglect or violation of duty on the part (jf such trustee in consenting to or permitting the use of said schoolhouse for other purposes than those mentioned in the policy of insurance; but in the event of the trustee being financially irresponsible, the district must bear the loss. In appeal no. 3577, decided by Superintendent Draper, on July 21, 1887, brought from the action of trustees in permitting the use of a schoolhouse for the meetings of a temperance society, he says : " The law constitutes the trus- tee the custodian of the schoolhouse. But it does not thereby become his private property, and he can not put it to any use which he sees fit. He is, as a general rule, to manage it as the representative of the district, and for school purposes only. He must find some express provision of statute authorizing him to permit it to be used for any other purpose before he is justified in doing so, provided objection is made by an interested party. The only provision of the statute of such a nature is found in section 52, of title 7, of chapter 555, of the Laws of 1894, which allows the trustee " to permit the schoolhouse, when not in use by the district school, to be used by persons assembling therein for the purpose of giving and receiving instruction in any branch of education or learning or in the science or practice of music." It can not be claimed that the leasing in the present case was for such a purpose as is here mentioned. In this case, the house was given over to the use of a secret society. The people of the district who were not members of the society, were excluded. The persons who were thus permitted to use it, did not assemble for the purpose of giving and receiving instruction, but for the promotion of temperance. However laudable the purpose of their assembly, it is not a pur- pose recognized by the State. I am, therefore, of the opinion that the leasing complained of was unlawful and that the appeal must be sustained. It may be proper to say, however, that it has always been the practice of this Department to refrain from preventing the use of school property for other than school purposes, when such other use does not interfere with the use for which such property is maintained, and when such other use is ac- quiesced in by the taxpayers and electors of the district. This has unquestion- ably been a wise policy. Frequently, in the rural school districts, the school- house is the only suitable place in the district for holding a meeting of any character, and such policy has greatly promoted the convenience as well as the intellectual and moral activity of the people of the district. But when a school building is used for any other purpose or in any manner which interferes with its use for school purposes, or where there are differences of opinion among the JUDICIAL DECISIONS : SCHOOL PROPERTY — USE OF 899 people of the district as to the advisability of using the schoolhouse for any other purpose than school purposes, it becomes the duty of the Department to strictly observe and enforce the laws governing the matter. I concur fully with Superintendent Draper in the reasons stated by him in, and the decision rendered by him therein, and feel it my duty to observe and enforce the provisions of the school laws governing the matter of the use of schoolhouses for other than school purposes, and to sustain the appeal herein. The appeal herein is sustained. I find and decide. That the acts and decisions of William D. Winston, as sole trustee of school district no. 10, town of Marcy, Oneida county, in consenting or permitting a branch or lodge, or by what other name known, of a society or association known as the Patrons of Industry of the State of New York, to hold meetings in the schoolhouse in said school district, were, and are, without authority of, and in violation of, the school law of the State. It is ordered. That said William D. Winston, as such sole trustee of said district, forthwith notify the officers and members of said society or association, so holding and attending at said meetings, that no further meetings shall be or will be permitted to be held in said schoolhouse in said district; and that the consent and permission heretofore given by him, that such meetings be so held, are canceled, withdrawn and revoked. It is further ordered, That the said William D. Winston, as such sole trustee of said school district no. 10, town of Marcy, Oneida county, be, and he hereby is, enjoined and restrained from consenting, permitting or allowing said branch or lodge of said society or association of the Patrons of Industry of the State of New York, and the officers and members thereof, to hold any meeting or meetings thereof in said schoolhouse in said district from and after the date at which he shall receive notice of my decision and orders herein. 4941 In the matter of the appeal of M. L. Twiss and Charles E. Morse v. Andrew McCutcheon, L. S. Potter and Stevens S. Smith as trustees of school district no. 3, Java, Wyoming county. Under the provisions of the school law and the decisions of this Department, a sole trustee has not, neither has a board of trustees of a school district, legal authority to consent to, or permit, the use of the schoolhouse, school site or appurtenances, or any portion thereof in his or their school district, for any purpose whatever except for maintaining and conducting schools therein, and for holding school district meetings; or by persons assembling therein for the purpose of giving and receiving instruction in any branch of education or learning or in the science or practice of music; or for examinations appointed by school commissioners or for holding teachers institutes. Decided June 8, 1901 ■ A. J. & J. Knight, attorneys for respondents QOO THE UNIVERSITY OP' THE STATE OF NEW YORK Skinner, Superintendent This is an appeal from the action of the trustees of school district 3, Java, Wyoming county, in permitting the schoolhouse or building of the district to be used for other than school or educational purposes. The appellants, as residents and qualified voters in such school district, allege, in substance, in their appeal, that on February 8, 1901, a drama was enacted in the hall in the second story of the building of said district, and that in the evening after the close of the drama, a dance was held in said hall; that on February 28, 1901, said hall in the school building was occupied by a travel- ing show called the " German medicine company," and such company, by its agents and servants, continued to occupy such room in giving shows and exhibi- tions and selling medicine up to and including March 13, 1901 ; that the appel- lants and other residents of said school district object to the use of said school building or any part thereof, for other than school or educational purposes. Tnistees McCutcheon, Potter and Smith have made answer to the appeal, and admit substantially the allegations in the appeal as to the use of said room or hall, and allege upon information and belief that such use of said room or hall meets the approval of a large majority of the taxable inhabitants of the district and representing most of the taxable property therein. The respondents alleged that none of such entertainments injured the school building in any way, and that no objection to such use of the hall was made to them or either of them prior to said entertainments or any of them, by any person taxable in said district. It appears that last year a new school building, consisting of two stories, the upper story being a hall, was erected in said district at an expense of about $3000; that in the years 1899 ^^^ 1900 several appeals were brought to me from proceedings of school meetings in said district relative to a change of the school site and the erection of a new school building; that in a decision rendered November 22, 1899, in the appeal of Frank H. Hall and others, de- cided September 9, 1899, I stated that a school meeting in the district could not legally vote a tax to construct a two-story building, the second story of which was to be used for a public hall to be used for other than school purposes, that is, for shows, entertainments, meetings of secret and other societies and for other purposes for which public halls are used; that in a decision rendered by me on June 12, 1900, I stated that the facts established called for the erection of a new school building that would have two rooms to conduct the school, and another room in the second stor>' to be used in school examination, school ex- hibitions, the observance of Arbor day. Flag day, lectures upon educational topics, etc., etc. Subdivision 6 of section 47, article 6, title 7 of the Consolidated School Law of 1894. chapter 556 of the Laws of 1894, enacts that the trustee or trustees of every school district shall have the custody and safekeeping of the district schooliiouse or houses, their sites and appurtenances, and such has been the law of this State for over fifty years. JUDICIAL decisions: school property — USE OF 901 The provisions of law above cited constitute the trustee or trustees of school districts the custodian or custodians of the schoolhouse or houses, and their sites and appurtenances for the purposes of public instruction and for holding the annual and special school meetings of said district or districts under the school law, and for no other purposes whatever. By said provision of law such school property does not become the private property of the trustee or trustees, and he or they can not put it to any use which he or they see fit. By section 52 of article 6, title 7, of the Consolidated School Law of 1894, it is enacted: "The trustees, or any one of them, if not forbidden by another, may freely permit the schoolhouse, when not in use for the district school, to be used by persons assembling therein for the purpose of giving and receiving instruction in any branch of education or learning, or in the science or practice of music." Section 52, above quoted, is precisely the same as section 52 of the sixth article of title 7 of the Consolidated School Act of 1864. Said section 52 was enacted to prevent disputes continually arising about the right and power of trustees to permit the schoolhouse to be used for any purpose except school or educational purposes. Since the adoption of section 52 the sole trustee of a district or a board of three trustees, if no one of the three objects, had and have the power to freely permit the use of the schoolhouse of their respective districts, when not in use for a district school, to be used by persons assembling therein for the purpose of giving and receiving instruction in any branch of education or learning, or in the science or practice of music. The education or learning mentioned in section 52 means such as is taught in schools, academies and colleges; the science or practice of music means such as is taught in the schools and conservatories of music. Section 52 does not permit the school building to be used for religious meetings or Sunday schools, or for theatrical or vaudeville exhibitions, or for dancing, or for meetings of any religious, charitable, benevolent or other societies or associations, or for meetings of any political party. By section 15, title 5, and section 2, title 10 of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894, trustees of school districts have the power, and it is their duty, to grant the use of school buildings for all ex- aminations appointed by school commissioners under the provisions of the school law, and in which to hold teachers institutes. It is clear that under the provisions of the school law and the decisions of this Department a sole trustee or a board of trustees of a school district has not the legal right or power to consent to or permit the use of the schoolhouse, school site or appurtenances, or any part thereof, in his or their school district, for any purpose whatever except for public instruction, the conduct of the school therein and for school meetings, and for the purposes mentioned in sec- tion 52 of article 6, title 7; section 16, title 5, and section 2, title 10 of the Con- solidated School Law of 1894. ^ , When the schoolhouse in a school district, or any part thereof, is used for any other than for school or educational purposes, or in any manner that inter- 902 THE UNIVERSITY OF Till-: STATE OF NEW YORK feres with such use, or where there are differences of opinion among the qualified voters of a district as to the advisabiUty of using the schoolhouse, or any part thereof, for other than school or educational purposes, or where any one or more of the qualified voters of the district object to such use, it becomes the duty of the State Superintendent of Public Instruction, upon appeal to him, to strictly observe and enforce the provisions of the school law. (See decisions 3577. ^y Superintendent Draper, July 31, 1887; 4334, Johnson v. Winston, by Superintendent Crooker, March 7, 1895; 4419. Martin and another v. Weaver, by Superintendent Skinner, January 16, 1896; 4450, Mayer v. Barnes, by Super- intendent Skinner, May ii, 1896.) I decide that the action on the part of Messrs McCutcheon, Potter and Smith, as trustees of school district 3, town of Java, Wyoming county, in consenting to and permitting the use of the hall of the schoolhouse of the dis- trict on February 8, 1901, for the enactment of a drama and for dancing therein, and for consenting to and permitting the use of said hall, commencing on Feb- ruary 28, 1901, to and including March 13, 1901, by a traveling show called the " German medicine company," in giving shows and vaudeville exhibitions and selling medicines, was without authority of law and in violation of the pro- visions of the school law of this State, and contrary to the rulings of this Department. The appeal herein is sustained. It is ordered that Andrew McCutcheon, L. S. Potter and Stevens S. Smith, as trustees of school district 3, Java, Wyoming county, be, and each of them is, hereby enjoined and restrained from consenting to, permitting or allowing the school building of said district, or any portion thereof, to be used for any inirpose whatever other than for maintaining a school therein, and for holding school meetings, and for the educational purposes contained in section 52 of article 6, title 7; section 16, title 5, and section 2. title 10 of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894. 3968 In the matter of the appeal of Simon Clark and others v. Edward Clark, as trustee of school district no. 12, town of Pompey, Onondaga county. An organization known as the "Grangers" was permitted to use schoolhouse as a place for meetings, for suppers and entertainments. Fuel provided by the district was used. District furniture has been damaged. Held, unlawful. Decided April 20, 1891 Draper, Superintendent This appeal is brought by several taxpayers of district no. 12, town of Pompey, Onondaga county, from the action of the trustee of said district in permitting the schoolhouse to be used by an organization known as the Grangers for meetings, for suppers and entertainments. JUDICIAL DECISIONS : SCHOOL PROPERTY USE OF 903 The evidence presented shows that fuel, provided by taxation upon the district, has been used by this organization, for which the district has not been recompensed. That the furniture has at times been removed from the schoolhouse to better accommodate the organization so using the building and has been damaged in consequence, and a stove so removed rendered unfit for use. No answer has been interposed. In determining this appeal, which I sus- tain, I will quote as far as applicable from a decision in a similar case. The law constitutes the trustee the custodian of the schoolhouse. But it does not thereby become his private property, and he can not put it to any use which he sees fit. He is, as a general rule, to manage it as the representative of the district, and for school purposes only. The only provision of statute which would authorize it to be used for any other purpose is section 52 of title 7 of chapter 555 of the Laws of i<%4, which allows the trustees " to permit the schoolhouse when not in use by the district school, to be used by persons assembling therein for the purposes of giving and receiving instruction in any branch of education or learning or in the science or practice of music." It can not be claimed that the use of the school building in the case pre- sented, was for such a purpose as is here mentioned. In this case the use of the house was given over to a social society, for the purpose of holding meetings of the society, entertainments and suppers. Such use was not for the purpose of giving and receiving instruction. I am therefore of the opinion that the use of the building as complained of was unlawful and that the appeal must be sustained. The views of the State Superintendent upon the practice of using school property for other than school purposes, is set forth in the concluding para- graph of decision no. 3577, reported on page 641 of the Code of Public Instruc- tion, edition of 1887. 3999 In the matter of the appeal of H. D. Freer v. A. W. Van Aken, trustee of school district no. 5, town of Esopus, county of Ulster. A single elector of a district objected to the action of the trustee in permitting the use of the school grounds on a certain evening by a local military band, composed of pupils of the school, for the purpose of a musical entertainment. The evidence shows that no injury was done to school property; in fact it was improved and the grounds rendered more sightly. Held, that trustee had power to grant such use under the statute. Decided September 12, 1891 "Draper, Superintendent Appeal by a taxable inhabitant of school district no. 5, town of Esopus, county of Ulster, from the action of the trustee of said district in permitting a 904 THE UNIVERSITY or THE STATE OF NEW YORK local organization, known as the St Renny Cornet Band, to occupy the school- house grounds on the 25th day of July last, for the purpose of a musical enter- tainment and picnic. It is alleged by the appellant that by such use the school- house grounds and the trees thereon were damaged. An answer has been interposed by which it appears that the members of the band are pupils of the school, and that the entertainment was given by the band for the purpose of raising a sum of money with which to provide equipments for the organization. It is claimed by the trustee that the grounds were in better condition for the u.se of the pupils of the school after the concert than before, for the reason that the memljers of the organization caused the grass to be neatly trimmed and otherwise improved. It is further made to appear that but one elector of the district objected to the use of the grounds. In view of these circumstances and the fact that the statute contemplates the use of the school building, when not in use for the district school by persons assembling therein, for the purpose of giving and receiving instruction in any branch of education or learning or in the science or practice of music, and the further fact that, at the last annual meeting held in the district, the action ap- pealed from was brought to the attention of the meeting, and by a unanimous vote sustained, I have concluded to dismiss the appeal. 5221 In the matter of the appeal of Joseph H. Burtis, a taxpayer, from the action of the annual meeting in 1905 in school district no. 17, Hempstead, Nassau county. It is not proper nor does the law sanction an appropriation of the district's funds for the erection of horse sheds upon a schoolhouse site. An order will be made prohibiting the erection of such buildings upon the school grounds and also prohibiting the use of the district's funds for such purpose. Decided October 31, kjos Francis B. Taylor, attorney for appellant Draper, Commissioner The moving papers in this appeal show that service of such papers was legally made on the clerk and the trustee of school district no. 17, Hempstead, Nassau county, on the 7th day of October KP5. No answer has been received at this Department and under the rules of practice the material allegations are regarded as admitted. The annual meeting voted an appropriation of $200 for the purpose of erecting horse sheds upon the schoolhouse site. The pleadings show that Sunday school is usually held in this schoolhouse. Appellant alleges that the main purpose of erecting such sheds is for the accoinmodation of those who drive to the schoolhouse on Sundays to attend Sunday school. Several affidavits JUDICIAL decisions: school property — USE OF 905 of residents of the district are submitted to sustain this allegation. No answer having been made there is no denial of this allegation. It is not proper nor does the law sanction an appropriation of the district's funds for a project of this nature. It is not only improper and illegal to appro- priate funds for this purpose, but it is also a violation of the spirit and the letter of the law to erect upon the school grounds buildings for this purpose. This Department has repeatedly held that when objection is raised by a taxpayer of the district the schoolhouse can not be used for holding Sunday school or other religious exercises. The particular purpose for which these sheds are to be used is not the only objection to be offered to their erection. They would occupy space on the school grounds which should be reserved for the children for pur- poses of recreation. They would be quite sure to prove objectionable from the point of sanitation and cleanliness. In addition to the impropriety of erecting them there is no authority of law for the erection of such buildings. The appeal herein is sustained. It is ordered, That the trustees of said school district no. 17, Hempstead, Nassau county, be, and they hereby are, restrained from proceeding with or completing the erection of sheds upon the school grounds of said district. It is further ordered, That the trustees of said district no. 17, Hempstead, Nassau county, be, and they hereby are, restrained from raising by tax upon the taxable property of the district the said $200 or any portion thereof, voted at the annual meeting of the district to be used for the erection of sheds on said school grounds. It is also further ordered, That the trustees of said district no. 17, Hemp- stead, Nassau county, be, and they hereby are, restrained from paying for the erection of said sheds or for any work done toward the erection of said sheds, any of the funds of the said district. SITES 3383 Upon a vote to change the schoolhouse site, the intention of the statute is to preserve the record, not merely of the majority, but of those who constituted the majority of the legal voters of the district who were present and took part in the proceedings. The names of the voters as well as the way they voted must be recorded. Decided November 19, 1884 Ruggles, Superintendent The appeal is brought from the action of a special school meeting, chang- ing the schoolhouse site. The objection raised is that the ayes and nays taken in designating the site in question were not recorded as required by law. Section 20, title 7 of the Code of Public Instruction, distinctly requires that the site of the schoolhouse " shall not be changed, unless a majority of all the legal voters of said district present and voting, to be ascertained by taking and recording the ayes and nays, at a special meeting called for that purpose, shall be in favor of such new site." It appears from the evidence that a tally was kept of the number of voters in favor of and against the proposition, and this was the only record made of the vote. I am of the opinion that this is not the record contemplated by the statute. The legislative construction of constitutional provisions, similar in character to this statute, has been gen- erally and concurrently in favor of the view that a record should be made of the persons voting for or against the bill on resolution. Thus the Con- stitution of the State of New York, article 3, section 15, provides that, "no bill shall be passed unless by the assent of a majority of all the members elected to such branch of the Legislature, and the question upon the final passage shall be taken immediately upon its last meeting, and the yeas and nays entered on the journal." This has been construed to mean that the names of members shall be recorded upon the journal as voting either yea or nay. It seems to me to be obvious that the intention of the statute is to preser^^e the record, not merely of the majority, but of those who constituted the majority of the legal voters of the district who were present and took part in the proceedings. I deem the failure to make such record fatal to the action of the meeting in desig- nating the site. JUDICIAL decisions: sites 907 4233 In the matter of the appeal of D. J. Tysen, Thomas Smith and W. R. Harris from proceedings of a special school meeting held on December 13, 1893, in school district no. 3, towns of Southfield, Middletown and Northfield, Richmond county. Where, at a school meeting duly called and held, a new schoolhouse site is designated, and the meeting votes to levy and raise by tax a sum of money for the purpose of build- ing a new schoolhouse, and that such tax be raised by instalments, such vote can not be reconsidered except at an adjourned general or special meeting, to be held within thirty days thereafter, and the trustees of such school district have no legal authority to call a special meeting of said district after said thirty days to either directly or indirectly reconsider or rescind the vote taken at said former meeting relative to voting a tax to build a schoolhouse to be raised by instalments. Where a schoolhouse site, designated at a school meeting, is proved to be unfit in a sanitary sense, by reason of the proximity to it of swamps and lowlands which necessarily render the site dangerous on account of liability to malarial infections, the action of said meeting in the selection of such site will, upon appeal, be set aside. Decided April 12, 1894 Crooker, Superintendent The appellants herein have appealed from certain proceedings had and taken at a special school meeting, held on December 13, 1893, in school district no. 3, towns of Southfield, Middletown and Northfield, Richmond county, rela- tive to the designation of a schoolhouse site, and voting a tax to pay for the same, and in rescinding or reconsidering a vote taken at a special meeting of said district held on July 8, 1893, voting a tax for the building of a new school- house upon a site designated at such meeting, said tax to be raised by instal- ments. The grounds of the appeal are, that the school site designated at the meeting on December 13, 1893, is not central as to population or territory, and is un- healthy, and that the alleged reconsidering or rescinding the vote of the meeting of July 8, 1893, to raise a tax for the building of a new schoolhouse upon the site designated at such meeting, said tax to be raised by instalment, was m violation of the provisions of the school laws. The appellants annex to their appeal the certificate of the health officer of each of the towns of Southfield and Middletown, stating in substance that they had visited a lot of land designated as a schoolhouse site at said meeting of December 13, 1S93, and found that said lot slopes from the eastern and southern boundaries so that the northwestern comer is within forty feet of a large pool of stagnant water, and another such pool is close to the northern boundary ; that about 200 feet from the lot in a northwesterly direction lies a large swamp, which, together with said pools, must be a fruitful source of malarial infection; that, in their opinion, the proximity of the swamp and pools of stagnant water rendered the lot totally unfit for the location of a schoolhouse. 9o8 THE UNIVERSITY OF THE STATE OF NEW YORK The respondents, the trustees of said district, have interposed an answer to the appeal, in which the i)rocecdins;s of the special meeting held on Decem- ber 13, 1S93, alleged in the appeal, are not denied, except they allege that the said schoolhouse site designated at said meeting is centrally located, and is a healthy site, and annexed a certificate signed by three physicians, namely, Doc- tors Walser, Michtold and Beyer, stating in substance that they had examined a site said to be selected for a school site on property of one Robert Jones, more particularly described in the schedule annexed marked "A," and that said site is on elevated ground higher than almost the entire surrounding country to the south and southeast all the way to the ocean, and that it naturally slopes toward the south and southeast; that, in their opinion, said site is unobjectionable in regard to healthfulness, and appears to them certainly preferable, from its ele- vation, to ground to the south and southeast toward the ocean. Such certificate is not in the handwriting of either of the physicians by whom it is signed ; that on the back of the certificate is " Schedule A" in a dif- ferent handwriting purporting to give the metes and bounds of the site desig- nated at said meeting of December 13, 1893. A reply on the part of the appellants to the answer of tlie respondents has been made, in which the appellants aver, upon information and belief, that the respondents showed to Doctor Walser a different lot from the one desig- nated for a site at the special meeting, and thereby secured from him a com- parative indorsement of the lot purporting to be the lot designated, and ap- parently with a view of deceiving this Department. The information given to appellants upon which their belief is founded is based upon a copy of a letter from Doctor Walser, sent to the respondents, a copy of which is annexed to the reply herein, and a letter of Doctor Walser to Mr Tysen (one of the ap- pellants), which is annexed to said reply. In his letter to the respondents Doctor Walser states in substance, that when called to New Dorp to express an opinion in reference to a schoolhouse site he was shown the southerly slope of an ele- vation on Prospect street, about 350 feet from " a spring " as the most central and desirable site, the only other place being " a hollow some distance from the center of population, and only eight to ten feet above the level of the sea"; that it was not a very desirable site, but as represented to him, at least by com- parison, he gave his approval; that on a second visit with Engineer Hastings, the said engineer pointed out to him the lot designated for a site at the meeting of December 13, 1893, and that the lot shown to him on his first visit was not the lot voted on by the school meeting; that the pond was not " a spring," but surface drainage, the slope of the lot was on the northerly side of the same hill and only 125 feet from the marsh or pond; that the other lot was south not eight feet above sea level but fifty to fifty-five feet; that he, therefore, con- curred with Doctors Feeney and Thompson in condemning as a site for a schoolhouse the lot designated at the meeting of December 13, 1893. In the letter of Doctor Walser to Mr. Tysen he states that " Doctors Michtold and Beyer JUDICIAL DECISIONS : SITES 9O9 received the same verbal description of the schoolhouse site as I did, and there was no description of the schoolhouse site attached to our paper ichich we signed." It seems to be clearly established that Doctors Walser, Michtold and Beyer were not shown the lot designated by the school meeting on December 13, 1893, as a school site, and that the opinion expressed by them, as stated in their certifi- cate attached to the answer herein, was in relation to some other parcel of land than said selected site and that the description of the site selected, as written upon the back of said certificate, entitled " Schedule A," was not written thereon at the time they signed the certificate. Said reply has also attached a certificate of Doctor Barber, the health officer of the town of Northfield, in which he states, in substance that he has examined the site designated at the meeting of December 13, 1893, and its sur- roundings, as to its fitness for a school site, and that in his opinion it is not sanitary, and, therefore, unfit for such a purpose owing to proximity of swamps and low lands on the northerly border, which necessarily must be dangerous on account of liability to malarial infection; that said lot slopes principally toward the north, and near its northern corner is a swamp which is shown upon a diagram annexed to the reply, drawn by one Joseph Hastings, engineer (upon the back of which diagram Doctor Barber has affixed his signature), which swamp is 125 feet distant from said lot;, that owing to the conformation of the land the soakage and surface drainage from the hill render a considerable por- tion of the land, lying between the lot and swamp proper, of a swampy nature, and, therefore, not healthy. There is also annexed to said reply a diagram made by Engineer Hastings, of the lot of land 200 feet square and designated by said special school meeting of December 13, 1893, as surveyed by said engineer, giving the metes and bounds as stated in the resolution adopted at said meeting designating said site, and upon said diagram is shown the swamp hereinbefore referred to, lying north- westerly of and 125 feet from the northwesterly line of said lot; such diagram having upon it the signature of Doctor Barber. From the proofs presented, in my opinion, the appellants have estab- lished, by a preponderance of proof, that the lot of land designated as a school site at the special meeting, held on December 13, 1893, as described in the reso- lution adopted at said meeting, is not a proper or fit site for a schoolhouse; that it is not sanitary, and therefore, unfit for the site of a schoolhouse, by reason of the proximity to it of swamps and low lands, which necessarily render the site dangerous on account of liability to malarial infection. From a copy of the call of the respondents for the special meeting of the qualified voters of district no. 3, towns of Southfield, Middletown and North- field, held on December 13, 1893, ^s annexed to the appeal herein, it appears that notice was given therein that the meeting was called for the purpose of, among other things, " rescinding resolutions passed at the special meeting held 910 THE UNIVERSITY OF THE STATE OF NEW YORK July S, 1893. in relation to the selection of a new site, and the appropriation of nioncv for the erection of a new schoolhouse." also, to appropriate money for the purchase of the site and for the erection of a neiv schoolhouse. It appears that at a special meeting of said district, held on Jtdy 8, 1893, a new sciioolhouse site for said district was duly designated, and that the said meeting voted to levy and raise by tax a sum of money then and there desig- nated, for the purpose of building a new schoolhouse, and voted that the said sum be raised by instalments; that said special meeting, when it adjourned, adjourned without day. By section 19 of title 7 of the Consolidated School Law of 1864, as amended, it is provided, " and no vote to levy any such tax shall be reconsidered except at an adjourned gen&ral or special meeting to be held zi'itlii}i thirty days there- after, and the same majority shall be required for reconsideration that was had to impose such tax." The s])ecial meeting of July 8, 1893, was adjourned sine die, and hence there was no adjourned special meeting held ivithin thirty days after said July 8, 1893, at which said vote to levy the tax for a new schoolhouse could be law- fully reconsidered or rescinded. There is no authority in the school laws by which the voters of said school district could or can reconsider or rescind, either directly or indirectly, the vote adopted on July 8, 1893, to levy a tax for the construction of a new schoolhouse in said district ; nor did the trustees of said district have any power or authority, under the school laws, to call a special meeting of the voters of said district to rescind such vote. I am of the opinion that so much of the proceedings of said special meeting of December 13, 1893, as voted to levy or raise by tax any sum of money for constructing a schoolhouse in said district, or as, directly or indirectly, recon- sidered or rescinded said vote adopted on July 8, 1893, is, and are, illegal and void. The appeal herein is sustained. It is ordered, That so much of the proceedings, action and decision of said special meeting of said school district no. 3 of the towns of Southfield, Middle- town and Northfield, Richmond county, held on December 13, 1893, as desig- nated a new school site on Prospect place, and authorized the trustees of the district to purchase the same at the price of $1500; and that a tax of $1600 he raised to provide for the purchase price of said site and the lawful expenses and charges that may be connected therewith, be, and the same hereby, are and each of them is, vacated and set aside. It is further ordered. That so much of the proceedings, action and decision of said special meeting as aforesaid, as voted to levy a tax for $5000 to be raised in instalments for the purpose of building a new schoolhouse upon such site, designated at such meeting, be, and the same hereby are, and each of them is, vacated and set aside as illegal and void. JUDICIAL decisions: sites 911 5209 In the matter of the appeal of Harvey Hall, Hugh Clemons, Wilson Smead and James Bonner, majority members of the board of education of union free school district no. i, towns of Hadley and Luzerne, Saratoga and Warren counties, from the refusal of Amasa Woodard, Paul King and Joseph H. ]\Ialone to sign certain notices for the sale of bonds and also their refusal to sign such bonds. The action of a district meeting in designating a site will not be set aside on the allegation that the purchase price of such site is excessive unless such allegation is clearly sus- tained. A site is worth as much for school purposes as it would be worth for manufacturing or other purposes. Decided September 29, 1905 Frank Gick, attorney for appellants Draper, Commissioner Decision no. 5197 was rendered in this appeal on the 24th day of August 1905, sustaining the appeal and ordering the respondents herein to join with the majority members of the board of education of union free school district no. I, towns of Hadley and Luzerne, Saratoga and Warren counties, in signing cer- tain notices for the sale of bonds and to also sign such bonds. On September 6, 1905, attorney for appellants filed a petition with this Department for the removal of said respondents as members of the board of education of said union free school district no. i, towns of Hadley and Luzerne, on the ground that they had wilfully refused to obey the said order of August 24, 1905. Such petition was supported by the affidavit of Hugh Clemons, one of the appellants herein, to the effect that he had presented notiees for the sale of such bonds to said respondents and that they had refused to sign them and that they had also told him they would not sign the bonds. Thereupon an order was made by me directing the said Amasa Woodard, Paul King and Joseph Malone, respondents herein, to appear before me in my office in the Capitol in the city of Albany, on the 14th day of September 1905, at II o'clock in the forenoon to show cause why they should not be removed from the offices of trustees of said union free school district no. i, towns of Hadley and Luzerne. The said respondents appeared in person at the time fixed for a return on the said order to show cause why they should not be removed from office and acknowledged that they had refused to sign the said notices of the sale of bonds. They gave as their reason for not signing such notices that the site which had been designated was assessed by the town assessors at $1300 and that the district had fixed the purchase price at $5300. They alleged that the price paid was •la^rgely in excess of the real value of such site and that the action of the district in' voting to pay such amount was a great injustice to the taxpayers of the dis- ijl2 THE UNIVERSITY OF THE STATK OF NEW YORK trict, causing a waste of several thousand dollars. The following determination was then agreed upon : The determination for the present is that the Commissioner of Education will require the trustees refusing to sign such notice and bonds to sign the same, unless, as the result of an investigation which the Commissioner will have made, he shall become satisfied that the proposed site is not a suitable one for the district, or that the price of said site is not a just one, and upon the further understanding, to which the refusing trustees assent, that they will abide the determination of the Commissioner, without further objection. I then directed Thomas E. Finegan, the chief of the Law Division of this Department, to examine the site in question and to make a thorough investiga- tion of the value of such site as compared with the value of other property in that community. Mr Finegan made such examination and reported as follows: Albany, N. Y ., Sept. 2j, ipoj Hon. A. S. Draper Commissioner of Education . Albany. N. V. Dear sir: In comj)liancc with your order of the 13th inst., directing me to make an examination of the site designated by a special meeting of school dis- trict no. I, towns of Hadley and Luzerne, I respectfully submit the following report: On September 19th, I wrote Mr Hall, president of the board of educa- tion, that I would be at Luzerne on September 26th to examine the site and to give a hearing in order to ascertain its value as compared with other property in that village. I also wrote Mr King of the respondents. I advised both par- ties that I would receive such evidence as they might be able to produce that would have any bearing on the value of the property in question. At the hearing both parties were represented by counsel, Frank Gick appearing for appellants and \\^illiam T. Moore for respondents. The site in question is centrally located as to territory embraced in the district and as to school population. That portion of the district located in the village of Luzerne contains 168 children of school age and that portion of the district located in the village of Hadley contains 63 children' of school age. The site is dry and the grade is such as to afford good drainage on each of the four sides. It contains 1.6 acres which is large enough to afford ample room for a suitable building and a playground of sufficient size. The rear of the site borders on the Hudson river and is about 25 or 30 feet above the water. This is the only criticism which can be made on this site. This does not appear to be a serious one. Proper safeguards may be erected on the rear of this site to avoid the danger, if any, of the children falling or running over the rocks into the river. The site also contains several large matured shade trees. I examilSed several pieces of property which had been considered in the selection of a site and which were suggested by respondents as being available and desirable for such site. None of these appears to be anywhere near so desirable for a school- house site, from any consideration, as the one selected by the district meeting. The site selected is known as the Riverview site. There was a hotel on it which burned down some years ago. There is still upon it a barn. It is gen- erally agreed that the expense of erecting such barn must have been $3000. Mr JUDICIAL decisions: sites 913 King, of respondents, agreed that such barn is now worth $2000. I examined several pieces of property with Mr Hall of appellants and Mr King of respond- ents. The following table will show the assessed valuation of several of the pnncipal pieces of property in this district and the value which respondents and appellants placed upon them: Property Arlington Hotel Amasa Woodard Rockwell Hotel E. M. Garner, residence. Holleran Palmer Portous E. M. Garner, }i acre. . . William J. Hall Morton Conklin , Wayside Hotel Garner Homestead Estimated Assesssed value by valuation respondents $3 000 $10 000 900 4 000 3 000 17 000 800 4 000 550 2 500 475 4 000 By appellants $750 $4 200 to $5 200 400 2 500 600 5 000 2 900 15 000 300 I 200 7 800 35 000 to 40 000 600 4 000 The above table fairly represents the assessed valuations and the estimates of the actual value of property in these villages. It will be observed from this table that property is assessed at one-sixth to one-third its actual value. The site in question is assessed at $1300 and was purchased at $5300. In February or March last the site of the Rockwell hotel was purchased for $4500. It contains 1.5 acres. It is located on the same street and a short distance above the schoolhouse site, but contains less land. It was stated and not disputed that the Garner lot which is located next to the Riverview site was purchased four years ago at $1000 and contains less than one-half acre. The grist mill property sold for $4000 within the last year and is assessed for only $1000. The estimated value of property contained in the above table appears to be conservative as the Rockwell hotel was erected the present season at a cost slightly in excess of the estimated value. The Garner residence was erected four years ago at an expense of $3500 and its estimated value is $3000. The price which the district voted to pay for this property is all the property is worth. The transaction may even be looked upon as an excellent sale on the part of the owner of such property. However, property is worth no more for manufacturing, hotel or other business purposes than it is worth for school purposes. A school district may reasonably pay for a school site as much as an individual or a corporation may pay for such site or similar sites for business purposes. Taking this principle and the facts above stated into consideration, I am of the opinion that the Riverview site designated at a special meeting of the district is not only a most excellent and desirable one, but that the price paid is not an exorbitant one for such property. Respectfully yours Thomas E. Finegan Chief of Lazv D'wision 914 THE UXIVERSITY OF THE STATE OF NEW YORK In view of all the facts brought to my attention by the several appeals resulting from this controversy and passed upon by me during the past year, and also of the facts set forth in the above report, I must decline to modify the said order of this Department, made on the 24th day of August 1905, and must hold that all questions involved in this controversy shall be settled as agreed between respondents and myself at the hearing in my office on the 13th day of September, and as fully hereinbefore set forth. 5189 In the matter of the appeal of Clayton L. Ensign, George E. Merrill and Charles Shutter from the action of a special school meeting of school dis- trict no. 6, Sheridan, Chautauqua county. A site is not legally designated unless a resolution is adopted describing the boundaries of such site in metes and bounds. The vote by which such resolution is adopted must be by taking and recording the ayes and noes. Decided July 7, 1905 Warner & Farnham, attorneys for appellants Draper, Commissioner The appellants herein ask that the proceedings of a special meeting held in district no. 6, Sheridan, Chautauqua county, on the 17th day of May 1905 be declared void. This request is based on two alleged irregularities. It is claimed that sufficient notice of this special meeting was not given and that the designa- tion of a new site was not in conformity to the provisions of the Consolidated School Law. This appeal was filed in this Departinent June 15, 1905, and an answer thereto should have been filed within ten days thereafter. No answer has been received and no request for an extension of time in which to file an answer has been received. Under the rules governing the practice of appeals before this Department, material allegations not denied are regarded as admitted. This district is a common school district and notice of special meetings therein must be given as provided by sections 2 and 6 of title 7 of the Consoli- dated School Law. Under section 6 of this title an annual meeting may adopt a particular method of giving notice of special meetings and such method shall contmue in vogue until rescinded or modified by a subsequent annual meeting. It is not shown that this district ever adopted a particular method of giving notices of special meetings and notice of such meetings must therefore be given as provided by section 2 of title 7. This section provides that notice of special meetings must be given to each inhabitant of the district entitled to vote at district meetings by reading the notice in his hearing, or in case of his absence from home, by leaving a copy or so much thereof as relates to the time, place and object of the meeting at his residence. Such notice should have been given at least five days previous to the date fixed for the special meetin^r. JUDICIAL decisions: sites 915 The notice of the special meeting in question was not given in this manner. It was given by posting notices in several conspicuous places in the district. This was not sufficient and does not satisfy the requirements of the law. This Department has uniformly held that failure to give notice of a meeting as the law directs is sufficient ground for setting aside any action that may be taken at such meeting. It appears that one of the things which this meeting did, was to designate a site. Subdivision 7 of section 14, title 7 of the Consolidated School Law provides that a site shall be designated at a special meeting and by written reso- lution containing a description thereof in metes and bounds. The vote on such resolution must be by taking and recording the ayes and noes. The vote desig- nating this site was by ballot and no resolution describing the boundaries of such site in metes and bounds was offered. The site was not legally designated. Repairs to the school property in this district appear to be necessary. Appropriations to make such repairs should be voted by the district. All pro- ceedings, however, in relation thereto must be in accordance with the law gov- erning the same. Another meeting should be called by the trustee and notice thereof given as the law requires. If a change in the site of the schoolhouse should be made the provisions of subdivision 7, section 14, title 8 and of section 19, title 8 should be observed. The appeal herein is sustained. It is ordered, That all proceedings of the special meeting of school district no. 6, Sheridan, Chautauqua county, held on the 17th day of Alay 1905, be, and they are, hereby declared void. 5270 In the matter of the appeal of Lincoln Sackett and others from the action of a special meeting of school district no. 9, town of New Lebanon, county of Columbia, in designating a site on the 30th day of June 1906. The action of a meeting in designating a site so far from the center of the district as to operate as a hardship to a portion of the children of a district and to interfere with their regular attendance upon school will be set aside. Decided September 11, 1906 Draper, Commissioner At a special meeting of school district no. 9, town of New Lebanon, Co- lumbia county held on the 30th day of June 1906, a new site for a schoolhouse was designated. The law authorizes the voters of a school district to select a site. The action of a meeting in selecting a site will not be interfered with by this Department unless it is shown that the site selected is unsanitary or that by reason of its distance from the remote parts of the district it operates as a hardship upon the children required to walk to and from school. No irregularity of procedure is alleged. It is not claimed that the site chosen is unsanitary. giC THE UNIVERSITY OF THE STATE OF NEW YORK Tliis appeal is brought by twenty-three residents of the district upon the sole ground that the site chosen is in an extreme end of the district and that some of the children will therefore be required to travel two and three-quarters miles to attend school. The pleadings show that the district embraces the village of Lebanon Springs. This village is located south of the center of the district. The site chosen is still south of the village and within one-half a mile of the south- ern boundary of the district. The distance from one end of the district to the other appears to be more than three miles. Some of the children will be required to travel as alleged two and three-quarters miles to reach school in the morn- ine and the same distance to return in the afternoon, making a distance of five and one-half miles which these children must travel daily in order to attend school. This imposes too great a burden upon children of tender ages. It is claimed by appellants and not denied by respondents that a site equally as good in every way as the one selected could be designated west of the village which would bring all children within a walking distance of the schoolhouse. By selecting a site in this section of the district the children living in the village would have no farther to walk than they would to attend school at the site selected. None of the children living south of the village would have more than one mile to walk and the children living in the northern part of the district would then have a little over four miles to walk each day instead of five and one-half miles. Appellants also state that this arrangement will be satisfactory to them. When small children are required to travel long distances daily to attend school a reduction in such distance of only two-thirds mile is an important consideration. The appellants claim that if any of the children reside more than two miles from the schoolhouse the district is required by law to provide transportation for such children to and from school. There is no provision of law nor is there a decision of the Commissioner of Education establishing any fixed limit whereby a district is required to provide transportation. The rule is that a parent is required to get his children to and from school and provide transportation when necessary. A district maintaining a home school is not required to provide trans- portation for children unless it is clearly shown that the distance is too great for the children to walk and that it is absolutely impossible for the parent to provide transportation. It appears clear that the meeting did not give proper consideration to the rights of the people living in the northern part of the district and that in select- mg such site the meeting imposed an unnecessary burden upon the children hving in the northern part of the district which will operate as a hardship and mterfere with their regular attendance at school. I therefore conclude that it is my duty to set aside the action of the meeting in adopting the site in question and to direct the trustee to call another meeting for the purpose of selecting a site which shall correct the injustice which has been imposed upon certain residents of the district in the designation of this site. The appeal herein is sustained. JUDICIAL decisions: sites 917 It is ordered, That the action of said school district no. 9, town of New Lebanon, in designating a site on the 30th day of June 1906, be, and the same hereby is, vacated. It is also ordered. That the trustee of said district no. 9, town of New Lebanon, be, and he hereby is, directed without unnecessary delay, to call a special meeting of said district to designate a site which shall conform to the views expressed in the foregoing opinion. 5234 In the matter of the appeal of James R. Yates and others from the action of a special meeting in school district no. 12, Rotterdam and Niskayuna, Schenectady county. The site of a populous district rapidly developing and increasing in population should be selected so as to equalize as far as possible the distance which pupils residing in all sections of the district will be required to travel to attend school. Decided October 17, 1906 Elmer E. Barnes, attorney for respondent Draper, Commissioner District no. 12, Rotterdam and Niskayuna, Schenectady county, has voted to erect a new schoolhouse. At a special meeting of the district held July 13, 1906, it was decided to build such schoolhouse upon the present site. This appeal is from such action and the principal ground upon which the appeal is brought is that the present site is not centrally located. This district embraces a populous region adjoining the eastern boundary of the city of Schenectady. About three years ago the boundary lines of the city of Schenectady were extended and a portion of the western part of this district was included within the city limits. Before the absorption of the west- ern portion of this district by the city of Schenectady the schoolhouse was quite centrally located both as to distance and school population. Since the western portion of the district was annexed to the city of Schenectady the schoolhouse of this district has been in the extreme western end of the district. It appears from the evidence submitted that the northern, eastern and southern sections of the district are rapidly developing and increasing in population. The resi- dents of these sections of the district feel that since a new building is to be erected it should be built upon a site which will equalize the distance which the children of the district will be required to walk to reach school. Their claim is not unreasonable but appears fair and just to all. Upon the other hand, tu require the children from the northern, eastern and southern sections of the district to travel to the center of the district as they are required and then go to the extreme western end of the district is not only unjust but would operate as- a hardship upon the younger children. The action complained of must therefore be set aside. (;l8 THE UNIVERSITY OF THE STATE OF NEW YORK It appears that three proposed sites near the center of the district have been considered but that a majority of the residents are not satisfied with them. It is alleged by respondents that these proposed sites are on low ground and that they are unsanitary. If this is true a site should be proposed which is not open to this criticism. To ascertain whether a suitable site could be selected near the center of the district I directed Mr A. E. Hall, Inspector of Buildings in this Department, to make an examination of the district. Mr Hall's report shows that by proper grading the proposed site on State street near the center of the district would be satisfactory. He also reports that a most admirable site could be selected near the center of the district on State street nearly oppo- site the State street site which has been under consideration. The district will be permitted to select its site but the one designated must be free from sanitary objections and must be one which shall afford equal school facilities to all the children in the district. The trustee should therefore call a special meeting of the district to designate a site and in his call should include such proposed sites as meet the conditions above described. The appeal herein is sustained. It is ordered, That action of the special meeting of school district no. 12, Rotterdam and Niskayuna, Schenectady county, held on the 13th day of July 1906. in directing that the new schoolhouse authorized by that district shall be erected upon the present site, be, and the same hereby is, vacated. It is also ordered. That the trustee of said district be, and he hereby is, directed to call a special meeting of said district for the purpose of designating a new site which shall be central and sanitary. 5321 In the matter of the appeal of certain electors of school district no. 2, of the town of Brutus. Cayuga county, from the action of the board of education, taken at a meeting held March 11, 1907. The general rule of this Department has always been that before its aid can be invoked to interfere with the action of a district meeting regularly and lawfully taken, in desig- nating a site it must be shown that such site is unsanitarj', does not afiford adequate facilities, or that it is inaccessible to some portion of the district and operates as a hardship upon the children residing therein. Decided June 22, 1907 John T. Kingston Esq., attorney for appellants Hon. T. E. Hancock, attorney for respondent Draper, Commissioner School district no. 2, town of Brutus, includes within its boundaries the village of Weedsport. At the annual meeting of this district in August 1906 the voters authorized the erection of a new schoolhouse at a cost of $30,000 and they also directed the board of education to call a special meeting of the JUDICIAL decisions: sites 919 district to designate a site. The board of education called this special meeting for November 14, 1906. In its call of such special meeting the board submitted four propositions on the question of a site. The voters therefore had an opportunity to select one of four proposed sites. These four were as follows: 1 The site upon which the present schoolhouse is located. 2 The present site and an adjoining lot known as the Walrath property. 3 A site known as the Bircher property. 4 A site known as the Stevens property. The first proposition to build the new schoolhouse on the present site re- ceived 26 votes. The second proposition to purchase the Walrath lot adjoining the present site as an addition to such site received 12 votes. The third propo- sition to designate the Bircher site received 6 votes. The fourth proposition to designate the Stevens property for a site received 84 votes or a majority of 40 over the three other propositions. The regularity of the notice given and the form of procedure at the special meeting are not questioned in any way whatever by appellants. It appears that all the voters of the district received due notice of such meeting and that it was generally understood that the four sites above stated would be voted upon. A faction in the district appears to be dissatisfied with the site selected and it appears that such faction desires another lot known as the Sturge property selected for a site. The matter came informally before this Department by cor- respondence and upon request from the district an inspector of this Department met the board of education and residents of the district and examined all pieces of property which had been considered in connection with the designation of a site, including the Sturge property. It was the opinion of the inspector that the old site and the Walrath property adjoining was the most desirable one on which to erect a new building. He strongly recommended this site. In view of the feeling which it was apparent existed in the district the inspector suggested that the board of education should call another special meeting and submit the site designated at the November meeting, the Sturge site and the old site with the adjoining Walrath lot to be voted upon. It does not appear that the inspector ever recommended the Sturge property as a suitable site for this new building. He suggested that it should be included in the proposed sites simply because certain residents of the district wanted an opportunity to vote upon it. It also appears that at such time the board of education had an option upon the Wal- rath lot. The board of education at a meeting held January 14, 1907, authorized the call of a special meeting to submit to the voters of the district the three proposed sites from which a site should be selected. At a meeting of the board of education held March 11, 1907, the action of the board taken at the January meeting authorizing the call of another special meeting was rescinded and a contract for the purchase of the Stevens property pursuant to the action of the special meeting of November 1906 was authorized. ''\ It is from this action of the board that this appeal is instituted, and an order prayed for, directing the board to call. a special meeting and submit the question of the designation of the site to the voters of the district once more. 920 THE UNIVERSITY OF THE STATE OF NEW YORK The board of education in rescinding its resolution authorizing another meeting predicated its action upon the statement that the owner of the Wal- rath property had withdrawn the option given to the board upon his property and refused to sell such property. This is not denied by appellants. In fact appellants do not appear to be interested in having submitted to the voters of the district the proposition including the Walrath property. It is to be remem- bered that this proposition at the November meeting received only 12 votes and that at such time the owner offered it for sale. The real question in this appeal therefore is whether the Stevens property or the Sturge property shall be selected as the district site. The pleadings of appellants and the argument of their attorney were directed mainly to this one question. The moving papers contain numerous photographs to show the adaptability of the Sturge property for a site and to also show that the sur- roundings of the Stevens property are such as to render that property unfit for a site. The map submitted by appellants in their moving papers show that the Sturge property contains a little over i acre of land and that the Stevens property contains a little over 3 acres. Appellants do not show that the general location or surroundings of the Sturge property render it more suitable for a site than the Stevens property. One fact is clear and that is that a site containing only I acre of land is inadequate for a district of the population of the Weeds- port district. The Stevens site which contains three acres has a distinct advan- tage over the Sturge site. The general rule of this Department has always been that before its aid can be invoked to interfere with the action of a district meeting regularly and lawfully taken, in designating a site it must be shown that such site is unsani- tary, does not afford adequate facilities, or that its inaccessibility to some portion of the district operates as a hardship upon the children residing therein. None of these conditions are even alleged to exist in this case. The appeal herein is dismissed. It is ordered. That the restraining order made by me in this proceeding on the 20th day of March 1907, be, and it hereby is, vacated. 5345 In the matter of the appeal of William J. Burnham from the action of a meet- ing of union free school district no. 7, town of Corinth, county of Sara- toga. 1 he Commissioner of Education will not interfere with the action of a district meeting m regularly designating a site unless it is shown that such site is unsanitary or not adapted for such use or that it is not centrally located and thereby operates as a hard- ship upon the children of some section of the district. Decided September 28, 1907 T. J. Dillon, attorney for appellant. S. M. Richards, attorney for respondents JUDICIAL decisions: sites 921 Draper, Commissioner In 1905 union free school district no. 7, town of Corinth, county of Sara- toga, authorized the erection of two new primary school buildings at a cost of $10,000 each. There has been a contention over the designation of a site for one of these buildings. The site on which the present building is located is wholly inadequate. Such site should be enlarged or a new site designated. A special meeting was held to consider the proposition to enlarge such site. This proposition was defeated by a decisive vote. Another special meeting was held several months thereafter to vote upon the proposition to designate a new site. At such meeting a new site was designated known as the cemetery site. The vote by which such site was designated was quite as decisive as the vote by which the proposition to enlarge the old site was defeated. The regularity of the procedure in designating such site is not in any way whatever questioned by appellants. It is conceded that the site chosen is sani- tary and free from physical objection. The sole claim is that the site is not centrally located and that the title thereto is not clear. This site is only 1000 feet from the site on which the present building is located and which site ap- pears satisfactory to appellants. It can not be held that this difference in dis- tance between the two sites in question is sufficient to warrant my interfering with the action of the residents of the district. The action of a district meeting in regularly designating a site should stand unless it is shown that such site is unsanitary or not adapted for such use or that it is not centrally located and thereby operates as a hardship upon the children of some section of the district. The site in question appears free from all of these objections. The contention that the title to the site is not clear does not appear to be sustained. This district voted a tax for the erection of two new buildings about two years ago. Because of a controversy over the site for one of these buildings no progress has been made toward the erection of such buildings. The board of education should now proceed to give effect to the wishes expressed by the voters of the district. The appeal herein is dismissed. 5186 In the matter of the appeal of H. H. Van Sickle from the action of school district no. 8, towns of Seneca and Geneva, Ontario county. School authorities are required by direct provision of law to provide school buildings erected to meet sanitary requirements so that the health of children shall not be endan- gered. They must be governed by the same principle in selecting sites and are bound to provide sites which shall afford children an opportunity to attend school without being subject to the danger of bodily injury. If, in attending school on this site, chil- dren are exposed to undue risks such site is an improper one and the district should \ not erect a new building thereon. Decided May 15, 1905 922 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Commissioner In 1893 school district no. 8, towns of Seneca and Geneva, Ontario county, sold a portion of its site adjoining the highway known as Castle road to the Rochester and Eastern Rapid Railway Company. This company has constructed a trolley line which extends along the Castle road and the southern boundary of the site of said school district. In the latter part of November 1904 the school building of this district was burned. At a special meeting held in February 1905 the district voted to erect a new building on the present site. The appellant claims that the trolley line is so close to the district site that children can not reach the school grounds or leave them without being subjected to the danger of injury to person or loss of life and that the present site is not therefore a proper one on which to erect a new building. School authorities are required by direct provision of law to provide school buildings erected to meet sanitary requirements so that the health of children shall not be endangered. They must be governed by the same principle in select- ing sites and are bound to provide sites which shall afford children an oppor- tunity to attend school without being subject to the danger of bodily injury. If, in attending school on this site, children are exposed to undue risks such site is an improper one and the district should not erect a new building thereon. Many good reasons exist for building on the pre.ent site. It is centrally located in the district. It is in an improved cundition containing many well- developed shade trees. It also contains a good well. Brick, stone and other material from the remaining portions of the former building are on the grounds available for use in erecting the new building. All these conditions render the old site a desirable one on which to erect a new building. These conditions, however, should not have a prevailing influence if the use of this site is to expose the children to danger. The district site is inclosed on all sides by a substantial fence four feet high. The entrance to the site is from the highway known as the Johnson road on the east side through a closed gate. The trolley line in question extends along the south side of the district site. The Johnson road intersects the trolley tracks at right angles. To reach the trolley tracks children in the school building must go from such building through the gate at the entrance to the grounds on the Johnson road, a distance of 37 feet and must thence go south over the Johnson road some distance. The children are fully protected while on the school grounds. The only apparent danger to which they are subject is in crossing the trolley tracks in going to and returning from school. It is impossible to obtain a site which would relieve all children from the necessity of crossing these tracks to attend school. The distance from the school building to the tracks and the manner of approaching such tracks do not appear to expose the children to greater danger than is usual in crossing the tracks of any trolley line. It appears proper to refer to correspondence on this question between the Law Division of this Department and residents of said school district. An ex- parte statement of this case was submitted to this Department asking for an JUDICIAL DECISIONS: SITES 923 opinion as to the wisdom of building a new schoolhouse on the site in question. This statement was referred to the Law Division for consideration. On the con- ditions set forth in such statement the chief of the Law Division advised that it was not wise to erect a new building on such site. The statement on which such advice was given showed that the exit from the school grounds was on the south side and directly to the trolley line and that the distance from schoolhouse to the tracks was only i6 feet. Had this been the case it would have been unwise to have erected a building on this site. The pleadings do not show the exact distance from the intersection of the Johnson road and the trolley tracks to the entrance gate to the school grounds. It seems advisable to locate such gate near the center of the east side of the grounds so as to bring it a reasonably safe distance from the trolley tracks. This action should be taken by the district. The appeal herein is dismissed. 5455 In the matter of the appeal of Millard Davis and others to set aside a special school meeting in district no. 6, town of Olive, Ulster county. Schoolhouse site; former site acquired by New York City for Ashokan dam. Where the title to a site and schoolhouse had been acquired by the city of New York for the construction of the so-called Ashokan dam, the trustees of the district are justified in calling a special meeting to vote upon the selection of a new site. The action of the meeting in selecting a new site and voting to build a new schoolhouse thereon will not be disturbed on the assumption that the city of New York would permit the use of the old schoolhouse for a considerable time. Accessibility of site. The selection of a site should not be set aside on the mere possibility that its convenience and accessibility may be affected by prospective changes in the location of certain highways. Notice of meeting. Appellants waived failure to serve notices of a special meeting upon them by appearing at the meeting and taking part in its proceedings. Consent of school commissioner. Section ii8 of the Education Law of 1909, requiring the consent of the school commissioner to a change of the site of a schoolhouse owned by the district, does not apply where the former site has been acquired by a municipality for a public purpose. Description of site. The site selected at a district meeting was described in writing by metes and bounds on a paper presented by one of the trustees; this description was then read to the voters present and a motion was made to purchase the site described; the description of the site was then included in the minutes of the meeting, but there was no prefix giving it the form of a resolution. It was held that this technical defect did not nullify the action of the meeting in selecting the site. Decided June 4, 1910 Arthur E. Rose, attorney for appellants Frank W. Brooks, attorney for respondents Draper, Commissioner This appeal is brought to set aside the action of a special meeting in school district no. 6, town of Olive, county of Ulster, held February 15, 1910, in select- 924 THE UNIVERSITY OF THE STATE OF NEW YORK ing a schoolliouse site for such district and providing for the erection thereon of a new schoolhouse. It api)cnrs from the papers filed tliat tlie present schoolhouse and site belong- ing to such district have been acquired by the city of New York for the con- struction of the so-called Ashokan dam, under the provisions of chapter 724 of the Laws of H705, being an act providing for an additional supply of pure and wholesome water for the city of New York. The title to such site and school- house has already vested in the city, and the district has been paid therefor the sum of $1300. which amount is now available for the purchase of a new site and the erection of a new school building. The district is still using the old school- house, under an apparently tacit agreement with the authorities of the city of Xew York. The appellants claim that the district has been assured by the city officials that notice will be given the district when the schoolhouse must be vacated, so that ample time will be afforded for the erection of a new school- house. The respondent trustees deny knowledge of any such assurance. They rightfully insist that if any definite action had been taken by the city officials in respect to the continued use of the district property, they would have been noti- fied. The uncertainty of the district's tenure of the property used by it for school purposes, and the fact that money was available for the purchase of a site and the erection of a schoolhouse, justified the call of a special meeting with a view of providing suitable school accommodations for the district when compelled to vacate the property acquired and paid for by the city. The trustees were author- ized to call such a meeting and the qualified electors of the district could properly pass upon the question of expending the proceeds of the sale of the district prop- erty for the purchase of a new site and the erection of a new schoolhouse, and their action should not be disturbed upon the assumption that there was no neces- sity for immediate action. It is asserted by the appellants that the construction of the Ashokan dam and the acquisition of lands therefor by the city of New York may so change the location of the Ulster & Delaware Railroad and of public highways in the dis- trict as to make the site selected unsuitable and inconvenient for school pur- poses. The papers presented contain no specific allegations as to such changes of location, and the assertion seems based on mere conjecture. The respondents deny that any radical changes of location are contemplated, and insist that even if new roads are laid out the site selected will retain its accessibility. Under present conditions the site is located near the junction of three public highways. There is no proof that the location of either of these highways is to be changed, so as to make the site less accessible to any of the patrons of the school. The selection of the site should not be set aside on the mere possibility that its con- venience may be affected by prospective changes in the location of certain highways. Certain defects are alleged pertaining to the notices of the meeting and the proceeding thereat. Some of the petitioners appeared at the meeting and com- plained that they had not been served with notices of the meeting. Having JUDICIAL decisions: sites 925 appeared at the meeting they waived any objection which they might have legally made to the sufficiency of the notices. It appears also that one of the petitioners was the clerk of the district who undertook to serve the notices of the meeting upon the qualified electors of the district. If there was any fraud or wilful omis- sion to give proper notice, it was that of one of the petitioners, and it would be inequitable to permit the other petitioners to profit by his wrongful act. But there is no charge of fraud or wilful omission, and under the statute (Education Law, § 90, as amended by L. 1910, ch. 140), the proceedings can not be invali- dated for want of due notice to all qualified electors in the district, unless it shall appear that the omission to give the notice was wilful and fraudulent. It is also insisted that the selection of the site was inefifectual because the school commissioner failed to give his consent in writing as required by section 118 of the Education Law of 1909. This section refers to a change '' of the site of a schoolhouse owned by the district," and has no application to this case. The site of the schoolhouse in this district had been acquired by the city of New York, and was not owned by the district when the new site was selected. The written consent of the school commissioner was not required t6 make the selection of a new site effectual and valid. The statute (see Education Law of 1909, § 96, subd. 7) provides that: The designation of a site for a schoolhouse can only be made at a special meeting of the district, duly called for such purpose by a written resolution in which the proposed site shall be described by metes and bounds, and which resolution must receive the assent of a majority of the qualified voters present and voting, to be ascertained by taking and recording the ayes and noes. The appellants insist that this provision was not complied with. The min- utes of the meeting are annexed to the petition and show that two sites were under consideration. One of the trustees read written descriptions of both sites. One of these sites was designated as the Morrison lot and the other as the McKelvy lot. There were no voters present in favor of the Morrison lot. The McKelvy lot is described in the minutes as follows : Land of J. and M. McKelvy, as follows, viz commencing at an apple tree alone the road (east side) then south 209 feet to a stake, then east 209 feet to a stake, then north 209 feet to a stake, then west 209 feet to the apple tree, place of beginning, being at or near the place where the two proposed highways to be built around the Ashokan Dam join the highway on the McKelvy flat. A motion was made and seconded " that the district purchase the IMcKelvy lot for a schoolhouse site." The names of the voters present and voting in favor of such motion are recorded in the minutes of the meeting. There were no votes against such motion. The minutes of the meeting also contain the following: The next question voted was : Do you want to authorize the trustee and committee to be named to use the money received from the sale of the old school- house property (Dist. no. 6) for buying schoolhouse site and buildmg a new 926 TllK IM\KRSITY OF TIIK STATE OF NEW YORK schoolhouse? Motion made by Chas. Fenny and seconded by Daniel Lane that we do so, after which it was voted on and carried unanimously. The names of those voting in favor of such motion are then recorded in the minutes. The appellants have raised the question that the selection of the site was not by a " written resolution " as required by the above quoted provision of the Education Law of 1909, and of section 119 thereof, which is to the same eflfect. There was a lack of formality in the presentation of the question of the selection of a site. The purpose of the statute was to inform the qualified electors of a district as to the quantity and location of the land to be acquired as a site, and also to furnish the trustees with definite knowledge as to the particular land which they are to purchase. It appears that the trustees staked out and measured the two sites considered by the meeting. Each was sufficiently described to leave free from doubt the quantity and location of the land. The description of the McKelvy lot was in writing; it was read to the voters present at the meeting and duly entered on the minutes. There could have been no uncertainty as to the character, extent and location of the site selected. There was thus a substantial compliance with the evident purpose of the statute. The only omission was the prefix required to give the act of selection the technical form of a resolution. School meetings are not always conducted strictly in accordance with parlia- mentary rules. Technical failure to comply with such rules will not necessarily nullify their proceedings. So in this case, a technical omission in the form of the resolution selecting the new site, should not be held to defeat the unanimous act of voters present at the meeting. There was an apparent attempt to comply with the terms of the statute requiring a written resolution containing a descrip- tion of the site to be selected. The action taken by the meeting in selecting the site did not, because of the technical defect insisted upon by the appellants, preju- dice their rights. An administrative act by a public officer or meeting is not void because of a failure to strictly observe statutory directions, if the performance of such act accomplishes the substantial purposes of the statute, and does not adversely afTect the rights of interested parties (see Lewis-Sutherland Statutory Constniction, § 611). This principle is established by competent judicial author- ity and needs not be elaborated upon. The appellants are not injured by the fail- ure of the meeting to observe the technical requirements of a formal resolution ; since there is ample proof that the evident purpose of the statute as to the selection of a site has been substantially accomplished, it would not be equitable to nullify the selection of the site because of the technical defect under consideration. Some question is also raised as to the suitability of the site selected. There IS proof that a majority of the pupils are more conveniently served by the site selected than by the one formerly occupied. The appellants have furnished no map and have submitted nothing which indicates that a schoolhouse may not be properly built upon such site, except that it is near highways which, when com- pleted, will be much used by automobiles, and that the route of the Ulster & JUDICIAL DECISIONS : SITES 927 Delaware Railroad may be changed so as to come dangerously near such new site. These alleged conditions are not established by a preponderance of evidence. The presumption is that the site selected is a suitable one. The appellants have not overcome this presumption. The appeal is dismissed. 4547 In the matter of the appeal of Stanley E. Filkins and others v. board of education of union free school district no. 12, towns of Ridgeway and Shelby, Orleans county. The qualified voters of a school district at a school meeting at which it is voted to con- struct a new school building upon a site owned by the district, have authority to desig- nate the particular spot or place upon such site where such new building shall be erected. In the absence of any such special designation by the district meeting the trustees or boards of education have full power and authority to designate the place upon such site upon which such building shall be erected, and this Department will not interfere with such action or decision. Decided May 15, 1897 S. E. Filkins, attorney for appellants Edmund L. Pitts, attorney for respondents Skinner, Superintendent The appellants in the above-entitled matter appeal from the action of the board of education of union free school district no. 12, towns of Ridgeway and Shelby, Orleans county, taken on April 2, 1897, in locating the place for a new high school building ordered to be built, at a school meeting of said district, upon a schoolhouse site owned by such district, and upon which site there is now situate a schoolhouse, by the adoption of the following resolution, namely : " That the high school be placed facing South Academy street, and that the northeast comer of the new building be placed forty-five feet directly west of the southwest cor- ner of the present building." The appellants allege several grounds for such appeal. Seven of the nine members of the board of education have joined in the answer to the appeal. It appears from the papers filed herein that on March 12, 1897, such union free school district owned certain property situate in said district known as the cen- tral school grounds upon a portion of which was situated a school building; that on March 12, 1897, at a school meeting duly called and held in such district the construction of a new high school building on said central school grounds was duly voted, but such meeting did not designate the particular location or spot upon such central school groimds where such new school building should be con- structed ; that at such meeting a committee, consisting of five persons, was ^^pointed to advise with the board of education of the district with reference to- the erection of such new school building; that the members of the said board 928 THE UNIVERSITY OF THE STATE OF NEW YORK of education and of such advisory committee viewed the grounds and discussed the location of the new building and held several meetings, and gave full oppor- tunity to the inhabitants of the school district to express their views thereon, and at a meeting of such board of education held on April 2, 1897, adopted the reso- lution hereinbefore set forth and from which this appeal is taken, locating the new building. It further appears that at the time of the adoption of such resolution the members of such board were divided as follows : Five being for the resolution, and four against ; but at the time of the filing of the answer to the appeal herein, the members stand seven in favor and two against the location of the new build- ing as designated in such resolution. The qualified voters of the school district, present at the meeting at which it was voted to construct the new school building, had authority to designate the particular place or spot upon the central school grounds where such new building should be erected. In the absence of any such special designation by such district meeting, it was competent for the board of education of the district, and it had full power and authority, to designate the place or spot upon such grounds on which, in its judgment it would be for the best interests of the district that the new building should be erected. This Department will not interfere with such action and decision of the board of education of the district. The appeal herein is dismissed. 50735<^ In the matter of the appeal of James V. Rose from proceedings of special meeting held March 2, 1903, in school district no. 7, Corning, Steuben county. In notices of special meetings in common school districts to consider the proposition to designate a new schoolhoiise site, the Consolidated School Law does not require that such notice should contain a description of a new site by metes and bounds. A resolution presented at any duly called meeting, designating a new schoolhouse site, must contain a description by metes and bounds. In common school districts, at a meeting duly called, a vote may be adopted for the purchase of a site and the sum to be appro- priated is not limited but a tax for the purchase of such site can not be raised in in- stalments but must be levied in one sum. There is no provision of the Consolidated School Law forbidding the erection of a schoolhouse near a building used as a hotel. Under the provisions of the liquor tax law of the State the traffic in liquor can not be permitted in any building, etc., which shall be on the same street or avenue and within 200 feet of a building occupied exclusively as a church or schoolhouse. Decided April 30, 1903 Leslie \V. ^^'ellington, attorney for appellant Sebring, Cheney & Rogers, attorneys for respondent JUDICIAL decisions: sites 929 Skinner, Superintendent This is an appeal from the proceedings of a special meeting held March 2, 1903, in school district 7, Corning, Steuben county, relative to the designation of a new schoolhouse site, and the erection of a new schoolhouse thereon. The appeal herein was filed March 13, 1903. An answer to the appeal by Frank H. Rose, trustee, and Alfred G. Wilcox, district clerk, was filed March 23, 1903, and to such reply a rejoinder was filed April 6, 1903. The appellant alleges in substance the following grounds for bringing his appeal : The special meeting was not legally called; the notice of such meeting was not in compliance with the requirements of the school law ; the resolution adopted designating a new school site was not in accordance with the school law ; the vote upon the resolutions was not as required by the school law ; votes by persons not qualified were received; the site designated is not a suitable one. The pleading and proofs herein are voluminous and have been carefully read and considered. The first contention of the appellant that the special meeting held in said district March 2, 1903, was not legally called, nor was a proper legal notice thereof given, nor did the notice as given comply with the requirements of the Consolidated School Law, is not well taken. The proofs herein show that the notices were printed, except the signature of the trustee and district clerk, the date when so signed and the day in March when the meeting was to be held and each notice was signed by such district offi- cer. The district clerk served such notice upon all the qualified voters of the district at least six days before March 2, 1903, in the manner prescribed by sec- tions 2 and 6, article i, title 7 of the Consolidated School Law upon each of the qualified voters of the district, except Edwin F. Van Etten who was present at the meeting. The notice stated fully the purposes for which the special meeting was called, namely, whether the school site of the district should be changed and a new site acquired; if the meeting should vote to change the site, then for it to designate a new site and authorize its purchase; if a new site was designated to decide whether the district would authorize the erection of a new schoolhouse thereon and provide for its construction ; to authorize the raising of money sufli- cient to purchase the new site, if one should be designated, and to construct a new schoolhouse, if one should be voted. After the organization of said special meeting a resolution was oflfered that school district 7, Corning, Steuben county, change the site of the schoolhouse owned by it in the village of Gibson and purchase a new site for the schoolhouse. An objection to the voting upon such resolution was made on the ground that the notice of the meeting did not contain a description of the proposed new site by metes and bounds. This objection was not well taken. Section 19, article 2, title 7 of the Consolidated School Law provides that " so long as a district shall remain unaltered, the site of a schoolhouse owned by it, upon which there is a schoolhouse erected or in process of erection, shall not be changed, nor such 30 y30 THE fMVEKSnv ol- TllK STATE OF NEW YORK schoolhouse be removed, unless by the consent in writing of the school commis- sioner having jurisdiction; nor with such consent, unless a majority of all the legal voters of said district present and voting, to be ascertained by taking and recording the ayes and noes at a special meeting called for that purpose, shall adopt a written resolution designating such new site and describing such new site by nietcs and bounds." This provision does not require that the notice of the special meeting to be held in district 7 to consider the change of the school site therein should contain therein a description of a new site by metes and bounds 'but that any resolution presented for the action of the meeting designating a new site must contain such description. The resolution offered, to which objection was made, was not one designating a new site but to ascertain the views of the voters present as to whether a change of site was desired. It appears that 99 persons voted upon such resolution, namely : 55 aye and 44 no, showing a majority of 11 for the resolution. The appellant claims that 10 of the persons who voted aye were not qualified voters. Admitting, for the pur- ]'o^e of argument only, that such claim is valid, the resolution was adopted by a majority of one. The respondents have established that all of said 10 persons were qualified voters. The rule is well settled that proceedings will not be vitiated by illegal votes unless a different result would have been produced by excluding such votes. It is also well settled that a party knowing a person to be unqualified and permitting him or her to vote without challenge will not be allowed to object to the proceedings of the meeting because such unqualified person par- ticipated in them. A resolution in writing was then offered that said district designate as a new site a certain parcel of land described therein by metes and bounds and the trustee be authorized to purchase such land for said district for the sum of $700. The vote thereon was ascertained by taking and recording the ayes and noes, 69 persons voting, and the resolution was adopted by a majority of 43, 56 voting aye and 13 no. March 14, 1903, Fred J. Smith, school commissioner of the second commissioner district of Steuben county, approved in writing such new site so designated at such district meeting. A resolution was adopted that said district erect a new schoolhouse upon the lot selected as a new site at an expense of not to exceed $3000, the plans of such building to be approved by the school commissioner, the vote thereon being 48 ayes and 2 noes. The following resolution was adopted : Resolved, That a tax of $500 be levied forthwith upon the taxable property of school district 7, Corning, Steuben county, to be used towards the purchase price of the new school site selected and designated by said district and the con- struction of a new school house thereon; and that the trustee raise the balance of the sum needed to purchase said new site and construct said new school- house, not exceeding the sum of $3200, by issuing ihe bonds or other obligations JUDICIAL decisions: sites 931 of said district payable in instalments of $400 and interest each year hereafter, until fully paid, beginning with 1904. Such resolution was adopted by an aye and no vote of 48 ayes and 2 noes. Section 17, article 2, title 7 of the Consolidated School Law enacts that " no tax voted at a district meeting for building, hiring or purchasing a school- house or an addition to a schoolhouse, exceeding the sum of $500 shall be levied by the trustees, unless the commissioner in whose district the schoolhouse of the district, so to be built, hired or purchased, or added to is situated, shall certify, in writing, his approval of such larger sum." Before any action is taken by Trustee Rose relative to the erection of the new schoolhouse in his district, he should obtain from School Commisioner Fred J. Smith his certificate in writing approving the expenditure of the sum of $3000 for such new schoolhouse. Under the school law, the amount a school district can vote for a site is unlimited, but the tax for the purchase of a site can not be raised in instalments, but must be levied in one sum. Trustee Rose must levy a tax of $700 for the purchase of the site, instead of $500 voted at the meeting. The sum of $3000 voted for the building of the new schoolhouse may be levied in equal annual instalments under the provisions of section 18, article 2, title 7 of the Consoli- dated School Law of 1894, as section 18 was amended by section i, chapter 274, Laws of 1895. The contention of the appellant herein that the new school site designated by the meeting is within less than 100 feet of a hotel in which the traffic in liquor is carried on and therefore would be detrimental to the good morals of the pupils attending a school in a house thereon is not well taken. It appears that Benjamin F. Edger is the owner of a building situated in such school district, in which he resides with his family and conducts a hotel. Said hotel entrance is 146 feet from the nearest point of the new school site; the corner of the hotel nearest to the new site is 114 feet from the nearest point of such site. It is proposed to place the new schoolhouse near the center of the new site and well back from the street, at a distance of 246 feet from the en- trance to said hotel and the nearest point of the new school building from the nearest point of the hotel will be about 200 feet. There is no provision of the school law forbidding the erection of a school- house near a building used as a hotel. Subdivision 2 of section 24 of the liquor tax law provides that the traffic in liquor shall not be permitted in any building, yard, booth or other place which shall be on llie same street or avenue and within 200 feet of a building occupied exclusively as a church or schoolhouse ; the meas- urements to be taken in a straight line from the center of the nearest entrance of the building used for such church or school to the center of the nearest en- trance of the place in which such liquor traffic is desired to be carried on. The appellant herein has failed to sustain his appeal by a preponderance ol proof and his appeal should be dismissed. Appeal dismissed. 932 THE UNIVERSITY OF THE STATE OF NEW YORK 3525 J. C Fargo and others from the action of the district meeting held in joint school district no. 11 of the towns of New Hudson, in Allegany county, and Lyndon, in Cattaraugus county, on May 29, 1886. Two months and a half delay in bringing an appeal sufficient to bar it unless satisfactorily explained. The Department will not enjoin trustees from proceeding to erect a new building upon an old site as directed by a school meeting, in order to afford time to work up sentiment for a change of site. Decided August 26, 1886 Draper, Superintendent This is an appeal by J. C. Fargo, a resident voter and taxpayer of the district, and others, from the action of the district meeting in joint district no. II, towns of New Hudson, in Allegany county, and Lyndon, in Cattaraugus county, alleged by the appellants to have been held on May 29, 1886, at which a resolution was adopted to build a schoolhouse for said district, and appointing Arden M. Franey and Addison S. Thompson as a committee to act with the trustee in carrying out such resolution. The appellants ask that the building of such schoolhouse be stayed pending a decision upon this appeal. The appellants allege the following grounds of appeal : 1 That the present schoolhouse site is in the northern part of the district; that the district was formed more than thirty years ago by adding or annexing the southern portion to the northern, and at that time the present site was adopted. That the present site is not in the center of the district, and that more tax- payers reside south of than north of said site. That appellants propose at once to take such proceedings as will cause the present site to be abandoned, and one selected further south, and in the geo- graphical center of the district. 2 That the special meetings, at which the present acting trustee was elected and the resolutions adopted, were not regularly called, and the proceedings thereof iriiegular. 3 That contracts have been entered into for an amount in excess of the amount authorized by the district. The appeal in this proceeding was taken on the nth day of August 1886, nearly two months and a half after the date of the meeting as alleged by appel- lants from the proceedings of which this appeal is taken. But the respondents aver, and have filed affidavits of at least three persons to prove it, that the said meeting alleged to have been held on May 29th was, m fact, held on the ist day of May, which was a regularly adjourned meeting day. Appellants have in no manner excused their delay in taking this appeal: they are clearly barred by their laches, but I have not been content to dismiss JUDICIAL decisions: sites 933 the appeal upon a technicality, and I have carefully considered all the papers submitted by the appellants and the respondents on this appeal, and I am forced to the conclusion that the best interests of the district would be subserved by carrying out the direction of the district meeting and completing the schoolhouse on the present site, so as to resume sessions of the school as soon as possible. For thirty years this has been the site of the schoolhouse, and as there is no evidence of opposition to such site until very recently, I must assume that it has been a very satisfactory location for the school. Besides, the purchase of a new site involves the loss of the old with but little compensation therefor, owing to the fact that the grant thereof to the district was conditional, the expenses attending purchase of new site, expense of moving buildings, etc., all lead me to the conclusion that the voters at the district meetings and the officers who are carrying out the directions of such meetings, acted, and are acting in good faith, and' for the best interests of the district and the school therein. Reasoning as I have done, I am compelled to deny this application for a stay of proceedings and dismiss the appeal. Where trustees purchase a site designated by the district, an appeal from their action will not lie ; it should be brought from the proceedings of the meeting in designating that site. Decided July 9, i860 Van Dyck, Superintendent This is an appeal from the action of the trustees in purchasing a school- house site, and contracting for the building of a schoolhouse thereon. The acts complained of were under the authority and direction of votes of the inhabitants, duly convened in district meeting. The appeal should have been brought from these proceedings before thirty days had expired, and before the trustees, in obedience to the votes of these meetings, had contracted for the site and for the building of the house. The district is bound by these contracts, and the matter has now passed beyond the reach of equitable interposition by this Department, and must, therefore, be permitted to take its natural course. 3675 In the matter of the appeal of Walter Tait and others, from the action of John H. Berry, supervisor of the town of Rossie, county of St Lawrence. The action of a supervisor, now school commissioner, in refusing to consent to a change of the schoolhouse site, will be sustained when it is made to appear that the district meeting has neglected definitely to designate the site. A district meetincr can not delegate authority to a committee to purchase a site and to • take as much land as may be deemed necessary. Decided March 28, 1888 934 THE UNlVilKSITV Ol" TllK STATE OF NEW YORK Draper, Superintendent At a special meeting: held in district no. 3 of the town of Rossie, St Lawrence county, on the 22d day of October 1887. a motion was adopted, by a vote of 35 to 2t„ that the site of the schoolliouse be changed to a proposed site on a lot belonging to D. \V. Church. After this action, it was resolved that a committee, consisting of Walter Tait and others, be appointed to confer with the supervisor of the town and procure his consent to the proposed change. Subsequent to this, the committee acted pursuant to its directions, and, after some delay, the supervisor notified the committee that he would withhold his consent. From the refusal of the supervisor, this appeal is taken. Able counsel on each side have been at great pains to prove that the old site or the proposed one was best suited to the educational interests of the district, and innumerable reasons have been urged to show that each location was the best and that the other was altogether undesirable. So elaborate and painstaking has been this work on each side, that I find myself, after listening to a most elaborate argument and after reading the unduly voluminous papers in the case, in difficulty about reaching a conclusion in the premises. It is customary to sustain the action of a majority of voters as expressed in a district meeting in a matter of this kind, unless it shall be made clearly to appear that such majority is not acting wisely. Before it should be held that the majority is not acting wisely, that fact should be made clearly to appear, and it devolves upon the minority to show it. This fact is not shown with any such clearness as to satisfy me of the unwisdom of the act of the majority in desiring to change. But the looseness with which the district meeting transacted its business is such as to prevent me from overruling the supervisor, if I should otherwise feel it my duty to do so. The district meeting did not designate any specific site with definiteness and certainty. It did nothing more than to resolve that the schoolhouse site be changed to the lot of D. \\\ Church. The proposed site was not to occupy the whole of Church's lot. The site which it is proposed to take, is not only not described by metes and bounds, but it is not even stated how much land it was proposed to take. The size of the lot does not appear to have been determined upon in the district meeting. A district can not delegate authority to purchase a site to a committee. It is alleged that the committee which was appointed was to take so much of Church's land as it thought to be necessary, and to locate a site upon one side or the other of his lot, as it thought best. The committee does not seem to have reported to the meeting, and has never, so far as the papers show, determined just where the new site shall be located or just how large it shall be. This indcfiniteness of action is sufficient alone to render it impossible for me to overrule the refusal of the supervisor, and the appeal is dismissed. JUDICIAL decisions: sites 9S5 3681 In the matter of the appeal of E. P. Abbott, T. N. Carr and others, members of the board of education of union free school district no. i, town of Whites- town, county of Oneida v. Robert A. Jones, as supervisor of the town of Whitestown. Until a new site has been designated, a supervisor (now school commissioner) is not bound to consent to a change of site. A niere resolution in favor of the purchase of a new site is insufficient. The supervisor is entitled to know what site is to be selected before he is called upon to pass judgment upon the proposed change of site. Decided April 2^, Harry S. Patten, attorney for respondent Draper, Superi>iteiident In the above district a special school meeting was held November 22, 1887, for the purpose of considering the advisability of purchasing a new site and erect- ing a new schoolhouse. The statement of the appellant shows that at such meeting the following resolution was proposed : Resolved, That union district no. i, in the town of Whitestown, appropriate $16,000 with which to purchase and improve a new site, to erect thereon a new brick schoolhouse, and to equip the same with proper furniture and apparatus. The resolution was amended so as to make the amount appropriated $10,000 instead of $16,000, and was then adopted. Subsequently to this, application was made to the supervisor of the town of Whitestown for his consent to the change of site. Consent was refused, and from such refusal this appeal is taken. The papers in the case are very voluminous, containing much irrelevant matter and indicating a marked division of sentiment and much feeling among the inhabitants of the district. It seems to be practically conceded on both sides that the district ought to have increased and improved school accommodations. The principal disagreement seems to be over the question whether a new build- ing shall be erected upon tlie present site or upon a different one. On the one side it is attempted to be proved that the present site is too small, lies below the level of the highway and is wet and unhealthy. On the other side it is denied that the present site is unhealthy and is asserted that if it is too small it can be enlarged by the acquisition of adjacent land. The assertions of the parties are so antagonistic that, from them, I have not been able to arrive at any confident conclusion as to the truth of the matter and have, consequently, been put to the trouble of a personal inspection of the premises. From such an inspection I am of the opinion that the district ought to have a new school building and that the present site is, in its present extent and condition, not suitable for the erection of a new and proper building and for the needs of the district. It is not large enough and it needs raising up several feet. It seems ^f, THE UNIVERSITY OF THE STATE OF NEW YORK to be conceded that it is wet. It is in close proximity to steep declivities and running water. Whether or not sufficient adjacent land can be acquired to permit the placing of the new building back a proper distance from the highway or to permit the arrangement of suitable school grounds in the rear of the build- ing is doubtful. If that could be done it would seem that the other difficulties could be overcome. In any event it seems to me that the expense of enlarging and suitably improving the present site would not be far short of the cost of a new site and perhaps would exceed it. That, however, is a matter for the district to determine. It is only for the Department to see to it that proper and suitable school facilities are provided. The district must say in what manner it will provide them. The majority of the electors represented in a district meeting have decided that a change of site shall be made. Upon the facts of the case I should uphold that decision if the meeting had gone on and designated another site which promised to be an improvement upon the present one. But this is an appeal from the refusal of the supervisor to consent to a change. In my opinion the action of the district meeting was incomplete and the application to the supervisor premature. He could not properly be asked to consent to a change imtil he was shown what it was proposed to change to. If we are to assume that the present site is unsuitable, cither because of its extent, its con- dition, its proximity to adjacent banks and streams, or its location in the district, matters will not be mended until not only a different one but a better one shall be chosen. Upon this point the appellants cite a decision of Superintendent Rice, in 1856, as sustaining the right of the district to exact the consent of the supervisor before designating the new site and solely with reference to the circumstances of the old one. But that case does not sustain the proposition, for it was an instance where the district had been altered and it was held that no consent whatever was necessary. If the district in the present case had been changed no consent would be necessary. I am clearly of the opinion that in cases where the consent of a supervisor is necessary, the location and circum- stances of the new site are elements which must properly be taken into con- sideration by him in determining his action in the premises. The supervisor in the present case might, therefore, very properly have refused to consider the matter at all until the district had decided upon the site to which it proposed to change and it would have been better if he had done so. The appeal can not be sustained. The district can hold another meeting and take action looking to the designation of a new site. Having done so, it can renew its application to the supervisor, who would probably be guided in his determination by the views hereinbefore expressed. The resolution of the dis- trict meeting is ineflfectual for the erection of a building upon the present site, for it contains no reference to such action. Such a course would involve the necessity of further action. The appeal is dismissed- JUDICIAL decisions: sites 937 3644 In the matter of the appeal of Silas F. Overton and Jesse G. Case, trustees of school district no. 7, in the town of Southold, county of Sufifolk, v. Henrv A. Reeves, supervisor of said town. When a district meeting determines, by an undisputed vote, that a change of site for a new school building is desirable, it is the duty of the supervisor of the town to consent, unless there are most substantial reasons why the site should not be changed, or the one proposed purchased. The people of the district, who are to be taxed for the expense, are best able to determine what they can afford to do, and where they desire to locate the schoolhouse, and their determination will be upheld, unless manifestly against the educational interests of the district. Decided November 23, 1887 Jesse L. Case, Esq., attorney for appellant Timothy M. Griffing, Esq., attorney for respondent Draper, Superintendent At a special school meeting held in district no. 7, in the town of Southold, Suffolk county, on the 25th day of June 1887, it was duly voted by a majority of the legal voters of said district present, and voting at said meeting, ascertained by taking and recording the ayes and noes, that the trustees of the district should be authorized to take necessary measures to procure, by the right of eminent domain, an acre of land for a new schoolhouse site, which was specifically men- tioned and described in the resolution adopted by the meeting. Subsequently to this action of the district meeting, the trustees of the district made application to the respondent, as supervisor of the town of Southold, for his consent to the proposed change of site. The supervisor declined to give such assent, and from his refusal so to do this appeal is brought. It is the policy of this Department tt) sustain the right of the majority of voters in district meetings to do whatsoever they may determine to be best, unless their determination shall appear to be clearly without authority of law, and against the manifest educational interests of the district. It must be assumed that the vote of the majority assembled in the district meeting in determining the question as to whether a new school building should be erected upon the present site, or upon a new site, will, ordinarily, best indicate the wisest thing to do. In any event, the majority of a district ought to have an opportunity to locate a new schoolhouse which they have determined to build at such place as they think best. The provision of law which requires that a change of site should have the approval of the supervisor was intended as a check upon unwise or inconsiderate action, and, as such, is undoubtedly a proper and whole- some provision. But the reasons assigned by the supervisor for withholding his consent to a change which is desired by a majority of the electors in the district must be strong, if not overwhelming reasons, why it is not to the educa- ti(5nal advantage of the district that the change should be made. The supervisor, in the present case, assigns as his reasons for withholding his consent that the 938 THE UNIVERSITY OF THE STATE OF NEW YORK present school site has been in nse a great many years ; that the elevation is higher, the soil more gravelly and, while he practically concedes that it is not suhiciently large for the purposes of the new building, he says that it may readily be enlarged by adding to it adjacent territory. The trustees of the district, and numerous other residents of unquestioned standing, insist that the proposed site is much preferable to the old one : that it is not practicable to add to the old site by acquiring adjacent land, for the reason that there are valleys or gullies near the same which, during a part of the year, are filled with water to so great an extent as to make that land entirely unsuitable for a school site. The supervisor states that this land can be drained by culverts, and also that the proposed site will cost the district more than it would cost to acquire additional land adjoining the old site. It seems to me that these are questions which must properly address themselves to the people of the district, and that their determination of them ought to be sustained. If they prefer to pay a larger sum for the new site than for acquiring additional territory adjacent to the old one, they ought to have the privilege of doing so. Taking all the circumstances into consideration, I have arrived at the con- clusion that no sufficient reason is assigned for overruling the majority of the district meeting touching the location of their new schoolhouse, and that I ought to sustain the appeal, and it is so ordered. 3555 In the matter of the appeal of Coleman Townsend from the proceedings of district meeting, held in district no. 3, town of Carmel, Putnam county. The proceedings of a district meeting, at which the site of a schoolhouse was changed, will not be set aside when it appears that ev^ry possible eflfort was made to give notice of the meeting to every voter, and all the voters attended the meeting but three, and they had been duly notified. Unless it is made to appear that a sufficient number were ignorant of the meeting, and were opposed to the action taken, to have changed the result, the proceedings of the meeting will be sustained. When it is claimed that illegal votes were cast at a district meeting it must clearly appear that there were a sufficient number of such to have changed the result before the State Superintendent will set aside regular action taken at such meeting. Decided January 5, 1887 F. S. Barnum. Esq., attorney for appellant Draper, Superintendent This is an appeal from the action of an adjourned meeting in district no. 3, town of Carmel, Putnam county, held at the schoolhouse in said district upon the sixth day of October 1886, in voting to change the site and erect a new schoolhouse. It appears that the legal voters in this district are very nearly evenly divided upon the expediency of changing the site and erecting a new school building. JUDICIAL DECISIONS I SITES 939 At the meeting called for the purpose of determining the matter, 43 persons voted for the change of site and 37 against, and upon a motion to raise $1000 for the purpose of building a new schoolhouse 38 votes were cast in the affirmative and 17 in the negative. It is now alleged by the appellant (o) that notice of this meeting was not served upon all the legal voters of the district; (&) that several persons voted in the affirmative, and were counted, who were not entitled to vote ; (c) that the new site is not convenient to the greater number of patrons of the school, and is not as suitable for school purposes as the old one, because of its proximity to an ore mine and a stream of water. The respondent, in his answer, swear.s that he is 54 years old and is well acquainted with the voters of the district, and that every possible efifort was made to serve each one, and that every voter of the district was present at the meeting, except three, all of whom had been notified. I am satisfied of the good faith and the active efforts of the trustee in giving general notice of the meeting, and this Department has never required more, unless it is made to appear that a sufficient number were ignorant of the meeting and all opposed to the action taken to have changed the result. The evidence is conflicting as to the qualification of certain voters who were counted upon the determination of the question. I am unable to pass upon this branch of the case with any degree of confidence, but the appellant has failed to show to my satisfaction that a sufficient number of illegal voters voted in the affirmative upon the motion to adopt a new site, to have changed the result. I am led to give considerable weight to an affidavit of the school commissioner of Putnam county, who swears that he attended the meeting in question and witnessed the deliberations and proceedings taken thereat, and that he saw no irregularities in the conduct of the meeting, and furthermore, that he is familiar with the old site a:.d the proposed site, and that while " both locations are suffi- ciently central, yet the new site is quite as convenient as the old, and is much preferable by reason of the grounds being more spacious, dry and healthy, and much better adapted in every respect to the requirements of a proper site for a schoolhouse." In view of the foregoing considerations, the appeal is dismissed. 3629 In the matter of the appeal of Theron \^an Auken and others v. Edwin J. Cook, sole trustee of school district no. 20, town of Phelps, Ontario county Trustee refused to call a special meeting to locate a site for a new schoolhouse. Ordered that a meeting be called. Decided July 21, 1887 Draper, Supcrititendent This is an appeal by several residents and taxpayers, appearing to represent a clear majority of the electors as well as the own'^r of the hr^,^ part of the tJTxable property of the district, from the refusal of the trustee to call a special meeting to consider the location of a new school building which it is proposed ic erect. 940 THE UNIVERSITY OF THE STATE OF NEW YORK The trustee answers that several special meetings have already been held, at which different deterniinalions, touching the subject, have been arrived at, and that much bitterness exists in the district over the matter, and that another meeting will make matters worse and more complicated, rather than better. It seems that at one meeting it was agreed to accept an ofifer of William P. Dimock to exchange the present site for an acre of land which he would give. Subsequently Mr Dimock's ofTer was reduced to one-half an acre. Then a special meeting voted to reconsider the former action and refused to accept the half acre and change the site. Following this, it appears that Mr Dimock renewed his offer, or made another, which a majority of the patrons of the school seemed desirous of accepting. The majority of the electors of this district ought to have the right to set the new schoolhouse where they want it. I am unwilling to believe that the people in a school district in Ontario county can not assemble in a special meeting, treat each other as well as people in civilized society are accustomed to, and intelli- gently decide by the vote of the majority where it is best to put the new building. 1 am in favor of giving them the opportunity. I can not think the refusal of the trustee is based upon sufficient reasons. The appeal is sustained and the trustee is directed to call a special meeting of the district to consider the location of a new school building within fifteen days from the time this decision shall be filed in the district clerk's office. 3542 Leander Cole v. the trustees, etc., of school district no. i of the towns of Rox- bury, Prattsville, Conesville and Gilboa, in the counties of Delaware, Greene and Schoharie. The proceedings of a district meeting, properly called and conducted in an orderly manner, changmg a schoolhouse site, will not be disturbed, unless it is made to appear clearly that the site selected is unsuitable or would not be convenient to the greater number of patrons. But little weight can be given to the statement of a public officer made for the purpose of impeaching his own official act. Decided November 24, 1886 Draper, Superintendent This is an appeal by Leander Cole, a resident and taxpaver. against the action of the district meeting held September 9, 1886, in joint school district no. i of the towns of Roxbury in Delaware county, Prattsville in Greene county, and Lonesville and Gilboa in Schoharie county, in voting to change the site of the district schoolhouse. There is no allegation against the regularity of the proceedings. The school meeting was regularly convened. Due notice was given to aU, and it seems that all of the duly qualified voters of the district were present at the meeting It JUDICIAL decisions: sites 941 is said that the resolution changing the schoolhouse site was taken inconsider- ately, but it is shown to have been under discussion some three-quarters of an hour. The proposition to change the site has since received the approval of the supervisors of the four towns in which the district is located. One of these supervisors makes affidavit, in which he swears that he gave his assent under a misunderstanding of the circumstances, and regrets that he did it; and one or two of the others are alleged to have made statements somewhat in the same direction. It is impossible to give much weight to such statements on the part of a public officer, made for the purpose of impeaching his own official act, and there seems to be no reason why the action of the meeting should be set aside on this account. The main question for me to determine is, whether the change in the site will be to the convenience of the greater number of patrons of the school or not. The statements of the respective parties upon this subject are exceedingly contradictory. It must be assumed that the majority of legal voters assembled in a school meeting will locate the school site at the point which is best calculated to promote the convenience of the greater number in the dis- trict. Before the Department will be justified in overturning the action of the majority, it must have clear proof to the contrary. There is no such clearness of proof in this case. The new site has been conveyed to the district free of cost. It is said to be not more than fifty-six rods from the old site. There is considerable proof that the old site is not a suitable one for a schoolhouse, being surrounded by the forest and not in sight of any house, and dangerously near a high precipice overhanging the Schoharie creek, while the new site is said to be removed from the precipice and in sight of three residences. In all sparsely settled school districts some people must be farther from the school than others, and be inconvenienced by the long distance which their children are obliged to traverse. That is undoubtedly true in this case; but the proofs do not show that the greater number are put to increased inconvenience by this change, while I think that it is proved that the proposed site is more suitable for school pur- poses than the old. I am unable to sustain the appeal, and it will be dismissed. 3509 In the matter of the appeal of William McCune from the proceedings of a special school meeting in school district no. 14, Bovina, Delaware county. Notice of a special school meeting sustained when objection raised is frivolous. Unintentional omission to serve notice upon each school elector will not render void the proceedings of a meeting when it does not appear that any one has been injured by such omission. The designation of a schoolhouse site controlled by school district. The State Superintendent of Public Instruction will not dictate in such a matter and will • not interfere or set aside a designation unless proceedings therefor were clearly illegal or against the educational interests of the district. Decided June ?, 1886 ()42 THE rNlVKKSITV OF Till-: STATE OF NEW VUKK 1 draper, Snf'crintciuioit This is a procealiiig by William McCune, a taxable inhabitant and legal voter in school district no. 14. Bovina. Delaware county, N. Y., appealing from the proceedings of a special meeting in said district held March 10, 1886. The appellant alleges substantially as the grounds of this appeal: 1 The notice for the meeting was defective for the reason that it did not state that a tax was to be voted at the meeting for any purpose whatever. 2 The notice was not served upon all the voters of the district, and that the omission to serve was wilful and fraudulent; also that the notice as served upon several of the voters did not state that the meeting was called for the purpose of changing the schoolhouse site. 3 There is no necessity for a change of site. The site designated is not a j)roper one for school purposes and the owner of the land is unwilling to sell the same to the district. I'Vom an examination of the testimony in the case, it appears that a special meeting was called in said district by the service of the following notice: To the Inliabitauts of School District No. 14 of the Tozvn of Bovina: Take notice that a special school meeting of district no. 14 will be held at 7 I), m. on the loth day of March 1886, at schoolhouse in Rushland, for the pur- pose of taking into consideration the propriety of enlarging the schoolhouse :missed. JUDICIAL decisions: sites 95: 3906 In the matter of the appeal of George E. Soper v. school district no. 5, of the town of Smithtown, in the county of Suffolk. Land to be leased for school district purposes must be clearly described so as to guide the trustee in carrying out the intent of the district meeting. Failure to so describe held sufficient ground for setting aside the action of the meeting. Decided September 8, 1890 Draper, Superintendent At a special meeting held in the above-named district on the 20th day of May 1890, it was assumed by the meeting to lease one-half acre of land adjoin- ing the present schoolhouse site for an indefinite term, at a nominal rent of one dollar per year. The half acre referred to was not described by metes and bounds, and the vote upon the proposition was not taken by calling and record- ing the ayes and noes. The appellant objects to this proceeding and brings his appeal for the purpose of determining its legality. Numerous residents of the district answer the appeal and strenuously uphold the proceeding. The law does not favor the leasing of lands for schoolhouse purposes hy common school districts. Without holding that the action of this meeting amounted to a change in their schoolhouse site, and that it could only be effected by the taking and recording of the ayes and noes upon a resolution specifically describing the land by metes and bounds, I still have no hesitation in arriving at the conclusion that the action of the meeting in this case ought not to be upheld. The action of the meeting does not even locate the land which it has proposed to lease upon one side or the other of the school building. The trustee is to be guided by the action of the district meeting, and from such action it is impossible for him to determine the land of which he has official care and control. I think this is a fatal defect. If the district proposes to lease land in this manner it must clearly indicate in its action the location and boundaries of the parce' leased, and the length of time for which the lease is to run. From these considerations it follows that the appeal must be sustained and the action appealed from set aside. 3612 In the matter of the appeal of Ebenezer W. Taylor and others from the action of a special school meeting held in school district no. 2, town of Red House, county of Cattaraugus, November 13, 1886. The vote of a district meeting changing a site set aside and a special meeting ordered to determine the question, where it appeared the vote was nearly even for and against, and that the failure to give due notice of the meeting had prevented the attendance of certain voters, who, by their votes, would have changed the result, if present. Decided June 23, 1887 ■ Coke & Whipple, attorneys for appellants James G. Johnson, Esq., attorney for respondents 952 THE UNIVI.IMIV OF THE STATF. OF NEW YORK Draper, Superintendent This is an appeal by Ebcnczer W. Taylor, district clerk of school district no. 2, town of Red House, county of Cattaraugus, and other residents thereof, alleged by appellants to be a majority of the legal voters of said district, from the action of the school meeting held in said district, November 13, 1886, at which meeting it was decided to build a new schoolhouse upon the old site. It appears from the pleadings of the respective parties that the vote for the new building stood 15 for and 14 against. The district clerk unintentionally omitted to give notice of the meeting to several alleged legal voters who state under oath' that if they had been notified and in attendance at the meeting, they would have voted in the negative. The real difficulty in this district appears to be that the district is nearly six miles in length. The present site is situated about two and one-half miles from one extreme end and three and one-half miles from the other. The opponents of the new building are desirous of having two schoolhouses erected, which will give better accommodation to the children of the district. The evidence shows that there are about one hundred children of school age in the district and that about fifty attend school. The papers do not disclose where the children reside with respect to the present site, or the assessed value of the property of the district liable to taxation for the support of the school. I have hesitated about disturbing the action of the meeting appealed from, and would not if the vote had not been so nearly even. I prefer to hold that the legal voters of a district know their wants in rela- tion to school matters, and to leave them to determine such matters except when a clear abuse of power appears. In view of the want of notice to some of the electors of the district, I have concluded to sustain this appeal and set aside the action of the school district meeting appealed from, in order that an unques- tionable decision as to the building of a schoolhouse may be made by all the legal voters of the district, or at least by such as take sufficient interest to attend the meeting. The district clerk is hereby directed within twenty days from the date of this decision to give notice of a special meeting, to be held at least fifteen days subsequent to the first posting of the notices thereof, for the purpose of deter- mining the wishes of the legal voters in regard to building a schoolhouse or houses or any change of site or the advisability of requesting the school commis- sioner to divide the district or the estabhshment of more than one school in said district. The clerk will not only give personal notice, but in view of the impor- tance of this proposed meeting, post at least three written or printed notices in conspicuous public places in the district. JUDICIAL decisions: sites 953 3809 In the matter of the appeal of Joseph H. Ramsey v. school district no. 5, of the towns of Cobleskill and Schoharie, county of Schoharie. The action of a district meeting in designating a site for a school building set aside, when it was shown that a series of meetings had been held and a different site named at each, and at the last meeting but few voters were present, not supposing an attempt would be made to change the site previously selected. Special meeting ordered to select a site. Decided September 18, 1889 J. G. Runkle, attorney for appellant 1 Draper, Superintendent It seems that between the ist day of February 1889, and August 6, 1889, no less than eight special school meetings were held in the above district to consider the matter of changing site and erecting a new schoolhouse. Action was taken from time to time, only to be overthrown and made away for something else at a subsequent meeting. Frequently the action of the several meetings was impulsive and inconsiderate. Much of the time it was irregular and ineffective, because not taken in compliance with the provisions of the statute. It appears that at a meeting held on the 22d day of March one site was designated, but the vote was not taken by ayes and noes and recorded. At a meeting held on the 19th of April another site was named. The clerk's minutes do not show that the ayes and noes were taken and recorded, but the appellant undertakes to supply the. deficiency by showing that it was done in fact, although not appear- ing in the record. Still another site was named at a meeting held on the 22d day of June. The clerk's record shows that upon this last occasion the detail vote was fully recorded. The appellant, however, attacks the action of June 22d on the ground that the meeting was attended by but few, and does not represent the desires of the majority of the people of the district. He says the people had become tired of attending meetings, and did not suppose any attempt would be made to overthrow the action of April 19th. After careful consideration, I have concluded to direct that another meeting he held to select a site. There is good reason to believe that the last site chosen does not have the approval of the greater number of residents of the district. I do not feel justified in upholding the action of April 19th, for, technically at least, it was set aside by a subsequent district meeting. The district has appro- priated $2000 for a new site and building. This ought to secure a very creditable building for the district, and it should be located where the majority of voters deliberately determine to have it. After the large experience which the district has had in the way of special school meetings, it ought to be able to decide by a majority vote, where the new building had better be located, and the minority ought to be willing to accept the determination cheerfully. ■ The appeal is sustained, so far as it concerns the action of June 22d and the subsequent action of the trustee predicated thereupon. The temporary (,54 IlIE UNIVERSITY OK TIIK STATE OF NEW YORK injunction heretofore granted herein, is made permanent. The trustee is directed to call a special meeting for the purpose of selecting a site, at which care shall be taken to describe the new site with particularity, and the vote in determining the same shall be taken by ayes and noes, and recorded. 3587 In the matter of the appeal of E. D. Girvan and others, from the proceedings of a district meeting held I'^ebruary 28, 1887, in school district no. 3, town of Harrisburgh, county of Lewis. When a district meeting is held on a very stormy night, and at a time when roads in the district were almost impassable — in consequence of which voters were unal)le to attend — and by a very close vote of those present a change of site is decided upun, and such vote results in much apparent dissatisfaction in the district, the action of the meeting will be set aside, and a special meeting ordered to obtain a clear expression of the voters of the district upon the proposed change of site. .v.cidcd April 15, 1887 Draper. Suf'criiitciulciit 1 his appeal is taken by legal voters in school district no. 3, town of Harris- burgh. county of Lewis, from the action of a district meeting at which it was agreed to change the site by a vote of 11 to 9. The grounds alleged by the appel- lants are: 1 That a majority of the district are opposed to the contemplated change. 2 Ihat at the time of the meeting at which the change was voted the weather was so severe and the roads in such condition that legal voters opposed to the change could not get to the meeting. 3 'I'liat the contemplated site is not centrally located, is low and at times mundated, has no wholesome drinking water near it, and in winter could not be reached by many children after heavy snowstorms. 4 That the present site is suflicient for the wants of the district. I he trustee and his associate respondents deny that the present site is suitable, that the contemplated site is not centrally located, or that it is low ground and inundated, as alleged by the appellants ;' they allege that the present site is simply held by the district conditionally, the district not being the owner of the fee; that it is insufficient in size, and that adjoining land can not be secured for its enlargement. In deciding this appeal it is proper that I should advise against the practice of erectmg school buildings upon sites of which the district is not the absolute owner. I wish to encourage, as far as possible, the purchase of sites by dis- tricts when a new schoolhouse is to be constructed. The site to be selected should be as nearly centrally located for the convenience of patrons of the school as possible. It should be a healthful spot, and one easy of access at all times JUDICIAL decisions: sites 955 of the 3ear. I find the evidence presented upon this appeal very conflicting upon this point. It appears that the selection of the contemplated site was secured by a very close vote, and that enough legal voters were prevented by stormy weather from attending the district meeting to have changed the result. A site chosen should be the choice of a majority of the legal voters of a district after deliberate consideration, and one which the supervisor of the town will approve of, as required by the statute. I have concluded therefore to sustain the appeal, in order to give the legal voters of the district an opportunity to give full and fair expression of their opinion upon the selection of a site, but not intending to declare any opinion as to the desirability of the contemplated site. The pro- ceedings of the meeting held on the 28th day of February last are set aside, and I hereby order a special meeting of the legal voters to obtain such an expression, and the trustee is hereby directed to cause such a meeting to be called within ten days after receiving a copy of this decision. - The appeal is sustained. 3549 In the matter of the appeal of Joseph W. Rood, from the proceedings of district meeting held in district no. 16, town of Pomfret, Chautauqua county, Octo- ber 5, 1886. PENDENCY OF APPEAL DOES NOT STAY PKOCEEDINGS Committee to purchase site. District meeting can not delegate the authority to determine a site. Proceedings of a district meeting will not be set aside for the reason that the records of the meetings were not properly kept. There must be specific acts complained of, and it must appear that there has not been opportunity for an expression of the will of the district, or that it has been thwarted. Decided December 15, 1886 Draper, Supcrintctidcnt Two appeals are here presented, the llrst being an appeal by Joseph \\ . Rood, a resident and taxable inhabitant of school district no. lO, in the town of Pcfmfret, Chautauqua county, whereby the appellant seeks to have the proceed- ings of a district meeting, called by School Commissioner E. J. Swift, upon the formation of the said district, and held September 2t„ 1886, set aside upon the following grounds, namely : that the district is illegally organized ; that the pendency of an appeal taken in 1877, from the refusal of a former school com- missioner to form the district operates as a stay, and prevents the formation of the new district ; that a pending appeal from the action of the present commis- sioner, E. I. Swift, in forming said district, stays all proceedings, and the first .meeting could not legally be held pending such appeal ; that the meeting was not pfoperly conducted ; that certain district officers were not properly chosen ; that 956 THE UNIVERSITY OF THE STATE OF NEW YORK Other irregularities occurred in the conduct of said meeting. The respondents present several affidavits in answer to the appellant's affidavits, and controvert many of the allcijations. By the second appeal the appellant seeks to set aside the proceedings of a district meeting held in said school district no. i6, on the 5th day of October 1880, upon the following grounds: that the district is illegally organized and established as stated in the former appeal ; that no person had a right to call said meeting ; that the record of the meeting is defective, among other defects failing to show the time and place of meeting; that the action of the meeting held Octo- ber 5th, in selecting a committee to procure a site for a schoolhouse, was illegal. The appellant's allegations upon this appeal are also controverted by several affidavits. The several appeals from this school district and the character of the affi- davits presented on both sides indicate a divided and unfortunate feeling among the people of the district upon school matters, which should not exist. Educa- tional interests should not be allowed to sufifer because of the quarrels and dis- agreements of the voters of the district. In a previous decision, I have sus- tained the action of the commissioner in forming this district. So much then of the appellant's ground of appeal is, therefore, disposed of, and the only questions left for consideration are those relating to the calling and conduct of the meetings of September and October. The first was properly called by the commissioner. The proceedings were not so orderly as they should have been, but it is rarely the case, where intense feeling has been engendered in a district that they are. The school district having been formed, it was next in order to elect district officers. This has been done, and to perfect the school organiza- tion and advance the interests of education, I have determined to overrule the appeals above entitled, except as hereinafter stated. It is claimed that the records of the meetings were not properly kept. I regret that this is too often the case at school meetings. Carelessness and negli- gence are usually the cause of it. I would regard these appeals more favorably if the appellant had selected some particular action of the meetings for com- plaint, instead of making such general charges against everything done and attempted to be done to form the district, select officers and provi.le for a school. The delegation of power by the district meeting held October 5th, to a committee to select and purchase a site, is illegal. The statute does not author- ize such a proceeding. The district meeting alone has the power to designate a schoolhouse site, and so far as this action is concerned, the last above entitled appeal is sustained. I have therefore reached the conclusion to dismiss the foregoing appeals. except so far as the action of the second meeting of the inhabitants of the district at which they attempted to delegate the power of selecting and purchas- ing a schoolhouse site to a committee, and the appeal from that action is sus- JUDICIAL decisions: sites 957 tained. The trustee of the district is hereby directed to call a special meeting of the qualified voters of the district within thirty days from the date of this decision for the purpose of taking action upon the selection of a schoolhouse site. 3779 In the matter of the appeal of James Stratton, trustee of school district no. 12, town of Owego, county of Tioga, from the proceedings of an adjourned dis- trict meeting held October 5, i^ The action of a district meeting in selecting a schoolhouse site will not be sustained when it does not clearly appear that a majority of the inhabitants present and voting at a district meeting called for that purpose, voted in favor of the selection of the site, nor when the site was not sufficiently described in order to enable the trustee, or any other person, to procure a title to the same. Decided April 13, 1889 Sears & Lynch, attorneys for appellant George F. Andrews, attorney for respondent Draper, Superintendent This appeal is brought by the trustee of school district no. 12, town of Owego, county of Tioga, for the purpose of having certain acts of a district meeting held on the ist day of October 1888, and at an adjourned meeting held on the 5th day of October 1888, construed and passed upon. The appeal papers were served upon a resident of the district, one Robert Burgett, who has made answer thereto, although he is at loss to know why he should have been made the respondent in the matter of the appeal. The facts, as shown by the pleadings are, that on the 24th day of Septem- ber last the school building was destroyed by fire, and that only the foundation walls remain ; that the site is not owned by the district and that the rights of the district thereto will cease whenever the same ceases to be used for school purposes. A meeting was called for the ist day of October last, which was held for the purpose of determining whether a schoolhouse' site should be purchased, and to consider the building of a new schoolhouse. At the meeting held pursuant to such call, a motion was made to locate the schoolhouse on the top of McLeon's hill on James Stratton's corner, which was a diflferent location from that upon which the schoolhouse stood which had been destroyed by fire. A motion was also made that the schoolhouse site should be six rods square, and the further motion was m.ade to pay James Stratton $10 for his site. All these motions were declared carried by the chair, the vote having been taken viva voce, and votes being cast both for and against each of the motions. Subsequently the meeting was adjourned, as the appellant alleges, for the purpose of considering plans and 958 Tin: UNIVERSITY OF TlIK STATE OF NEW YORK specifications for a new school building. l)ut this is strenuously denied by the respondent, who alleges that there was no reservation whatever in relation to the adjournment. At the adjourned meeting, a motion was made to locate the site at a different place than that selected at the previous meeting, and this motion was declared out of order by the chaimian, who stated that the only business was to consider plans and specifications for building a schoolhouse. A majority of the voters present at the meeting substituted another chairman, and the meeting proceeded by calling the roll and taking and recording the vote by ayes and noes to select a site on the farm of one I'etcr Moot, which is a different site both from the one previously selected, and the one upon which the schoolhouse which was destroyed by fire had formerly stood. It is alleged by the respondent that James Stratton owns no real estate within the district, and that the intention evidently was to select a portion of land owned by one Edna Stratton. My decision is that the proceedings of the first meeting can not be sustained, for the reasons: First, that I am unable to determine, from any evidence before me, that a majority of the inhabitants present and voting were in favor of the proposed Stratton site. Second, the site was not sufficiently described in order to enable the trustee. or any other person, to procure a title to it. In relation to the second or adjourned meeting, I must hold that that meet- ing was simply a continuation of the meeting of October ist, and that any busi- ness which could lawfully be transacted at the meeting of October ist, could also be considered at the adjourned meeting. I must also hold that the proceed- ings of the second meeting can not be sustained because it does not appear that the resolution by which the .Moot site was selected was described by metes and bounds as the law requires, and so as to enable the trustee to acquire title to the same. All proceedings which have, therefore, been taken as appears by the papers presented, in relation to the selection of a new site, are hereby vacated and set aside, and the trustee of the district is directed to forthwith call a special meet- ing of the inhabitants, to be held within fifteen days from the date of this decision, for tlie purpose of determining upon a school site, and for considering the erec- tion of a new school building thereon. I hereby direct that all questions relating to these subjects shall be detcr- mmed by a call of the roll of the qualified voters of the district, and the taking and recording ot the vote by ayes and noes, and that, in the selection of a site. If the site IS to be changed, the meeting shall describe and designate the same by metes and bounds, as required by law. The appeal from the proceedings of the second meeting is sustained, as well as the counter-appeal which is made by the respondent from the proceedings of the first meeting. ** JUDICIAL decisions: sites 959 4262 In the matter of the appeal of James W. Hughes and William O. Ross from action of special meeting held May 26, 1894, in school district no. 3, town of Southfield, Richmond county. Where an appeal is taken from the action of a school meeting, duly and legally designating a schoolhouse site and authorizing the trustees of the district to purchase the same, and the appellants fail to show by preponderance of proof that they are injured by the action of said meeting in the designation of said site, or that the site will not be ac- cessible for school purposes, or that it is not a suitable site for school purposes, the appeal should be dismissed. Decided July 25, 1894 Crooker, Superintendent On May 26, 1894, a special school meeting of the qualified voters of school district no. 3, town of Southfield, Richmond county, was held, upon notice duly and legally given, to consider and vote upon the matter of changing the schoolhouse site and authorizing the trustees to purchase a new site ; for building a new schoolhouse ; for bonding the district for raising money to build and furnish schoolhouse ; for selling old schoolhouse and site, etc., etc. That at said meeting a resolution was presented and adopted for the selection of a new schoolhouse site for said district, said site being offered by D. J. Tysen for the sum of $500, and which new site was described by metes and bounds, being a plot of land 200 feet by 200 feet. That the vote upon said resolution was ascertained by taking and recording the ayes and noes of the legal voters of said district, present and voting at said meeting, the result of said vote so ascer- tained being 47 ayes and 28 noes. That said resolution also contained a clause authorizing the trustees of said district to purchase said new site. That a reso- lution was also adopted at said meeting authorizing the trustees of said district to sell the old (or present) schoolhouse and site. The appellants herein appeal from so much of the action and decision as relates to the selection of a new school site, or the change of the present school- house site, on the grounds : 1 That the resolution was not in accordance with the requirements of the school law, and was calculated to force two sites upon the district, if the district did not subsequently abandon the present site ; and, 2 That the appellants are the owners of a reserved strip of land lying along and northerly of the lot designated at the meeting as a school site, and that no action having been taken at said school meeting to acquire access across said strip, school children living north of Tenth street in said district would be tres- passers upon the reserved lands of such appellants in gaining access to the school site and house. It is alleged in the answer of the trustees of said district to the appeal herein, and jiot denied by the appellants, that the school site selected and designated on May'26, 1894, is the same site selected in 1892, approved by School Commissioner 960 THE UNIVEKSITY OF Tllli STATE OF NEW YORK Kenney and also approved by me in an appeal to me relative to such site, anvl that the present school commissioner, Mrs West, has approved of, and consented to, such site, and that the trustees have entered into a contract for the purchase of said site in accordance with the vote of such meeting. Under the provisions of subdivision 6, of section 16, title 7, of the Consolidated School Law of 1864 and the amendments thereof, in force on May 26, 1894, the qualified voters of any common school district have the power, by a majority vote, to designate a site for a schoolhouse, or, with the consent of the commissioner or commissioners within whose district or districts the school district lies, to designate sites for two or more schoolhouses for the district. Under the call for the meeting of May 26, 1894, the meeting had authority to designate and direct the purchase of a new or additional school site, or to change their school site. The action of the meeting in designating a new or additional school site, and directing its purchase by the trustees, and in authorizing the sale of the school site and schoolhouse then owned by the district, was in fact a change of school site. This the meeting had the power to do under sections 20 and 21, title 7 of the School Law of 1864 and amendments, with the consent of the school commissioner, which consent has been given. The trustees of said district having become (and the district having become by reason of its action at said meeting) legally responsible by a valid contract to purchase said site, in pursuance of a resolution of the district, it has become an established site so that the resolution designating it and directing its purchase can not be rescinded under the general principle that a resolution that has been executed can not be revoked to the prejudice of those who have acquired rights and assumed liabilities under it. The main ground of this appeal appears to be that the appellants claim that there is a reservation of a strip of land five feet in width, their property, lying along the entire southerly side of Tenth street, and that the land for a school site designated by said meeting is upon lands outside and beyond said reserved strip and completely cut oflF from access to and from said site to the streets of New Dorp. I do not think the appellants, upon the proofs presented in said appeal, have sustained said claim. The map annexed to the appeal herein, I assume, is a full and correct map of the property at New Dorp of the appellants, and that seems to be all that it claims to be. The map does not show the " farming lands " men- tioned in the appeal lying southerly of Tenth street, easterly of New Dorp avenue and westerly of Beach avenue, except in a very limited way, and is not sufficiently plain and clear to warrant me in finding in this appeal that the appellants have established said claim. It is in proof that at said meeting of May 26, 1894, and at which the appel- lants were present, a contract was read by which the owner of the land which was voted as a school site, D. J. Tysen, agreed to open a street fifty feet wide through his property from New Dorp avenue to and in front of said new site, and which street will aflFord access to said school site, as appears to me from said map annrxod to the appeal and Beers's map of Stalen island, filed by respondent JUDICIAL decisions: sites 961 in this appeal, without any trespass upon the land of appellants, and afford accommodation for the larger number of pupils in the district who will attend at the schoolhouse to be erected upon said site. The appellants in their reply to the answer of the respondents herein, state that said contract was not acted upon by the district meeting and is not filed with the district clerk, and that as they (the appellants) understand it, it amounts in legal effect to a mere gratuitous and revocable easement, leaving it in Tysen's power to close the road after he shall have opened it. The respondents, the trustees of the district, say in their answer herein that they appealed to Tysen to open the street and that he agreed to do so and executed a contract to that effect, which contract was read at the district meeting. A copy of said contract has been filed by the respondents with their rejoinder and I am of the opinion the contract is made for a valuable con- sideration and the trustees of the district can compel the performance by Tysen of his covenants therein. It was not necessary that the meeting should take action upon said contract nor that it should be filed with the district clerk. The burden of proof is upon the appellants. It is for them to show that they are injured by the action of said meeting in said designation of a new site or change of site ; that the site will not be accessible for school purposes ; that it is not a suitable site for school purposes. In this the appellants have failed and the appeal herein should be dismissed. Appeal dismissed. 4319 In the matter of the appeal of George Stephan and Joseph Karl from proceed- ings of special meeting held October 2, 1894, in school district no. 11, town of Allegany, Cattaraugus county. In rural school districts some of the children must be farther from the schoolhouse than others and be inconvenienced by the longer distance which they are obliged to travel; but it must be assumed that the majority of the legal voters, assembled in a school meeting in any such district to locate a new school site, will so locate it at a point which, in their judgment, is best calculated to promote the convenience of the greater number of the children of the district in attending the school. This Department will not be justified in vacating the action of the majority of such meeting, unless there is clear proof that such majority has acted to the contrary. Decided February 11, 1895 F. M. and E. F. Kruse, attorneys for respondents Crooker, Superintendent This appeal is taken from the action of a special school meeting held on October 2, 1894, in district no. 11, town of Allegany, Cattaraugus county, in vot- ing to abandon the schoolhouse, or discontinue the schools located at North Pole an'd Rock View in said district and to purchase a site on the Brandle farm, and erect a schoolhouse thereon. 31 962 THE UNIVERSITY OF THE STATE OF NEW YORK The appellants do not claim that said special meeting was not duly and legally called and held, nor that the action of the meeting in discontinuing the said two schools and designating the new schoolhouse site and for the erection of a new schoolhousc thereon was not duly and legally had, nor that the new site is not a proper and healthy one. The main grounds upon which said appeal is taken are that the new site designated is not centrally located and that the greater number of children in the district who will attend the school, if a schoolhouse is erected upon such site, will be required to travel a long distance, and in some cases, over roads that in the winter are filled with snow. It is claimed in the appeal that persons voted at said meeting who were not qualified voters in the district ; but the appellants have failed to establish affirm- atively that any such persons voted, or that if they voted, such votes were cast for the resolution or resolutions adopted; nor do they show that if such votes were excluded the resolution or resolutions would have been defeated. The appellants and respondents each annex to their papers a map of the district, but small in size, without having marked thereon the number of children of school age. and the roads marked thereon upon which such children reside, or the portions of the district upon which they reside. Neither party claims their map is correct and accurate, and each denies the correctness and accuracy of the other party's map. Neither party has furnished a copy of the proceedings of said special meeting of October 2, 1894, each stating iii his own language the sub- stance of the action of said meeting in reference to the discontinuance of the two schools, and the designation of a new schoolhouse site and the erection of a schoolhouse thereon. As to the main question presented by the appeal for decision, namely, whether such new site is convenient for the greater number of pupils who would attend the school, and the distance such pupils will be required to travel to attend said school, the proofs are somewhat contradictory. From the proofs presented the following facts are established: that said school district no. 11, town of Allegany, Cattaraugus county, was formed many years ago. and is about three miles in length and about two miles and one-fourth in width ; that at one time it had four schoolhouses, and on October 2, 1894, said district had three schoolhouses, one known as the North Pole schoolhouse, situate about three-fourths of a mile from the northern boundary of said district; the Rock View schoolhouse, situate about one and one-half miles from the northern boundary of said district and near the center of said district; and the Knapp's Creek schoolhouse. situate near the southerly boundary of the district and in southwest square lot of said district; that running from the northern boundary of said district ,s what is known as the " main road " which runs nearly south by the North Pole schoolhouse and thence southwesterly by the Rock View schoolhouse and down to Knapp's Creek and near the Knapp's Creek schoolhouse near the southerly boundary of said district; that from said main road, near the North I ole schoolhouse, there is a road known as the " Four Mile Road " run- ning in a southeasterly direction to the eastern boundary of said district; that JUDICIAL decisions: sites 963 from said main road near said North Pole schoolhouse there is a road running west, known as the " Stephen Hollow Road " ; that out of said main road a short distance northerly of the Rock View schoolhouse, there is a road known as the " Bucker Hollow Road," running in a southeasterly direction. It further appears that the northerly portion of said school district was, and still is, settled by a farming community; that in 1876 oil was discovered in said school district, and all of said district lying south of the two north tiers of lots developed into good oil territory and became filled up with persons dependent on oil producing for a livelihood ; that the schoolhouse at North Pole was constructed several years prior to 1876 and the increased population consequent upon the discovery of oil in the district necessitated the erection of three additional school- houses, namely, one at Rock View and one at Knapp's Creek, and one other which has been abandoned; that since the oil in said district has been exhausted a large share of the population, dependent upon its production, has left the dis- trict ; but the clearing up of the land and taking up of new farms, the placing of rough timber land under cultivation, the erection of farmhouses and buildings, have been, and still are, going on in the center and southern portion of said district. It further appears that on or about July 23, 1894, F. H. Chapin, school com- missioner of the first commissioner district of Cattaraugus county, condemned the schoolhouse at North Pole; that at a special meeting of the district, held on September 12, 1894, it was voted to build a new schoolhouse at North Pole to take the place of the Rock View and North Pole schoolhouses, such school build- ing to be built on the same site on which the North Pole schoolhouse stood ; that subsequently said school commissioner refused to approve the said site for the new schoolhouse for the reason that said site was not a suitable one; that thereupon the said special meeting of October 2, 1894, was called and held and at said meeting, by a vote of 23 in favor and 18 against, a new schoolhouse site was designated, located on the Brandle farm, and that a new school building be erected thereon and the schools held in the North Pole and Rock View houses respectively be discontinued or abandoned. The exact point on the main road between the North Pole and Rock View schoolhouses, at which the new school site is situate, does not appear by the proofs; but it seems to be situated about half way between said scho®lhouses. That the children who attended the school at North Pole and Rock View respectively, will be required to travel about one-third of a mile farther to attend the school to be maintained upon the new site designated. In the rural school district some of the children must be farther from the schoolhouse than others, and be inconvenienced by the longer distance which they are obliged to travel. It must be assumed that the majority of the legal voters assembled in a school meeting will locate the school site at a point which, in their judgment, is best calculated to promote the convenience of the greater number of'ihe children of the district attending the school. Before this Department will be justified in overturning the action of the majority it must have clear proof to the contrary, and there is no such clearness of proof in this appeal. 964 THE UNIVERSITY OF THE STATE OF NEW YORK The appellants allege in their appeal that on account of none of the inhab- itants of Knapp's Creek village being residents of the territory in which the chil- dren will attend the proposed new school, but attending the school in Knapp's Creek, that such inhabitants are not interested in the state of the proposed new school, and that at said special meeting fourteen persons, residents of Knapp's Creek, attended and voted. It is clear that all qualified voters of said school dis- trict no. 4, town of Allegany, Cattaraugus county, no matter in what portion of the said district they resided, or at which one of the schools maintained in the district their children attended, had the right, under the school law, to attend any and all meetings of said district, and to vote upon all questions brought before said meeting. The appellants herein have failed in establishing that any improper means were used by the respondents, or any one, to induce the voters of said district to attend such special meeting, or in voting at said meeting. On petition of the appellants herein I made an order, dated October 2'], 1894, staying all proceedings on the part of the trustees of said school district no. 11 and of each of them, under and pursuant to the proceedings of said special meet- ing of October 2, 1894, until the hearing and decision of the appeal herein, or until a further order should be made by me in this appeal. The appeal herein should be dismissed. It is ordered. That the appeal herein be, and the same hereby is dismissed. It is further ordered. That said order made by me herein on said October 27, 1894, staying all proceedings on the part of the trustees of said school district no. II, and of each of them, under and pursuant to the proceedings of said special meeting of October 2, 1894, be, and the same hereby is, vacated and set aside. 4915 In the matter of the appeal of board of education of union school district no. 5, Southold, Suffolk county, from proceedings of spc>cial meeting held October 22, 1900, in said district. A special school meeting held in a union school district whose limits do not correspond to those of an incorporated village or city, pursuant to a notice issued by the board of education, which was published in the only newspaper published in the district, for two weeks only was not a legally called meeting under the provisions of the Consolidated School Law of 1894. Said school law requires that in the designation of a site or sites for school purposes, at a meeting in a union school district, such designation must be by wnttcn resolution containing a description thereof by metes and bounds, and such resolution must receive the assent of a majority of the qualified voters present and voting at such meeting, to be ascertained by taking and recording the ayes and noes, thatis the clerk of the meeting should record the name of each person whose vote is received on such resolution and set opposite to each name whether such person voted aye or no. *^ Decided December 19, 1900 JUDICIAL decisions: sites 965 Skinner, Superintendent This is an appeal by the board of education of union school district 5, Southold, Suffolk county, from the proceedings of a special meeting held in said school district on October 22, 1900. The clerk of the district acknowledged in writing upon the appeal that a copy thereof was served upon him on November 12, 1900. On November 17, 1900, there was filed in this Department an affidavit of Joseph W. Hallock, the printer and publisher of the Long Island Traveler, which paper is published in said school district 5, Southold, Suffolk county, of a notice of a special meeting called by the board of education of such district, to be held in the schoolhouse on Main street, in the village of Southold, October 22, 1900, for the purpose of determining whether such district should purchase either of the two parcels of land named therein for a school site, or purchase a parcel of land of one acre, described therein, adjoining the present school site, for the enlarging of such present site; and that such notice was published in said paper once in each week for two successive weeks, the first publication being made October 12, 1900. On said November 17, 1900, there was also filed in this Department a copy of the proceedings taken at such special meeting held in said district October 22, 1900, verified by the affidavit of W. Y. Fithian, clerk of the district. The grounds alleged by the appellants for bringing their appeal are that such meeting was not duly and legally called, and that the vote upon the resolu- tion to designate a new schoolhouse site was not ascertained by taking and record- ing the ayes and noes of the persons present and voting thereon. No answer has been filed in this Department to such appeal, and under the uniform rulings of this Department the material allegations contained in the appeal are deemed admitted. It appears that October 22, 1900, a large number of the inhabitants of such school district assembled at the school building therein, and such meeting was called to order by the president of the board of education, and a chairman of the meeting was elected. District Clerk Fithian acting as clerk, and two persons were appointed inspectors of election; a written resolution was offered for action by the meeting that the Oak Lawn avenue lot, being one of the parcels of land men- tioned in the call for the special meeting published in the Long Island Traveler, be chosen for the new school site of the district. The chairman decided that the vote upon such resolution must be by ballot, such ballot to have written thereon by the voters the words " yes " or " no." A ballot was thereupon taken upon such resolution, which resulted in 167 votes being cast, of which 89 were in favor of the Oak Lawn avenue lot and 78 votes against said lot. The chairman declared that such lot having received a majority of all the votes cast, such lot had been chosen for the new schoolhouse site. Section 10, article 2, title 8 of the Consolidated School Law of 1894, as amended by section 15 of chapter 264 of the Laws of 1896, provides that a majority of the voters of any union school district, other than those whose limits correspond to those of an incorporated village or city, present at any annual or 966 THE UNIVERSITY OF THE STATE OF NEW YORK Special district meeting, duly convened, may authorize such acts and vote such taxes as they shall deem expedient ... or for the purchase of other sites or structures, or for a change of sites . . . ; but no addition to or change of site or purchase of a ueic site, or tax for the purchase of any new site or struc- ture, or for the purchase of an addition to the site of any schoolhouse . . , shall be voted at any such meeting unless a notice by the board of education, stating the object thereof, shall have been published once in each zveek for four xvceks next preceding such district meeting, in two newspapers, if there shall be tzvo, or in one nen'spaper, if there shall be but one, published in such ilistrict. Such section also provides that the designation of a site or sites by the dis- trict meeting shall be by a written resolution containi}ig a description thereof by metes and bounds, and such resolution must receive the assent of a majority of the qualified voters present and voting at said meeting, to be ascertained by tak- ing and recording the ayes and noes. This Department has uniformly ruled that the provisions of the school law requiring that a vote taken at a school meeting shall be " ascertained by taking and recording the ayes and noes of the qualified voters present and voting," means that the clerk of the meeting shall record the name of each person whose vote is received, and set opposite to each name whether such person votes aye or no. Under the provisions contained in section 10 of article 2, title 8 of the Con- solidated School Law of 1894, as amended by section 15 of chapter 264 of the Laws of 1896, it is clear that the meeting held in union school district 5, Southold, Suffolk county, October 22, 1900, was not a legal meeting, for the reason that the notice of such meeting was not given in the manner required by said section 10, above cited. The notice of such meeting should have been published in tzvo newspapers, if there were two, or in one newspaper if there was but one published in the dis- trict, once in each zveek for the four weeks preceding such district meeting, and the first publication should have been made full four weeks, that is, 28 days, pre- ceding such meeting. This Department has uniformly advised that under section 10 the safer course is the insertion of such notice once in each week for five weeks, that is, five insertions. Assuming, for the purpose of argument only, that legal notice was given of the special meeting held October 22, 1900, the Oak Lawn avenue lot was not legally designated as a new school site for the district, for the reason that a writ- ten resolution containing a description of such new site by metes and bounds was not presented to or acted upon by such meeting, and for the further reason that the vote taken at such meeting, relating to the desigation of a new site, was not ascertained by taking and recording the ayes and noes of the qualified voters attending and voting thereon. The appeal herein is sustained. JUDICIAL decisions: sites 967 It is ordered that the special meeting held October 22, 1900, in union school district 5, Southold, Suffolk county, be, and the same is hereby, vacated and set aside. 3974 In the matter of the appeal of Fayette Balcom v. the trustees of school district no. II, towns of Caneadea and Rushford, county of Allegany. The trustees of a school district proceeded, under the provisions of chapter 800 of the Laws of 1866, to take proceedings to acquire title to certain land for a school site. Appeal is taken from the trustee's action. The district has acquired title to the site. Held, that the matter is one over which this Department has no jurisdiction. Relief must be sought before the courts. Decided April 21, 1891 Draper, Superintendent This is an appeal from the action of the trustees of school district no. 11, towns of Caneadea and Rushford, county of Allegany, in proceeding to acquire title to certain lands for a school site, which proceedings were instituted under the provisions of chapter 800 of the Laws of 1866. From the an'swer of the respondents, it appears that the proceedings have been carried so far that the district had, at the time the appeal was brought, acquired title to the land to which the appeal refers. This proceeding which has been instituted by the respondents, is a matter before the courts, over which the courts have exclusive jurisdiction, and this Department has none. Whatever relief the appellant may consider himself entitled to, must be sought for before the proper tribunal. I therefore dismiss the appeal. 3798 In the matter of the appeal of James D. Smith v. school district no. 8, of the town of Martinsburgh, county of Lewis. Proceedings of a district meeting designating a new site, directing removal of the old schoolhouse thereto, and that the same be repaired, will not be disturbed, although there was some confusion at the meeting, particularly so in view of the fact that the site has been secured and paid for, the house removed and repaired, before action was commenced. Decided July 29, 1889 Draper, Superintendent This is an appeal from the action of a district meeting in the above-named 'district, held on the ist day of July 1889, designating a new site, directing that 968 THE UNIVERSITY OF THE STATE OF NEW YORK the old schoolhousc be removed to it and repaired, and that an addition to the same should be erected to cost not to exceed $750. While it is ai)i)arent that there was some confusion at the meeting and that some of the proceedings complained of were hasty, if not precipitated, I fail, nevertheless, to discover any sufficient ground for setting aside the action com- plained of. Particularly so, in view of the fact that the new site has already been purchased and paid for, and the building removed to it. The appeal is dismissed. 3852 In the matter of the appeal of Franklin D. Rice v. school district no. 8, of the town of Homer, in the county of Cortland. Selection of a site for schoolhouse by a district meeting will not be disturbed unless it can be conclusively shown that the proceedings therefor were irregular, and not in con- formity to the statute, or that the action was ill advised, and not for the educational in- terests of the district. Decided January 8, 1890 Franklin Pierce, attorney for appellant William I^. Tuttle, attorney for respondent Draper, Superintendent This is an appeal from the action of a special meeting in the district above named, held on the ist day of October 1889, in selecting a new site for a school- house. The papers are voluininous, and I have read them with care. There are two questions to be considered. First, whether the action taken was regularly taken, and in the manner directed by the statute ; and, second, whether the action taken was manifestly against the educational interests of the district. I find no allega- tion against the regularity of the special meeting. Such action seems to have been taken with deliberation, and all the requirements of the law seem to have been complied with. This being so, it is to be upheld, unless it is clearly shown to be against the educational interests of the district. The papers show great dif- ferences of opinion concerning the propriety of taking the site which the trus- tee was directed to purchase. Strong affidavits are not lacking on either side. The burden of proof is upon the appellant ; it is for him to show by overwhelming evidence, if he can, that the site is not suitable for school purposes. This he fails to do. in view of the statements of the opposition. If persons failed to attend the meeting, that was their own fault. The deliberate determination of a dis- trict meeting must be upheld, unless it appears very clearly that it was ill advised. The State Superintendent, at a distance from the scene of controversy, and with- out behig able to personally inspect the site, is not justified in overruling the determination of a district meeting unless the proof is clear and strong, that he JUDICIAL decisions: sites 969 should do so in order to save the district from a great error. The proofs in this case do not satisfy me that it is my duty to intervene. I observe that the point is made in the papers that the trustee has purchased the new site of his own father. I know of no legal reason why he could not do this, and in view of the fact that he followed the specific directions of the dis- trict meeting as to the site and price, I fail to see any other reason why his act should be set aside because of that relationship. The appeal is dismissed. 3668 In the matter of the appeal of George Bielby, W. H. Hamlin and others v. school district no. 25, town of Sanford, Broome county. The inconvenience of a few families when a large majority of the district are suited with the school site selected, not a sufficient cause for reversing the action of a district meeting in designating such site. Decided February 21, 1888 C. T. Alverson, attorney for appellants John Swart, attorney for respondents Draper, Superintendent This is an appeal from the action of a special meeting held December 9, 1887, in school district no. 25, town of Sanford, Broome county, changing a site to a location about 200 rods south of the old schoolhouse, and providing for the erection of a new schoolhouse. It is conceded by the appellants that a new schoolhouse is necessary, but they object to the change in location. It is not claimed that there has been any irregularity in the proceedings which would invalidate them, nor is it said that the proposed new site is unsuitable for school purposes. It is urged that the proposed eite is farther from the center of the district than the old one, and that the change will work very much to the disadvantage of some residents living in the north part of the district. From a careful reading of the papers, I conclude that the change will con- venience the greater number of the residents of the district, but that it will seriously inconvenience a few families. It not infrequently happens in such matters that a few are made to suffer in order that the many may be suited. It can not be otherwise. It would seem as though two or three families who are farthest from the new site, might with propriety and advantage to them be set off into an adjoining district, and thereby be brought nearer to a school- house. In any event, no sufficient reason is shown to justify me in overruling the action of the district meeting. .-^ The appeal is dismissed. 970 THE UNIVERSITY OF THE STATE OF NEW YORK 3648 In the matter of the appeal of W. S. Hinman and others from the proceedings of certain district meetings held in school district no. 9, town of Vernon, county of Oneida, at which a change of site was voted. The action of a majority of a district meeting in changing a site will not be set aside when all the requirements of the law have been complied with because it is alleged by ap- pellants that the location decided upon is unhealthy, unless that fact is clearly shown. The fact that persons qualified to vote were not aware of their rights and did not vote upon the question, is no sufficient reason for setting aside the action of a school meeting. Decided December 9, 1887 Lynott B. Root, Esq., attorney for appellant Draper, Stit>erintendent This proceeding is an appeal to set aside the action of a series of district meetings held in district no. 9, town of Vernon, county of Oneida, at which the subject of repairing the old schoolhouse, building a new schoolhouse, and chang- ing the schoolhouse site was fully considered, and it was decided to build a new schoolhouse upon a new site. It appears that at the time the appeal was taken, the new site had been acquired, and contracts entered into for the building of a schoolhouse, and that the supervisor of the town had consented to the change, and the statute respecting a change of site seems to have been fully complied with. The only ground for considering the appeal is, that the new site is not cen- trally located and is an unhealthy one. I do not propose to go into the question of the sufficiency of notice of the meetings, or the fact that some women who were eligible to vote were not aware of their rights in the premises. The questions of building a new schoolhouse and changing the site were discussed and considered, in one aspect or another, at several successive meetings, and every voter of the district must have been fully aware of the question agitating the district. At each meeting it was manifested that a majority favored both propositions. Upon the question of healthfulness of the site and suitable location, the burthen of proving the contrary is upon the appellants. This they do not do, to my mind, and I am therefore obliged to overrule the appeal. 3745 In the matter of the appeal of Cornelius O'Neill from the proceedings of a district meeting held November 7, 1888, in district no. 8, town of Massena, county of St Lawrence. A district meeting must decide a proposed site for a school lot definitely. The designation must be such as will enable a trustee to know precisely what land he is to purchase. Decided January 5, 1889 JUDICIAL decisions: sites 971 Draper, Superintendent This appeal is taken by a taxable inhabitant of district no. 8, town of Massena, county of St Lawrence, from the proceedings of a district meeting held in said district on November 7, 1888, by which a new site was designated. The ground alleged for the appeal is, that the designation was too vague and indefinite. There are many other allegations, such as that the trustee of the district is ineligible to hold the office of trustee; that proper notice of the district meeting had not been given; that the location of the proposed site is near a site formerly selected, and which, on a former appeal by the appellant herein, the Department decided against; that the location of the proposed site is unsuitable and, at times, inaccessible. Upon an examination of the proofs submitted, I find it to be conceded that the resolution designating the site was in these words : " That piece or parcel of ground (five rods one way, and eight rods the other) situated on the southeast corner of the Patrick Smith farm, bounded as follows : on the west by the new highway, on the north and east by the Patrick Smith farm, and on the south by the Joseph Hall farm." I am constrained to hold that the above description of a lot of land to be purchased for a site is fatally defective. There must be ^uch a designation by the meeting as will enable the trustee to know precisely what land he is to purchase. By the above description, a lot five rods front and eight rods deep, or eight rods wide and five rods deep would answer the designation. This would leave it to the trustee to determine just what the site should be, a duty the district meeting must determine. In sustaining so much of the appeal, I do so with no intention of criticising the site selected; in fact, I am led to believe that it is a suitable selection and very centrally located. In a former decision, I did not intend it to be under- stood as disapproving of the site then selected. That appeal was, and this appeal is, sustained simply upon irregularities in the proceedings of the district meetings. There is no proof before me that the trustee is not a legal voter in the district. It appears that the meeting was well attended, and that notice had been given as a previous annual meeting had directed notice to be given. As to all other allegations of the appeal but that of the defective description, the appeal is dismissed, and sustained upon that ground alone. A district meeting should be held to designate a site, either the one now or formerly proposed, or a new site, as a majority may prefer. 4001 In the matter of the appeal of John Wangelin and others v. school district no. 2, of the town of Colden, in the county of Erie. Proceedings of a school district meeting changing a site for a schoolhouse, which were sustained by a bare majority, some of those voting with the majority bei g illegal or 972 THE UNIVERSITY OF THE STATE OF NEW YORK questionable voters, set asidf, when it is shown thai at several successive meetings held within the period of six months previous, the proposition had been voted down. When the iiueslion of a change of site is in doubt, held, that it would be better to retain the old site until the doubts are removed and a clear majority of the electors favor a change. Decided September 15, i8yi G. M. Addington, Esq., attorney for the appellants David J. Wilcox, Esq., attorney for tlie respondents Draper, Suf'crintendent This is an appeal from the action of a special district meeting, held in the district above named on the 26th of June 1891, in voting to change the site of the district schoolhouse. It appears that meetings were held at the schoolhouse in said district, on the 10th day of January 1891, on the 24th day of January 1891, on the 2ist day of March 1891, at each of which meetings the proposition to change the schoolhouse site was voted down. A fourth meeting for the same purjjose was held on the 15th day of June 1891, when the proposition was defeated through the adoption of a motion to adjourn sine die. Notwithstanding these several decisions upon the proposition, a meeting was called on the 26th day of June 1891, te consider the same matter. This last meeting was not called at the district schoolhouse but at an uninhabited house, some three- quarters of a mile distant from the schoolhouse. There was considerable dis- order at this meeting. The vote was larger than upon the previous occasions. It is clear to me that several persons voted on each side, who were not qualified electors in the district. By a vote of 27 to 25, it was determined to change the site. After reading all the papers and the briefs of counsel with care, I have come to the conclusion that the proceedings of this meeting can not be upheld. There is no reason in calling meetings without limit to consider a proposition which has been repeatedly voted down, and particularly so when it is not made to appear that the proposition had been repeatedly voted down by unfair means, or by the casting of illegal votes. It is clear that the respondents resorted to most unusual and questionable means to carry their point. From such examina- tion as I have been able to give as to the legal right of the persons voting on each side and whose right to vote is challenged, I am of the opinion that there were more illegal votes cast in favor of the proposition, at the meeting held on June 26th, than against it. Again, a schoolhouse site should not be changed, unless after full considera- tion a clear majority of the qualified electors in the district are in favor of such change. If the question of a change is in doubt, it had better remain upon the old site until the doubts are removed. The appeal is. therefore, sustained and the special meeting in the district above named, held June 26, 1891, is held to be of no effect. JUDICIAL DECISIONS : SITES 973 3610 In the matter of the appeal of Charles G. Vandenburgh v. F. J. Farrington, supervisor of the town of La Fayette, Onondaga county. A supervisor refused to consent to a change of site for a schoolhouse, and the trustee and many taxable inhabitants sustained him. Held, that in view of the near approach to the annual meeting when the question can be considered, and a trustee chosen who will reflect the sentiment of the majority, the supervisor will be sustained. Decided June 20, 1887 Draper, Superintendcn t This is an appeal by a resident and taxpayer of school district no. i of the town of La Fayette, Onondaga county, from the refusal of the respondent to consent to a change of the schoolhouse site. The appellant alleges that at a district meeting held in said district the voters present, by a vote of 41 for to 25 against, voted to change the site; that the present site is not sufficiently large to accommodate the children of the dis- trict, and the building is old and dilapidated; that the site belongs only in part to the district ; that the present site was established over seventy years ago, since which time the district has been so altered that the site is no longer geographi- cally centrally located ; that the new site is eligible and will better accommodate a majority of the children of school age. The trustee of the district and the supervisor file separate answers, and allege that the present site is owned by the district, and that the trustee holds a deed for the same; that additional land adjoining the present site can be pro- cured for a small amount of money; that extensive repairs have recently been made upon the school building in accordance with the directions of a district meeting after a recommendation so to do by a committee appointed to examine the building by a district meeting; that the new site is low and would require filling, and that, in consequence of a deep creek crossed by a small bridge, the school building could not be moved to the proposed new site. Ordinarily I should sustain the action of the district meeting, a majority of the voters and taxable inhabitants being present, and a preponderance of the taxable property being represented by the owners favoring the same, but finding tITe trustee and the supervisor both opposed, together with a large number of voters and taxpayers, I feel constrained to overrule the appeal. The present site has met the requirements of the district for over seventy years. The annual school meeting will soon be held, and the district can then register its wishes by the selection of a trustee who will reflect the sentiment of the people upon this subject, if the present incumbent fails to do so. The appeal is dismissed. (jj^ THE UNIVERSITY OF THE STATE OF NEW YORK 3733 In the matter of the appeal of WilHam Smith v. school district no. i, town of Kort right, county of Delaware. When it is made to appear that a site selected for a schoolhouse is not advantageously situated, the action of a district meeting in selecting such site will not be upheld. Decided November 21, 1888 Draper, Superintendent This is an ai)peal from the action of a special meeting held in the above- named district on the 14th day of September 1888, changing the schoolhouse site. There is no question raised about the regularity of the proceedings. The vote at the district meeting stood 23 to 22. There seems to be much feeling in the district over the matter. The opinion of the people as to the wisdom of the selection, seems to be divided about equally, and the respective parties state their views very strongly. On one side, it is insisted that the proposed site is near a swamp which is dangerous to health. At least three physicians certify to this. On the other side, it is said that the so-called swamp is only a stream of whole- some water. On one side it is said that the proposed site is uneven in surface and in no wise suitable for school purposes. On the other, it is said that the site is the best that can be procured in the village, and can be graded at small expense. On one side it is insisted very strenuously that the proposed site is located on a very narrow thoroughfare, at least forty rods distant from the main street, that this passageway is not more than fifteen or sixteen feet in width and that teams can pass only with difficulty, and that, substantially, all the children of the district would be compelled to repass through this narrow road- way, at great danger to themselves. The other side admit that the roadway leading to the proposed site is narrow, but deny that it is dangerous. From a very careful reading of all the papers submitted, as well as from an examination of a map of the district, I am satisfied that if the schoolhouse should be located upon the proposed site, it will be a matter of regret hereafter. The statements of the parties are so contradictory that I can not determine with any confidence all of the facts touching the proposed site, but it may safely be said that such site is not near the center of the district, nor of the village of Bloomville, which comprises the greater part of the district, and that it is not upon the main street of the village, in a place of sufficient prominence for such a building. I think that it may also safely be said that the narrowness of the passageway from the main street to the proposed site is such as to render the action of the district meeting unadvisable. In view of the fact that the old schoolhouse in the district has been con- demned as unsuitable for school purposes, it is important that the electors of the district should, without unreasonable delay, hold another special meeting, and agree upon a site which will be convenient and above criticism, and the hope is expressed that this may be done at an early day without further and unseemly controversy. The appeal is sustained and action appealed from is set aside and declared to be null and void. JUDICIAL decisions: sites 975 3721 In the matter of the appeal of Cornelius O'Neill v. school district no. 8, town of Massena, in the county of St Lawrence. The action of a district meeting changing a schoolhouse site, can not be sustained unless the record of the meeting shows that the vote to change was ascertained by taking and recording the ayes and noes, and that the change was approved by the school commis- sioners having jurisdiction. Decided October 25, 1888 Draper, Superintendent This is an appeal from the action of a special meeting held in district no. 8 of the town of Massena, in the county of St Lawrence, in July 1888, changing the schoolhouse site. The papers are exceedingly voluminous. I have read them with care. The appellant urges that the notice of the special meeting was not sufiiciently broad to justify the action taken. He also claims that the notice was not served upon all the inhabitants; he claims also that the site chosen is located disadvantage- ously to the greater number of people in the district, upon a road but recently laid out. There are charges of illegal votes being cast upon each side to an extent sufficient to have affected the result. I deem it unnecessary to discuss here all the phases of the controversy presented by the respective parties. I certainly can not undertake to determine the qualifications of all the electors whose right to vote is called in question by one party or the other, and it would be necessary to do that in order to uphold the action of the meeting. I observe one fact, moreover, which seems to me to be sufficient alone to prevent me from sustaining the action of the district meeting. The law provides that a school- house site shall not be changed " unless a majority of all the legal voters of said district, present and voting, to be ascertained by taking and recording the ayes and noes, at a special meeting called for that purpose, shall be in favor of such new site." The record of the special meeting does not show that the ayes and noes were recorded. This, of itself, would, in my opinion, be fatal to the proceedings. Moreover, it is not shown that the change has been officially ap- proved by the school commissioner having jurisdiction. In view of these considerations, I am led to sustain the appeal. 3677 In the matter of the appeal of Henry M. Choate and others v. William Thayer, sole trustee of district no. 6, town of Darien, Genesee county. At a district meeting upon the question of approving of the trustee's action in purchasing a piece of land for enlarging a schoolhouse site, where the amount paid exceeded the *" \ sum previously authorized for the purpose, the chairman voted in the affirmative, when the vote was discovered to be a tie, and the chairman then assumed and exercised the right to break the tie and declare the motion adopted, thereby casting two votes upon the question. 976 THE UNIVERSITY OF THE STATE OF NEW YORK Held, That the chairman had an undoubted right to cast one vote at the time the question was bcinn cnnsificrtd, but his subsequent action in assuming to vote again to break a tie vote was illegal. Decided April 6. 1888 Draper, Superintendent At the annual school meeting held in district no. 6 of the town of Darien, Genesee county, in August 1887, the trustee was instructed to purchase a certain piece of land adjoining the school site, at a price not to exceed $25. He sub- sequently purchased a piece of land, alleged to be much smaller than the piece which he was directed to purchase, and paid therefor the sum of $50. At a special district meeting, subsequently held, the matter was considered. Upon a motion to approve the action of the trustee, two persons voted in the affirma- tive, who, it is alleged by the appellants, were nonresidents of the district. The chairman also voted in the affirmative. The result of the voting was a tie, when the chairman assumed and exercised the right to dissolve the tie by again voting for the proposition, and declared it adopted. The appellants insist that the same was not legally adopted. The trustee has interposed no answer to the appeal, and I am, therefore, obliged to assume that the statements set forth by the api)e]lants arc true. If they are true, the action of the meeting can not be sustained, nor can the trustee be sustained in levying and collecting a tax for the payment of the purchase price of the land referred to. The appeal is sus- tained and the trustee is perpetually enjoined from proceeding with the collection of the tax for the purpose mentioned, until there shall be further action in a district meeting. 3767 In the matter of the appeal of Henry C. Northam and Rufus J. Richardson v. school district no. 2, of the town of Lowville, county of Lewis. Where a school district trustee is authorized by a district meeting to purchase such amount of land for a school site, as he may see fit, and to pay therefor such amount of money as he may determine to be proper; held, not to be in accordance with the plan and provisions of law, and such action is void, for a schoolhouse site, it is fair to assume that such action is not so contrary to the When a district meeting, by a strong and overwhelming vote, has passed upon a location interests of the school as to justify the Superintendent in interfering. The language of the statute concernmg the levying of taxes by instalments, for the con- struction of schoolhouses. is somewhat obscure. The purpose of the statute in directing how the vote shall be taken and recorded in cases where the amount to be raised, at different and remote times, was for the purpose of establishing a record which would sustain the validity of bonds issued pursuant thereto, and for the protection of pur- chasers of such securities. A vote taken that the amount authorized for building purposes should be levied in two instalments, six months apart, was clearly to avoid the issuance of bonds and to raise the money as fast and only as fast as it should be needed for the purpose. Decided March 18, 1889 JUDICIAL DECISIONS : SITES 9/7 Draper, Superintendent The annual school meeting in the above-named district held on the 28th day of August 1888, considered the advisability of providing additional school accommodations in the district, and, without reaching any definite conclusion, adjourned from time to time for the further consideration of the subject. At an adjourned meeting held on the loth day of January 1889, it was determined to erect an addition in the rear of the present building. The trustee was also authorized to purchase additional land. The vote to this effect w^as 63 in the affirmative and 6 in the negative. It was taken by requesting persons voting on each side to rise and be counted, and no record was made of the names of persons voting for and against the proposition. It was then moved that the trustee levy a tax of $7500, or so much thereof as might be necessary to pay for such addition, and that the same be levied in two instalments, six months apart, the first one of which should be levied at the discretion of the trustee. This motion was adopted unanimously, the record showing that 50 persons voted in favor thereof. The appellants are opposed to this action, and raise the following objections: 1 That the action of the meeting does not clearly indicate or describe the additional land which was to be purchased, the metes and bounds thereof not being set forth. 2 That the land in the rear of the present schoolhouse is not suitable for such an addition to the building. 3 That the power to purchase an addition to a schoolhouse site can not be delegated to a trustee. 4 That the action does not instruct or limit the trustee as to the amount of money which should be expended for additional land, and the amount which might be expended for extending the building. 5 That the vote directing that the $7500 should be levied in two instalments is inoperative, because of the provisions of section 19 of title 7 of the Consoli- dated School Act, which requires that whenever money is raised for a new schoolhouse, by instalments, the vote authorizing the levying of the tax shall be ascertained by taking and recording the ayes and noes of the inhabitants at- tending and voting at the meeting. The question most discussed by the respective parties is covered by the fifth objection of the appellants, as above set forth. The language of the statute concerning the levying of taxes for schoolhouses by instalments, is somewhat obscure. The respondents contend that the statute only requires that the vote shall be taken by recording the ayes and noes, in cases where the whole amount to be raised is ordered to be levied in separate instalments, and bonds are issued. I am inclined to think that the purpose of the statute, in directing how the vote shall be taken and recorded, in cases where the amount to be raised is to be levied at different and remote times, was for the purpose of establishing a record ""which would sustain the validity of bonds issued pursuant thereto and for the protection of the purchasers of such securities, and to adopt the reasoning of 978 THE UXIVERSITY OF THE STATE OF NEW YORK the respondents, and hold that the purpose of the meeting in the present case, in directing that the amount authorized should be levied in two instalments, six months apart, was clearly to avoid the issuance of bonds and to raise the money as fast, and only as fast, as the trustees should need the same for use. It is clear to me, however, that the trustee has no power to purchase ad- ditional land. The statutes which authorize school meetings to designate sites or additions thereto, and to levy taxes for the purchase thereof, do not permit such meetings to delegate any portion of their authority in that connection. It has been repeatedly held by this Department, through a great many years, that the resolution of the district meeting must clearly describe by metes and bounds the land authorized to be purchased, and must name the amount authorized to be paid therefor, before the purchase can be consummated, and before a valid tax can be levied. In the present case, the action of the district meeting is most indefinite and general. No certain or specific directions are given to the trustee. It is left to him to purchase such amount of land as he may see fit, and to pay therefor such amount of money as he may determine to be proper. This is not in accordance with the plan and provisions of the law, and such action is void. I do hot deem it necessary to go into the question as to whether it is ad- visable to purchase land adjacent to the present schoolhouse and to erect an addition thereupon, or to purchase a site elsewhere and erect a new school build- ing. The vote being as strong and overwhelming upon that question as it was, it is fair to assume that the former course is not so contrary to the interests of the school as to justify the Superintendent in interfering. It is shown that there is room upon land now owned by the district and in the rear of the present schoolhouse for erecting the proposed addition. This being so, and the vote being practically unanimous in favor of that course, after a long and full con- sideration of the question, I do not feel justified in saying that it shall not be done. If it shall afterwards appear that outbuildings in the rear of the school- house are so near as to be offensive, the district will be under the necessity of making other provisions for them. The appeal is dismissed. 3778 In the matter of the appeal of Patrick Murphy v. school district no. i, town of Bangor, Franklin county. A. district meeting which has been held for the purpose of selecting a site and voting a tax to pay for the same, pursuant to a notice which is proper in form and had been generally served upon the voters of the district, will be upheld, even though, in a few instances, without wilful intent, notice failed to reach a few of the inhabitants, the action of the meeting having been approved by a largely preponderating vote. Before an appeal was taken a trustee, pursuant to the vote of the district meeting, had employed counsel and initiated proceedings before the county court for the condem- nation of a site proposed. Held, too late to be entertained. JUDICIAL decisions: sites 979 The State Superintendent of Public Instruction would not feel justified in interfering with the selection of a site shown to be adopted to schoolhouse purposes, because cer- tain inhabitants of the district, interested in the selection of a new site, had failed to exercise their prerogatives at a district meeting. Their negligence will not be per- mitted to overturn the action of the residents who did attend and participate, nor to involve such residents in additional expense. Decided March 30, 1889 John I. Gilbert, attorney for appellant John P. Badger, attorney for respondent Draper, Superintendent A special district meeting was held in the district above named on the 14th day of December 1888, pursuant to the following notice : Notice is hereby given that a special meeting of the inhabitants of school district no. i, of the town of Bangor, will be held in the schoolhouse m said district, on Friday, December 14, 1888, at 7 o'clock p. m., for the following pur- poses : I St. To ascertain if the district inhabitants will consent to the sale of the old schoolhouse and site. 2d. To take into consideration the purchase of a new site and the building of a new and better schoolhouse. Dated Bangor, December j, 1888 E. S. Russell District Clerk (By order of trustees) At such meeting a resolution was offered authorizing the trustees to sell the old schoolhouse and site at public auction to the highest bidder, as soon as a larger site should be purchased and a new schoolhouse built. The ayes and noes were taken and recorded upon this motion. The result was 33 ayes and 8 noes. A resolution was then proposed authorizing the trustees to purchase a new site, which was specifically described by metes and bounds. The ayes and noes were also taken upon this resolution, and the vote resulted in 34 ayes and 9 noes. A resolution was then proposed authorizing the trustees to levy a tax for the purpose of carrying out the action previously taken. Upon the vote being taken it was declared adopted by 39 ayes and 2 noes. The meeting then selected certain persons to act with the trustee in an advisory capacity concerning the erection of the new building, and adjourned to a subsequent time, when plans for such building were considered and approved. The appellant objects to this action, and appeals therefrom. He alleges that the notice of the meeting at which such action was taken was not sufficient under the law. He also alleges that the site selected is not a convenient one for the majority of the- residents of the district, and that the action taken is not approved by such majority. The appeal was not brought in time. The action appealed from was taken upon the 12th day of December. The papers were not served upon the respond- ^it until the 27th day of February. I do not think any sufficient reason for the delay is shown, but still I have examined the papers. 980 THE UNIVFKSITV OF THE STATE OF NEW YORK The notice of the meeting from the action of which the appeal is taken, is sliowii to have hecn more generally served upon the voters of the district than is found to be the case ordinarily. The district clerk swears that he served said notices upon each and all of the voters of the district by reading the same to them and each of them, as he then verily believed, except in perhaps half a dozen instances, where he was unable to see the voter himself, and left word with some member of his family. In most of these exceptional cases it was shown that actual notice of the meeting reached the voter. The statute expressly pro- vides that the proceedings of no district meeting shall be held to be illegal for the want of a due notice to all persons qualified to vote thereat, unless it shall appear that the omission to give such notice was wilful or fraudulent. This does not appear in the present case. It is not pretended to have been the fact that there was any wilful or fraudulent failure to serve the notice in the technical manner prescribed by the statute upon every voter of the district. It must be said that the district clerk acted in good faith, and, I thhik, with due diligence. Moreover, the several votes taken in the district meeting were overwhelming, and it does not appear, and can not be the fact, that persons were absent from that meeting because of a lack of notice of the same in sufficient number, by any possibility, to have changed the result. The action of the district meeting appears to have been entirely regular and in strict conformity with the requirements of the statutes concerning such action. The resolution to purchase a new site and erect a new schoolhouse was evidently drawn with care, as was also the other resolution authorizing the pur- chase of a specified site, and describing that site by metes and bounds. The ayes and noes were taken and recorded, and the vote was overwhelmingly in favor of the proposed action. It also appears that, subsequent to the district meeting, the trustee entered into negotiations with the owner of the proposed site for the purchase thereof, but was unable to consummate the same because of the exorbitant demands of the owner; that he thereupon employed counsel and initiated proceedings in the county court for the condemnation of the proposed site, and that such proceedings resulted in the appointment of appraisers, and in the appraisal of the property and in the final order of the court condemning the property for a schoolhouse site. The proposed new site has also been approved by the school commissioner of the district. All of these proceedings must have been known in the district, and yet they were allowed to go forward to completion without opposition, and before an appeal was taken from the action of the district meeting. The trustee has issued his tax list, and a portion of the same has been col- lected. I fail to find any sufficient ground for setting aside the action of the dis- trict meeting. There certainly is no reason assigned which would be a sufficient foundation for sustaining the appeal, unless it be that the site selected is not central, and is not suitable to the majority of the people of the district. JUDICIAL decisions: sites 9S1 The appellant makes a somewhat strong showing upon this point, but after somewhat full consideration of all that is said in that connection, I have come to the conclusion that I should not be justified in interfering. I find that the new site is less than seventy-five rods from the old one. It is practically admitted by all in the district that a new site should be selected and a new schoolhouse erected. If persons interested in the selection of the new site failed to exercise their prerogative at the district meeting, their negligence should not be permitted to overturn the action of the residents who did attend and participate, nor should it be permitted to involve such residents in additional expense, inasmuch as there was general notice of the proposed action given throughout the district, and inasmuch as there is no allegation that the site chosen is not well adapted to schoolhouse purposes. For these considerations, I am obliged to dismiss the appeal. 3780 In the matter of the appeal of John R. Russell and others from the proceedings of a special school meeting, held in district no. 4, of the town of Ellery, Chautauqua county, March 4, 1889. Appeal sustained when a resolution designating a site was not sufficiently descriptive thereof to comply with the statute. Decided April 15, 1889 Draper, Superintendent This appeal is taken from the proceedings of a special school meeting, held in district no. 4, of the town of Ellery, Chautauqua county, at which a change of schoolhouse site was proposed and voted. Many reasons are given by the appellants for a reversal of the proceedings of the meeting. It is unnecessary for me to examine them fully, as the repre- sentative of the respondent concedes, in a communication in relation 'to the ap- peal, that the resolution designating the site was not sufficiently descriptive thereof to comply with the statute. This being conceded, I sustain the appeal, and authorize the trustee of the district to forthwith give notice for a special meeting to be held within fifteen days from this date, for the purpose of de- termining the question of the selection of a schoolhouse site. 3600 In the matter of the appeal of Emmet S. Elmer v. the action of a district meet- ing in school district no. 9, of the town of Monroe, Orange county. The proceedings of a district meeting in deciding by a strong affirmative vote to change a schoolhouse site and build a new schoolhouse will not be disturbed for irregularities *" \ at the meeting which are not specified with clearness and proof. Decided May 18, 1887 i>8j the university of the state of new vukk Draper, Superintendent This is an apical from llic action of a special school meeting held in school district no. 9. in the town of Monroe, Orange county, N. Y., upon the 18th day of Febniary 1887, and by which it was determined to change the site and erect a new school building. The appellant alleges several irregularities in the pro- ceedings of the meeting. None are specified with much clearness, and no proof is offered to sustain the allegations which are set forth in the appeal papers. From the minutes of the meeting, it would appear that tHere were yy qualified electors of the district present at the meeting; that the matter of changing the site and erecting a school building was discussed at length and deliberately voted upon. Forty-eight votes were cast in favor of a new school building and 29 against. Forty-two votes were cast in favor of changing the site and 31 votes against. The record book of the district shows that the names of the persons present were called and a record of their votes was made. There may have been slight irregularities in the manner of giving notice and in some of the proceedings of the meeting, but I do not see any of sufficient gravity to justify me in overturning the will of a clear majority of the qualified voters of the district present at the meeting. No fraud is alleged. The appel- lant admits in his appeal that this district is almost wholly in favor of a new school building. In view of these considerations, I feel compelled to dismiss the appeal. 3853 In the matter of the appeal of David M. Elliott and others from the proceedings of a special school meeting, held December 7, 1889, in school district no. 6, town of East Greenbush, Rensselaer county. A site for a schoolhuuse, selected by the district meeting, and satisfactory to a large majority of the district, will not be disturbed unless selection was brought about by illegal or improper means. Decided January 17, 1890 Draper, Superintendent At a special school meeting, held on December 7, 1889, in school district no^6, of the town of East Greenbush, Rensselaer county, it was decided by a sufficient vote to enlarge the present schoolhouse site by acquiring title to ad- jomnig lan.l. From this action this appeal is taken. The grounds of the appeal are that the site agreed upon is unfit for schoolhouse purposes; that the spot IS a bleak one and much exposed to wind; that another site has been proposed which ,s nearer to a village which forms a part of this district; that the last mentioned site is upon level ground and sheltered from storms and wind, and that the inhabitants of the district are nearly evenly divided in their prefer- ences between the respective sites. JUDICIAL decisions: sites 983 An answer has been interposed by a committee of taxpayers of the district, selected by a district meeting for that purpose. It appears that the site selected at the district meeting is located very near the center of the district, and that although it is upon high ground, it is in the immediate vicinity of farmhouses and improved real estate. It is clear to me that the site selected by the district meet- ing is satisfactory to a large majority of the inhabitants of the district and is believed by them to be the location which will best accommodate the children of the district. It is not claimed by the appellants that any undue advantage was taken of them at that district meeting at which the site was selected, nor that the result was brought about by illegal or any improper means. I therefore fail to discover any reason why I should interfere with the expressed will of the inhabitants. The appeal is overruled, and the stay here- tofore granted upon the application of the appellant is vacated and set aside. 3816 Charles L. Rowell v. school district no. 3 of the town of Franklin, county of Delaware The fact that a newly selected school site is inconvenient for some patrons is not sufficient for setting aside the action selecting it. Decided October 9, 1889 Draper, Superintendent This is an appeal from the action of a special district meeting held on the 2d day of September 1889, locating a new schoolhouse site. There is no claim that the action of the meeting was not regularly taken in conformity with the recjuirements of the statutes relating to the subject. There is no claim that the new site chosen is not suitable for school purposes. It is said that it is inconvenient for some patrons of the school. That is ordinarily the case in all districts. If some other site was chosen, someone else would be inconvenienced. In short, no sufficient reason is shown for overruling the action of the dis- trict meeting. The appeal is dismissed. STATE SCHOLARSHIPS 3887 'In the matter of the appeal of Francis J. McBarron v. John Jasper, superin- tendent of schools of the city of New York Students of the College of the City of New York are not eligible for State scholarships in Cornell University. Decided July 18, 1890 Theodore Baumeister, attorney for appellant Draper, Superintendent The appellant was during the last year a student in the College of the City of New York, and attempted to enter the last annual examination of candidates for State scholarships at Cornell University, but was not permitted to do so by Superintendent Jasper, on the ground that students in the College of the City of New York are ineligible to such scholarships. This appeal is brought to de- termine the question. The statute provides that " none but pupils of at least sixteen years of age and of six months' standing in the common schools or academies of the State during the year immediately preceding the examination, shall be eligible " to the State scholarships. The only question here is whether the College of the City of New York is a common school or academy within the meaning of this statute. It certainly is not a common school, and I am confident that it is not an academy. It is not classified as such by the Board of Regents of the University. It does not participate in the distribution of the income of the " literature fund." Sec- tion 105S of the New York City consolidation act provides that it shall be entitled to do so, but as a matter of fact, it does not. It has the authority to confer degrees. Indeed, it seems to have the plan of organization, the extended course and the general authority of a college. I can not believe that it was the purpose or intent of the Legislature to open the State scholarships at Cornell University to the students of such an institution as the one under consideration, and am of the opinion that the superintendent of schools in the city of New York, who was charged with the duty of conducting the Cornell examination, acted within the meaning of the statute in declining to' permit the appellant to enter the same. The appeal is dismissed. 3879 In the matter of the appeal of Frank G. Snyder, Walter W. Hyde, by his father and guardian. Orange P. Hyde, and Walter W. Edwards, by his father and guardian, David Edwards v. Cornell University. Students holding a State scholarship at Cornell University, who fail in term examinations and consequently have to leave the institution, must be deemed to have abandoned their rights to the scholarship. Decided May 15, 1890 [984] JUDICIAL decisions: state scholarships 985 Draper, Superintendent Frank G. Snyder, Walter W. Hyde and Walter W. Edwards, were candi- dates at the examination held on the first Saturday of June 1889, for State scholarships at Cornell University. Their standing in such examination was not sufficiently high to make either one of them first entitled to scholarships; but candidates who fail to gain scholarships are, under the law, entitled in the order of merit, to vacancies which may arise in the State scholarships in case students who have become entitled thereto, either abandon or vacate the same. The names of the three young men appear in the list of persons, who in the order of merit, are entitled to such vacancies. Although these young men failed to secure scholarships, they entered the freshmen class in the university in Septem- ber 1889 as pay students. They now allege that, at the term examination held in December 1889, more than three State scholars forfeited their rights to scholarships, by reason of failure to pass the examination, and that, under the law, it thereupon became the duty of the president of the university to certify the fact that vacancies existed in State scholarships, and the duty of the State Superintendent to fill such vacancies from the list of persons eligible thereto. The university in its answer admits substantially all the facts alleged by the appellants, except that it denies that students who failed to pass the term exam- ination in December 1889, forfeited their scholarships in. consequence thereof. It is said by the university that students failing to pass such an examination are not thereby permanently excluded from their scholarships, but are only temporarily suspended therefrom, and afforded an opportunity to make up their deficiencies and reenter upon their scholarships. Section 9 of the charter of Cornell University, which relates to the State scholarships, was amended by chapter 291 of the Laws of 1887. Subdivision 5 of said section relates to the filling of vacancies in such scholarships, and reads as follows : In case any candidate who may become entitled to a scholarship shall fail to claim the same, or shall fail to pass the entrance examination at such uni- versity, or shall die, resign, absent himself without leave, be expelledor, for any other reason, shall abandon his right to or vacate such scholarship, either before or after entering thereupon, then the candidate certified to be next entitled in the same county shall become entitled to the same. In case any scholarship belonging to any county shall not be claimed by any candidate resident in that county the State Superintendent may fill the same by appointing thereto some candidate first entitled to a vacancy in some other county, after notice has been served on the Superintendent or commissioners of schools of said county. In any such case, the president of the university shall at once notify the Superin- tendent of Public Instruction, and that ofticer shall immediately notify the candi- date next entitled to the vacant scholarship of his right to the same. From this it appears that when a candidate " shall abandon his right to or vacate such scholarship," the candidate certified to be next entitled thereto, ~ ^lall become entitled to the same. The terms abandon and vacate seem to have been used to cover either a voluntary relinquishment of the right to the scholar- ships, or an involuntary forfeiture of such rights. The plain meaning of this 986 THE UNIVERSITY OF THE STATE OF NEW YORK paragraph of the statute is that, when a State scholarship shall for any reason become unoccupied, the persons who entered the annual examination in competi- tion therefor shall, in the order of their acquired standing in such examination, become entitled to enter thereupon and receive the benefits and advantages thereof. I know of no principles of legal construction that would change this manifest intent of the law. But the university says that the scholarship is not vacant or unoccupied when the holder fails to meet the requirements of a term examination, in conse- quence of which he must necessarily leave the institution, because he may make up his work and be reinstated. It seems to me that this view is repugnant to the evident purpose of the Legislature in enacting the recent amendment to the charter of the university. (Chapter 291, Laws of 188;.) In consideration of the advantages accruing to the institution from the fact that it was given the share of the State of New York in certain public lands distributed to the States by act of Congress for specific educational purposes. The State reserved to itself the right to send to the university each year, students to the number of one for each Assembly district, who should be entitled to the privileges thereof without the payment of tuition fees. The university accepted these terms. The scholarships thus created had never been fully occupied. It had never been possible to fill a vacancy in one district by appointment from another district, no matter how many deserving candidates the other districts might have. When a scholarship had once been filled by appointment from one district and should become vacant, there was no way of filling it, even though there were deserving and willing candidates in the same district. In this way the scholarships were not more than half filled. Chapter 291 of the Laws of 1887, was intended to correct this, and provide a way for extending the privileges of these State scholarships to any students in the State who might desire them and be able to comply with the necessary requirements. In short, the State undertook, by this amendment to the charter of the university, not only to fill the scholarships, but to keep them full so long as there were students in the State who desired and deserved the privileges thereby afforded, in the evident belief that, in thus carrying the advan- tages of the great institution to the greater number of its brightest and most deserving children, it would be helping them and promoting its own substantial development as well. The length of time with which the university claims that it may permit delin- quents to make up deficiencies and regain position is indefinite, and if we adopt the principle for which it contends — that a student who is obliged to drop out and leave the institution because he can not sustain himself in examinations, does not vacate his scholarship because he may make up his work and be rein- stated at any indefinite time in the future — we practically hold that a scholarship once occupied, and then vacated, can not be again filled at all. It stands to reason that the greater number of the students who fail to pass the term exami- nation will not be disposed, or will be unable to regain their forfeited places. JUDICIAL decisions: state scholarships 987 It stands to reason also that the greater number of failures to maintain posi- tions, will occur in the freshman year, thus leaving a vacancy in each case extending over a period of more than three years. This is a denial of the rights which the statute gives to waiting candidates, and overthrows and thwarts the manifest intent and purpose of the Legislature in enacting the amendment to the charter of the university, with a view to keeping the scholarships full. The university exacts certain evidences of proficiency, either the certificates of other institutions as to work previously performed by the candidate, or that he shall show his scholarship in an entrance examination, before the holder of a scholarship can be admitted to the course at all. After being thus scrutinized upon admission, it would seem quite possible for the authorities to determine whether a student is so deficient as to make it impossible for him to sustain himself and complete the work of the course, before actually depriving him of the privileges of the institution and barring the door against him. It must be admitted I think, that the student who can not sustain himself beyond a reasonable question, should give way to one who can, but that after admission, one should not be obliged to go out until it is clear that he can not go on with fair prospect of creditable graduation, and when that time has arrived, another who is waiting should be allowed to come in. And when a State student has for any reason been debarred the privileges of the university and prevented from attending upon its instruction, he must be deemed to vacate his scholarship within the meaning of that term as used in subdivision 5, section 9 of the charter. From these considerations, it follows that the appeal must be sustained. It would seem reasonable, however, that a little time should be afforded for the correction of any misunderstanding which may have arisen through conflicting interpretations of the meaning of the statute. The authorities of the university will at once notify all holders of State scholarships who have been debarred the privileges of the institution, that they may at once return, and must do so or forfeit their scholarship rights, except in cases where such authorities determine that students are so deficient that their scholarship privileges should be taken away. All who are thus allowed to return and do not do so within twenty days, will be deemed to have abandoned or vacated their scholarships. And the president of the university will at the end of that time notify the Superintend- ent of Public Instruction of all State students who have voluntarily abandoned their scholarships, or have vacated them, as the term is herein construed. TAX LISTS 3531 Summit Afountain House Company v. Samuel Decker, sole trustee of school dis- trict no. 21 of the town of Middletown, Delaware county. ( ii.ijucr .-■). Laws of 1886, authorizing certain taxpayers to elect and give notice in which of two towns they will pay taxes held to apply to school taxes. Held, further, that the act applies to cases which arise subsequent to the passage of the act as well as to the then existing cases. Decided November 12, 1886 Draper, Superintendent This is an apjieal from the action of Samuel Decker, sole trustee of school district no. 21 of the town of Middletown, Delaware county, N. Y., in levying a tax for the sum of $198.87 by a tax bill dated July 5, 188C, and renewed August 5, 1886. The appellant insists that such tax list is incorrect and invalid as to it, and that it should not be taxed in district no. 21 at all. The property of the appellant consists of a hotel and accompanying buildings, and about one hundred acres of land. The line between Delaware and Ulster counties, and between the towns of Middletown and Shandakcn, runs through said property and through said hotel building, leaving a portion in each town. The appellant claims that school district no. 3 of the town of Shandaken includes the entire property, and the description of said district as recorded in the town clerk's office of said town seems to support this view. The respondent insists, upon the other hand, that the boundary line between district no. 21, Middletown, Delaware county, and district no. 3 of the town of Shandaken, Ulster county, is identical with the boundary line between the two counties, so far as the same runs through this property, and supports its claim by numerous affidavits of former trustees and other residents who profess to have been familiar with all the circumstances for more than thirty years. It is impossible for me to determine the disputed question and the location of the district line from the papers in the case. It probably can only be determined by a survey, which should be made. If I could feel justified in sustaining the appellant's claim m this regard, that would settle the controversy; but I can not. The appellant says, however, that even if the respondent's claim as to the location of the boundary line be assumed to be correct, even then it ought to succeed in this appeal, for the reason that it has elected to pay taxes in the town of Shan- daken pursuant to the provisions of chapter 59 of the Laws of 1886 Proof is made that the appellant, in the month of March 1886, caused to be served upon the assessors of each of the towns of Middletown and Shandaken, a notice signed by the appellant, together with a copy of the act (chapter 59 of the J.aws of 1886), and stated that, pursuant to such chapter, the appellant [988] JUDICIAL decisions: tax lists 989 would elect to pay taxes thereafter in the town of Shandaken. It is insisted by the respondent that chapter 59 of the Laws of 1886 applies only to taxes levied and unpaid at the time of the passage of the act, and in any event it does not apply to taxes for school purposes. The language of this act is, perhaps, unfortunate and difficult of construction; it must be read in its entirety, and its different provisions must be construed in line with its general purpose, and, so far as possible, held to carry out that purpose. Its general purpose is to relieve the owners of dwelling houses, or otter buildings through which town boundary lines run, from the embarrassment and annoyance of being subjected to taxation in the two towns, and to avoid controversies between the same in relation to their respective claims. It does speak of " taxes levied thereon, which shall remain unpaid by the owner ... at the time of the passage of this act " ; but section 2 provides that " the occupant shall cause to be served upon the assessors, or one of them in both said town and city, or in both of said towns in the same or different counties, at least thirty days prior to the date fixed by law for the date of assessment, a written notice of his said election, together with a copy of this act," etc. This provision that the notice of election shall be served at least thirty days prior to the date of assessment would be meaningless, if we were to hold that the act applied only to taxes levied at the time of its passage. On the contrary, it plainly indicates the intent of the Legislature to make a general provision not only for the benefit of existing cases, but of such as might arise after the passage of the act. Furthermore, the act refers to taxes in general, and I think must be held to include school taxes. For the foregoing considerations, the appeal must be sustained, and the tax levied against the appellant in the town of Middletown must be held to be null and void, and the trustee of school district no. 21 of said town is hereby directed to withdraw the tax list in question from the hands of the collector, and to correct the same by striking therefrom the name of the Summit Moun- tain House Company. 3625 In the matter of the appeal of E. M. Davis and James H. Riker v. John H. Albright, as trustee of school district no. 3, town of Ontario, county of Wayne. The acceptance and adoption of a trustee's report containing reference to an item of ex- pense does not authorize its insertion in a tax list. A tax must be specifically voted. Teachers' wages already earned and due may be included in a tax list without a vote of a district meeting, but not so as to wages not yet due. There is no law to authorize a tax for " incidentals." Decided July 21, 1887 Draper, Superintendent ' This appeal is taken by residents of school district no. 3, town of Ontario, county of Wayne, from the action of the trustee of said district in including 990 THE UNIVERSITY OF THE STATE OF NEW YORK in a certain tax list certain items for which, it is claimed by the appellant, he had no authority to do. The items objected to are as follows : Remainder of teachers' wages, $1448; teachers" wages for fall term (8 weeks), $40; wood for ensuing year, $20; costs incurred by former trustee in bringing and defending suits, $47.53; cleaning up and improving school yard, $5 : incidentals for ensuing year, $10. The appellants allege that none of these items were authorized to be raised by tax at a district meeting, and that the item of costs has not been allowed by the county judge, as provided by law. The respondent answers the appeal, and alleges: 1 That the appeal was not taken within the time allowed by law; that property had been advertised for sale before the date of the service of the appeal. 2 That the item of $5 for cleaning up and improving the school yard was a necessary and reasonable charge. 3 That the sum of $10 for incidentals was reasonable. 4 The items for costs ($47.53) was reported to a district meeting, and the report accepted and adopted. There is no serious dispute about the facts, and in deciding this appeal I must look only for the trustee's authority to include these items in a tax list. 1 Was he authorized to do so by a vote of the district meeting? The trus- tee's claim that he was so authorized to include the item of $47.53 for costs, can not be sustained on the ground that a report of a former trustee, contain- ing the item was accepted and adopted. It does not appear that the meeting voted to direct the trustee to levy a tax for this item. It has been held by a former superintendent " that the acceptance and adoption of a report containing an item of expense, does not authorize the levy of a tax agreeable to the recom- mendations contained therein. A tax must be specifically voted before it can be lawfully levied." This item of tax, therefore, can not be sustained. 2 The item for the balance due the teacher for wages is sustained. A trus- tee is expressly authorized by statute to levy a tax for this purpose, when no provision therefor has been made by the district meeting. 3 The item for teachers' wages, fall term, being in anticipation of wages to be earned, and not authorized by a vote of a district meeting, can not be sustained. 4 The item for incidentals is not sustained. There is no authority for its collection. 5 I sustain the item for fuel and for cleaning up the school yard, it appear- ing to my satisfaction that the amounts proposed are not exorbitant. A trustee IS authorized to provide fuel and remove nuisances and clean up the school- house and yard. The appeal is therefore sustained as to the items mentioned above, and the trustee is hereby authorized and directed to withdraw his tax list and warrant, dated October 12, 1&S6, from the collector, and amend the same accordingly, striking out the items for any anticipated teachers' wages, the items for costs and for incidentals, and then deliver the same to the collector as amended. JUDICIAL decisions: tax lists 991 37B7 In the matter of the appeal of Fred Mussen v. official acts of James Mussen, trustee of school district no. 13, town of Chesterfield, Essex county. Collector. A collector who refuses to furnish a bond within ten days after proper notice from the trustee, vacates his office and the trustee may fill such vacancy. The fact that a warrant is not attached to a tax list but is handed to a collector folded within the tax list and the collector is instructed to attach the warrant to the tax list with some adhesive substance, is held to be a substantial compliance with the statutes. Decided April 17, 1889 Draper, Superintendent This appeal is taken by the appellant, who alleges that he is a taxpayer and voter in school district no. 13 in the town of Chesterfield, county of Essex, from official acts of the trustee of said district, enumerated as follows: 1 In appointing a district collector in place of the appellant, who was duly elected collector of said district at the annual meeting held in August last. 2 In preparing and issuing a tax list which contained items which were not voted at a district meeting, and which were not authorized by law to be raised without the vote of a district meeting. 3 In withdrawing a tax list and amending the same without the consent of this Department. 4 In including in the tax list property which was not assessed on the pre- vious assessment roll of the town, and in reducing the valuation of a certain piece therein from its previously assessed value, and in increasing the valuation of another piece. The appellant alleges that after his election as district collector, and on or about the 7th day of December 1888, the trustees delivered to him a tax list to which no warrant was attached, but that the warrant was delivered to him at the same time; that the tax list was detached therefrom; that the appellant returned the said tax list, informing the respondent that the same was illegal, and that he could not collect the same; that on the 17th day of December last, said respondent delivered to the appellant a new tax list, which the appellant alleges was defective in several minor particulars, one of which was that an item for repairs was stated at $115 instead of $114.50; that an item for blinds, windows and paint was included at the sum of $19.50 instead of $18.98; that an item for other expenses was stated at $1.50 instead of $2.50, and that an item for teachers' wages was stated therein at $30 instead of $30.24. This tax list the appellant also returned to the trustee and informed him that he could not collect the same. He alleges that he has not refused at any other time to execute any tax list and to perform any lawful duty pertaining to his office; that subsequently the respondent appointed one Frank Pelkey as collector for the district and issued to him a tax list and warrant directing the collection of certain items which the appellant alleges were not legal charges against the dis- trict; that at the annual school meeting held in said district, it was proposed to repair the schoolhouse, but that no vote was taken thereon; that the meeting 992 THE UNIVERSITY OF THE STATE OF NEW YORK was duly adjourned to September 4, 1888, to further consider the subject of repairs and to receive proposals for making the same ; that no meeting was held on the 4th day of September, but that on the ist day of September preceding, after a notice had been informally circulated that said adjourned meeting would be held on that evening, a meeting was held, at which meeting it was voted to nuikc repairs and proposals were received and the work let to one Frank P. Mussen, for which he was to be paid the sum of $114.50- Subsequently the work was done and comi)leted prior to November 5, 1888; that at a special meeting, held on November 5th, which was regularly called, the meeting voted to pay said Frank P. Mussen $114.50 for all repairs made by him, and directed the trustee to assess that amount upon the district; that the trustee seeks to raise the further sum of $18.98 to pay to the said Frank P. Mussen for repairs made by him; that the tax list delivered to said Frank Pelkey, as collector, was not the same as the tax list delivered to the appellant previously thereto; that the respondent reduced the valuation of the taxable property of one James McCarty from $450 to $300, without any claim being made by said McCarty for such reduction and without notice to any taxpayer in the district; that one Joseph Tromblee was assessed for $50 upon real estate, when the said Tromblee was not assessed ui)on the town assessment roll, and that the said assessment was made without notice to said Tromblee; that the valuation of real estate of Antoine Fortune was increased from the sum of $400 to the sum of $700, with- out notice to said Fortune. The respondent, the trustee of said district, answers the appeal in detail. He denies that the appellant is in any way aggrieved, or that he has sustained any injury by any of the acts complained of ; that the appeal was actuated by spite, solely "Decause of the failure of the appellant to secure the contract to make repairs to the schoolhouse, for which he was a bidder, but not the lowest; that the appellant refused to furnish a bond as collector, and refused to collect a tax when the warrant and list were lawfully placed in his hands; that by such refusal to furnish a bond and perform his duty, he vacated his office, and that the trustee was then authorized to appoint his successor; that no change or amendment of any tax list has been made by the trustee, excepting the adding of fifty dollars to the assessment of one McCarty, and the including of an assess- ment against a corporation which had been omitted, the effect of which was to decrease the tax of the appellant and other taxpayers; that the tax against the property of Joseph Tromblee is as it has been for years, and that said Trom- blee is in possession of the land assessed to him and claims to be the owner thereof; that the assessment of Antoine Fortune has not been changed and is the same as it appears on the town assessment roll ; that the contract for repairs was in writing, and each item required of the contractor specifically stated, and the appellant, who bid upon the work, had full knowledge of the same at the time his bid was made, and at the time the contract was let (a copy of the contract appears in the respondent's papers) ; that the collector's notices were duly posted ; that the item of $18.98. tn which the appellant objects, was for repairs ordered JUDICIAL decisions: tax lists 993 by the trustee, and was for work not included in the contract, but which the trustee deemed necessary to be done; that the item of $4 for cleaning the school- house and building fires for the year then passed, and for cleaning work for the then coming year, were voted at the annual meeting; that the item for teachers' wages was for services actually due; that the respondent admits that the annual meeting was duly adjourned to the 4th day of September, but alleges that prior thereto, and at the request of the appellant who desired to offer a bid for the prcn posed repairs to the schoolhouse, and who would not be able to attend the meet- ing if held on the 4th day of September, the meeting was held, with the consent of all the taxpayers and voters of the district, on the ist day of September instead of the 4th; that at a special meeting held November 5, 1888, the sum of $114.50 was voted to pay for the repairs specified in the said contract, and for no other work, and that the meeting was then and there informed that other repairs, not included in the contract, had been made, the expense of which amounted to $18.98, and that the appellant and his friends thereupon left the meeting, and no other business was transacted thereat ; that at the time the tax list and warrant were first delivered to the appellant, the respondent did not have at hand the means for attaching them together, and he requested the appel- lant to do so, both being delivered to him at the same time ; that the usual notices of the completion of the tax list were duly made and posted as the statute requires ; that a large proportion of the taxes have already been collected by the said Pelkey as collector. Many affidavits, in corroboration of the allegations of both the appellant and the respondent, are presented. I have examined them all with care, and I am forced to the conclusion that there is but little merit in the appeal, and that the appellant was, to a great degree, actuated by spite and disappointment. I can not conceive how the appellant can consider himself aggrieved except in his removal from the position of collector. By his own act in neglecting to give a proper bond and in refusing to execute the warrant delivered to him by the trustee, he vacated his office, and the trustee was authorized by statute to appoint a collector to fill the vacancy. The contract for repairs was in writing and specific, and I am satisfied the appellant knew just what the terms of the proposal were when he ofifered his bid to do the work, which was several dollars in excess of the amount at which the contract was let. A trustee has authority under the school law to make repairs, the expense of which in any one year shall not exceed $20, without the vote of a district meeting. The additional item, therefore, of $18.98 was not without authority of law. It appears that the items for cleaning were authorized by a vote at the annual meeting, and the item for teachers' wages the trustee was authorized to levy without the vote of a district meeting for the reason that the service had been rendered and the wages were due. If it were a fact that some person, other than the appellant, was included within the tax list, or that the valuation of some other person's land was increased, that fact would "rlDt result in any loss to the appellant. An increase in that respect would cause a reduction in the tax he would be required to pay. 32 994 THE UNIVERSITY OF THE STATE OF NEW YORK Many of the allegations of the appellant as to the irregularity of the tax list, arc indefinite antl based upon information and belief, while the trustee positively avers that no change was made in the tax list from the time it was first pre- sented to the appellant until its final delivery to his successor. The fact that the warrant was not attached securely to the tax list, but was handed to the collector at the same time, with instruction to attach the same with some adhesive sub- stance, sufficiently explains that objection. This I would hold to be a substantial compliance with the statute. The slight discrepancies in the amount included in the first tax list, and the amount which the appellant claims should have been inserted, are almost too trivial to be taken advantage of by a proceeding of this nature. In view of these considerations, I have concluded to dismiss the appeal, and hereby vacate and set aside the stay of proceedings granted herein on the 8th day of January 1889, and direct the trustee to forthwith renew the warrant as to any delinquent taxpayers, and redehver the same to the collector. 3761 In the matter of the appeal of Abijah J. Wellman and another v. union free school district no. i, of the town of Friendship, in the county of Allegany. Where, at a special school meeting, a vote to appropriate money for building a new school- house, was made after a site had been selected, and subsequently thereto another site was selected, about which there was much controversy in the district, and the state- ment made that the money would not have been appropriated had it not been supposed that the site first selected would be built upon ; and where it was further claimed that the notice of the meeting at which the second site was selected was not as clear as it should have been, owing to the importance of the matter to be considered thereat, the action of the meeting was set aside and another district meeting ordered, so that all the electors of the district might have an opportunity to be heard upon the question of the location of a site. Although a site may have been changed since a tax for building a schoolhouse was voted; held, not to prevent the enforcement of the tax. Decided February 3, 1889 D. P. Richardson, attorney for appellants S. M. Norton, attorney for respondents Draper, Superintendent A special school meeting was held in the above-named district on the 6th day of July 1888, at which a motion was made to appropriate $15,000 for a new schoolhouse. Pending the determination of this motion, it was voted that the meeting should proceed to select a new site. Several sites were proposed. The meeting proceeded to ballot for a site, and property known as the " Old Acad- emy " or " Miller " site was selected. It was agreed that the purchase of this. property should be conditioned upon the ability of the board to secure a good and JUDICIAL decisions: tax lists 995 sufficient title thereto. The meeting then proceeded to ballot upon the proposition that there be raised $15,000 to pay for new schoolhouse and site in instalments of $3000 and interest annually. The result of the ballot showed that 131 were in favor of the proposition, and 95 opposed it. Another special meeting was held in the district on the 15th day of January 1889, at which the board reported that it was impossible to procure a good title to the site previously chosen. After discussion and the consideration of various propositions, it was voted to proceed to an informal ballot for a new site. This ballot and a subsequent formal ballot resulted in the selection of property known as the " Church " site. This appeal is brought against the proceedings of the last special meeting, but the board of education has not yet raised the money appropriated at the July meeting, and the appellants claim that they should be enjoined from doing so, as the authority to raise the money was given upon the supposition that the " academy " site would be taken. They claim that there was no legal notice of the January meeting given by the board, and that, in consequence, the action of the meeting selecting the " Church " site can not be sustained. I have heard argument of able counsel, carefully read the papers, considered the facts and the law, and arrived at the conclusion that the notice of the special meeting in January was not in full compliance with the provisions of the statutes, and that, consequently the proceedings of that meeting can not be sustained ; I am not satisfied that there was a sufficient number of voters misled to have changed the result, but observe that there were wide differences of opinion in the matter, and also that the vote was not taken and recorded by a call of the ayes and noes, and recall also that even under the call, there was some ground for voters failing to understand that the meeting would select a new site at that meeting. In view of these facts, and the great importance of the matter, I con- clude that the voters had better be given another opportunity to express their opinions concerning it. When the opportunity is afforded it is to be hoped that all will avail themselves of it, and cheerfully abide the determination of the majority. I see no reason to stop the board from raising the money authorized by the July meeting, by selling bonds, as provided by statute. The board has agreed with the owner of the " Church " site for his property, has caused plans to be prepared, and purchased some materials for building. Whatever obligations the board has entered into on the faith of the acts of the district meetings which are not contrary to law, must be carried out by the district. The proofs seem to show that the business of the district will be embarrassed and thrown into confusion, unless some money is raised at an early day. I see nothing to invali- date the proceedings of the meeting making the appropriation. Those proceed- ings were not called in question until long after the expiration of the time for doing so. All agree that a new school building is a necessity. No good reason "why the board should not proceed with the sale of the bonds is made to appear to me. 996 T!IK INIVKKSITY OF THE STATK OF NF.W YORK I therefore determine that the appeal must be sustained, so far as it concerns the proceedings of the meeting of January 15, 1889, and that the action of that meeting in selecting a school site, be declared null and void. The board will, upon due notice, convene another district meeting for the purpose of taking action in the premises. 3932 In the matter of the appeal of Aaron R. Clark v. Reuben Rose and Samuel DeGray. as trustees of school district no. i. Highland, Orange county. Two members of a board of three trustees, without notice to their associate trustee, ac- cepted and approved of the district collector's bond, and issued to him a tax list and warrant. Held, irregular and illegal and their action void. Tax list and warrant may be delivered to collector at any reasonable time after the lapse of thirty days after the meeting at which the tax was voted. Decided December 3. 1890 Draper, Superintendent Appeal by a resident taxpayer of school district no. i. town of Highland, county of Orange, from the proceedings of two of the three trustees of said district. In approving of the district collector's bond and issuing a warrant and tax list about September 10, 1890, without consulting Charles H. Brooks, the other trustee, or giving him any notice of a meeting therefor ; and also for plac- ing a tax list in the collector's hands more than thirty days after the annual meeting. No answer has been interposed. The appellant sustains his first allegation by the evidence of the third trustee, Mr Brooks. The second allegation furnishes no ground for an appeal. A warrant and tax list may be delivered to the collector at any reasonable time after the lapse of thirty days after a meeting at which a tax is voted. The action of two of the trustees in transacting business without giving, the third notice, to which he was entitled, is irregular and their action is illegal. Two of three trustees may legally act when all three have been duly notified of a meeting. The appeal is therefore sustained, as to the first allegation, and dismissed as to the second. The approval of the collector's bond and the issuance of a tax list and warrant about Septciuber 10, 1890, is void and ineflfectual. 3948 In the matter of the appeal of Chauncey R. Cornell v. Leonard A. Denison. sole trustee of school district no. 12, town of Middleburgh, county of Schoharie. District tax lists must contain a proper heading, enumerating the several items for which the tax is to be levied, and specify the amount of each item. Decided December 30, 1890 JUDICIAL decisions: tax lists 997 Draper, Superintendent This is an appeal against a tax list issued by respondent in November last. While I have no reason for doubting the entire good faith of the trustee in the matter, I am still of the opinion that his tax list does not meet the require- ments of the statute. The heading ought to enumerate the items for which the tax is laid, and the several items for which the tax is laid should be specifically set forth. The trustee has included two items in this tax list. The first is for " teachers' wages, fuel and incidental expenses." These items should have been separated. The statute authorizes the trustee to levy a tax for teachers' wages in advance, without the vote of a district meeting, but not so as to incidental expenses. The items included in this list must be separately specified, and there must be specific authority for them, either in the statute or pursuant to the vote of the district meeting. The appeal is therefore sustained, and the trustee is directed to withdraw his tax list from the hands of the collector, and correct it as hereinbefore indicated. 4035 In the matter of the appeal of John O'Donnell v. Frank Henry, as trustee of school district no. 8, of the town of Lowville. county of Lewis. The items included in the tax budget should be separately stated in the heading of the tax Hst. A tax list is illegal if given to a collector before that officer gives the required bond. Trustees may without vote of the district levy a tax for the wages of the teachers for a sum, which with the public and district funds on hand will be sufficient to pay the salary of teachers for a period of four months. Decided December 18, 1891 Draper, Superintendent The appellant complains of the action of the trustee of .school district no. S. town of Lowville, county of Lewis, and alleges : I That he has levied a tax for $100.78 for the following purposes, without the vote of a district meeting authorizing it, namely : For teachers' wages $°" 00 For fuel and repairs ^4 7° 2 That the dift'erent items have not been set forth in the heading of the tax list. 3 That the trustee has delivered the tax list and warrant to the collector without requiring a bond of the collector. - . The trustee admits each charge. To deliver the tax list without receiving a proper bond is clearly illegal, and the custom in the district can not excuse the neglect. The item for fuel and for repairs should have been separately stated. i^ THE UNIVERSITY OF THE STATE OF NEW YORK I can not. from the evidence before me, determine whether the vote of a dis- trict meeting was necessary to authorize the lax proposed or not. A trustee may, without such a vote, levy a tax for teachers' wages, for a sum which, with the pubhc and district moneys on hand, would meet the wages of teachers for four months. He may also include an item for repairs not exceeding in amount twenty dollars, and for the cost of necessary fuel. The appeal is sustained, and the trustee is directed to withdraw the tax list and conform it to law, and before it is redelivered to the collector, to require a satisfactory bond of the collector, which nuist be filed in the town clerk's office. 3950 In the matter of the appeal of Horatio Gardner v. T.yman S. White, as sole trustee of school district no. 8, towns of Big Flats and Elmira, county of Chemung. .\n appeal from a district tax list which contains items not authorized by statute, and from the action of a trustee in delivering to a collector a tax list and warrant some time before a bond was given by the collector and filed. Overruled, for the reason that the appeal was not promptly taken, and not until after a collector's bond had been filed. A levy and sale had taken place under the warrant, and the amount of the tax had been collected and fully realized. Decided December 30, 1890 Daily & Bentley, attorneys for respondent Draper, Superintendent The appellant, a taxable inhabitant of school district no. 8, towns of Big Flats and Elmira, county of Chemung, appeals from certain acts of the trustee of that district, and alleges that he is aggrieved thereby. He alleges that the trustee has illegally appointed a district collector; that he has prepared and deliv- ered to such appointed collector a tax list and warrant, upon which tax list cer- tain lands which should have been assessed as nonresident lands were assessed to certain individuals ; that the items for which the tax was levied were not prop- erly itemized, and an item for teachers' wages was for an amount in excess of the sum actually due; that the collector's bond was not approved nor filed until two days after the tax list and warrant were delivered to the collector. Other charges are made by the appellant against the trustee by an additional pleading, which I shall not consider upon this appeal, as they were not included in the original pleading to which the trustee has made answer. The answer of the trustee controverts some of the appellant's allegations, but not all, and I am satisfied that the tax to be collected was not properly itemized. The item for teachers' wages, $20, should have been $19.44, a difference too trivial to be considered upon an appeal, as the surplus could not legally be diverted to other than district purposes. JUDICIAL decisions: tax lists 999 The item of $8 for fuel, fires and repairs, and $7.03 for miscellaneous and other expenses, are both too indefinite to comply with the statute. The appellant places great stress upon the fact that one John Kneale was declared by the trustee to have vacated his oftice of district collector, and that one Seeley P. Chapman was appointed thereto ; that certain real estate, not the .appellant's, was not assessed to the proper owners. As the tax was paid to the collector upon such property before appellant's appeal was taken, I am at a loss to discover how he was afi^ected thereby, or by the change in collectors, unless it be that the newly appointed collector was less susceptible to appellant's influence, and levied upon and sold appellant's property for his school tax. The charge that the bond was not delivered and filed until after the tax list and warrant were delivered, but before the appeal was taken, or properly levied upon, is not a ground for an appeal. This the courts have repeatedly held as well as this Department. The grounds are not sufficient to sustain the appeal. If the appellant had brought his appeal before the list was collected, the trustee would have been ordered to withdraw his tax list and correct the same, where errors were noted, but it is too late to ask the Department to interfere after levy and sale, and the amounts called for are fully realized. But the fact that this appeal is not sustained, must not be taken to authorize any illegal expenditure of moneys raised. The trustee will be personally liable, if he gives orders upon the collector, for items which are unauthorized either by a district meeting or by statute. He can insure a school building only by the authority of a district meeting. For the reasons given, the appeal is dismissed. 3962 In the matter of the appeal of James B. Haynes and Edwin H. Taylor v. A. B. Davis, as trustee of school district no. 11, town of Rushford, county of Allegany. An appeal to stay the collection of an illegal tax must be promptly taken, and before the tax has been collected and the money disbursed, or it is too late for a decision of the State Superintendent to change the condition of affairs. Plan for a schoolhouse should be determined upon by a district meeting, and a building erected in accordance therewith. Decided February 9, 1891 E. E. & G. W. Harding, attorneys for appellants Draper, Superintendent Appellants are electors of school district no. ii, town of Rushford, county of Allegany. The relief asked for is the setting aside of a warrant and tax list issued by the respondents, bearing date July 7, 1890, and an order enjoining its ICXX) THE UNIVCKSITY OK THK SIATE Ol' NEW VuKK collection pending ihc delcrmination of the appeal. On July 23, 1890. the enjoin- ine order was granted and promptly sent by mail tu the appellants. The appeal was duly served upon respondent July 28th, and on August 2d, filed in this Department. It is based upon the following allegations: That on May 2, 1890, a special meeting voted not to build a new schoolhouse ; that a special meeting held May 13th. voted to build a new schoolhouse, appointed a building committee. of three, and authurized them to determine size, price and quality of the pro- posed building; that thereupon, the trustee, acting in conjunction with such com- mittee proceeded to erect a schoolhouse, and on July 7, 1890, the trustee issued the tax list objected to, to raise moneys for the district. ( )n .\ugust 20, 1890, the matter was referred to School Commissioner D. D. Dickson, to take and return the evidence. From the evidence returned, I find the facts to be as follows, namely : the school commissioner had frequently called the trustee's attention to the necessity of erecting a new school building in conse- i|uence of which the first special meeting was held. When the refusal of the meet- ing to vote to build was communicated to the school commissioner, he informed the trustee that he would condemn the building unless the district agreed to build. The trustee thereupon called a second meeting which the commissioner attended, and a new school building was ordered. Both special meetings were slimly attended, and the vote at each was nearly evenly divided. The building committee and trustee thereupon met, and after visiting a neighboring district and examining the schoolhouse thereof, decided to build a similar house. Un May 17th a tax of $400 was levied for the purpose of building a new schoolhouse. and paid to the collector. About June 25th, the work of erecting a new schoolhouse was begun, mainly by days' work. On July 17th, a second tax list was prepared, $144.85 of which tax was for the building and furnishing, and S74.08 for other purposes. The trustee having failed to itemize the tax, applied for and on July 22d, (jbtainetl leave to withdraw and amend this list, which was done and on the 26th of July, all taxable inhabitants, including appellants, had paid their tax, except one taxpayer who is not a party to this api)eal, and who had paid a part of his tax and is willing to pay the remainder. It seems that the appellants naid before the stay granted by me July 22d was received by them. The money raised by these two tax lists, has all been expended but $26.80 on hand at the annual meeting held August 6th, last. The schoolhouse is nearly completed, and there is some evidence that the moneys remaining on hand will complete it. This would make the cost of the house, including $50 for furniture, about $550. It is charged by the appellants that the tax list is illegal: the building erected without authority: the old building worth repairing; the trustee has charged for his personal services, and has boarded the workmen at his residence. It is shown that the house after which this was patterned, cost $700. S.-..'-:,1 uun..<.-: for appdlants swear that ?5<;o would be a sufficient sum to juDiciAi, decisions: tax lists lOOl I)uild the house complete. The respondent's witnesses sweur thai the work was well and economically done, and the price paid for labor and materials market rates. It seems that the trustee did, at the annual meeting, present a personal bill for audit for use of horses, which was rejected and on the hearing the claim was expressly waived and withdrawn. The trustee did board some of the workmen for 50 cents per day, because after consultation with the committee, it was decided to be the wisest arrange- ment for all, the trustee being in a position to board them and living conveniently near the work. I consider this explanation satisfactory, and the charge he made not at all unreasonable, if at all profitable to the trustee. The appellants would have been entitled to relief had they been timely with their appeal. They allowed the first tax of $400 to be levied and collected, and the schoolhouse to be built without dissent. The second tax was levied and paid before the appeal was filed. The money raised has been disbursed. The district has a new schoolhouse, the cost of which I do not deem exorbitant, and paid for by the people's money. The proceedings have been irregular. A district meeting should have been called and plans adopted, and a building erected according thereto; but a con- dition of affairs is presented which no decision of this Department can change. The respondent is now out of office. There has been no misappropriation, of money on his part. He seems to have given much of his time and the use of his teams to the district, for which he can receive no remuneration. In view of these circumstances, I must dismiss the appeal, and vacate the stay heretofore granted. 3964 In the matter of the appeal of Ralph Wolford v. school district no. 7, of the town of Knox, county of Albany. An appeal to have determined a mooted question as to the place of taxation of certam lands. No map worthy the name is submitted as the rules required. The land in question has been taxed for school purposes in a particular district for many years. Held, that the burden is upon the appellant to show by clear and preponderating evidence that it is not properly so taxed, and in this he fails. Decided February 21, 1891 Krum & Grant, attorneys for appellant Draper, Superintendent The appellant owns a farm in the school district above named, consisting of 130 acres, and also a second farm in the same district consisting of 26 acres, ^he appellant also owns a farm of 84 acres, situated in the town of Wright in the county of Schoharie. For many years the last mentioned property has been taxed for school purposes in school district no. 7 of the town of Knox. About 10O2 THE UNIVERSITY Ol" THE STATE OF NEW YORK the 1st of January last, the trustee in said district issued a tax list to raise money for school purposes and included therein the three farms aforesaid. The appel- lant insists that tiie farm of eighty-four acres should not be taxed in the said district, and brings this appeal to have the matter so determined. The parties have filed several pleadings upon each side. After reading them all with as much care as I am capable of bestowing upon the matter, I find myself uncertain as to how it should be disposed of. No map worthy the name, is submitted for my assistance, as is required by the rules. The property in controversy has been taxed for school purposes in the present district for many years, and the burden is upon the appellant to show by clear and preponderating proof, that it is not properly so taxed. This he fails to do. The appeal is dismissed, but without prejudice to the right of the appellant to bring the matter before the Department again at some time, after proper surveys and a creditable map of the territory have been made. 3986 In the matter of the appeal of Isaac W. Durfee v. George G. Rich, as trustee of school district no. 13, town of Cambridge, county of Washington. The preparation of a district tax list from a town assessment roll which was not at the lime of such preparation the last revised assessment roll of the town. Held, irregular. Decided July 3, 1891 Draper, Superintendent Appeal from the action of the trustee of school district no. 13, town of Cambridge, county of Washington, in preparing a school tax list from a town assessment roll which was not the last corrected assessment roll of the town on file at the time of such preparation, which tax list was delivered to the district collector January 7, 1891. It is claimed that, in consequence of the trustee's action, erroneous assessments have been made. No answer has been interposed. The action appealed from is irregular and can not be upheld. The appeal is sustained, and the trustee is ordered to withdraw and correct the tax list so as to conform to the valuations appearing upon the last town assessment roll, if it has not already been done in accordance with an order heretofore issued to the trustee. 3553 In the matter of the appeal of John Wiegner for the removal of Theron P. King and Eugene Shaw from the offices of trustees of school district no. 11, town of Brunswick, Rensselaer county. A majority of a board of trustees will not be required to sign a tax list and warrant for the collection of taxes when the tax list contains an item not authorized by law. But JUDICIAL decisions: tax lists 1003 the majority 13 ordered and directed to prepare a tax list and warrant for the legal items voted by a distnci ineeling. Decided January 5, if" G. H. Mallory, Esq., attorney for appellant Hon. A. C. Comstock, attorney for respondent Draper, Superintendent This appeal is taken by John Wiegner, a trustee of school district no. 11, from the refusal of the respondents to sign the tax list and warrant for the collection of school taxes voted at the last annual meeting in said district. The respondents, answering the complaint made by the appellant, admit that they refused to sign the Hst and warrant as charged, but allege as a reason that the amount of tax proposed to be raised included an item of two dollars for extra compensation to the collector of the district, which would be an illegal tax. The respondents are not justified in the position they have taken, except as to the item of two dollars voted for additional compensation to the collector. The law regulates the collector's fees, and only the Legislature can change it. But because of this item of two dollars a majority of the trustees can not be sustained or justified in refusing to carry out the directions of the annual meeting, as to legal items, and embarrass the school interests of the district. Why have not the respondents provided a tax list and warrant to raise the amounts provided for teachers' wages and other legitimate expenses? I am at a loss to understand their position except upon the theory that there is an intention to break up the school in the district. I have concluded to dispose of this appeal for the present as follows : The respondents are hereby directed to prepare, according to law, a tax list and warrant for the items voted at the annual school district meeting, except- ing the item of two dollars for extra compensation to the collector of the dis- trict, and to join with the appellant in signing the same and in delivering them to the collector of the district. The final decision of this appeal will be suspended for ten days and if the direction above given is complied with during such period of suspension, the appeal will be dismissed. 3608 In the matter of the appeal of Adam Frederick v. Eugene Frederick, as trustee of school district no. 11, of the town of Johnstown, Fulton county. A general allegation that a tax list is erroneous without specifying the error ; that a trustee has neglected his duties, does not manage the affairs of the district for the benefit of the patrons of the school, but for his own personal gain: held to be too indefinite for intelligent determination. Decided June 20, 18S7 IC)04 THE UNIVi:USITY OF THE STATK OK NKW YORK Draper, Superintend oit This is an appeal by Adam Frederick, a resident of school district no. ii, town of Johnstown. Fuhon county, N. Y., against Eugene Frederick, sole trus- tee thereof. The appellant alleges that the tax roll caused to be collected is erroneous; that the trustee is ineligible to the office he holds; that he has neglected the duties of his office and does not manage the affairs of the district for the benefit of the patrons of the school, but for his own personal gain ; that he stated to several persons that he would not hire any teacher who would not board with him, and had refused to hire several applicants for such reason ; that he conducted school at a time when most of the scholars could not get there, and that he has misapplied the money of the district. The trustee, answering said allegations, denies positively and specifically each allegation of the appellant. This appeal is too indefinite for intelligent determination. Facts must be stated. If the roll is erroneous, it should be shown in what respect it is so. It does not appear, from appellant's papers, what tax list is referred to. It is not shown in what respect he has neglected his duties as trustee. It is alleged gen- erally that he has misapplied money, but when and how does not appear. No specific act of the trustee seems to be appealed from. The appellant seems to desire to remove the trustee from office, and seems to think that the way to accomplish it is to appeal from his acts. In this he is mistaken. If the trus- tee is disqualified or unqualified for the office, or is abusing his trust, charges should be preferred against him, and the facts which are cause for removal should be clearly set forth and proved. The ajjpeai is dismissed. 3634 In the matter of th; appeal of Edward T. Lovatt, James O. Jones and John Webber V. Patrick Quinn, George Sinnott and John Massett. Certain trustees in a union free school district refused to sign a tax list and warrant to raise moneys lawfully voted by the district meeting more than thirty days since, upon the ground that the office of collector was vacant. Held, no sufficient reason. Trustees directed to siyn, or show cause why they should not be removed from their offices. Decided September 17, 1887 Draper, Superintendent The board of education of union free school district no. i, of the town of Mount Pleasant, Westchester county, consists of six members, of which number the appellants above named constitute three of the members and the respondents the other three. The appellants allege that the taxes for school purposes for the year 1887 were heretofore estimated by the board of education and afterward granted and JUDICIAL DECISION^: : TAX LISTS IOO5 voted at a district meeting more than thirty days since, and that the appellants have prepared the tax list and warrant for the collection of the said taxes, and have signed the same, but that the respondents refuse to sign said tax list and warrant, although requested so to do. It is shown that the district is in need of moneys for current expenses. The appellants say that the reason given by the respondents for such refusal is that the office of collector is vacant. It is shown that Morgan Purdy was appointed collector upon the 23d day of February 1886, and that he subsequently gave the required bond, which was approved by the board, and that he entered upon the office and has since co-^inued to occupy the same. The respondents question his right to do so. Proof is made of the service of the petition setting up this state of facts upon Trustees Quinn and Sinnott on the ist day of June 1887, and on Trustee Massett on the 7th day of June 1887. No answer has been made and affidavits are pre- sented showing that Trustee Quinn has repeatedly stated that no answer would be made, and that the facts are correctly stated in the petition of the appellants. Upon this state of facts, the appellants ask for an order directing the respondents to join them in making the tax list necessary to collect the said taxes. Title 7, article 7, section 65 of the Consolidated School Act provides " that within thirty days after a tax shall have been voted by a district meeting the trus- tee shall assess it and make out a tax list therefor and annex thereto the warrant for its collection." This provision of the statute is imperative. It imposes upon the members of the board a duty with which enough of the members to prevent any action have failed to comply. The direction to '* assess it and make out a tax list," of course imposes the duty of preparing, signing and executing such tax list. The reason which is given for the refusal to execute the tax list is not suffi- cient. Title 9, section 7 of the Consolidated School Act contains this provision, namely : " In districts other than those whose limits correspond with those of any city or incorporated village, said board shall have power to appoint one of the taxable inhabitants treasurer and another collector of the moneys to be raised within the same for school purposes, who shall severally hold such appointments during the pleasure of the board." Under this provision a collector once appointed and qualified would continue to hold the office until removed by the action of a majority of the members of the board. Mr Purdy is, therefore, still the collector of the district in question. In view of the foregoing, the respondents are hereby ordered to forthwith join with their associates in signing and executing the tax list and warrant referred to, or to show cause before me at the Department of Public Instruction in the city of Albany, on Monday, the 26th day of September 1887, at three o'clock in the afternoon of said day, why they should not severally be removed from their offices as trustees of said district because of their refusal to do so. Let serA'ice of this order be made upon the several respondents by delivering -^ copy to each of them, and by exhibiting to them the original thereof, on or before Wednesday, September 21, 1887. 1006 THE UNiVERSlTV OF THE STATE OF NEW YORK 41635^ In the matter of the appeal of Deville W. Corbin, Chester W. Corbin and Ralph Corbin v. George VV. Vanderworker, trustee school district no. 3, town of Bainbridge, Chenango county. It is the policy of the school laws to require trustees of school districts, in making out a tax list to follow the last revised town assessment roll. The law gives trustees no power to revise the work of the town assessors. It is only in special cases that trustees have authority to make original assessments, that is, where there is change in the value of property since the completion and revision of the last assessment roll of the town. When the town's assessors have settled the question of valuation it must not be re- opened by trustees, because such officers are of the opinion that it is wrongly determined. Decided libruary J5, itSyj Crooker, Superintendent This is an appeal from the action of the respondent, as trustee of school dis- trict no. 3, town of Bainbridge, Chenango county, in making, or attempting to make, an original assessment of the William Corbin estate. The material facts established are as follows : The appellants are the owners, under the will of William Corbin, deceased, of a certain tract of land, lying in one body, known as the William Corbin estate. That the buildings on said land are situate in the town of Afton. That said lands were assessed by the assessors of said town of Afton, on the last revised assess- ment roll of said town in one body, as follows: The William Corbin estate, 321 acres, valuation $7200. No buildings have been erected on said lands or improve- ments made thereon since such assessment by said town assessors. That the appellants have not purchased or in any manner acquired title to or control of any lands since such assessment; and all the lands owned, occupied or in any wise controlled by said appellants were included in such assessment by said town assessors. That said lands are partly wild lands and the quantity of land can not be definitely ascertained ; that the boundaries thereof are uncertain, and in some parts unknown, and that it would require a competent civil engineer and surveyor, with proper instruments, aided by records, to correctly ascertain such boundaries and monuments and the precise acreage of the land comprising said estate. That the assessors of said town of Afton at different times have been required to review the assessment of said estate and increase the valuation thereof, but after examination and review, have declined to change such assessed valuation. That the respondent, as such trustee, as aforesaid, made, in November 1892, a tax list and assessment for said district, in which he made or attempted to make relative to the William Corbin estate, an original assessment, placing upon said tax list and assessment as the same was assessed upon the last assess- ment roll of the town of Afton, after revision by the assessors, the following: •' Corbin estate, 321 acres, $7200 valuation, nine dollars and forty-three cents," and as an original assessment the following: " Corbin estate, 144 acres, $1000 valuation, one dollar and thirty-one cents." He also placed upon said tax list and assessment, as an original assessment, the following : " Ralph Corbin, ten acres. JUDICIAL decisions: tax lists 1007 valuation $350." That on November 28 or 29, 1892, said respondent served upon the appellants a notice that he had completed the assessment and tax roll of said district, and a copy thereof was at his shop, where the same might be seen and examined by any person interested until the 20th of December 1892, and that on that day he would review the said roll. That no other notice, public or other- wise, of the completion of the said assessment and the appointment of a day for the hearing of grievances was given by said respondent as such trustee, either by posting the same or in any other manner. That on said December 20, 1892, the appellant appeared before said respondent as such trustee, and objected to the aforesaid original assessments made relative to the Corbin estate and Ralph Cor- bin ; that testimony was presented before said respondent, and afterwards, and on December 23, 1892, the respondent delivered said tax list and assessment, con- taining said original assessment, with his warrant, to the collector of said district. By section 68 of title 7 of the Consolidated School Laws of 1864 it is pro- vided that, when such reductions shall be duly claimed, and where the valuation of taxable property can not be ascertained from the last assessment roll of the town, the trustees shall ascertain the true value of the property to be taxed from the best evidence in their power, giving notice to the persons interested, and pro- ceeding in the same manner as the town assessors are required by law to proceed in the valuation of taxable property. By the laws of this State, town assessors are required to put up, at three or more public places in their town, notices that they have completed their assess- ment roll, and that a copy thereof is left with one of their number where the same may be seen and examined by any person interested, and that said assessors will meet at a time and place specified in said notice to review their assessments. Section 68 relates to cases where the trustee does not follow the town assess- ment. Where the valuations are increased or new property is added, in such cases the section requires the trustee to give notice to the parties interested, and to proceed in the same manner as town assessors are required by law to proceed in the valuation of taxable property. The courts have held an omission to give such notice is a jurisdictional defect, invalidating the tax. In the appeal of Bryant and others, no. 3342, where the trustee had made an original assessment and served a personal notification upon the person assessed, but failed to give the notice required by law for town assessors, Super- intendent Ruggles decided that the trustee, having failed to give the notice pre- scribed by the statute, the original assessment is void for want of jurisdiction. I concur in the decision of Superintendent Ruggles, and decide and determine that the original assessment made by the respondent herein is void for want of jurisdiction, and that the said tax list and warrant issued by the respondent, as such trustee, to the collector of said school district, on December 23, 1892, must be therefore set aside as invalid and void. Assuming, however, for the purposes of the argument, that the respondent ~ bas given all the notices required by law, his original assessments were without authority of law. I0o8 THE INIVERSITY OF THE STATE OF NEW YORK By section 66 of title 7 of the school laws, it is provided that land lying in one body and occupied by the >aine person, either as owner or agent for the same principal, or as tenant under the same landlord, if assessed as one lot on the last assessment roll of the town, after revision by the assessors, shall, though situate partly in two or more school districts, be taxable in that one of them in which the occupant resides. Chapter 315 of the Laws of 18S6 provides that when the line between two towns, wards or counties divides a farm or lot, the same shall be taxed, if occupied, in the town, ward or county where the occu- pant resides. Hy .section ()/ of title 7 of the school laws, the valuations of tax able property shall be ascertained, so far as possible, from the last assessment roll of the town after revision by the assessors. It is altinnatively established that the land known as the " Corbin estate " lies in one body and owned by the appellants as devisees under the will of William Corbin. who reside in the town of Afton, and was assessed as one lot on the la.st assessment roll of the town, after revision by the assessors, and valued at $7200. It is also alVirmatively established that all the land owned by the appellant. Ralph Corbin. in said school district no. 3, of Bainbridge. is included in the land lying in one body, known as the Corbin estate, as aforesaid. if the ten acres attempted to be assessed to Ralph Corbin by the respondent, is divided from the rest of the land of the Corbin estate by the town line between the towns of Afton and Bainbridge, it is properly assessed, under said chapter 315, of the Laws of 18S6, as part of said estate in the town of Afton, where said Ralph Corbin resides, and the assessors of the town of Bainbridge, when requested, very properly declined to assess said ten acres to said Ralph Corbin in the town of Bainbridge. It is also affirmatively established that there has been no change in the value of the property known as the " Corbin estate." nor any increase in the quantity of land of said estate, since the last assessment roll of the town of Afton, after revision by the assessors. It is not shown by competent proof that the said assessors have unquestionably made an error in assessing said estate at 321 acres, nor that they erred in judgment in their valu- ation of said land at the sum of $7200; but on the contrary it is shown that the acreage of said estate has been examined, investigated and considered by said assessors, and that the valuation put thereon is higher than that of other farm lands in the vicinity. It is the policy of the school laws to require trustees, in making out a tax list, to follow the last revised town assessment rolls. The law gives trustees no power to revise the work of the town assessors. It is always to be borne in mind that town assessment rolls are prepared by officers who are chosen with special reference to such service, and who must be presumed to be better informed as to subjects of taxation than school trustees are likely to be. It is only in special cases that trustees have authority to make original assess- ments, that is. where there is a change in the value of property since the com- pletion and revision of the last assessment roll of the town; as for example, where improvements have been made by the erection of buildings not completed JUDICIAL decisions: tax lists 1009 when the town assessment was made or where buildings have been destroyed, or where the property of a party is clearly known or acknowledged to have been increased, as by a bequest or otherwise, or where the town assessors have unquestionably made an error, as in assessing one for 100 acres of land when he is known to own but fifty acres, or vice versa. These cases, however, are not frequent, and. upon the facts presented, none of them are shown to exist in the matter under review. Trustees must not assume to pass upon the judgment of the town assessors. When the town assessors have settled the question of valuation it must not be reopened by trustees because these officers are of the opinion that it is wrongly determined. The appeal herein is sustained. It is ordered, that the tax list and warrant issued by the trustee of school district no. 3, town of Bainbridge, Chenango county, to the collector of said district, on December 23, 1892, be. and the same hereby is, declared invalid and void; that all sums collected upon or by virtue of said tax list and warrant be refunded to the person or persons respectively, from whom the same w^ere so collected. That said trustee forthwith made a new tax list and assessment for said district in which the said " Corbin estate '' shall be taxed and assessed as the same is taxed and assessed in the last assessment roll of the town of Afton, after revision by the assessors; and said tax list shall not contain any tax or assessment against Ralph Corbin for ten acres of land form- ing a part of and included within the assessment of said Corbin estate on said assessment roll of the town of Afton. 4408 In the matter of the appeal of T. W. Mannigan v. Edwin Wicks, trustee, school district no. 15, town of Diana, Lewis county. Trustees under the school law arc required to prefix to their tax list a heading, showing for what purpose the different items of the tax are levied. Such heading is necessary to give validity to such tax list, and a tax list which does not show such items will be set aside upon appeal. Every taxpayer is entitled to see the tax list, which would show him the purposes for which the tax is levied, the items on the tax list which are ordered or authorized by a district meeting should be so designated, giving the date of the meeting which authorized the levy. Items which the trustees are authorized by law to insert without any vote of the district can be included in the same heading and inserted in the same tax list. A trustee of a school district can not legally receive pay for services done and performed by him as trustee and required to be performed by him under the school law. When a tax list and warrant has been delivered by the trustees of a school district to the collector, such trustees have no legal authority to recall such tax list and warrant from the collector, and make any alterations or changes therein without the permission of the *" \ State Superintendent of Public Instruction. Decided December 3. 1895 lOIO THE UNIVERSITY OF THE STATE OF NEW YORK Skinner, Superintendent This appeal is taken from a tax list and assessment made by Edwin Wicks as trustee of school district no. 15, town of Diana, Lewis county, and delivered, with the warrant of the trustee, to the collector of the district on or about Sep- tember 30, 1S95 ; and from certain acts done by said trustee. A copy of the appeal was personally served upon said trustee on October J4, 1895. No answer has been made by said trustee to said appeal. A copy of said ta.\ list and assessment as it was on October 14, 1895, is annexed to said appeal. The appellant alleges that the annual meeting in said district voted that but one tax list be made for the present school year and that the expenses for school purposes for said school year to be raised by tax be included in said tax list; that on or about September 30, 1895, the said trustee, Edwin Wicks, delivered to the collector of the district, a tax list and warrant, and that in the heading prefixed to said tax list it was stated that the aggregate sum of $148.87 was to be raised, whereas the aggregate amount assessed in the tax list was the sum of $131.57; that said heading contained the following items: "Copying assessment roll and making teacher's wages, $127," and " rate bill, $1.50"; that on or about October 16, 1895, the said trustee, without permission from the State Superintendent of Public Instruction, recalled said tax list and warrant from the collector and altered the items in said heading, namely, " Copying assessment roll and making teacher's wages, $127," by altering said amount to $109.70; that the land owned by nonresidents of the district, and which is not occupied by an agent, servant or tenant residing in the district, is not described in said tax list and assessed as required by law; that on or about October 2, 1895. ^liss Foley, the teacher in said district, received from the supervisor of the town of Diana, the sum of $14 or more, upon an order drawn by said trustee for wages due Miss Foley, at which time Miss Foley had not verified the entries made by her in the school register, and that on October 18, 1895, such entries still remained unverified. No answer having been made by said Trustee Wicks to the appeal herein, the alle.r^ations contained in the appeal are deemed admitted by him. Section 62, article 7, title 7, of the Consolidated School Law of 1894 requires the trustees of school districts to prefix to their tax list a heading show- ing for what purpose the different items of the tax are levied. Such heading is necessary to give validity to such tax list, and a tax list which does not show such items will be set aside upon appeal to the State Superintendent. Every taxpayer is entitled to see the tax list, which should show him for what purposes the tax is levied. The items on the tax list which are ordered or authorized by a district meeting should be so designated, giving the date of the meeting which authorized the levy. Items which the trustees are authorized by law to insert without any vote of the district can be included in the same heading and assessed in the same tax list. In the copy of the tax list and heading annexed to the appeal is as follows : JUDICIAL decisions: tax lists ioii " Copying assessment and making teacher's wages, $127." This item is not properly stated. There should be an item showing the amount assessed for teacher's wages, and the trustee has no legal authority to assess any sura for copying the assessment. A trustee of a school district can not legally receive pay or be paid for services done and performed by him as trustee, required to be performed by him under the school law. The office of trustee of a school district is an honorary one. It is clear that some part of the item of $127 is for copying the assessment roll and he can not legally receive pay for making such copy. The heading also contains the following item: " Rate bill, $1.50." Rate bills in com- mon school districts were abolished by law many years ago. If the trustee by this item intends the item for his services relating to said tax list it can not legally be assessed against the district. It appears that after said Trustee Wicks made out the tax list and warrant and delivered the same to the collector, he recalled the same from the collector and made alterations in the heading to the tax list. This he had no legal authority to do without permission from the State Superintendent of Public Instruction, under the provisions of section 84, article 7, title 7, of the Con- solidated School Law. When a tax list and warrant has been delivered by a trustee or trustees, of a school district to the collector, such trustee or trustees has or have no legal authority to recall such tax list and warrant from such collector, or make any alteration or changes in such tax list without the permis- sion of the State Superintendent of Public Instruction. Land situate in a school district, owned by nonresidents of the district, and which shall not be occupied by an agent, servant or tenant residing in said dis- trict, shall be assessed as nonresident, unoccupied and unimproved land in like manner as by law town assessors assess nonresident land, and a description of said land shall be entered in the tax list, but in a part separate from other assess- ments. It is clear that said Trustee Wicks has failed to legally assess the non- resident lands situated in said school district no. 15, town of Diana. Section 53, article 6, title 7, of the Consolidated School Law of 1894, requires the teachers in each school district to enter upon the school register the attendance of pupils at the school taught by them respectively as stated in said section, and to verify such entries by his or her oath or affirmation. Said section forbids a trustee to draw any order upon the supervisor, collector or trustee in favor of any such teacher for any portion of his or her wages until such teacher shall so make and verify such entries in such school register. It appears that said Trustee Wicks has been guilty of a violation of the said provisions contained in said section 53, above cited. The appeal herein is sustained. It is ordered, That the tax list and assessment made by said Edwin Wicks as trustee of school district no. 15, town of Diana, Lewis county, and delivered "by him on or about September 30, 1895, with his warrant, to the collector of said district, and on or about October 16, 1895, recalled by said trustee from the IOI2 THE UNIVERSITY OF THE STATE OF NEW YORK hands of said collector, and said tax list or the heading prefixed thereto, altered and chan'ing into effect as far as is proper the wishes of the inhabitants, should abstain from employing them in the capacity of teachers. If the trustees persist, however, notwithstand- ing the objections on the part of the inhabitants, I see no remedy for it, until the annual election of district officers occurs, when others may be elected in their place. They may pay the teacher the public money for his wages as far as it goes, and the residue must be collected from those who send to school. No inhabitant can of course be compelled to send his children. The trustees of school district no. 10 in the town of Shawangunk, ex parte. If a teacher inflicts unnecessarily severe punishment on a pupil he is answerable in damages. His government should be mild and parental; but he is responsible for the maintenance of discipline in his school. Quere. — Whether inspectors can annul a certificate except on the grounds on which their authority to examine teachers is given? Corporal punishment has no sanction but usage. Teachers can not demand payment of their wages until the collector has had thirty days to collect them. Dtjcided March i, 1833 1038 TUn UNIVERSITY OF THE STATE OF NEW YORK Dix, Superintendent This was an application for the opinion of the Superintendent on several questions submitted to him, the nature of which is explained by his answer. Teachers are responsible to their employers for any abuse of their authority over the children committed to their charge. Their government should be mild and parental, but at the same time steady and firm. If a teacher inflicts unneces- sarily severe punishment upon a scholar, he is answerable in damages to the party injured. It has been doubted by some whether the inspectors have a right to annul a certificate, except upon the ground on which their authority to examine is given to them, namely, to ascertain the qualifications of teachers in respect to moral character, learning and ability. The section of the law which gives them authority to annul a certificate, is general in its terms, but the question has been raised, whether that power is not to be construed as limited by the pro- visions of the other sections defining their powers. Whether inspectorsi may annul a certificate because a teacher has punished a scholar with too much severity, depends on the manner in which this question is settled. The question has never been presented distinctly to the Superintendent in such a manner as to obtain his decision upon it, and I merely suggest it as a matter which has given rise to doubt. With regard to the right to punish, no general rules have been laid down,- and it would be difficult, if not impossible, to make any which would be applicable to every case. The practice of inflicting corporal punishment upon scholars in any case whatever, has no sanction but usage. The teacher is responsible for maintaining good order, and he must be the judge of the degree and nature of the punishment required, where his authority is set at defiance; at the same time he is liable to the party injured for any abuse of a prerogative which is wholly derived from custom. The trustees must pay to the teacher the wages which they have contracted to give him; he can not be put, against his consent, to the inconvenience of col- lecting his dues himself, and if the trustees, who made the contract with him, do not pay him any portion of his wages, he can prosecute them or their succes- sors in office for the whole amount. But unless they have made some specific agreement with him to the contrary, he can not demand payment until after the expiration of the time allowed the collector for making his return to the warrant annexed to the rate bill. He must be presumed to have made his con- tract with full knowledge of the requirements of the law. The trustees are to be regarded as acting in a public capacity, and they can not be required to do more than the law enjoins upon them, unless they have made themselves respon- sible nidividually by a specific agreement to do more. The statute gives the collector thirty days to execute the warrant, and the money by which the teacher IS to be paid will not be presumed to be in their hands until that time has expired. He can not before the expiration of that time demand his wages, without showing moneys in their hands for the purpose of paying him. JUDICIAL DECISIONS : TEACHERS IO39 4048 and 4049 In the matter of the appeal of E. A. Frink v. Oscar Haswell, as trustee of school district no. 8 of the town of Bethlehem, Albany county. In the matter of the appeal of David Van Allen v. Oscar Haswell, as trustee of school district no. 8 of the town of Bethlehem, Albany county. School discipline. The Department can not interfere in small matters of school discipline where no charges are made against the character or competency of teachers and where children have not been punished or deprived of the privileges of the school. When a child has always used his left hand and has come to be 12 or 14 years of age, it seems very doubtful whether it is practicable to change the habit and therefore whether the teacher should insist upon it. Decided January 11, 1892 Draper, Superintendent These are two appeals arising in the same school, and involving the right of the teacher to require left-handed children to write with their right hand. It is not possible for me to lay down any general rule upon this subject, and I do not feel bound to determine the matter. There is no allegation of cruelty on the part of the teacher. The teacher simply seems to have desired to do her duty by the children referred to. It may be that she has miscon- ceived what her duty is in the particular cases which are presented. If a left- handed child can be taught to use its right hand in writing, that should be done. If the habit can be acquired, it ought to be acquired, and the teacher ought to insist upon it. At the same time, when a child has always used his left hand, and has come to be 12 or 14 years of age, it seems very doubtful whether it is practicable to change the habit, and therefore doubtful whether the teacher should insist upon it. The Department can not interfere in all small matters of school discipline, particularly where no charges are made against the character or competency of teachers, and where children have not been punished or deprived the privileges of the school. The appeals are dismissed, but with the injunction that the teacher shall attempt to carry out her laudable purpose only in cases where circumstances are such as to make it practicable. TEACHERS CERTIFICATES 5406 In the matter of the application of Truman Daniels for the annulment of the certificate of Percy C. Lance. Revocation of teacher's certificate on ground of cruelty. A teacher's certificate will not be revoked on tlie ground of brutal punishment of a pupil unless it clearly appears by a preponderance of evidence that the teacher has been brutal in his treatment of pupils. A single case of undue severity in the treatment of a pupil who was dis- obedient and resisting the teacher in the exercise of his proper authority is not sufficient to justify revocation. Decided May 6, 1909 Herbert C. Teepell, attorney for the petitioner Floyd L. Carlisle, attorney for the respondent Draper, Commissioner The petitioner, Truman Daniels, presents charges against Percy C. Lance a teacher in the public school at Glen Park, county of Jefferson, and asks that the certificate of the said Lance be annulled. He alleges that Lance was guilty of brutally treating his son Pearl Daniels; that the said Lance choked, kicked and struck his son without just cause. It appears that the son had been operated upon for appendicitis some time before, and that the punishment he received at the hands of the respondent aggravated this difficulty. It does not appear anywhere that the respondent knew of the pupil's condition when he punished him. The respondent denies specifically the alleged brutality and explains how it became necessary to use force in disciplining the petitioner's son. It is apparently agreed that the pupil resisted the respondent when he attempted to take him from his seat. The evidence adduced clearly shows that the pupil hung to his seat and that the force used by the respondent was for the purpose of compelling the pupil to leave his seat as directed by the respondent. It does not clearly appear that the respondent has been guilty of unreason- able force in punishing other pupils. One of the pupils makes two affidavits m one of which he states that he was punished by the respondent very severely, while in another he states that he never saw any brutal treatment by the respondent. These affidavits are not worthy of consideration. The respondent's associates in the school say that in their belief the respondent has not been brutal m his treatment of the pupils under him. The president of the board of educa- tion expresses his satisfaction with the work of the respondent as principal of the school ; the matter was evidently brought before the board but no indication of any adverse criticism of the respondent for his treatment of the petitioner's son IS shown. There is nothing in this case to show that the respondent has been habitu- ally brutal m his treatment of pupils. The petitioner has not been able to estab- lish by a preponderance of evidence, the fact that the respondent has been brutal [1040] JUDICIAL DECISIONS : TEACHERS CERTIFICATES IO4I in his treatment of pupils in the Glen Park school. The respondent may have been unduly severe in his treatment of the petitioner's son. But the son was disobedient and resisting the teacher in the exercise of his proper authority. The discipline of the school would have suffered had such resistance been suc- cessful. The respondent may have unnecessarily injured the respondent's son in overcoming such resistance ; but it can not properly be said that such conduct was so brutal as to justify the annulment of the respondent's certificate to teach. Undue force in the punishment of a pupil will not be upheld by me. But it is not every case of such force by a teacher which will result in an annulment of his certificate. It has not been shown to my satisfaction that the power con- ferred upon me by section 336 of the Education Law, to annul a teacher's cer- tificate, should be exercised in this case, and I therefore dismiss the petition. Petition dismissed. 5451 In the matter of the application for the revocation of the teacher's certificate of Aida A. Austin. Revocation of teacher's license; excessive punishment of pupils. Where a petitioner seeks the revocation of a teacher's license on the ground of excessive punishment alleged to have been inflicted upon a pupil, the charge must be proven by a pre- ponderance of evidence. Decided May 2S, 1910 George Smith, attorney for appellant J. M. Maybee, attorney for respondent Draper, Commissioner This proceediiig is brought by the petitioner, Herbert L. Eldred, to secure the revocation of the certificate of qualification to teach granted to Aida A. Austin, a teacher in school district no. 4, town of Highland, county of Sulli- van. The petitioner submits affidavits tending to show tliat the respondent was excessively violent in punishing the petitioner's daughter and another girl attending the school. It is alleged that the respondent " seized Bertha F. Eldred by the collar, and shook her and choked her and threw her on the fioor, bruis- ing her and making her stiff" and sore from the effects of such fall. That said teacher seized Ethel Daley by the throat and shook her and choked her, tearing her waist." The respondent denies that she so treated these pupils and states that she " did take both girls by the dress at the back, when they refused to obey her, and put them in the cloakroom " ; and also that she " did not strike or choke either of said girls, or inflict any personal injury upon them whatever." It is also alleged by the respondent in her answer, and the petitioner does not deny, that both of the girls are over 16 and are large, well grown girls, ai;d that one of them is larger than the respondent. Supporting afffdavits are submitted by both parties. The two girls have sworn that they were punished as described in the petition, and three of the pupils who witnessed the affair I042 Till-: INIVKKSITY OF THE STATE OF NEW YORK partly corroborate llic petitioner's statement. On the other hand, nine pupils have sworn that the respondent's statement of the afifair is true. Some question has arisen as to whether these pupils fully understood the nature and contents of their affidavits. The notary who took their oaths has submitted an affidavit in which he states that the whole matter was carefully explained to them, and that Miss Austin's description of the affair was read to each of them and after the nature and effect of an oath were explained to them, they were asked to swear to their aftidavits. It thus appears that the essential facts to establish the charge of brutality on the part of the respondent are in dispute. It is im- possible to arrive at a conclusion as to the truth of the charge from the at^fidavits of the several parties. The burden is upon the petitioner to prove the charge which he has made. He has failed in this respect, and it must be held that respondent has not been proven guilty of such brutality as to justify the annul- ment of her certificate. Reference was made in the papers to the respondent's refusal to excuse the two pupils for the purpose of attending a drawing class conducted as a part of the work of a free library and reading room. It is apparent that the punish- ment was infiicted because the pupils insisted that they be permitted to attend such class. The petitioner contends that the teacher erred in not permitting these and other pupils to attend such class. It is not necessary to decide on this appeal whether it is proper to excuse pupils to attend drawing lessons elsewhere. In any event, the teacher was not bound to excuse for such purpose, unless the trustees, acting as a board, had formally resolved that pupils be so excused. There is nothing in the papers to indicate that such action was taken by the trustees of the district. The petition is dismissed. The infliction upon a pupil of unnecessary and cruel punishment is good cause for annulling a teacher's certificate. Decided March 29, 1843 Young, Superintendent A teacher, for an act of disobedience, ordered a boy, 15 years of age to hold out a book, of the ordinary size used in schools, at arm's length, level with his shoulder. The 'uoy, after holding it in that position from five to eight or ten minutes, let it fall and said he could not hold it any longer. On being ordered to hold it out again, he peremptorily refused. The teacher, then, with a curled maple rule, over twenty inches long, one and three-quarters wide, and half an mch thick, struck him from fifteen to twenty blows on his back and thighs, and m so severe a manner as to disable him from leaving school without assistance. A physician was called and found his back and limbs badly bruised and swollen. The teacher on the succeeding day sent to him a physician, who pronounced him '• very badly bruised." It was ten or twelve days before he so far recovered as to be able to attend school. The Superintendent expresses his unqualified disapprobation of a punish- ment so severe and unreasonable. If the disobedience of the boy had been the JUDICIAL decisions: teachers certificates 1043 result of sheer obstinancy and wilfulness, it could not justify the infliction of fifteen or twenty blows with such a bludgeon, upon the back and limbs of the boy disabling^ him for a fortnight. Such a measure of punishment for such an offense would be sufhcient ground for annulling a certificate. A teacher's certihcate should not be annulled for moral delinquencies known to the com- missioner at the time of issuing the same, and where no departure from moral rectitude is shown to have occurred since. Decided January 28, 1876 Gilmour, Superintendent A certificate of qualification was granted to one Parks by the school com- missioner, notwithstanding it had been charged, and admitted by the teacher, that twice prior to the time of his examination for said license, he had played cards for money. The commissioner, in view of this moral delinquency, required Parks to bring testimonials as to character, wdiich he did, signed by reputable citizens, and in view of which the previous lapse of the teacher from morality in the respect noted, was condoned and the certificate issued. Subsequently, formal complaint was made to the commissioner against the teacher upon the ground of this previous delinquency, and the commis- sioner went through the formality of a hearing, upon which, however, nothing, not previously known to the commissioner, was elicited. The certificate, how- ever, was annulled. It does not appear that Parks had violated the dignity of his profession, by gambling, subsequent to holding said certificate, or that he had the reputation of being a gambler, which would of course unfit him for the business of teacher, but that his reputation for morality is good, and he produces strong testimony to that effect. Under, these circumstances, I think the commissioner should have over- looked these two acts of indulgence prior to the granting of the certificate. The Superintendent would not for a moment countenance the licensing as teachers, of persons of immoral character; on the other hand, it is very hard to annul the certificate of a successful teacher, and one whose moral character is shown to be now good, for acts committed some time ago. In all such cases there should be charity, and a disposition to help rather than hinder anyone who is trying to reform and lead a better life, especially in a case of this kind, where the commissioner, with full knowledge of all the facts, issued the certificate. Order of cominissioner annulling certificate vacated. 3496 2"he cause assigned for the annulment of the teacher's certificate is " incompetency." This • is a very grave and serious finding, and should not be reached, as it embraces not merely the ability to teach, but may also look to the moral character of the teacher - and his learning, without a full and fair investigation on the part of the commissioner, I044 THE UNIVERSITY OF THE STATE OF NEW YORK aftiT notice to the teacher that such investigation would be had, giving him an opportu- nity in the presence of the commissioner to show his ability to teach, if that is called in auestion, and to refute any charges made by others and upon which the commissioner proposes to act. Dccidec April 2. 18S6 Morrison, Actuuj Supcrititcndent The school coniniissioncr annulled the teacher's certificate on the ground of incompetency on the 14th day of December 1885. This annulment was made by the commissioner after a brief visit to the school on the 9th day of December, just before the close of the schoolhouse, and without previous notice to, or op- portunity for a hearing on the part of the appellant. The commissioner admits that his action was taken under the provisions of subdivision 6, section 13, title 2 of the Code of Public Instruction, which provides that every commissioner shall have power, and it shall be his duty " to reexamine any teacher holding his or his predecessor's certificate, and, if he find him deficient in learning or ability, to annul his certificate." In his answer the commissioner sets up the inability of the teacher to conduct the school; but it would not seem that the commissioner had sufficient opportunity, from his observation, to determine the ability or in- ability of the teacher, to whom he had previously granted a certificate of quali- fication. If the commissioner depended upon his advice and information derived from others, it is only fair that the teacher should have an opportunity to be heard in his own behalf in writing, and if possible, refuting the charges touching his ability to conduct the school. The commissioner, after disclaiming any desire or intention to entertain or pass upon any charge afifecting the moral character of the teacher, introduces a series of affidavits, directed to the proof of bad temper and inability to rule his own passions, want of self-control and partiality in the conduct of the school on the part of the teacher, and I must assume that it was upon testimony of this character that the commissioner proceeded to aninil the teacher's certificate for incompetency. It has been frequently held by this Department that where complaints against a teacher of this kind are made, the teacher should have an opportunity to refute or answer the charges. The cause assigned for the annulment of the certificate is " incompetency." This is a very grave and serious finding, and should not be reached, as it embraces not merely the ability to teach, but may also look to the moral character of the teacher and his learning, without a full and fair investigation on the part of the commissioner's order revoking the teacher's certificate vacated and set aside, had, giving him an opportunity in the presence of the commissioner to show his ability to teach, if that is called in question, and to refute any charges made by others and upon which the commissioner proposes to act. I look upon the action of the commissioner as a violation of subdivision 6, section 13, title 2, under which he assumed to act, as he can not be said, within the language and spirit of the statute, to have aflforded a reexamination to the teacher. Appeal sustained and the commissioner, after notice to the teacher that such investigation would be JUDICIAL DECISIONS : TEACHERS CERTIFICATES IO45 3510 No general charge of immoral character will be sufficient to put a person upon the defensive. The charges should state the immoral acts of the teacher and should be drawn with care and distinctness. The respondent must be given an opportunity to defend; to confront and cross-examine witnesses produced by the appellant. The Department can not revoke a license upon charges affecting character, except upon clear and unquestioned proofs. Trustees must not rely upon the Department to relieve them from their unwise contracts. Decided June 11, 1886 Draper, Superintendent The board of education preferred charges before the school commissjoner of the district, against the teacher, and asked him to revoke her certificate on the ground of immoral character. The teacher was properly notified of such charges and given opportunity to defend. A hearing was set and three days occupied by the commissioner in receiving testimony offered by the board to sustain the charges, at the end of which time the proceedings were withdrawn by the parties instituting them. The principal reason given for such withdrawal is that the commissioner refused to receive as evidence affidavits of persons not present- The commissioner was instructed by the Department that affidavits should not be received as evidence in an oral examination. Counsel for the teacher asked the commissioner to render a decision in the matter to the effect that the charges had not been sustained. This the commissioner refused to do, and the board was allowed to discontinue without any judgment or decision being rendered by the commissioner. On the 28th day of May 1886, the proceedings now before me were com- menced. A copy of the charges and affidavits submitted in support thereof was served upon the respondent. The respondent has filed no answer and the case must be examined upon the evidence of the moving parties. In proceedings of this kind, two rules must be complied with: (i) The charges must be definite and specific. No general charge of immoral character will be sufficient to put a person upon the defensive. The charges should state the immoral act of the teacher and should be drawn with as much care and distinctness as an indictment. (2) The respondent must be given an opportunity to defend, to confront and cross-examine the witnesses produced by the appellant. In the examination of the charges and the affidavits filed therewith, it ap- pears that the principal charges are those of lying, perjury and disrespect toward the board of education on the part of the respondent. The charges are, in the main, general, although some statements of the teacher are set out and char- acterized as false. A large number of affidavits are filed and similar ones were upon the former appeal. The board of education entered into a written contract with the teacher witjiout first having a personal interview with her. During her term of service as teacher, the exact time does not appear, misunderstandings and contentions arose between the respondent and the board. The papers are very voluminous, covering a mass of irrelevant matter. The controversy is a highly unfortunate [O46 THE UNIVERSITY OK THE STATE OF NEW YORK one, ami it would undoubtedly have been far better if the respondent had never been enipioyei! to teach in this school, but with tliat the Department has nothing to do. The only question left for me is, whether the papers in the case show the respondent to be a person of sucli immoral character as to render it Improper for her to hold a certificate to teach in the common schools of this State. It is not whether she lacks judgment; it is not whether she is a successful teacher; but whether she is of immoral character. The Department can not revoke a license upon charges affecting character, except upon clear and unques- tioned i)roofs. The fact unquestionably is, that there has been a heated con- troversy, and that disagreeable things have been said on both sides. Undoubt- edly some things have been said which are not altogether true, as is the case in all such controversies, but I find no evidence sufficient to justify me in holding that the respondent is a woman of immoral character. The allegations against her are, in the main, general and indefinite and such specific allegations of fact as are contained in the charges are not supported by the proofs. If trustees will employ teachers without sufficient caution, without previous acquaintance or inquiry, they must not rely upon the Department to relieve them from their unwise contracts, and particularly so when the most that can be said against a teacher so employed is that she lacks tact and management, or talks offensively under opposition and criticism. The charges are dismissed. 3501 A state certificate while unrevoked " shall be conclusive evidence that the person to whom it was granted was qualified by moral character, learning and ability to teach any common school in the State." For this reason a board of education can not discharge, upon the ground of incompetency, a teacher who was hired for a stated time and who holds a state certificate. Decided April 5, 18S6 Morrison, Actifig Superintendent The teacher was employed in pursuance of a certain contract dated June 16, 1885, for the school year beginning September 7, 1885, at a salary of $500 a year. The teacher continued in her engagement as principal of the school, until the 2d day of February 1886, when she was dismissed by order of the trustees A tender of $5 was then offered to her which at first she refused to accept, but afterward did accept; she gave the board credit for that amount, but claimed that they owed her the balance of the $500, the contract price, which hey had not paid, and held herself in readiness to teach the school. It appears hat the amount which will be due her at the expiration of her term, and for the unexpired term, is $257. She asks that the action of tlie board in dis- charging her be set aside, or that she be paid the amount of the salary due and to become due to her on the contract. In answer, the board of education urge as .reasons for the dismissal of the teacher, her deceit in misstating her age; her unjustifiable interference with, and the annoyance to which she subjected an JUDICIAL DECISIONS : TEACHERS CERTIFICATES IO47 assistant teacher in the school; conduct on her part tending to destroy the dis- cipHne of the school; interference with the comfort and convenience of the pupils, according to whim or caprice; inability to perform or conduct the affairs of the school, and a want of moral rectitude. I find that the appellant holds a state certificate, granted to her in 1867, at which time, as at present, the provision of section 15, title i of the Code of Public Instruction, was operative and controlling. This section distinctly provides that the Superintendent's certificate while unrevoked " shall be conclusive evidence that the person to whom it was granted was qualified by moral character, learning and ability to teach any common school in the State." The case cited by the respondents, therefore, decided by Superintendent \'an Dyck in 1858, which holds that the teacher's license from the proper officer is prima facie evidence only, that the applicant possesses the requisites of moral character, learning and ability to teach, but it is not conclusive — does not apply to the holder of a certificate granted by the State Superintendent. I am debarred, therefore, by the statute from considering the allegations of the re- spondents touching the moral character, learning and ability of the appellant, and the respondents are concluded from offering any testimony on this point. It must be shown that there was an express violation of the terms of the con- tract made with the teacher, in order to justify her dismissal during the term for which she was engaged. An attempt is made to do this by showing that she was negligent in the matter of keeping the register, but this seems to have been an afterthought of the board of education, and the register, it appears, was properly completed before the time of the answer to the appeal. I am, therefore, con- strained to sustain the appeal, and to set aside the action of the board of edu- cation in dismissing the appellant. The respondents are, therefore, ordered forthwith to restore the teacher to her position and to permit her to continue her contract until the expiration thereof; or, if they deem continuance in the school will not be for the best interests of the district, they are ordered, from time to time, and at such times as payments are usually made by the board, to pay her the amount of her salary, named in the contract as the same would be due, had she been permitted to continue her services as teacher, subject to the deduction of any amounts of money which the said appellant may have received for services elsewhere during said unexpired term and up to the time of any such payment as herein ordered. Holders of state certificates are not exempted from examinations, by scliool commis- sioners or city superintendents, in the places where they seek situations as teachers. Decided April 13, 1864 Rice, Superintendent A state certificate does not of course authorize the holder to demand employ- ment of right, from any school officer, or board of ofticers. These have the right to -demand just such evidence of qualification as they deem proper. Hence they may say to any applicant for a position who holds a state certificate, " we will employ you if you can procure a certificate from the local commissioner or from IO4S THE UNIVICKSITY OF THE STATE OF NEW YORK the city superintendent." If he refuses to comply, of course they may refuse to employ him. Hence it follows that the board of education in the city of New York may prescribe such conditions of qualification as they see fit, as a precedent condition to employment. If they require examination by the city superintendent, the teacher has no alternative but to comply. The holder of a state certificate is supposed to be so thoroughly qualified in all respects, that he is ready to pass an examination at any time. He should seek, rather than avoid, the application of the several tests that can be applied to his character and scholarship. 3686 In the matter of the appeal of William W. Durfee v. Joseph B. Thyiie, school commissioner of Fulton county. The annulment of a teacher's certificate will not be upheld when the commissioner's action was based solely on the ground that the teacher was impecunious and had failed to liquidate certain debts at the time he had promised to do so. Decided May 19, 1888 Draper, Superintendent This is an appeal from an order made by the respondent upon the 3d day of February 1888, annulling a teacher's certificate issued to the appellant by the respondent on the 10th day of September 1887. The action of the commissioner was the result of an investigation into certain charges made against the teacher in which it was alleged that he was indebted to different persons for small sums of money which he had promised to pay from time to time, but had failed to keep his promises. The appellant admits the debts and the promises to pay them, but alleges that the failure to make his word good was because of his inability to do so. The annulment of a license is a step which should only be taken for the protection of the schools. It is no part of the duty of school officials to aid in the collection of debts or to punish for misconduct. The only ground upon which the act of the commissioner in the present case could be upheld would be that the teacher was shown to be so untruthful as to render it improper for him to continue as an instructor of youth. This is not shown to my satisfaction. It appears that Durfee has been a teacher in Fulton county for nineteen years. Many of the most prominent and reputable citizens of that county, including the district attorney, the superintend- ent of the poor, two ex-members of the Legislature, and several ex-school com- missioners, furnish affidavits in which they swear that the appellant is a man of good moral character, with good general repute as to truth and veracity. Takmg these facts in connection with the nature of the charges against him, and also remembering that the certificate which it is undertaken to annul IS one which was issued less than a year ago by the present commissioner, I come to the conclusion that there is not sufficient reason to justify me in uphold- ing the order of annulment. The appeal is sustained and the order of the commissioner declared to be of no effect. JUDICIAL decisions: teachers certificates 1049 3572 In the matter of the appeal of Jessica Wells from the order of Perrin A. Strough, school commissioner of the third district of Jefferson county, annulling the appellant's certificate to teach. A school commissioner's order annulling a teacher's license will not be sustained, unless for some cause sufficiently grave to justify a public and permanent revocation of the right to teach. This proceeding is not to be resorted to in order to get rid of si teacher, because people in a district are dissatisfied with her. Decided March 2, 18S7 H. E. & G. E. Maise, attorneys for appellant Draper, Superintendent This is an appeal by Jessica Wells, a teacher, from the order of the school commissioner, dated December 28, 1886, annulling a certificate to teach, issued to her by said commissioner. The teacher was engaged in teaching the district school in district no. 6, town of Cape Vincent, in the third commissioner district of Jefterson county. The order of annulment was made upon charges against the teacher after an examination by the commissioner, upon which examination the appellant and her counsel were present, and witnesses were examined. All the proceedings had upon such examination are before me, the exhibits showing the same forming part of the papers submitted upon the appeal. There is no charge made against the appellant, affecting her character. The charge seems to be that she neglected classes and scholars, and that her methods of teaching were faulty. I am unable to find that she was not intelli- gent, active, and did not give all her time during school hours to the instruc- tion of the pupils under her charge. As bearing upon the allegation that her methods were faulty, I find that the commissioner, as late as the 13th day of December last, just two weeks prior to the order of annulment, visited the school taught by appellant, and made the following entry upon the teacher's register: Visited this school December 13, 1886. I am well pleased with all the school work, and believe that if the teacher had the full and hearty cooperation and support of the parents, this would be a term of school marked with more progress than any school I ever visited here. l^Signed"] Perrin A. Strough School Commissioner After this visit it appears that the commissioner did not visit the school, but upon the examination relied mainly upon the testimony of several pupils of the school, who had not attended school very regularly. ^ ^ It may be that the teacher has not managed the school as well as some other might have done, but. assuming that to be the case, is it just to subject her to the public humiliation of an annulment of her certificate, in the middle of a 1050 THE UNIVERSITY OF THE STATE OF NEW YORK term, without any charge against her character, and within a few days of the time when the commissioner had made an official record indicating his satis- faction with her work, and his belief that the cooperation of parents was the only thing necessary to make the school a better one than any he had ever before visited there? If her school is not as well classified and arranged as it might be, why not aid her to do it better? If her methods are faulty, why not help her to improve them? There is nothing to indicate any eflFort to do so, either by the trustee or commissioner, and nothing to show her unwillingness to be guided bv the suggestions of these officers, or to do the best she can. The annulment of a license is a severe penalty to inflict upon a teacher. It ought not to be imposed except for a cause sufficiently grave to justify a public and permanent revocation of the right to teach. It is not to be resorted to for the purpose of removing a teacher from the school because people in the district are dissatisfied with her. Moral delinquency, or a deliberate infraction of school laws, or the wilful defiance of the proper suggestions or directions of supervisor}' officers, or utter inability to follow them, may be sufficient ground for annulling licenses, but nothing less grave than this is. The case of the appellant does not come within this rule, and her appeal must, therefore, be sustained. The order of annulment of the commissioner is vacated and set aside. 3959 In the matter of the appeal of Frank F. Gray v. Arthur P. Nichols, school commissioner of Chemung county. Order of a school commissioner annulling a teacher's certificate in the middle of his term of employment, uccause of the " want of sufficient ability to teach," set aside when it appears that the teacher is a man of sufficient general ability to teach school successfully, and is able to do so, provided he receives the support of the community. Decided February 4, 1SS7 Draper, Superintendent The appellant is principal of the school in district no. i in the town of Ash- land, Chemung county, having been licensed to teach by the respondent. On or about the 7th day of December 1886, the appellant received a written notice from the respondent, announcing the intention of the commissioner to annul the certificate of the appellant on or before the i8th day of December, because of the *' want of sufficient ability to teach." On the 25th day of December, the teacher received, by mail, an order annulling his certificate, dated the i8th day of December, signed by the commissioner. From this action this appeal is taken. The school commissioner resided at the time in the village of Wellsburg, where the school is located, and had previously taught in this school. There have been dissensions in this district for some time, in which the commissioner JUDICIAL decisions: teachers certificates 105 1 has had some part. It is alleged by the appellant that the act of the commis- sioner was the outgrowth of these dissensions in the district, and because of personal prejudices on the part of the commissioner against him. This is denied by the respondent. He says that he visited Mr. Gray's school and severely criti- cised his methods of teaching, and insists that the discipUne was very lax and inefficient. Many of the most prominent residents of the district, including the president and trustees of the village of Wellsburg, certify that they are familiar with the condition of affairs at the school, and that Mr Gray's administration of the school is in every way creditable to him and satisfactory to them. It is very possible that there may be some errors on both sides of the controversy. There usually are in heated controversies of the character of this one. But weighing all that has been said upon both sides in the voluminous papers which are pre- sented, I have come to the conclusion that there has not been sufficient cause shown for the annulment of the teacher's license, in the middle of his term of employment, by the commissioner who granted the same. To uphold the act of the commissioner would be to inflict a humiliation upon the teacher, which, I am inclined to think, would be unjust, and it would be demoralizing to the district. The papers which Mr Gray has presented here and the assurances of prominent citizens of the locality whose credibility is undoubted, go to show that he is a man of sufficient general ability to teach school successfully, and, I have no doubt, will do so if he can have the general support and good will of the community. No one can succeed without this. There is little reason to believe that the work of a teacher who might succeed him would have more cordial or general support than his work has. The appeal is sustained, and the order of the commissioner annulling the certificate of the appellant is hereby set aside and declared void. 3928 In the matter of the charges against W. L. Utter. Teacher's license revoked for using scurrilous and obscene language in a letter addressed to a school commissioner. Decided December 1890 Draper, Superintendent On the 15th day of November 1890, information reached the Superintendent by letter, that W. L. Utter had addressed a letter to E. R. Harkness, school commissioner of the second district of Delaware county, which contained scur- rilous and obscene language, such as no gentleman, and particularly no school teacher, should use. This letter was forwarded to the Superintendent by said School Commissioner Harkness. An inquiry addressed to said W. L. Utter, elicited an admission from him that he was the author of such language, and had addressed such letter to said School Commissioner Harkness. Further investigation showed that Utter holds a second grade certificate granted 1052 THE UNIVERSITY OF THE STATE OF NEW VORK by E. C. Douglass, school commissioner of the third commissioner district of Ulster county, and dated May 4, 1889. The language used by said Utter in his letter addressed to said School Commissioner Harkncss is abundant reason why he (Utter) should not be allowed to teach in the public schools of this State, and his said certiHcate is hereby revoked; such revocation to take effect Satur- day, December 6, 1890. 3853 >^ In the matter of the charges against H. L. Bundy. Falsification by a teacher of the register of attendance at his school; held, sufficient ground for the annulment and cancelation of his lieense. Decided December 24, 1889 Draper, Superintendent The respondent holds a commissioner's uniform certificate of the first grade, issued to him by E. R. Gregory, school commissioner of the second district of Otsego county, on the 13th day of March 1889. He has taught several terms prior to the close of the last school year in district no. 14, of the town of Unadilla. It is charged that, during the spring term in said district, he falsified his school register by recording several pupils as present for many weeks when they were not in attendance at all. The register and the affidavits of these pupils are presented, and, taken together, clearly show many fraudulent entries. It is stated that during the term not more than six or eight pupils attended, although the register indicates a very regular attendance of twenty-eight. The respondent has had abundant notice of the allegations against him, and full opportunity to meet the same. He has failed to do so. I entertain no doubt of the facts being as alleged. When it is remembered that the register is sworn to by the teacher, and becomes the basis for apportioning public moneys to the district, the gravity of the offense can not be overlooked. It is at least clear that a person guilty of such an offense ought not to be continued as a teacher and commended as a suitable person to instruct children. Tt follows that the certificate of the respondent must be annulled and can- celed, and it is so ordered. 3750 In the matter of the appeal of Casper D. Bellows v. E. R. Harkness, school commissioner of the second commissioner district of Delaware county. The action of a school commissioner, in refusing to indorse a certificate to teach, issued to a teacher by another commissioner, upon the ground that the holder was addicted to the use of intoxicating drinks, will be sustained, unless it is made to appear that he acted from malicious or unworthy motives. Where it appears that a commissioner JUDICIAL decisions: teachers certificates 1053 acted from proper motives, and with the purpose of discharging the duties of his office fairly and justly in refusing to grant a certilicate, it is unnecessary to inquire into the reasons for his action. Decided January 15, 1889 Draper, Superintendent This is an appeal from the refusal of the school commissioner of the second commissioner district of Delaware county to indorse a certificate issued to the appellant by another commissioner. The ground alleged by the school commissioner for his refusal is that the appellant is addicted to the use of intoxicating drinks. I do not feel bound to inquire into the truth or falsity of this allegation against the appellant. The commissioner had the right to refuse to indorse such certificate, assuming, as we are bound to assume, that he acted from proper motives and with a purpose of discharging the duties of his office fairly and justly. Unless it is claimed that he acted from malicious or unworthy moti\"es, it is unnecessary to inquire into the reasons for his action. There is no allega- tion that he was influenced by any unworthy or improper motive. The appeal is dismissed. 3863 In the matter of the charges against Irving W. Craw. A public school teacher is shown to be intemperate, a frequenter of saloons and disreputable places and to have inflicted cruel and unnecessarily severe punishment upon pupils. Held, that he should be dismissed and that his certilicate should be revoked. Decided March 6, 1890 Draper, Superintendent Irving W. Craw holds a certificate issued to him by C. G. Richards, school commissioner of the first school commissioner district of Niagara county, on the 26th day of November 1889, and is engaged in teaching in district no. 6, of the town of Pendleton. He is charged with visiting saloons and a house of ill-fame, with being intoxicated at different times, with drinking from a bottle in the schoolroom and with inflicting cruel punishment upon pupils. The school commissioner has assumed to investigate the charges and has come to the con- clusion that the proofs are not sufficient to justify him in annulling the teacher's certificate. With this determination, residents of the district are not satisfied, and have asked the Superintendent to examine the testimony taken upon the commissioner's investigation. This has been done with considerable care. Several persons testify to seeing Craw in and about saloons, and in a state of apparent intoxication at different times. Several pupils swear to seeing him drink from a bottle in a schoolroom. The trustee of the district and his wife swear that the teacher boards with them, and that they have seen him under the I054 THE UNIVERSITY OF THE STATE OF NEW VOKK influence of liquor. Another witness swears that on the 8th of February he followed the accused and saw him visit three different saloons and a house maintained by a woman shown by the public records to have pleaded guilty to an indictment for keeping a disorderly house. The accused swears that some of this evidence is not true, although he does not deny being in and about saloons, or that he is addicted to the use of intoxicating drinks, or has within a comparatively recent period, been under the mfluence thereof. His negative statements stand alone. He makes no attempt to show previous good character. No one corroborates his testimony. Nothing is said against the credibility of the witnesses opposed to him. There is considerable other testimony concerning the infliction of cruel punishment by the accused. It is shown that he has beaten several pupils on different occasions with a stick three or four feet long, until he has drawn blood upon and disfigured their hands and heads, raised ridges upon their bodies, and produced lameness which continued for a week or more. No denial whatever of this is made by the teacher. In view of all this evidence, I have no hesitation in disagreeing with the conclusion of the school commissioner. It is needless to comment upon the necessity of good character and a blameless life on the part of teachers in the schools. There are enough who are anxious to teach who are not lacking in these attributes. Such a person as the accused is shown to be, should give way to another who will set an ennobling example before children. Regardless of the question of character, the proofs of cruel punishments could not be over- looked. The time has gone by when such indignities may be inflicted upon children or such scenes as this testimony depicts, may be enacted in the presence of a public school. A teacher who has not the character and self-possession, and who has not yet learned how to maintain discipline, in a better way, is no longer wanted. The certificate of Irving W. Craw is hereby annulled 3886 Newton R. Pcokham v. R. C. Francis, school commissioner of the first commis- sioner district of Madison county. The action of a school commissioner revoking a teacher's license sustained, when the holder while teaching had engaged in other pursuits, and in consequence neglected his work m the school, and where it l)ecame apparent that the teacher had lost all interest in his work, had become lax in discipline and had neglected to preserve order in the school. Decided July 16, 1S90 Draper, Superintendent The appellant held a certificate as a teacher issued in due form by D. D. N. Marvm, school commissioner of the first district of Onondaga county, on the 29th day of August 1888, and duly indorsed by the respondent on the 30th day JUDICIAL decisions: teachers certificates 1055 of August 1888, and was engaged in teaching in school district no. i, of the town of Georgetown, when, on the 24th day of April 1890, the respondent revoked and canceled such certificate, against which last action the appellant brings this appeal. The appellant alleges and shows that the school commissioner had visited his school repeatedly, and at the close of the first year of his employment had strongly commended him as a teacher. The respondent admits this, but alleges that during the second year of appellant's employment he was engaged in pur- suing the study of law in Syracuse, and neglected his school to such an extent that many complaints were made by patrons of the district. The respondent states, also, that he visited the appellant in his school at four different times, and admonished him that he was neglecting his work and that complaints were frequent. He states, also, that, at such visits, it was manifest that appellant had lost all interest in the school; that discipline was lax, and that much disorder prevailed. The statements of the commissioner are corroborated by the trustee in the district, and by other reputable and substantial residents thereof. After carefully reading all the papers in the case, I have come to the con- clusion that there is no sufficient reason shown for my setting aside the order of the commissioner. The appeal is, therefore, dismissed. 3866 In the matter of the charges against William G. Wilson. A person holding a teacher's license engages in a dishonorable vocation. Held, sufficient cause for annulling his license. Decided March 29, 1890 Draper, Superintendent On the 7ih of March 1890, information reached the Superintendent, by letter, to the eii'ect that William G. Wilson, a teacher in the public school at Pike Pond, Sullivan county, was engaged in selling lewd and indecent photo- graphs. A copy of an advertisement by said Wilson in . a paper called the " National Police Gazette," was forwarded as proof of the fact. A copy of said paper was procured and the advertisement found to be of the following words, namely : [Note: The advertisement is of such character, that it is deemed not best to insert it here.] The Superintendent also procured the advertisement to be answered, and the person who did so received pictures which would probably not be held to be obscene within the meaning of the law ; but they were of such a character as ta preclude any self-respecting person, and particularly a teacher, from being engaged in the business of selling them. 1056 THE UNIVERSITY Ol" THE STATE OF NEW YORK Aside from the questionable character of the articles sold, the business as carried on by Wilson is hi^'hly dishonorable, if not legally fraudulent. Cheap prints for which sixty cents are charged, did not cost two cents. The vender seeks to extort money from simpletons by appealing to their curiosity and baser passions. With his cheap pictures he .sends advertising cards and leaflets of a still more questionable character than that above printed, with a view to extort- ing still more money. Investigation showed that Wilson holds a second-grade certificate issued by William West fall, school commissioner, on October 8, 1888. With a knowledge of these facts in the possession of the Superintendent, Wilson was required to show cause before him at 10 o'clock this day, why his certificate should not be revoked. He has failed to appear, although he has written a letter acknowledging the receipt of the order to show cause, and admitting that he is the same person named in the advertisement. He claims that the business is not obscene. It is clear that he is engaged in a scandalous business, while he tries carefully not to infract the technical provisions of the penal statutes relating thereto. Whether he has been guilty of a crime is a question for the district attorney of his county, rather than the Superintendent of Public Instruction. It is not necessary to wait for a person to be sent to jail before stopping him from teaching school. There is abundant reason why this person should be stopped at once. His certificate is hereby revoked. 5262 In the matter of the appeal of Roscoe C. Parker from the action of the trustee of school district no. 9, town of Leicester, Livingston county. A school commissioner may for valid reason refuse to indorse a training class certificate. Until such certificate is indorsed by the school commissioner having jurisdiction the holder of such certificate can not enforce a contract against a trustee within such school commissioner district. The relief in such case is an appeal to the Commissioner of Education from tlie action of the school commissioner in refusing to indorse such certificate. Roscoe C. Parker, attorney in person Charles D. Newton, attorney for respondent Draper, Commissioner The appellant herein contracted on or about October 2, 1905, to teach the school m district no. 9, town of Leicester, for a period of 32 weeks. On Sep- tember 5, 1905, a special meeting of the district was held and authorized the trustee to provide for the education of their children in another district under the contract system if the expense thereof should be less than the expense of maintaining school in the district. It was after this meeting that the trustee made the contract with appellant. Appellant taught under his contract until November 8. 1905, when the trustee ordered the school closed. Another special JUDICIAL decisions: teachers certificates 1057 meeting was held December 12th and the district again authorized the trustee to provide for the education of the children of the district under the contract system. Thereafter the trustee contracted for the education of the children of the district at the school in the village of Perry. He also dismissed appellant. The first special meeting authorizing the contract system was held September 5, 1905. The instruction to the trustee was upon the condition that it would cost less to contract than to maintain a home school. On October 2d he contracted with appellant to teach 32 weeks. He had the right to make such contract. The fact that the district again voted on December 12th that the trustee should con- tract if that plan should be cheaper did not release the district from its liability under the contract with appellant. Respondent claims, however, that the appellant was not legally qualified to contract to teach on the ground that his teacher's certificate was not valid in the school commissioner district in which district no. 9, Leicester, is located. Appel- lant held a training class certificate issued August i, 1900, and valid m the first school commissioner district of Wyoming county. The certificate expired July 31, 1903. It was indorsed by School Commissioner McNinch in 1902 but such indorsement expired with the expiration of the certificate. School district no. 9, Leicester, is under the jurisdiction of School Commissioner McNinch. This certificate of appellant was renewable under the regulations of this Department for a period of five years. It appears the certificate was renewed by Commis- sioner Lewis of the first commissioner district of Wyoming and therefore became valid in that commissioner district until July 31, 1908. The certificate was not indorsed by Commissioner McNinch after its renewal and was not therefore a valid certificate in that commissioner district at the time appellant contracted with or was teaching in district no. 9, Leicester. The fact that he held a valid training class certificate qualified him to contract in any school commissioner district in the State before his certificate was indorsed by the school commis- sioner having jurisdiction, but before he entered upon the performance of his contract it was necessary that his certificate should be properly indorsed. It appears that he sent his certificate to Commissioner McNinch for indorsement, but the commissioner refused to indorse it. The commissioner was required to indorse it or give good reasons for refusing to do so. On refusing to indorse it the relief of appellant was an appeal to the Commissioner of Education for an order directing the school commissioner to indorse his certificate. Appellant took no action to compel Commissioner McNinch to indorse the certificate and he was not therefore legally qualified to teach in district no. 9, Leicester. Not being legally qualified to teach in the district the trustee had no authority to continue him as teacher or to pay him from the funds of the district. It follows therefore that the appeal can not be sustained. However, the Commissioner of Education may excuse the default of a trustee in employing a teacher not legally certified if good reason is given therefor and this case appears to be one in which -tlje school commissioner should file an application at this Department for the 34 1058 THE UNIVERSITY OF THE STATE OF NEW YORK excuse of the default of the trustee in employing appellant while not legally qualified and the legalization of the time thus taught. He may then receive full compensation for the time he actually taught. Tlie appeal herein is dismissed. 3885 In the matter of the appeal of George Steinson v. John Jasper, superintendent of schools of the city of New York. A state certificate is ample authority to the holder to teach in the city of New York, although the board of education of that city may exact a further examination as a condition precedent to employment. A teacher in New York City holding a state certificate can be removed from his position only by a revocation of his certificate by competent authority, or by the action of the board of education. Decided July 15, 1890 Draper, Superintendent The appellant had been a teacher in grammar school no. 29, in the city of New York for some three years when, on March 11, 1890, he received a notice from the city superintendent of schools stating that his certificate would expire on the next day, March 12, 1890. The city superintendent, in his answer, states that on the 9th day of October 1886, he issued to the appellant a license to teach as an assistant teacher of the third grade in the grammar schools of said city. This license was extended on the 12th day of September 1887, for the further term of six months, and was afterwards renewed or extended as follows : March 12, 1888. for six months from that date; September 12, 1888, for six months from that date; March 12, 1889, for six months from that date; September 12, 1889, for six months from that date. The superintendent, therefore, claims that, as his license was not further extended, the appellant had no authority to teach beyond the 12th day of March 1890, and, following this view to its conclusion, the appellant was prevented from continuing in his position. Various questions are raised by the appellant as to the authority of the city superintendent to issue to him a certificate which is only provisional and tem- porary in its operations, and to keep him in suspense by repeated renewals of such certificate, and also to cut oflf his employment by declining to further extend the same. The appellant shows that, under the statute relating to the manage- ment of the schools in the cit}' of New York, and the regulations of the board of education, he could be licensed only by the city superintendent with the con- currence of two inspectors, and that he was so licensed. He denies that what he claims amounts to a revocation of such license can be declared or enforced by the city superintendent alone. I find it unnecessary to consider or determine these questions, for it appears in the papers submitted, and is corroborated by the records of this Department, that the appellant received from the State JUDICIAL decisions: teachers certificates 1059 Superintendent of Public Instruction, on July 16, 1883, after having passed the regular State examination, a state certificate authorizing him to teach in any common school in the State during life, or until such certificate should be revoked. Such state certificate is still in force. Before a person can teach in any public school in the State, he must receive from an officer authorized to grant it, a certificate that he is, by reason of moral character, intellectual qualifications and general fitness, qualified for doing so. This certificate authorizes him to teach only when he has been employed by an officer authorized to contract with him for employment. In the present case, the appellant had ample authority, regardless of the certificates issued to him by the respondent, to teach in any grade in the city of New York, provided he was duly employed by the board of education of such city. No question is raised about the regularity of his employment. Having such authority and being so employed, he could be removed from his position only pursuant to the provisions of section 1042 of the New York City consolidation act. This section provides that he might be removed by the board of education, upon the recommendation of the city superintendent, or of a majority of the trustees for the ward, or of a majority of the inspectors for the district, but only by a vote of three-fourths of the members of the board of education. There may have been sufficient ground for removing Mr Steinson from his position. Whether there was or not, the papers in the case do not disclose, and it does not devolve on me to determine. In any event, it seems clear to me that he could be removed only in one of two ways : first, by revocation of his cer- tificate as a teacher; and, second, by the action of the board of education. His certificate in the present case could be revoked only by the State Superintendent, as he had successfully passed the most severe examination to which teachers in the State are subjected, and held the highest grade of certificate ever issued to a teacher in New York. There was no action of the board of education in the premises. I therefore come to the conclusion that he has been unlawfully deprived of his position as a teacher in grammar school no. 29, and that he now stands entitled to exercise the functions and receive the emoluments of such position, until such time as his certificate as a teacher shall be revoked by competent authority, or he shall be removed from his position in the manner provided by the local statute relating to the matter. The appeal is sustained. 3775 In the matter of the appeal of Francis S. Williston v. George E. Knapp, school commissioner for the county of Rockland. The regulations governing uniform examinations specifically empower a commissioner to *" ". withhold a certificate from any person when, in his judgment, such person lacks either I060 THE UNIVERSITY OF THE STATE OF NEW YORK moral character or die qualities essential to success in a teacher. The only purpose of the uniform examination is to prevent the issuance of a certificate to any candidate who can not show the essential intellectual qualifications. Decided March jg, i88y Draper, Sul'erintendcnt This is an appeal from the refusal of the school commissioner to grant a first-grade certificate to the appellant. The appellant alleges that the school commissioner refuses him a certificate of the first grade through personal feeling against him. The respondent denies any personal antagonism to the teacher, but alleges that, in his judgment, the teacher lacks tact in the management of a school. He says he has visited a school in charge of the appellant and found the discipline very defective. He says that the teacher undoubtedly has the intellectual qualifi- cations for passing the uniform examination, and that he has stood v^illing upon his doing so, to issue a certificate to him of the second grade. The uniform examination regulations specifically empower a commissioner to withhold a certificate from any person when, in his judgment, such person lacks either moral character or the qualities essential to success in a teacher. It is not the purpose of the uniform examination system to take this prerogative from school commissioners. The only purpose of such examination is to prevent the issuance of a certificate to any candidate who can not show the essential intellectual qualifications. The question of character and tact as a teacher is to be decided by the commissioner, and the determination of the commissioner will be upheld unless it is shown that he acts from unworthy or improper motives. While this is alleged in the present case, the appellant produces no proof of it, and I see nothing in the papers to justify me in overturning the action of the commissioner. The appeal is, therefore, dismissed. 4268 In the matter of the appeal of Lucy V. Hunter v. Julia K. West, school commis- sioner, Richmond county, and the board of education of union free school district no. 2, of the towns of Middletown and Southfield, Richmond county. Since June 30, 1894, the school commissioners in the State have no power under the school law to reexamine any teacher holding his or her predecessor's certificate, and if he find him or her deficient in ability or learning, to annul the certificate. Where, in August 1894, a school commissioner revoked or annulled a teacher's certificate issued by a predecessor in office, an appeal having been taken from such action by the com- missioner, the act or decision of the commissioner must be vacated and set aside. Decided October 3, 1894 William M. Mullen, attorney for appellant Howard R. Bayne, attorney for respondent West John Widdecombe, attomev for board of education JUDICIAL decisions: teachers certificates io6i Crooker, Superintendent The appellant herein appeals from the act, decision or order of the respond- ent West, in revoking or annulling a teacher's certificate of the second grade issued to the appellant on March 14, 1894, by Hubbard R. Yetman, school com- missioner of Richmond county ; and from the action of the respondent, the board of education, in declining to contract with the appellant to teach in the schools under their control in consequence of such annulment of her certificate, and the refusal of said board to pay appellant for the entire month of August 1894. The material facts established by the papers filed in this appeal are as follows : That in the year 1893 John J. Kenney was the school commissioner of the county of Richmond, and on September 2, 1893, duly issued to the appellant herein a teacher's certificate of the third grade, which certificate licensed said appellant to teach the school in district no. 2, in the town of Middletown, for the term of six months from the date of the said certificate ; that the appellant, after receiving said certificate, under a contract made by her with the trustees of said union free school district no. 2, taught in the school of said district for the term of six months ; that the term of office of said Kenney as school commissioner of the county of Richmond terminated on December 31, 1893, and that on January 1, 1894, and until the latter part of March 1894, Hubbard R. Yetman was de facto school commissioner of said county of Richmond, said Yetman being suc- ceeded in said office by the respondent Julia K. West; that on March 14, 1894, said Yetman, as such school commissioner as aforesaid, after an examination of the appellant herein, issued to her a teacher's certificate of the second grade in the form prescribed by the Superintendent of Public Instruction, whereby and wherein the said appellant was duly licensed to teach in any common school within the county of Richmond for the term of two years from said March 14, 1894; that under said certificate and license and her contract with said trustees of district no. 2, of Middletown, the said appellant taught in the school in said district from March 14, 1894, until such school was closed for the school year of 1893-94, to wit, June 29, 1894; that the respondent West, under date of July 16, 1894, wrote to appellant, stating that she (respondent West), having found discrepancies in the papers of appellant, marked by Yetman, she (said West) had been advised by the Department at Albany to request appellant to come to the next examination, on August i6th and 17th, at the New Brighton schoolhouse, and be reexamined in those subjects in which the appellant failed to receive the required percentage, and also those subjects taken over six months ago ; that said letter was not received by appellant until July 28, 1894, by reason of her absence from the county of Richmond from July 12 until July 28, 1894; that the appellant, relying upon her said certificate of the second grade, issued by said Yetman, did not attend said examination of August i6th and 17th for a certificate of the second grade, but did attend such examination, and took the examination and apphed for a teacher's certificate of the first grade; that, on or about August 24, 1894, said Io62 THE UNIVERSITY OF THE STATE OF NEW YORK appellant received a letter fruin the respondent West, of which the following is a copy: " Xew Brighton, S. I., Auj^nist 20, 1894. Miss Lucy V. Hunter: On account of discrepancies in the marking of the papers, the certificate issued to you by Mr Vetman is revoked. Julia K. West, school commissioner for the county of Richmond." That on or about said August 20, 1894, the respondent West notified the trustees of said school district no. 2, Middletown, of such revo- cation by her of said certificate of appellant. The question presented fur my decision by the papers in this appeal is, whether the act. decision or order of said respondent West on August 20, 1894, revoking or annulling the teacher's certificate for the second grade, issued by said Vetman to the appellant herein on March 14, 1894, was legal. Prior to June jo, 1894, under the provisions of subdivision 6 of section 13 of title 2 of the Consolidated School Act of 1864, every school commissioner of the State had the power, and it was his or her duty, to reexamine any teacher holding his or her predecessor's certificate, and if he or she find him or her deficient in learning or ability, to annul the certificate. Under the foregoing pro- vision a school commissioner did not have the power to annul a certificate except upon a reexamination of the teacher, and by such reexamination finding such teacher deficient in learning or ability. A school commissioner had no authority of law to examine the marking of the papers upon examination of a person pro- posing to teach by his or her predecessor, and then on account of discrepancies in the marking of such papers, in his or her opinion or judgment, to annul or revoke the certificate issued by such predecessor. On June 30, 1894, said subdivision 6 of section 13, title 2, above cited, ceased to be, and all of said title 2 ceased to be operative, or a part of the school law of the State, the Legislature of the State having passed, and the Governor hav- ing approved, chapter 556 of the Laws of 1894, entitled "An act to revise, amend and consolidate the general acts relating to public instruction," which chapter is known as the " Consolidated School Law," and which said chapter went into . peration on June 30, 1894, and by which chapter the Consolidated School Law of 1864 and all amendments thereof were repealed. On and since June 30, 1894, title 5 of the Consolidated School Law relating to school commissioners, their c>lection, powers and duties, is the law in that regard, in place of title 2 of the Consolidated School Law of 1864 and the amendments thereof. The provisions of subdivision 6 of section 13 of title 2 of the School Act of 1864. hereinbefore referred to, was not enacted in title 5 of the Consolidated School Law of 1894, Init was omitted therefrom. The only power, on and since June 30, 1894, given to a school commissioner to annul a teacher's certificate is contained in subdivision 6 of section 13 of title 5 of the Consolidated School Law, to wit, to examine any charge atTecting the moral character of any teacher within the district, first giving such teacher reasonable notice of the charge, etc., etc., and if he find the charge sustained, to annul the certificate of the teacher, etc., etc. It IS clear that School Commissioner West on August 20, 1894, had no power or authority, under the school law of the State, to revoke or annul the teacher's certificate of the second grade, issued by her predecessor in the office of school JUDICIAL decisions: teachers certificates 1063 commissioner on March 14, 1894, to the appellant herein, except where a charge affecting the moral character of the appellant had been made and sustained under the provisions of subdivision 6 of section 13, title 5 of the Consolidated School Law of 1894. The respondent West, in her answer to the appeal, states that as she is informed and believes, she was acting strictly within and according to the instruc- tions received by her from me under date of June 28, 1894, and the other under date of July 3, 1894. The letter of June 28, 1894, was written when subdivision 6 of section 13 of title 2 of the act of 1864, permitting reexaminations by school commissioners of teachers holding certificates, etc., was in force, and said letter in substance states that if School Commissioner West, for reasons satisfactory to her, found that Yetman had marked candidates higher than they merited, and certificates were issued to persons who had not earned them, she could reexamine such persons under the law then in force. The letter of July 3, 1894, was written when the Consolidated School Law of 1894 was in force. It states, if the cer- tificates were issued (by Kenney and Yetman) irregularly you have the right to revoke them, etc., etc. The word " irregularly " was used as meaning " not con- forming to a law, method or usage recognized as the general law," that is, a cer- tificate issued without any examination, or to a person under sixteen years of age, etc., etc. It may be, however, that the person who dictated the letter had for- gotten the then recent change in the school law relating to the reexamination of teachers by school commissioners. In the view I entertain of the action of School Commissioner West, it does not appear necessary for me to decide anything relative to the action of the trus- tees of union free school district no. 2 of Middletown in refusing to pay the appellant for the latter part of August 1894, or to enter into a contract with her for the new school year, except to state that as I understand the contract made by her with said trustees her compensation was to be paid to her in twelve equal monthly payments, and that such payments were to be made for services rendered while she held a certificate that was valid, and not for services performed after said certificate was revoked; that even if the revocation of the certificate should be sustained said trustees were required to pay her the instalment due her for the full month of August 1894. The appeal herein is sustained. It is ordered. That the act, decision or order of Julia K. West, as school commissioner of Richmond county, on or about August 20, 1894, revoking or annulling the teacher's certificate of the second grade issued to the appellant herein, Lucy V. Hunter, on I\Iarch 14, 1894, by Hubbard R. Yetman, then school commissioner of Richmond county, be, and the same hereby is, vacated and set aside. Hj04 the university of the state of new YORK 3614 Jn the matter of the appeal of Alton H. Cowles and Cliarles T. Hurlbut v. Gus- tavus A. Crofoot, school commissioner of the second commissioner district of Cortland county. A school commissioner examined an applicant, and issued to such applicant a teacher's license for six months, and at the end of six months reexamined the teacher, found that he passed a satisfactory examination, and then refused to issue a license, upon the ground that while teaching, the teacher had used immoral language in the school under his charge. Held, That there was not sufficient reason for refusing the license under the circum- stances. The teacher was at least entitled to a hearing upon the allegations against him. Decided July i, 1887 Draper, Sxiperintcndcut This is an appeal by Alton H. Cowles, an applicant for a license to teach, and Charles T. Hurlbut, trustee of school district no. 8, of the town of Homer, Cortland county, from the refusal or neglect of the respondent herein to issue to said appellant Cowles a license to teach in school district no. 8, town of Homer, aforesaid. The appellants allege that after an examination of applicants for teachers' licenses, held September 30, 1886, by the respondent, the appellant was duly licensed to teach in any district school in the school commissioner district for the term of six months, and that at the time such license was granted, the respondent stated he would renew said license upon application at the expiration of six months if the same was applied for. The appellant Cowles alleges that at the end of said terin he desired to continue teaching, and was offered further employment in the school then taught by him, and that he made several applica- tions to the respondent by mail and otherwise, for a further license, and finally did so personally, and was examined; yet the respondent failed or neglected to issue the same. The respondent, in justification of his refusal to further license appellant Cowles to teach, alleges that he became advised that the appellant Cowles had used rash and immoral language before the pupils in the school under his charge; that at one time having made the remarks: "If you do not stop iTionkeying, I will heat a poker red hot and put it down your back," and " I will nail you to the cross." Xo allegation is made that the appellant Cowles did not pass a creditable examination, and the refusal to grant a license was based upon the charges above stated. The appellant replies that at one time he did make the remarks attributed to him by the respondent, but as the remarks of another, and that at the most they were only imprudent and thoughtless. He submits the evidence of- good citizens of the district, and officers of an academy and college he has attended, to his uniform good character and ability to teach; also the entry of the respond- ent in the school register to the eflfect that the pupils were all doing well. From the evidence presented, touching the general workings of the school taught by JUDICIAL DECISIONS : TEACHERS CERTIFICATES IO65 the appellant Cowles, it appears clear to me that a successful school has been conducted. The certificate issued by the respondent to the teacher after his first examination is evidence of his possession of sufficient learning and practical ability to teach. His reexamination is further evidence, and the entry of the commissioner in his register, upon the officer's last visit to the school, is a strong circumstance in his favor. The respondent would break the force of this indorsement by the statement that he made it supposing the teacher was about to give up the school. This I can not hold without finding the commissioner guilty of making misleading entry upon the record — certainly not justified by the excuse offered therefor. I hold the charges of immoral remarks not sustained, although possibly they were thoughtless and had better have been omitted. I do not consider them of so serious a character as to deprive a teacher, otherwise qualified, of a license to teach, at least without a hearing and an opportunity to explain them and present his defense thereto. I sustain the appeal. The respondent is hereby ordered and directed to issue a license to the appellant Cowles, which his qualifications, as shown upon the examination held by the respondent, entitle him to, within ten days after service of a copy of this decision upon him. 3597 In the matter of the appeal of Florence Snath v. R. A. Kneeland, school com- missioner of the first commissioner district of Livingston county. School commissioner refusing to grant a certificate to teach a large school to an applicant whom he considers competent to teach and govern a smaller school, will be sustained unless it clearly appears that he so decided from improper motives. Decided May 9, 1887 Draper, Superintendent This is an appeal against the action of the school commissioner of the first commissioner district of Livingston county, in refusing to grant a teacher's cer- tificate to the appellant, which would authorize her to accept employment as a teacher in the first school district of the town of Groveland. It is alleged by the appellant that the school commissioner refused to grant a certificate which would permit her to teach in this particular district and that such refusal was caused by political influences and was unjust to the appellant. The school commissioner, on the other hand, says that the school in the first dis- trict of the town of Groveland, is a large one, with an average attendance much in excess of any school which the appellant has ever taught, and that he does not deem her a suitable teacher for a school of that size. He denies that his decision in the premises has been influenced by anyone, or that he entertained any preju- dices against the appellant, and he submits the examination papers furnished by Miss Snath upon a written examination held by him in which she was one of the candidates examined. I066 THE UNIVERSITY OF THE STATE OF NEW YORK The school commissioner had a right to issue a third grade certificate to the apptUant which would authorize her to teach in any particular locality, but would prevent her from doing so in any other, and he had abundant authority of law for withholding a certificate which would con.\.r upon her authority to teach in the first district of Groveland, while at the same time offering one which would authorize her to take a school in a smaller district. No competent proof is offered to sustain the allegation that the commissioner acted otherwise than conscien- tiously. I have examined all the papers in the case with care, and have no hesi- tancy in coming to the conclusion that the respondent took the course he did in this case through a desire to discharge his duty properly, and should be sustained in so doing. The appeal must, therefore, be dismissed. 4728 In the matter of the appeal of Xina L. Barr v. George A. Cooper as school com- missioner, first commissioner district, Cayuga county. The appellant, being a resident within the first commissioner district of Cayuga county, attended the uniform examination for teacher's certificate in the first commissioner district of Wayne county, without having first obtained the permission of the school commissioner of the commissioner district in which she resided, to attend such ex- amination in the first district of Wayne county, and having obtained a second grade certificate from such commissioner in Wayne county, and the commissioner of the first commissioner district of Cayuga county having refused to indorse such certificate; held, that suflicicnt reason existed for the refusal of the commissioner of the first commissioner district of Cayuga county to make such indorsement. Decided December 30, 1898 Skinner, Superintendent This is an appeal from the refusal of George A. Cooper as school commis- sioner of the first commissioner district of Cayuga county, to indorse a second grade certificate to teach, issued to Nina L. Barr in August 1898, by Samuel Cosad, school commissioner of the first commissioner district of Wayne county. The appellant states in her appeal that she is a resident of the town of Vic- tory, Cayuga county, and in January and May 1898, she attended the uniform examination for a teacher's certificate at Wolcott, Wayne county; that at the time she attended such examination she was attending school in the village of Red Creek, Wayne county ; that at the time she attended such examination she was Ignorant of rule 26 of the regulations governing uniform examinations that candidates must attend such examinations in the school commissioner district in which they reside or in which they are teaching, unless they first obtain per- mission of the school commissioner of the commissioner district in which they reside or have been teaching. The appellant also claims that to attend such examinations in Cato, Cayuga county, she would have been compelled to travel a greater distance from Red Creek, where she was attending school, than to go to Wolcott. JUDICIAL decisions: teachers certificates 1067 School Commissioner Cooper has answered the appeal and alleges, in sub- stance, that it was more convenient for the appellant to attend the examinations in Cayuga county than in Wayne county; that at each examination a copy of the regulations governing such examinations is placed upon the desk of each appli- cant and each applicant is urged to read them; that upon his information and belief he alleges that the appellant received special privileges by attending the examinations in Wayne county. The appellant herein is presumed to have had knowledge of rule 26 of the regulations governing uniform examinations and she should have obtained the permission of Commissioner Cooper to take the examinations in Wayne county. Sufficient reason existed for the refusal of Commissioner Cooper to indorse the second grade certificate received by her. The appeal herein should be dismissed. The appellant in her appeal asks that if I do not direct Commissioner Cooper to indorse her certificate, a temporary license be issued to her permitting her to teach in the first commissioner district of Cayuga county until she be able to take examinations in such district. A proper application to me, on the part of the appellant herein, for a tem- porary license, permitting her to teach in the first commissioner district of Cayuga county, will receive consideration. The appeal herein is dismissed. 4743 In the matter of the appeal of Angelo O. Tucker v. Orin Q. Flint as school commissioner, first commissioner district, Greene county. A school commissioner, in determining whether or not he or she will indorse the cer- tificate of a teacher, issued by the school commissioner of another district, must be guided by the best information attainable. Before indorsing a certificate issued by another commissioner, the commissioner must be satisfied that the employment of that teacher in his district is for the best interests of the schools under his charge, The decision in this appeal must not be construed as a precedent to guide the action of other commissioners under like circumstances. Each commissioner must determme each case from the facts before him or her. Decided February 17, 1899 Skinner, Superintendent This is an appeal from the refusal of Orin Q. Flint as school commissioner of the first commissioner district of Greene county, to indorse the first grade certificate to teach, dated April i, 1889, issued to the appellant Angelo O. Tuckc, by A. W. Fenton as school commissioner of the first commissioner district of Steuben county; that on June 27, 1898, he entered into a contract with the board of trustees of school district i, Athens, Greene county, to teach the public school therein for the term of 40 consecutive weeks commencing September 6, 1898, at a weekly compensation of $18.75, payable at the end of each 30 days during the term of such c nployment; that said board of trustees contracted to employ said 1068 THE UNIVERSITY OF THE STATE OF NEW YORK appellant as such teacher for the aforesaid period and at the aforesaid com- pensation, such compensation to be paid as hereinbefore stated; that on August 27, 1898, the appellant at Athens, Greene county, showed his said certificate to teach to Coniniissioncr Flint and requested him to indorse the same, and said I'lint, after examining such certificate returned it to the appellant, saying, " I will have to refuse to indorse your license, from an official standpoint ; " that appel- lant asked said Flint the reason why he so refused, but Flint refused to give any; that again, on August 30, 1898, the appellant appealed to Commissioner Flint to indorse said certificate, exhibiting to said Flint a large number of testimonials, signed by reliable and creditable men, but that said Flint refused to indorse said certificate of the appellant. September i, 1898, the appel- lant verified his appeal herein from the refusal of Commissioner Flint to indorse said certificate, and on the same day a copy of such appeal was served personally upon said Flint, and on September 15, 1898, said appeal was filed in this Department. Commissioner Flint has answered the appeal. He alleges in his answer that en or about July i, 1898, having previously learned that the appellant had contracted to teach the school in district i, Athens, Greene county, in the village in which he, Flint, resides, he made inquiries of the teachers present attending the Regents Convocation, held in the city of Albany, on or about July i, 1898, who were personally acquainted with appellant, relative to the appellant, and as a result of such inquiries he deemed it his duty to investigate the character and his- tory of the appellant as a teacher in the public schools of the State; that he visited Alexandria Bay, where the appellant had last taught school, and made inquiries of a large number of persons in all conditions of life, relative to the manner in which tlie appellant had performed his duties as a teacher, and his standing in that community as a man ; that from the information so obtained by him, on July 23, 1898, he became convinced that the appellant was not a proper person to teach school and he so advised the president and clerk of the board of education of union school district i, Athens; that he (Flint) continued his investigations relative to the appellant, the result of which was to confirm him in the conclu- sions arrived at as announced to said president and clerk, as aforesaid, and on August 9, 1898, he met the said board of education and reaffirmed his decision not to indorse the certificate of the appellant; that on August 27, 1898, the appel- lant had a personal interview with him (Flint) and presented his certificate to teach, held by him, and required said Flint to indorse the same, and that Flint informed the appellant that from information he had received from sources that he considered reliable, he could not conscientiously indorse such certificate with- out an order from the State Superintendent of Public Instruction ; that on August 30, 1898, and at other times, the appellant requested said Flint to indorse such certificate, but said Flint for reasons he considered valid, based upon information he had received and which he believed, has refused to indorse such certificate. JUDICIAL decisions: teachers certificates 1069 The respondent Flint alleges, as his conclusions, upon the information received by him regarding the appellant as a teacher in the public schools in which he has taught, that the character of instruction as imparted by the appellant is superficial; that his conduct to teachers employed with him has been improper and unjust; that he has not that regard for truth which a teacher should have, and is untruthful; that he is lax in discipline and government; that his conduct before his scholars is not exemplary, and in certain instances has been demoralizing. The pleadings herein, in addition to the appeal and answer, consist of a reply, rejoinder, surrejoinder, rebutter and surrebutter. Such pleadings contain a mass of letters, copies of letters, affidavits, certificates, questions and answers, covering a period from 1870 down to November 1898, favorable and unfavor- able to the appellant as such teacher. All the papers filed herein by the appellant and respondent have been carefully examined and considered. The statements upon which the respondent Flint relied in refusing to indorse such certificate, were those made by persons residing in the school districts in which the appellant has been employed as teacher within the last two or three years, and not of those residing in districts in which the appellant was employed prior to 1890. It appears from the papers filed herein that in almost every school district in which the appellant has been so employed there is a difference of opinion among the residents as to his qualifications as a teacher, and as to the manner in which his duties as such teacher have been performed. Number 9 of the general regulations of this Department governing uniform examination for teachers certificates and the issuing of such certificates by school commissioners, and the indorsement of such certificates, provides that a school commissioner shall indorse for the full period for which they are valid when presented for indorsement, first and second grade certificates, training class certificates, and drawing, music and kindergarten certificates issued by any other school commissioner in the State, or issued by the authorities of any city which has adopted and is working under the uniform system of examinations, unless a valid reason exists for withholding such indorsement etc. etc. A " valid reason " means a " good reason," " sound reason," existing in the mind of the school commissioner, based upon information obtained by him from trustworthy sources and which he believes to be true, relative to the abilities of the holder of the certificate to properly impart instruction to, and govern, the pupils attending the school which he is employed to teach, and that his moral character has not been questioned ; as distinguished from mere caprice, prejudice, bias, or absence of good faith, or proper inquiry on the part of such commis- sioner. This proceeding is not one to annul the certificate to teach held by the appellant, but is for a review by me, upon the proofs presented, whether on August 27, 1898, Commissioner Flint had a valid reason, upon the information obtained by him, which he believed to be true, relative to the manner the appel- lant had performed his duties as teacher in the schools in which he had been lO/O THE UNIVERSITY OF THE STATE OF NEW YORK recently employed, and his standing as a man in the estimation of the inhabitants of such districts, for refusing to indorse such certificate, and thereby authorize the appellant to teach in the public schools in the first commissioner district of Cirecne county. I am convinced that Commissioner Flint, in such refusal on his part, acted in good faith, and upon information given him which he believed to be true; that he believed he had a valid reason for refusing to indorse such cer- tificate and that I ought not to reverse his action in thus refusing. In determining whether, or not, he will indorse the certificate of a teacher issued by the commissioner of another district, a school commissioner must be guided by the best information attainable- His refusal in this case, and my approval of his act in so refusing, must not be construed as a criticism upon the ability or character of the appellant. I am not called upon, in this appeal, to pass upon either. I decide only that Commissioner Flint in refusing to indorse the certificate of the appellant acted in a reasonable manner in view of the informa- tion presented to, and then before him. That such information was sufficient to put a reasonable and prudent man upon his guard, and that his action was not vindictive but was in accord with his line of duty as he then understood it. Nor must this decision be construed as a precedent to guide the action of other com- missioners under like circumstances. Before indorsing a certificate issued by another commissioner, the commissioner so indorsing must be satisfied that the employment of that teacher in his district is for the best interests of the schools under his charge. Each commissioner must determine each case from the facts before him. The appeal herein is dismissed. 4202 In the matter of the appeal of Jerry L. Gardner v. Howard B. Harrison, school commissioner, second commissioner district of Steuben county. ' I he basis of every certificate issued by a school commissioner to persons applying to him for examination and proposing to teach common schools is his satisfaction concerning the quahhcations of the applicant in respect to moral fitness and capacity. A commis- sioner is justified in withholding a certificate from an applicant where he is satisfied m his mmd and judgment that upon the proofs presented to him evidence of the good moral character of the applicant does not affirmatively appear. Decided November 18, 1893 Crooker, Superintendent The appellant appeals from the decision of Howard B. Harrison, school commissioner, second commissioner district of Steuben county, in refusing to grant to the appellant a certificate of the second grade of teachers. An answer has been interposed. '^^^ ^^^'f;°» of the respondent was based upon the ground that he did not find the appellant qualified as to moral fitness, and, therefore, refused to grant the appellant a certificate. JUDICIAL decisions: teachers certificates IO/I The papers submitted upon this appeal are quite voluminous and consist mainly of affidavits upon the question of the moral fitness of the appellant, pre- sented to the respondent at or before the application of the appellant for examina- tion and certificate, and those furnished by the appellant to the respondent in rebuttal ; and additional affidavits furnished by appellant in support of his appeal ; and said papers have been carefully read and considered. Under the provisions of subdivision 5 of section 2 of the Consolidated School Law of 1864, and the amendments thereof, every school commissioner shall have power, and it shall be his duty, to examine persons proposing to teach common schools within his district, and not possessing the Superintendent's certficate of qualifications, or diploma of the State normal school, and to inquire into their moral fitness and capacity, and, if he finds them qualified, to grant them cer- tificates of qualifications, in the forms which are or may be prescribed by the Superintendent. The basis of every certificate issued by a commissioner is his satisfaction concerning the qualifications of the appellant in respect to moral fit- ness and capacity. A commissioner is justified in withholding a certificate from an applicant where he is satisfied, in his mind and judgment, that upon the proofs presented to him, evidence of the good moral character of the applicant does not affirmatively appear. Deputy Superintendent Keyes, in a decision made by him on May 20, 1859, said: "It must be borne in mind that the commissioner is the servant of the people, pledged to protect their interests and rights in matters relating to the education of their children, and he has no right to imperil those interests by legalizing the presence and labors among them of a person concern- ing whose moral reputation there is a doubt." It does not appear, from the papers presented in this appeal that the respon- dent was actuated by any malice, prejudice or ill feeling against the appellant in his decision- I can not say that the respondent has exercised unwisely the power and duty intrusted to him by the school laws, or that, upon the proofs before him, he was not justified in refusing a certificate to the appellant. The appeal herein is dismissed. 3952 In the matter of the appeal of D. Eugene Smith v. Ebenezer R. Harkness, school commissioner of the second commissioner district of Delaware county. The action of a school commissioner in withdrawing his indorsement from a teacher's certificate granted by another commissioner, for the reason that the teacher, who was quite a young person teaching his first school, failed in government, and was unable to control his pupils, sustained. The annuhnent of the original license by the same commissioner for the cause assigned, overruled. _T)ecided January 3, 1891 O. F. Lane, attorney for appellant I072 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent This appeal is broujjht from the action of the school commissioner of the second commissioner district of Delaware county, in annulling a teacher's certifi- cate which had been granted by Commissioner Theodore L. Grout, of the first commissioner district of Otsego county, on the 4th day of March 1890, to appel- lant, and which had been indorsed by the respondent on the 29th day of August 1890, making it a valid license to teach in his commissioner district. The evidence submitted, which is given in detail, reveals the fact that the appellant is quite a young man but still in his minority, and that his present engagement was his first attempt at teaching. It is clear to me that in this his first attempt, the teacher failed somewhat in government, and that during the time he taught the school, there was disorder and confusion therein to an unusual degree. It is probable that with more mature years and greater experience, he will overcome this ground of objection to his work as a teacher. It is my opinion that the commissioner was justified, for the cause assigned, in withdrawing his indorsement of the teacher's certificate, issued by another commissioner. The cause assigned is not a ground which would authorize a commissioner to revoke the certificate issued by a commissioner of another district. The appeal is sustained, so far as the commissioner acted in revoking the original certificate, but is overruled so far as it relates to the commissioner's action in withdrawing his indorsement upon the certificate, in which respect the commissioner's action is sustained. 3817 Noah Leonard v. Henry D. Nottingham, school commissioner of the third district of Onondaga county. A school commissioner who, acting with good purpose and intent, refuses to grant a teacher's certificate to an applicant, will be sustained. The commissioner was under no obligations to give any reason for his refusal. Decided October 9, 1889 Draper, Superintendent This is an appeal from the action of the respondent in refusing to indorse a teacher's certificate held by appellant and issued to him by another commissioner, and in refusing to issue a certificate to appellant. The commissioner has the right, assuming that he acted with good purpose and intent, to do precisely what the appellant complains of. Moreover, he was not obliged to give any reasons for such action. There is scarcely a pretense that he acted with other than the best of motives. Facts which appear in the case clearly mdicate that he only intended to do his duty, and that action complained of was proper. The appeal is dismissed. JUDICIAL decisions: teachers certificates 10/3 3510 W. L. Rutherford and others, as the board of education of union free school district no. i, Waddington, St Lawrence county, v. Emma A. Fish. To annul a state certificate, charges must be definite and specific. A general charge of immoral character not sufficient to put the accused upon the defensive. Decided June 11, 18S6 Draper, Superintendent This is a proceeding by the board of education of union free school dis- trict no. I, Waddington, St Lawrence county, N. Y., preferring charges against Emma A. Fish, a teacher in the public school of said district, and asking that the state certificate held by Miss Fish be annulled, on the ground of immoral character. I think the circumstances surrounding this case demand a brief review of the proceedings that have been taken by the board of education. It appears from the records of this Department that an appeal was brought on or about the 24th day of February 1886, by Emma A. Fish from the action of the Waddington board of education in discharging her from her position as principal of the union school. The appeal was decided on the 5th day of April 1886, in favor of the appellant, and the action of the board set aside. It appeared therein that the board had entered into a contract, in writing, with Miss Fish, to teach in the school for one year, at a salary of $500. The reason urged for her discharge was, that she was incompetent to teach the school. The Superin- tendent (James E. Morrison), in his decision, says: "I find that the appellant holds a state certificate granted to her in 1867, at which time, as at present, the provisions of section 15, title i, Code of Public Instruction, was operative and controlling. This section distinctly provides that the Superintendent's cer- tificate, while unrevoked, shall be conclusive evidence that the person to whom it was granted was qualified by moral character, learning and ability to teach any common school in the State." The Superintendent felt himself, by this statute, debarred from considering the allegations against the moral character, learning and ability of the teacher, upon an attempt to discharge her from the employment of the board, and held that the proceeding should have been one to revoke her state certificate. Shortly after the decision of this appeal, the board preferred charges before the school . commissioner of the district, against Miss Fish and asked him to revoke her certificate on the ground of immoral character. Miss Fish was properly notified of such charges and given opportunity to defend. A hearing was set, and three days occupied by the commissioner in reviewing testimony offered by the board to sustain the charges, at the end of which time the pro- ceedings were withdrawn by the parties instituting them. The principal reason given for such withdrawal is that the commissioner refused to receive as evidence "affidavits of persons not present. The commissioner was instructed by the Department that affidavits should not be received as evidence in an oral examina- I074 THE UNIVERSITY OF THE STATE OF NEW YORK tioii. Counsel for Miss Fish asked the commissioner to render a decision in the matter to the effect that the charc^cs had not been sustained. This the commis- sioner refused to do, and the board was allowed to discontinue without any judg- ment or decision being rendered by the commissioner. On the 28th day of May 1886, the proceedings now before me were com- menced. A copy of the charges and affidavits submitted in support thereof was served upon the respondent. The respondent has filed no answer, and the case must be examined upon the evidence of the moving parties. In proceedings of this kind, two rules must be complied with: 1 The charges must be definite and specific. No general charge of immoral character will be sufficient to put a person upon the defensive. The charges should specify immoral acts of the teacher and should be drawn with as much care and distinctness as an indictment, so that she may know just what she must meet. 2 The respondent must be given an opportunity to defend, to confront and cross-examine the witnesses produced by the appellant. In the examination of the charges and the affidavits filed therewith, it appears that the principal charges are those of lying, perjury and disrespect toward the board of education on the part of the respondent. The charges are, in the main, general, although some statements of Miss Fish are set out and characterized as false. A large number of affidavits are filed and similar ones were upon the former appeal. The board of education entered into a written contract with Miss Fish without first having a personal interview with her. During her term of service as teacher, the exact time does not appear, mis- understandings and contentions arose between the respondent and the board. The papers are very voluminous, covering a mass of irrelevant matter. The controversy is a highly unfortunate one, and it would undoubtedly have been far better if the respondent had never been employed to teach in this school, but with that the Department has nothing to do. The only question left before me is. whether the papers in the case show Miss Fish to be a person of such immoral character as to render it improper for her to hold a certificate to teach in the common schools of the State. It is not whether she lacks judgment; it is not whether she is an unsuccessful teacher, but whether she is of immoral character. The Department can not revoke a license upon charges affecting character, except upon clear and unquestioned proofs. The fact unquestionably is, that there has been a heated controversy, and that disagreeable things have been said on both sides. Undoubtedy some things have been said which are not altogether true, as is the case in all such controversies, but I find no evidence sufficient to justify me in holding that Miss Fish is a woman of immoral char- acter. The allegations against her are, in the main, general and indefinite, and such specific allegations of fact as are contained in the charges are not sup- ported by the proofs. JUDICIAL decisions: teachers certificates 1075 If trustees will employ teachers without sufficient caution, without previous acquaintance or inquiry, they must not rely upon the Department to relieve them from their unwise contracts, and particularly so when the most that can be said against a teacher so employed is, that she lacks tact and management, or talks offensively under opposition and criticism. The charges are dismissed. 5011 In the matter of the appeal of William F. Masten from the action of the board of trustees in and for union free school district no. 3, Orangetown, Rock- land county. The trustees of common school districts, and boards of education of union free school districts in the absence of some special act of the Legislature, do not possess the power to establish requirements of persons employed as teachers, other than, and in addition to, those prescribed by the Consolidated School Law. Decided June 11, 1902 Scherer & Downs, attorneys for appellant Blatchford & Sherman, attorneys for respondents Skinner, Superintendent This is an appeal by the above-named appellant, one of the members of the board of education of union free school district 3, Orangetown, Rockland rounty, from the action of the board of education of said district in the adoption of a resolution relating to the employment of teachers in the school in said district. The issue has been joined by ser\'ice of the usual pleadings. There is some conflict as to the precise wording of the resolution complained of herein, the appellant alleging that at a meeting held on April 3, 1902, said board of education adopted the following resolution : That no teacher shall be employed in the high school department, in and for union free school district, who is not a college graduate, unless the school system committee reports to the board that it is impossible to secure a college graduate for such work or position. The respondents contend that the exact wording of such resolution was as follows : That in future only teachers having college certificates be employed in the high school department, unless the school system committee reports to the board that such teachers can not be obtained. In the disposal of this appeal I shall accept the contention of the respondents as to the precise wording of such resolution. In view of the provisions of the "Consolidated School Law there can be no question but that the resolution, in the form contended for by the appellant, would be illegal, inasmuch as it would seem to imply that a college graduate, whether the holder of a " college gradu- 10/6 THE UNIVERSITY OF THE STATE OF NEW YORK ate certificate " or not, would be eligible to appointment ; while the resolution, in the form contended for by the respondents, only raises the question as to the rij;ht of a local board, in the absence of some special statute, to establish quali- fications differing from those contained in the general law of the State. The Consolidated School Law, chapter 556 of the Laws of 1894, has pre- scribed .the qualilication of teachers in the common schools of this State, Sec- tion 3S of title 7 of said chapter provides as follows: No teacher is qualified within the meaning of this act, who does not pos- sess an unannulled diploma granted by a State normal school, or an unrevoked and iinaimullcd certificate of qualification given by the Superintendent of Public Instruction, or an unexpired certificate of qualification given by the school com- missioner within whose district such teacher is employed. In addition to the qualifications enumerated in this section, the State Super- intendent of Public Instruction is authorized by section 10 of title i of the Consolidated School Law to " issue temporary licenses to teach, limited to any school commissioner district or school district, and for a period not exceeding six months whenever, in his judgment, it may be necessary or expedient for him to do so." The holder of such temporary license is a qualified teacher and is qualified to teach in any common school named therein, unless restricted by some statute. In addition to the qualifications thus enumerated the State Superintendent is allowed by said section 10 of title i of the Consolidated School Law, in his discretion, " to indorse a diploma issued by a State normal school or a certificate issued by the state superintendent or state board of education in any other state, which indorsement shall confer upon the holder thereof the same privi- leges conferred by law upon the holders of diplomas or certificates issued by State normal schools or by the State Superintendent of the State." The bolder of such indorsed diploma or other state certificate is also qualified to tench in any common school in this State, unless restricted by some statute. Title II of the Consolidated School Law also provides for the establishment, maintenance and government of teachers training classes and section 7 of said title provides that: It shall be the duty of school commissioners . . . under the direction of the Supermtendent, to examine the students in such classes and to issue teachers certificate to such as show moral character, fitness and scholastic and professional qualifications worthy thereof. The powers of the commissioner, in the issuing of such certificates, how- ever, as restricted by subdivision 5 of section 13 of title 5 of the Consolidated School Law, which provides that: ^n.e?n!Th'1u''^'''' i" ""^ .^^^es where certificates are issued by them, shall be fhe S neHntin'l 17 ^^f J,gu\^^,ons " that have been or may be prescribed by c-^L Tr^H^^^^^^^^^^ • • • and to grant them certifi- Su^rinteSdem " ^" '''' ^"™^' ^^^'^ ^''' °^ "^^>^ ^'' prescribed by the JUDICIAL decisions: teachers certificates 1077 In accordance with the provisions of this subdivision of section 13 of title 5 of the ConsoHdated School Law, a form of certificate has been prescribed by the State Superintendent of Public Instruction, which certificate, in accordance with rules and regulations established by him, qualifies the holder to teach in any common school in this State, unless restricted by some statute. The Consolidated School Law and chapter 103 1 of the Laws of 1895 make provisions for special forms of licenses to be issued to teachers in kindergarten schools, teachers of music and teachers in the primary and grammar grades of any city or village authorized by law to employ a superintendent of schools. And the holders of these certificates are thereby qualified to teach in any schools enumerated in such special forms of certificates, unless prevented by some statu- tory enactment. Thus the law-making power of the State has solemnly declared that the holders of these various certificates are qualified, and may legally be employed in any common school in this State, except as it has limited and restricted the right of the holders thereof to be employed in certain specified schools by the provisions of chapter. 103 1 of the Laws of 1895, applying to every city and village authorized by law to employ a superintendent of schools, which limita- tion and restriction it is not necessary to consider in the decision of this appeal. Therefore, the question presented by this appeal is, whether local author- ities, in the absence of special powers conferred upon them by the Legislature, have a right to exclude from employment in the schools under their charge any class of persons whom the State in its sovereign power has declared eligible to employment therein. Primarily the duty imposed upon every board of education, in the employ- ment of a teacher, is to exercise their best judgment and employ the best teacher available with the funds at their . disposal. They have the right to make individual selections, always bearing in mind this supreme duty and obli- gation, from among those whom the law has declared eligible to appointment and employment. They can not, however, erect artificial barriers to exclude any particular class or classes from employment; neither can they by resolu- tion confine their selection to any class or division of those eligible to appoint- ment. Local school authorities have the right to employ, as a teacher, any person of the requisite age and possessed of the qualifications recognized by the statute; but they have no right to limit the class of persons who have reached the required standing of learning and ability to teach from whom the teachers for the school may be selected. (See decision, James E. Morrison, Acting State Superin- tendent; decision 3493, April i, 1886.) If it be conceded that a local board of education may restrict their selection, by resolution, to any particular class or division of those whom the State has declared eligible to appointment, then it must be conceded that they have the right to limit, by resolution, the selection of teachers to be employed by them to the graduates of any particular college or school or institution. And if the JO/f* THE L-MVERSITY OF THE STATE OF NEW VORK respondents herein have the power to declare no one ehgible to employment as a teacher in the schools under their charge unless he holds a college graduate certificate, it must be conceded that they have a right, by resolution, to declare that no one shall be eligible to employment, as a teacher in their schools who has graduated from Columbia University, or Union University, or, by way of illustration, they may say, by resolution, that no one shall be eligible to appoint- ment as a teacher in their schools who has not graduated from some institution in which they are financially interested, or from some denominated school in whose success they have a vital interest. They may, with equal propriety, if allowed to disregard the broad obliga- tions resting upon them to obtain the very best teacher with the means avail- able to them, prescribe, by resolution, that no one who is not the holder of a third grade certificate shall be employed in the schools under their charge, sub- stituting for this broad duty to employ the very best teacher available the economic idea of selecting the cheapest teacher available. Conceding for the purpose of the argument that this board is actuated by a desire to secure the best teacher available, and therefore have limited the power of selection to teachers holding that class of certification which, in their judgment, represents the best scholarship, it can be clearly demonstrated that the result of the broad resolution adopted by them would have directly the contrary eflfect under certain conditions. Their resolution, in substance, is that no teacher shall be employed who does not hold a college graduate certificate. A college graduate certificate, under the rules and regulations governing the issuing of such certificates, can be issued only to the graduate of a college who, subsequent to such graduation, has had three years' successful experience in teaching. No examination is required to ascertain scholarship; no particular college from which he must have graduated is specified; no limit of time within which he should have graduated from such institution is specified ; no grade of school is specified in which such experience in teaching must have been obtained. All these are in the simple discretion of the licensing power. A college graduate may have had ten years' experience in teaching prior to graduating from a college ; subsequent to such graduation he may take a sup plemcntary course in the New York State Normal College at Albany, making a special study of the principals of education and methods founded thereon, and at the close of this experience and preparation along the special line of work he desires to follow he will find hmiself barred by this resolution, and be ineli- gible to appointment as a teacher in the schools under the charge of this board; and that too, notwithstanding the fact that his experience, training in college and special training in the State Normal College especially fit him for the work of a teacher. In other words, this resolution would exclude the men with special training and large experience, and make possible the selection of a candidate without professional training, and with but three years' experience in any school of OMV grade in the State. This resolution would, therefore, eflfectually preclude this board's selecting the better equipped man of the two. JUDICIAL decisions: teachers certificates 1079 It is universally conceded by educational experts that professional train- ing in the science of teaching is essential to the best type of teachers. Early in the history of the State this was recognized. Since 1834 the State has made annual appropriations for the maintenance of teachers training classes devoted exclusively to the professional training of teachers ; since 1843 the State has maintained teachers institutes for the professional training of teachers ; since 1844 it has maintained State normal and training schools for a like purpose; since 1895 it has maintained training schools for the professional training of teachers for schools in the cities and villages of the State. Last year the State expended $497,500 exclusively for the professional training of teachers in this State, exclusive of the amount expended in the insti- tute vi^ork of the State. Notw^ithstanding this munificent expenditure annually for the professional training of teachers, not a single teacher thus trained would be eligible as a teacher in this school, unless he happened, which is rarely the case, in addition to this to have been a graduate of some college or university. It must be remembered that if this board of education can adopt this resolution, thus nullifying the work of the State in the training of its teaching force, every other school board in the State may adopt a like resolution. This question, namely, the right of the holder of a certificate issued by competent authority to be employed in any common school of this State was before the Court of Appeals in the case of Steinson against the board of edu- cation of New York, reported in 165 N. Y., page 434. The court there held that a state certificate was conclusive evidence of the qualifications of a teacher to teach, and hence his employment, without the provisional certificate required by local authorities, was authorized- The adoption of this resolution would make the holder of a state certificate ineligible to appointment in this school, notwithstanding the provisions of section 10 of title I of the ConsoHdated School Law which provides as follows: Every such certificate so granted shall be deemed and considered a legal license and authority to teach in any of the public schools of this State, without further examination of the person to whom the same was granted, any provision of lazv in conflict zvith this provision to the contrary notwithstanding. Should the holder of such a certificate present himself as a candidate for appointment to this board of education, he would be met by the statement that in accordance with the resolution adopted by this board the holder of such a certificate was not eligible and could not be considered as a candidate. This resolution was adopted by a vote of four in favor to two opposed. The two members of this board not voting for such resolution are prevented from exer- cising their judgment as to the qualification of any candidate presenting him- self, not holding the particular certificate required by this resolution, notwith- standing they may be of the opinion that such candidate is the most available \and the best teacher available. Many of the graduates of the State normal and training schools receive their preliminary education in the public district I080 THE UNIVERSITY OF THE STATE OF NEW YORK schools. They are acquainted with the characteristics of the children attending such schools, and having been born and reared in the country, thoroughly under- stand their environment. They know the best method of teaching and controll- ing them. After receiving their preliminary education at these dilTerent schools and the union free schools, and after attending a State normal and training school, obtaining therein the careful training and technical professional knowl- edge essential to their calling, and the diploma of such institution certifying that they are qualified teachers, it can not be contended that a local board of trustees, acting upon their own peculiar notions, have the right to disregard all these facts and the certificate of qualification permitting them to teach, nor can it be held that, no matter how high the standing and character and ability of the candidate, no matter what may have been his professional training, he is not eligible to employment in the common schools of this State unless he holds the diploma of some college. As I have already said, it is the duty of the board of education to exercise their best judgment, and from all of the qualified teachers presenting them- selves as candidates they must make the very best selection, considering the means at their disposal, and they can not, by any arbitrary standard, such as the adoption of the resolution under discussion, deprive themselves of the power to exercise this judgment. The charters of some cities in this State contain special provisions author- izing local boards of education to establish requirements other than, and in addition to, those prescribed by the Consolidated School Law. The existence of such legislation would seem to imply that without it boards did not possess this power, and I am clearly of the opinion that in the absence of some special act of the Legislature, clothing a local board with the power to declare who shall be eligible to appointment in the schools under their charge, all certificates issued in accordance with the provisions of the Consolidated School Law entitle the holders thereof to appointment in any of the common schools of this State. The appeal herein is sustained. I decide that the resolution adopted by the board of education of union free school district 3, Orangetown, Rockland county, N. Y., at its meeting held on April 3, 1902, restricting the right of employment in the schools under their charge to the holders of college graduate certificates, is illegal and void, and said resolution is hereby vacated. TEACHERS' CONTRACTS 5369 In the matter of the petition of the board of education of union free school district no. 4, of the town of Salamanca, for the revocation of the teachers • certificate held by W. M. Clark. A contract between a teacher and the board of trustees expresses reciprocal relations. If teachers are to hold trustees bound by the terms of such contracts they in turn must expect trustees to hold such contracts equally binding upon teachers. A board of education that seeks to avoid the provisions of the statute through an illegal contract will not be sustained in its efforts to inflict severe punishment upon the other party to such contract for a breach thereof. A board of education seeking to impose the severe punishment of a revocation of a teachers certificate must present its petition therefor with clean hands. Decided January 14, 1908 Ansley & A-nsley, attorneys for appellants Charles A, Machenry, attorney for respondent Draper, Commissioner The respondent is a graduate of the Cortland State Normal school and therefore legally qualified to teach in the public schools of the State for life. On October 2, 1907, he contracted with the board of education of union free school district no. 4, Salamanca, to teach in the schools of that district from October 15th for the remainder of the current school year. About November 1st Mr Clark entered into negotiations with the board of education at Harri- son, N- Y., for the principalship of the school in that district for the remainder of the current school year. About November ist Mr Clark placed his resig- nation in the possession of the board of education at Salamanca. A meeting of the board was held on that evening and the board voted to increase the salary of respondent after January i, 1908, if he would remain in their employ or if such proposition was not satisfactory that the board would release him when Mr Clark or when the board were able to obtain a permanent teacher to take Mr Clark's place. The action therefore taken by the board was that if Mr Clark was not willing to remain at Salamanca and would furnish a substitute the board would release him. Mr Clark left Salamanca on Thursday evening of November 7th and swears that he devoted Friday and Saturday in search of a suitable substitute and that he applied to three diflFerent teachers agencies for such substitute. While it appears that Mr Clark made an honest effort to obtain a substitute he did not succeed in getting one and he was not therefore released from the obligation of completing his contract at Salamanca. [1081] 108>2 THE UNIVERSITY OF THE STATE OF NEW YORK A contract between a teacher and a board of trustees expresses reciprocal relations and if teachers are to hold trustees bound by the terms of such con- tracts they in turn must expect trustees to hold such contracts equally binding upon teachers. A teacher should not, therefore, except for cause, vacate a posi- tion or refuse to complete a term covered by the contract unless released from that obligation by the board of trustees. The law specifically provides that failure to complete a term covered by contract shall be sufficient ground for revocation of the certificate of the offending teacher. It is fortunate for respondent that this proceeding is not to be determined upon his conduct in vacating the position in question. There is another element which must be regarded as the controll- ing factor in the determination of this proceeding. The moving papers of appellant establish one point which seems to me to estop the board of education from invoking the power of this Department to impose the drastic punishment upon respondent of revoking his diploma and disqualifying him from teaching in the public schools of the State. The board of education inserted in its written contract with respondent Clark the following provision : " It is also agreed for value received that it shall always be at the option of the board of education to remove with or without cause stated, the said teacher . . ." The Consolidated School Law specifically provides that no teacher shall be employed for a shorter time than ten weeks except to com- plete an unexpired term and that no teacher shall be removed during a term of employment except for neglect of duty, incapacity to teach, immoral con- duct, or other sufficient cause. The statutes provide that the removal of a teacher by a board of education for cause is always reviewable by the Commissioner of Education. It is not possible for a board of education to override the specific provi- sions of the statutes by special contract. The board seeks by inserting this pro- vision in its written contracts to nullify not only that provision of law providing that contracts shall not be made for a shorter time than ten weeks but also that provision of law providing that a teacher shall be dismissed for cause only. This feature of the contract in question is therefore clearly illegal. This case presents the unusual situation of a party who, seeking to avoid the provisions of the statutes through an illegal contract, is now petitioning for the mfliction of severe punishment upon the other party to such contract for a breach thereof. The idea is repugnant to all principles of equity and to com- mon fairness. A board of education seeking to impose the severe punishment of revocation of a teachers certificate must present its petition therefor with clean hands. The petition herein is dismissed. JUDICIAL decisions: teachers' contr.\cts 1083 5150 In the matter of the appeal of Thomas A. Killips v. Patrick Hendrick as sole trustee of school district no. 9, town of Lima, county of Livingston. The law requires teachers' contracts to be in writing and gives its favor to such as are. Evidence to change this construction of the written contract might be considered but the burden of proof is upon the party offering such evidence. For vaHd reasons trustees may relieve a teacher from the work he contracted to perform but in extending such relief the right to reduce his salary does not follow. Continuing a teacher in the school without his consent to a modification of the contract, renders the district liable for the full compensation provided in such contract. Trustees will not be permitted to resort to technicalities for the purpose of withholding from a teacher any portion of the salary to which he is honestly entitled. Decided November 17, 1904 Albert H. Stearns, attorney for appellant George W. Atwell, attorney for respondent Draper, Commissioner This is an appeal brought to recover $183.66 with interest thereon from June I, 1904, for balance of salary due appellant for teaching in school district no. 9, town of Lima, county of Livingston, during the school year 1903-4. The appellant alleges that in August 1903 he made a contract with Patrick Hendrick, sole trustee of school district no. 9, town of Lima, county of Living- ston, to teach in the school of said district for a period of thirty-six weeks. The respondent acknowledges that such contract was made for the said thirty- six weeks. There is no dispute, therefore, as to the period of time for which said appellant is entitled to receive compensation. It is alleged by the appellant that under the terms of his contract he was to receive a weekly salary of $14. The respondent claims that the appellant was to receive but $11 per week for his services. The respondent admits, how- ever, that the contract for 1903-4 provided for the same salary which was paid the appellant for teaching in such district during the school year 1902-3. The respondent claims that under the provisions of the contract for the school year 1902-3 the appellant was to receive a salary of $11 per week for teaching and a compensation of $3 per week for taking care of the furnace. The appellant makes the contract for the school year 1902-3 a part of his pleadings in this appeal. Such contract provides that Thomas A. Killips, who is the appellant in this appeal, is " To teach the public school of said district for the term of 36 consecutive weeks, commencing September 8, 1902, at a weekly compensation of 14 dollars and cents payable at the end of each thirty days during the term of such employment. And the board of trustees of said district hereby contract to employ said teacher for said period at the said rate of compensation, pay- able at the time herein stated." The following indorsement was made upon such contract : " This contract shall call for $15 per week if said teacher teaches in the South Street school building. It also provides for care of furnace by said teacher." 1084 THE UNIVERSITY OF THE STATE OF NEW YORK The said Killips taught during the school year 1902-3 in the building in said district described in such contract as the " South Street school building " and was paid by order of said Hendrick as the contract provided $15 per week. Tliere is nothing in this contract which could possibly be construed to mean that the services of said Killips for teaching and for taking care of the furnace were to be measured separately and to be paid for accordingly. The fair, honest interpretation of the written contract is that Killips was hired to teach the school at $14 per week and if employed in the South Street building, at $15 per week, and that he was also to take care of the furnace. The law requires teachers' contracts to be in writing and gives its favor to such as are. Evidence to change this construction of the written contract might be considered, but the burden of proof in such case is upon the respond- ent herein. The respondent has failed to present such proof and the above interpretation of such contract must be accepted. The respondent admits that he " engaged " the appellant Killips to teach the school in said district no. 9, town of Lima, but claims that he agreed to pay him only $11 per week and that he positively refused to make any contract with him in relation to the care of the furnace. The said respondent acknowl- edges that he refused to give to said Killips a written contract as section 17, article 5, title 15 of the Consolidated School Law provides- The provisions of this law are mandatory and it was the duty of Trustee Hendrick to have com- plied with it. His refusal to perform this duty is the cause for this misunder- standing and this appeal. The said Trustee Hendrick directed the appellant Killips to report at the schoolhouse to open school on the morning of September 8, 1903, but stated that school would probably not open. Killips reported but the school was not opened. Trustee Hendrick persistently refused to open school and on October 13- 1903. the State Superintendent of Public Instruction opened such school and placed said Killips in charge as the principal teacher. On October 15, 1903, the State Department of Public Instruction issued an order directing said Kiilips to open and maintain the school in said district no. 9, Lima, and fixed his compensation at $14 per week. This order of the State Department also pro- vided that said Killips should take care of the furnace. A copy of such order was served on Trustee Hendrick. For two months Hendrick as trustee paid Killips $14 per week. He thus recognized the contract of Killips as calling for a compensation of $14 per week. If he had not contracted with Killips at that salar}-, why did he pay it for two months? Taking into consideration these facts : The contract of Killips for the year 1902-3 which was unquestionably at $14 per week; the general understanding between Hendrick and Killips that the latter should teach during 1903-4 at the same compensation which he re- ceived during the previous year; the fact that Killips was placed in such school by an order of the State Superintendent at a salary of $14 per week; and the further fact that Hendrick accepted the services of Killips for two months, JUDICIAL decisions: teachers' contracts 1085 .from October 13, 1903. to December 13, 1903, at $14 per week, the conclusion is irresistible that Killips was employed at, and is entitled to receive, a salary of $14 per week. If valid reasons existed for relieving Killips of any of the work which he had contracted to perform, the trustee or district could undoubtedly have so relieved him; but in extending such relief the right to reduce his salary does not follow. It was not until January 13, 1904, or three months from the date on which Killips began to teach that it occurred to Hendrick that under the terms of the contract Killips was entitled to only $11 per week. It was not within the power of Hendrick to modify the contract at that time without the consent of Killips. Killips might have been dismissed by the trustee for sufficient cause, but his continuance in the school without his consent to a modification of the contract, renders the district liable for the full compensation provided in such contract. The appellant states in his appeal that he has received from the district payment on the contract in question to the amount of $390. But in his reply to the respondent's answer he claims an error was made in stating such amount and asks the privilege of correcting such error. He states in his reply that the amount he did receive was $320.34. The appellant states that he did not keep a personal written account of the payments made him but relied on the records of stubs in the school register. He also alleges that the school register was in the hands of the trustee at the time he made his appeal and that such trustee refused to permit him to examine the register to obtain information from such records. If an error was made in stating this amount, it is proper that such error should be corrected. The appellant shows the dates on which orders in his behalf were issued on the district collector and on the supervisor of the town and gives the amounts of each of such orders. The total of such amounts appears to be $320.34. The respondent has not met this question in such a way as a public officer is bound to do. The records of his office should show what payments he has made to the appellant. The records of the office of collector of the district and of the supervisor of the town should show the amounts which each of these officers has respectively paid the appellant. The respondent could easily have shown what the facts are on this point. The conduct of trustees in dealing with teachers must be open, fair and honest. Trustees will not be permitted to resort to technicalities for the purpose of withholding from a teacher any portion of the salary to which he is honestly entitled. If the facts on this point are not completely presented, the responsibility for failure to set the matter right rests upon the respondent. The respondent claims that he paid the appellant $10 more than was agreed -upon for taking care of the librar}- and asks that such sum be deducted from the amount of salary still due appellant. The appellant claims that he agreed to take care of the library and that Trustee Hendrick agreed to pay him $40 for I086 THE UNIVERSITY OF THE STATE OF NEW YORK such services. The records show that respondent did pay him that amount. The respondent raises this question and the burden of proof falls upon him. He has failed to sustain his position. It. therefore, appears quite clear that under the terms of the contract in question the appellant is entitled to salary for services for the period of 36 weeks at $14 per week or $504. It also appears that he has received in pay- ments on such contract $320.34 and that there was due to him June i, last, a balance of $183.66. The appeal herein is sustained. It is therefore ordered, That Patrick Hendrick, trustee of school district no. 9, town of Lima, county of Livingston, be, and he hereby is, ordered and directed to pay to the said Thomas A. Killips the sum of $183.66 with interest thereon at six per cent from June i, 1904. If the said district no. 9, Lima, has not the available funds for this purpose then the said Trustee Hendrick is also hereby ordered and directed to raise the necessary funds therefor by levying a tax upon the taxable property of the district as provided by the Consolidated School Law. 5143 In the matter of the appeal of Clara Foster v. board of education of union free school district no. i, town of Richfield, Otsego county. While the law does not ignore a verbal contract, it does not favor one. The recorded action of the board reappointing a teacher would have bound the board, if the teacher had taken any steps which clearly indicated to the board an acceptance of the position. The teacher having applied for another position without accepting the first one, the whole question of the employment and the disposition of her services for the ensuing year was in abeyance and that question never passed out of the realm of negotiation and uncertainty into the status of established and legal rights. Decided September 22, 1904 Draper, Commissioner The appellant was a teacher in the Richfield Springs High School for the year 1903-4. and about May i, 1904, made application for reappointment, which the board of education approved. The board followed this action by sending to the appellant an unexecuted, written contract which she was to sign and return She had notice that if she desired the place, the contract should be signed and returned by the 15th of May. This was not done, but appellant claims that she was advised by the president of the board that it would make no difference if slie took more time. In this statement the president of the board sustains her. I here is, perhaps, some weight in the fact that this official ceased to be a member of the board, by reason of a different choice at the ensuing annual school meet- ing. The reason for the delay on the part of the appellant in signing and return- ing the agreement appears in the fact that she desired a different position at a JUDICIAL DECISIOXS: TEACHERS' CONTRACTS IO87 higher salary, for which she made application, which was refused, although the statement is made that she was told that she could have the position she specially desired at the same salary she had received before. In time appellant notified the board that she would prefer to take the old position rather than the new one at the same salar}\ While this was going on the board filled the old position. Appellant has since tendered the board the written agreement, signed by her, but the board has refused to execute it on behalf of the district. She claims the position for the present year, and the board resists the claim. No written contract has been executed between the parties. While the law does not ignore a verbal contract, it does not favor one. The recorded action of the board, reappointing the teacher, would have bound the board, if the teacher had taken any steps which clearly indicated to the board an acceptance of the position. If it is claimed that because the teacher applied for the position and the board voted that she should have it, this constituted a contract it must be said that the subsequent course of the teacher was sufticient to overthrow the belief that she considered herself bound. If it be said that she had the right to rely upon the statement of the president of the board that she might have more time in which to accept the position, it must also be said that she clearly understood that she had not accepted and that there was no existing contract between the parties. It can hardly be successfully maintained that she had a right to the position, that the board was bound and she was not, while she was negotiating for another place at higher pay. If she is a good teacher, as I have no reason to doubt, it is to be regretted that the negotiations were not more free and open and that the board did not extend the time for accepting the first position until she had rejected the other; but it can hardly be said that they did so or that in view of all the circumstances, they became bound to her in any way. She had applied for the other place without accepting the first one and her second application was in abeyance. This being so, the whole question of the emplopnent and the dis- position of her services for the ensuing year was in abeyance, and that question never passed out of the realm of negotiation and uncertainy into the status of established and legal rights. It follows that the appeal must be dismissed. 4767 In the matter of the appeal of Uriah C. Gregg v. Anson S. Thompson, sole trustee, school district no. 8, Ellisburg, Jefferson county. Trustees of school districts have the legal authority to employ a person duly qualified under the school law, to teach in their respective districts for the entire school year, or for any less term or terms of time during the school year, not less than ten weeks ■" - unless it is for the purpose of filling out an unexpired term of school. Such contracts should be reduced to writing and signed by the parties. I0S8 THE UNIVERSITY OF THE STATE OF NEW VOKK It is well settled that a written contract supersedes all oral negotiations or stipulations between the parties thereto which preceded or accompanied its execution, except where the contract has been procured through duress, fraud or undue influence; that parol evidence is not admissible to contradict or subsequently vary a written contract. Decided May 26, 1899 Skinner, Supcrintcndetit This is an appeal from the action of Anson S. Thompson as sole trustee of school district 8, Ellisburg, Jefferson county, in dismissing the appellant as teacher in tlie school in such district during the course of a term of employment without sutiicient cause. The appellant alleges, as the grounds for bringing his appeal, that he was employed by said Trustee Thompson to teach the school in said district for the term of thirty-six weeks during the school year of 1898-99 at the compensation of $10 per week, and was disinissed after teaching twenty-six weeks, without sufficient cause. The appeal herein is quite lengthy and contains much that is not material in the consideration and disposition of the question presented for my decision, namely, whether Trustee Thompson employed the appellant to teach in the school in said district 8, Ellisburg, for thirty-six weeks during the school year of 1898-99 as claimed by the appellant. Trustee Thompson, in his answer to the appeal herein states that he entered into two contracts in writing with the appellant during the present school year, one for the period of sixteen weeks, and the other for the period of ten weeks, at a compensation of $10 per week; that on the termination of the term of eiriployment of the appellant of the ten weeks mentioned in the second contract, he informed appellant that he did not desire to employ him any longer; that he never made any other or different agreement with the appellant to teach in the school in said district, other than the said two contracts, copies of which are annexed to his answer and marked " Exhibits A and B." Trustee Thompson specifically denies the allegations contained in the appeal herein, that April 3, 1898, or at any other time, he employed the appellant as a teacher in the school in said district for the then ensuing school year at a salary of $10 per week, for thirty-six or thirty-eight weeks as he said Thompson should determine, and which he did determine to be thirty-six weeks. It is established by the proofs filed herein that August 3, 1898, the appellant applied to Trustee Thompson for employment as a teacher in the school in said district 8; that August 5, 1898, the said parties again met and a further con- versation and negotiations were had which resulted in the execution of a con- tract in writing, made in duplicate, dated August 3, 1898, whereby the appellant contracted to teach the school in district 8, Ellisburg, Jefferson county, for the term of sixteen consecutive weeks, commencing September 5, 1898, at a weekly compensation of $10, payable at the end of each thirty days during the term of employment, and Trustee Thompson contracted to employ the appellant for said period at the said rate of compensation, payable at the times therein stated • that JUDICIAL DECISIONS: TEACHERS' CONTRACTS I089 one copy of the contract was signed by the appellant and retained by Trustee Thompson, and one copy was signed by Trustee Thojnpson and retained by the appellant; that said contract was performed by the parties thereto, the said term closing on or about December 23, 1898, when the school was closed for the holiday vacation; that January 10 and 14, 1899, respectively, the parties hereto met and January 14, 1899, a second contract was executed in writing and in duplicate, dated January 11, 1899, whereby the appellant contracted to teach the school in said district for the term of ten consecutive weeks, commencing January 11, 1899, at a weekly compensation of $10, payable at the end of each thirty days during the term of employment, and Trustee Thompson contracted to employ the appellant for said period at the said rate of compensation, payable at the terms therein stated ; that one copy of the contract was signed by the appellant and retained by Trustee Thompson, and one copy was signed by Trustee Thompson and retained by the appellant; that said contract was per- formed by the parties thereto except that the appellant had two days' service to make up; that April 10, 1899, the appellant, Trustee Thompson and a Mr Littlefield being in the schoolhouse. Trustee Thompson stated to appellant that he had employed Mr Littlefield to teach the school, but he would permit the appellant to teach for that day and the day following to make up the two days ; that on the morning of April 12, 1899, the appellant. Trustee Thompson and Mr Littlefield, being in the schoolhouse, said Thompson said " Mr Littlefield, I place you in charge of the school and all the teachers in the school," and to the pupils, " You are to recognize Mr Littlefield as your teacher, obey his orders and none others"; that the appellant said to Thompson that he (appellant) was there to teach the remainder of his time, and requested Thompson to remove the obstruction he had placed to prevent him (the appellant) from doing his work ; that Thompson refused and said to appellant, " You fix up your register and I will pay you for the time you have taught for which I owe you," and thereupon the appellant left the schoolhouse; that said Littlefield is teaching in the school in said district, and the appellant is teaching in school district 17, Ellisburg. The appeal was filed May 11, 1899. Under the Consolidated School Law of 1894, the trustees of school districts are empowered to contract with and employ all teachers in the district school or schools as are qualified under the provisions of said law, and to designate the number of teachers to be employed; to determine the rate of compensation to be paid to each teacher respectively, and to determine the terms of school to be held in their respective districts during the school year. All trustees of such districts when employing any teacher to teach in any of said districts shall, at the time of such employment, make and deliver to such teacher, or cause to be made and delivered, a contract in writing, signed by said trustee or trustees, or by some person duly authorized by said trustee or trustees to represent him -or them in the premises, in which the details of the agreement between the 35 I090 THE UNIVERSITY OF THE STATE OF NEW YORK parties, and particularly the length of the term of employment, the amount of compensation and the time or times when such compensation shall be due and payable, shall be clearly and definitely set forth. Under the aforesaid provisions of the school law, Trustee Thompson had the legal authority to employ the appellant as a teacher in the school in district 8, for the entire school year, or for any less term or terms of time during such school year, not less than ten weeks, unless it was for the purpose of filling out an unexpired term of school; and when any such contract was entered into, it must be reduced to writing and signed by the appellant and said trustee. A contract was made in writing between the parties August 5, 1898, for a tenn of employment of the appellant as a teacher for 16 weeks from September 3, 1898, at a compensation of $10 per week, and January 11, 1899, a second con- tract was made for a like employment of appellant for a term of ten weeks from January 11, 1899, at a compensation of $to per week. It is well settled by the courts of this State that a written instrument super- sedes all oral negotiations or stipulations which preceded or accompanied its exe- cution, except where the instrument has been procured through duress, fraud or undue influence ; that parol evidence is not admissible to contradict or substan- tially vary a written contract. Admitting, for the purposes of argument only, that Trustee Thompson, in the conversation and negotiations had with the appellant, prior to the execution of the written contract August 5, 1898, said that he would employ the appellant for the present school year, such statement was merged in, and superseded by, the written contract then made, and parol evidence is not admissible to contra- dict or vary such written contract. The same is true relative to the written contract between the parties, dated January 11, 1899. The contention of the appellant that he was dismissed as a teacher in the school in district 8, EUisburg, in the course of a term of employment is not sustained. The appeal herein is dismissed. 3768 In the matter of the appeal of Alice A. Tillson v. Isaac McNeeley, sole trustee of school district no. 4, of the town of Forestburgh, county of Sullivan. A person claims to have been employed as a teacher by a verbal contract for a term of si.xteen weeks. The school trustee, with whom the contract was alleged to have been made, denies any agreement whatever. The person averring the employment was not allowed to teach the school. On an appeal of this nature, where the parties swear to statements which are diametrically opposed to each other, the preponderance of proof must be with the appellant, or the appeal can not be sustained. The alleged contract never having been fulfilled, the appellant's claim would be for damages upon a breach of contract. JUDICIAL decisions: teachers contracts 1091 It is not the policy of the law to require the State Superintendent of Public Instruction to measure damages for a breach of contract when the extent thereof is altogether indefinite and uncertain. The remedy is to be sought by an action in a local court. Decided March 23, 1889 John P. Roosa, attorney for appellant T. F. Bush, attorney for respondent Draper, Superintendent The appellant taught school in the district above named from September 1888, to the 13th of February 1889. She claims that she was employed by the trustee to teach a term of sixteen weeks, commencing on the 14th of February 1889, at $8.50 per week. She states that the agreement to this effect was made in conversations between the trustee and herself at four or five different times. She says that when she went to commence the school on the 14th of February she found the door locked against her, and that she was unable to gain admission. She asks that the trustee be directed to place her in possession of the school, and to pay her her wages as agreed. The trustee denies any agreement of the character referred to. He says that he never had any conversations as described by the appellant, in words or substance, and that he never, at any time, agreed that she might teach the school during the spring term. There is no proof submitted by the appellant, beyond her own statement. It is incumbent upon her to prove her allegations. The parties swear to state- ments which are diametrically opposed to each other. The preponderance of proof must be with the appellant in order that she may succeed. There is no preponderance on her side. Moreover, it is against the policy of the Department to interfere in a case of this kind. If there was an agreement between the par- ties, it was entirely unfulfilled. If we were to assume that all the appellant claims were true, it would only follow that the respondent was guilty of a breach of his contract and the appellant would be entitled to recover damages in conse- quence thereof. It is not the policy of the law to require the State Superintendent of Public Instruction to fix damages for the breach of a contract, when the extent thereof is altogether indefinite and uncertain. If the appellant's statement is true, her remedy lies in an appeal to the local courts. The appeal is dismissed. 5288 In the matter of the application of Charlotte Lamson for reinstatement as teacher in union free school district no. 6. towns of Ossining and Mount Pleasant, county of Westchester. It is not necessary that school should be in session or that the term covered by a teacher's contract should have already been opened in order to permit the board of education 1092 THE UNIVERSITY OF THE STATE OF NEW YORK to remove such teaclicr. Any action of a board which prevents a teacher from entering upon her term of service and completing it is in fact a dismissal. The contractual ri^'l'ts of a teacher may be enforced by the institution of any proceeding necessary to protect such right. A teacher's contract may be vacated at any time after its execution for conduct inimical to the welfare of the school. Decided October 22, 1906 Hon. George F. Bodine, attorney for appellant Baldwin & Baldwin, attorneys for respondent Draper, Commissioner Miss Charlotte Lamson was employed as one of the teachers in the Briar- cliff school for two years. On the 15th day of May 1906, she made a contract for tho ensuing school year. Under this contract she was to tea.ch ten months beginning in September at a monthly compensation of $65. It is conceded that during the two years she taught in this school her work was successful and satis- factory. Trouble between certain teachers and the board of education took place during the week of the closing exercises of the school. Thereafter the board of education asked Miss Lamson for an explanation of her conduct in connection with such trouble. The explanation offered by Miss Lamson was not satisfactory to the board. The president of the board advised Miss Lamson that her explana- tion was not satisfactory and suggested to her the propriety of resigning to avert the humiliation of being officially requested to resign. Miss Lamson refused to resign. Thereupon the board of education through its clerk advised Miss Lamson that her services would not be required during the school year beginning Sep- tember 13, 1906. At the time designated for opening the school Miss Lamson appeared at the school building and tendered her services. The board refused to permit her to enter upon the performance of her contract and directed her to leave the school grounds. She formally notified the board of her readiness and desire to enter on the performance of her contract. She has not been permitted to do this. Respondent's attorney raises the question of jurisdiction and claims the Commissioner of Education has not authority to entertain this proceeding. He danns that this is not an appeal over which the statutes confer jurisdiction to the Commissioner of Education. He also claims that the Commissioner of Edu- cation has not the power to grant the relief requested. He further contends that the proceedings are prematurely instituted as it appears from the moving papers that the petitioner had not yet entered upon the term of her allecred contract and was not therefore a teacher in said school. This contention is not sound. Title 16 of the Consolidated School Law provides for appeals to the Commissioner of Education. Section i of such title names various bodies and officers whose official acts and decisions are appealable. Subdivision 7 of section I specifically provides that any person conceiving himself aggrieved in conse- quence of any decision made "by any other official act or decision concerning any other matter under this act, or any other act pertaining to common schools JUDICIAL decisions: teachers contracts 1093 may appeal, etc." The appellant had a contract to teach in this district. The board of trustees officially notified her that her services would not be accepted under such contract. This action on the part of the board of education is an oiTicial act and an official decision and it pertains to the common schools and the petitioner herein is aggrieved thereby. Clearly imder this provision of law she has the right to bring an appeal to the Commissioner of Education for such relief as shall be found upon the facts in the case to be just and equitable. Among other things subdivision 11 of section 15 of title 8 of the Consolidated School Law provides that " No teacher shall be removed during a term of employ- ment unless for neglect of duty, incapacity to teach, immoral conduct, or other sufficient cause." Subdivision 9 of section 47, title 7 also provides " nor shall any teacher be dismissed in the course of a term of employment except for reasons which if appealed to the Superintendent of Public Instruction [Com- missioner of Education] shall be held to be sufficient cause for such dismissal." Section 16 of title 8 makes this provision binding upon boards of education. Was the action of this board of education in notifying petitioner on August 12, 1906, that her services would not be required in fact a removal or dismissal? It was not necessary that school should be in session or that the term covered by the contract should have already been opened in order to permit the board of education to remove her. Any action of the board which prevented her from entering upon her term of service and completing it was in fact a dismissal. But whether it was or not she had a contractual right which she could enforce and might begin any proceeding necessary to protect such right. The action of the board was a breach of contract unless good reason existed therefor. The con- tention of respondent that action for relief could not be brought under the cir- cumstances of this case previous to the date when school was to open is not well founded. It is a well settled principle of law that where one party to a contract is guilty of a breach the other party is under no obligation to delay action until a tender of performance under the terms of such contract but may begin action for such breach of contract at once (Windmuller v. Pope, 107 N. Y. 674)- Under the decisions of this Department a teacher in such case may bring action , for reinstatement or for the payment of salary for the time the teacher was deprived of teaching. I must therefore hold that this case is properly before me and that I have full jurisdiction to determine the issues presented. There appears to be only one question for determination and that is whether or not the action of the board of education in notifying Miss Lamson that her services would not be required was based upon valid reasons. It appears from the pleadings that at the time the trouble in question occurred George A. Todd jr was the principal of the school; that Asa Howard Geeding was musical instructor of said school ; that Charlotte Lamson the peti- tioner was a teacher in the academic department and had charge of physical culture; and that Gertrude Selter (now Guthrie) was a teacher in the grades " and by special agreement acted as pianist for the school. It was customary in the closing week of the school to hold public exercises of a literary character. J094 THE UNIVERSITY OF THE STATE Ol- NEW YORK Al.uiit one month previous to the lime when sucii exercises were to be held the principal of the school wrote Mr Geeding, the, musical instructor, requestmg him to get up something for the public entertainment and to take full charge of it. It also appears that these annual entertainments were under the direction of the board of education and that the musical instructor after deciding upon the exercises to be given submitted his selection to the board of education and the principal. He was directed by the board to proceed with his arrangements as explained to them and the plan had the approval of the principal. Whatever the plans of the musical director were they had the indorsement of the proper school authorities. The musical director desired to have one Miss Schlier play the accompani- ment. By direction of the board he obtained her services. This appears to be the beginning of the trouble. It appears that Miss Selter (now Mrs Guthrie) believed that she should perform such services since she was the pianist of the school. The musical instructor claims that when he first decided on the selection to be given he consulted Miss Selter about playing and that she wanted two weeks to practise to prepare for such service which was a longer period than time would permit. Miss Selter positively denies this and asserts that she was prepared to play without practice, was anxious to do so and wrote Mr Geeding a note to that effect. The evidence given on this point by Miss Selter is directly the reverse of that given by Mr Geeding. From this the trouble spread. Miss Lamson and apparently other teachers began to think that they were being slighted because of the outsiders who were brought in to aid the musical director. The whole trouble originated over a trivial affair. Its importance was un- necessarily and unduly magnified. It was within the province of the board of" education to direct the employment of such assistance outside of the school faculty as it should deem proper. It appears that Miss Schlier was a resident of the village who possessed musical talent and who rendered similar assistance in many public functions given in the community and particularly by the public schools. She gave such service gratuitously. Obtaining Miss Schlier for this service was no reflection upon Miss Selter. It did not indicate that Miss Selter was incompetent to perform her regularly assigned work in the school. In view of the fact that Miss Schlier had rendered similar assistance at previous school entertainments and upon other public occasions it is doubtful if anyone would ever have construed her employment as a reflection upon Miss Selter if the latter and her friends had not raised that issue. It may be suggested however that it would be well to have all public school exercises of this character per- formed by those directly connected with the school. These exercises are given in the name of the school and stand for it and should be representative of its working forces, both pupils and teachers. If confined to these forces the au- thorities will avert such unpleasant and disagreeable community and school dis- turbances as occurred in this instance. JUDICIAL decisions: teachers' contracts 1095 The pleadings clearly show that Miss Lamson the petitioner felt seriously aggrieved over the employment of Miss Schlier and because she was not herself given a more prominent part in such exercises. In her moving papers peti- tioner alleges that she was " shunned in every way " during the preparations and rehearsals for the entertainment and was " led to believe that she was not wanted to do anything." It also appears that she believed her position was " usurped by strangers." Miss Lamson also appears to have been the aggressor in resenting what she believed to be the slight and reflections upon Miss Selter, herself and others. It appears that she had a public discussion of their alleged grievance at the school building in the presence of one of the pupils with Mr Geeding and with Miss Schlier. It also appears that Principal Todd was pres- ent during most of the discussion between Miss Lamson and Mr Geeding and that Miss Selter was present when the interview between Miss Lamson and Miss Schlier took place. Many statements which Mr Geeding and Miss Schlier swear were made by Miss Lamson are positively denied in the affidavit of Miss Lamson and Mr Todd and Miss Selter also swear that she did not make them. It may be held that the wisest course for a teacher to pursue when she believes that she has not received the treatment to which she is entitled is to present her grievances whatever they may be to the board of education in a full and frank manner. Usually when presented in this way they will receive just and cour- teous consideration. Differences between members of a faculty or between the faculty and a board should not generally be discussed in the presence of pupils as such treatment thereof may prove injurious and prejudicial to the disci- pline and welfare of the school. Miss Lamson closed her term of service for last year about June 19th. About July I2th, the board of education requested an explanation of her con- duct in relation to these matters. Her answer to that request was written July i6th or about one month after the trouble occurred. She replied to the letter suggesting that she resign under date of August i, 1906. The spirit of these letters written more than one month after the event occurred and after she had had opportunity to reflect upon them furnish a fair criterion for deter- mining to some extent the spirit she manifested in the midst of the trouble. These letters are an important element in the determination of this proceeding. These letters show that Miss Lamson felt that she had been ignored not only in the school but in the community. She points out all she did to build up the school and to be helpful in the village and all of which she believes was not appreciated. Her letters show that she was indifferent to the preparation of the entertainment and because she believed the musical instructor had been unkind to one of the teachers. She says that she often went to Sunday school and no one had spoken to her but the superintendent. She also says that she was " simply ignored so far as being asked to help to prepare the entertain- ment and was not considered of enough importance to be introduced to the ,- helpers." And again, "I had sufficient provocation for a discussion of per- sonal issues before the children or where it was most convenient." She fur- 1096 THE UNIVERSITY OF THE STATE OF NEW YORK ther says, " I have a contract and if you do not wish me to teach I'll simply collect my i)ay and remain at home. I am quite sure that my work would be as pleasant as it ever has been, for few ever exerted themselves to make my stay in Briarcliff pleasant." It is not charged that the board acted impulsively or with any animosity in the matter whatever- It appears that they acted very deliberately and simply with a desire to do what they regarded for the best interests of the school. It also appears that none of the other teachers identified with the' trouble in ques- tion are now employed in the school and under all the circumstances I think it would be unwise to direct the board to reinstate petitioner. I think it may well be held that the question in this case is one involving the discretionary power of the board and that its judgment in the absence of any improper motive slioulil be conclusive. It may also be said that the action taken by the board was during a vacation period and at a time when petitioner might have obtained a more congenial i)osition without any particular hardship. It is contended by attorney for appellant that the acts complained of took place in June and that under her contract she was not to begin to teach until September and that the contract could not be set aside for conduct which took place previous to the time when she was to enter upon her term of service. This position is untenable and it must be held that a teacher's contract may be vacated any time after its execution for conduct inimical to the welfare of the school. The appeal herein is dismissed. 5225 In the matter of the api^cal of Annie Y. Fulton Palmer from the action of Seymour Gage, trustee of school district no. 3, town of Caroga, Fulton county. A teacher who attempts to decide whether or not nonresident pupils shall be admitted to school is usurping the powers of a trustee. A teacher who refuses to teach nonresident pupils admitted by the trustee exceeds her authority and such conduct is good ground for her dismissal. A teacher who dismisses school for a single day without good cause or without the consent of the trustee is guilty of a breach of contract sufficient for dismissal. Decided November 24, 1905 Horton D. Wright, attorney for appellant Jordan & Cassedy, attorneys for respondent Draper, Commissioner The appellant herein contracted with the trustee of school district no. 3, Caroga, Fulton county, on or about June 15, 1905, to teach the school in said district during the ensuing school year. Pursuant to the provisions of said JUDICIAL decisions: teachers contracts 1097 contract she commenced to teach in such school on the 4th day of September 1905. It appears that on or about October 3, 1905, Trustee Gage dismissed her. The only question to be determined in this appeal is the sufficiency of the grounds upon which appellant was dismissed. The pleadings indicate that the relations between the trustee and teacher of this district have not been harmonious. A question as to which was the proper authority to determine the rights of certain pupils to attend the school seems to have arisen. The appellant refused to admit certain pupils who were nephews of respondent and permanent members of his family on the ground that they were nonresident pupils. She also refused to give them instruction when they were admitted to school. She appears to have arrogated to herself the authority to determine what pupils should be admitted to school and also what pupils she should instruct. The law imposes upon a trustee the power to determine whether or not nonresident pupils shall be admitted to school. A teacher has no authority whatever in the determination of such question. A teacher is employed to teach the pupils admitted to school and a refusal to in- struct such pupils and to extend to them the school privileges to which they are entitled is good cause for dismissal. It is immaterial whether the children in question were residents of the district or nonresidents. That they were living at the home of the trustee and were sent to school by him was known to appellant. Attempting to decide that they were nonresidents and not entitled to attend school in this district was a usurpation of the powers legally imposed on the trustee. Had pupils come to the school without the knowledge of the trustee who were nonresidents it would have been the duty of the teacher to notify the trustee and then abide by whatever orders he might given in the matter. Going beyond this was exceeding her rightful powers and was good ground for dismissal. It also appears that appellant dismissed school one day and sent all pupils home without assigning good reason therefor and without permission of the trustee. This in itself was a breach of contract and sufficient cause for dis- missal. I do not find that the trustee has exceeded his authority in any way and must decline to interfere with the action he has taken. However, the trustee should without delay pay appellant the salary due her from September 4, 1905, the day on which she opened school to the date on which he dismissed her. The appeal herein is dismissed. It is ordered, That appellant shall deliver to the trustee of said district no. 3, Caroga, Fulton county, the key to the schoolhouse and all school records or school property in her possession as teacher and that she shall vacate the posi- tion of teacher in said district and cease to interfere in any way with the teacher employed to continue such school or with the school maintained in said district. 1098 THE UNIVERSITY OF THE STATE OF NEW YORK 5231 In the matter of the appeal of Francis J. Wilson from the refusal of Sherman Sprague as trustee to recognize him as teacher in school district no. 14, town of Liberty, Sullivan county, A contract between a trustee and a teacher which knowingly and purposely subordinates the school interests of the entire district to the personal interests and convenience of the teacher will be set aside. To make a contract with a teacher whereby such teacher may take six weeks' vacation whenever he desires to do so is in violation of the rights of the inhabitants of the district. Decided December 15, 1905 Draper, Commissioner •At the annual meeting of school district no. 14, town of Liberty, Sullivan county, for the year 1905, Andrew Lewis was declared elected trustee. An appeal was brought to the Commissioner of Education alleging certain illegal actions and on such appeal the election was set aside and a special meeting for the election of a trustee ordered. At such special election Sherman Sprague was chosen trustee. On August 5, 1905, Appellant Wilson contracted with Trustee Lewis to teach the school in said district no. 14, Liberty, for thirty-two consecutive weeks. From the time of the annual meeting until my decision declaring the election at such meeting illegal and void, Trustee Lewis was a de facto trustee and as such had authority to exercise the powers and perform the duties conferred by law upon trustees. He had authority to make a contract with a teacher for the school year which would be binding upon the district and upon his successor in office. A legal contract made by a de facto trustee is binding upon third parties and should be honored by a de jure trustee chosen to succeed such de facto trustee. If the contract made, therefore, between Trustee Lewis and the appellant was one which might legally have been made by a legally chosen trus- tee then such contract is binding upon the district, should be respected by Trus- tee Sprague, and the relief prayed for in the moving papers granted. The conclusion to be reached in this case, therefore, depends upon the provisions of the contract in question. This contract was in the usual form except that it contained the following provision : " Said teacher reserves the right to provide for a vacation or vaca- tions of not more than six weeks in the aggregate during said term to be taken when he desires it, which vacation shall not count as a part of the term of service above referred to." The pleadings show that appellant began teaching October 2d and taught one week when he closed school for two weeks. The pleadings show that at the time this contract was made appellant was collector of the town of Lib- erty. They also show that at the time appellant closed school in October he was a candidate for reelection to the office of town collector. It is alleged by respondent that the two weeks' vacation taken in October and after the school JUDICIAL decisions: teachers' contracts 1099 had been in session for one week only was for the purpose of enabling appellant to electioneer for votes for the said office of town collector. Appellant denies that he was engaged in canvassing for votes during the two weeks' vaca- tion of October, but he does not show in what manner he was engaged at that time or what emergency or important matter arose sufficient to warrant his closing school for two weeks and at the most desirable period of the year for school to be in session. It is admitted by appellant that he desired the six weeks' vacation for which provision was made in the contract, for the purpose of enabling him to perform the duties of his office as town collector. Lewis, the de facto trustee, also testifies that this was the object of inserting such provision in the contract. We have the evidence therefore of the de facto trustee and the teacher that they knowingly and purposely entered into a contract which subordinated the school interests of this entire district to the personal interests and convenience of such, teacher. A trustee is the representative of the district and in his official capacity must exercise such powers as will protect the interests of the district and pro- mote the educational facilities of the community. To make a contract with a teacher, whereby such teacher may take six weeks' vacation whenever he de- sires to do so, is in violation of the rights of the inhabitants of the district. Under such contract a teacher could close school the whole of October and part of November or part of October and the whole of November. He might select any other six weeks in the year and at a time when it is most desirable for a public school to be in session. Vacations should be arranged by boards of trustees to meet the needs of the district and not the convenience of a teacher. Contracts of the nature of the one in question must be regarded as inimical to sound educational policies and can not be approved by this Department. Trustee Lewis exceeded his authority in making such contract. Trustee Sprague acted within his legal rights in disregarding such contract and dismissing appellant for closing school for two weeks in October. Since appellant taught the school one week he is entitled to $10 compensation for that week. Trustee Sprague should pay appellant that amount. With such understanding the appeal will be dismissed. The appeal herein is dismissed. 5148 In the matter of the appeal of Drucilla M. Brice v. L. L. Edsall, B, L. Drew and Robert Doty as trustees of school district no. i, town of Warwick, Orange county. When two members of a board of trustees sign a contract form simply as a matter of convenience but without official direction by the board and the teacher is fully and promptly advised in the matter it was held that the transaction fell short of a contract. Decided October 25, 1904 IIOO THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Commissioner The appellanl in this appeal endeavors to show that she was employed by the trustees of district no. I, town of Warwick, Orange county, on June 6, 1904, as teacher in said district for the ensuing school year. She alleges that on such date, at a meeting of the board of trustees, a contract in her favor was signed by two members of the board, and that she was subsequently notified by L. L. I-'.dsall, one of the trustees, that she had been employed for the year com- mencing in September 1904. The appellant attaches much importance to the alleged notice received from Mr Edsall and introduces the affidavits of several persons to show that at various times and places between June 6, 1904, and Sep- tember 1st following, the said Edsall had stated that two of the trustees, Mr Drew and himself, had signed a contract agreeing to employ the appellant as teacher. The respondents, in their answer to the appeal, show that a meeting of the board of trustees was duly held on June 6, 1904, at 7.30 p. m. at the house of Trustee Drew. Trustee Edsall arrived at the meeting promptly, but was not able to remain after 7.40. Trustee Doty did not arrive at the meeting until 8 o'clock. Between 7.30 and 7.40 Mr Edsall and Mr Drew discussed the employ- ment of a teacher and agreed to sign one blank form of contract, naming the appellant as teacher for the ensuing year, but on the explicit understanding that if the third trustee, Mr Doty, should appear at the meeting before 8.30 and object to the employment of the appellant no contract should be made with her. Mr Doty did appear at such meeting previous to 8.30 and objected to the employ- ment of said appellant. No contract with the appellant was agreed upon at such board meeting and none of the trustees was authorized by the board to notify Ihe appellant of her employment. The board of trustees subsequently held a meet- ing and agreed and voted not to employ said appellant for the ensuing year. The action of the board was conveyed to the appellant on June 9, 1904, by writ- ten notice, signed by two members of the board. Again on June 13, 1904, fur- ther notice of the action of the board was served upon appellant by delivering to her a written notice signed by all members of the board. The appellant has replied to the answer of the respondents, but does not refute or even deny the statements set forth by the respondents in their answer to the appeal. She rests her right to a contract upon the statement of Mr Edsall that he and Mr Drew had signed one blank form of contract, naming her as the teacher for the year. It is true that they had signed such blank but only as a convenience and not upon official direction by the board. No motion appears to have been made at the board meeting, or any other action taken, authorizing a contract or directing any member of the board to notify the appellant that she had been employed. It clearly appears from the foregoing facts that there was no action of the board authorizing a contract; that no contract was made with the appellant on June 6, 1904, or thereafter, for the ensuing year; that the transaction upon which she bases her claim fell short of a contract and was quickly explained to her, and JUDICIAL decisions: teachers' contracts iioi that she has no right or claim to act as the teacher of the district for the current school year. The board of trustees voted not to contract with her and treated her with prompt fairness by notifying her as early as June 9, 1904, of their action so that she might arrange her affairs for the ensuing year accordingly. After seventeen years' service in this district the appellant would have acted prudently had she readily acquiesced in the action of the board of trustees. The appeal herein is dismissed. 5308 In the matter of the appeal of Clara L. Botsford from her dismissal as teacher by John Anderson, trustee of school district no. 6, town of Marlborough, Ulster county. A teacher will not be reinstated when it appears from her own statements that she was clearly unable to maintain discipline in the school. Decided February 15, 1907 Draper, Commissioner There are many legal objections to the consideration of this appeal but it seems advisable under all the circumstances to decide it upon appellant's moving papers. She alleges that she made a written contract for thirty-six weeks' service. A copy of the contract is not in evidence and the terms of the contract are not clearly set forth. The school appears to be a difficult one to control and it appears as though the teacher had not been properly supported by the parents of pupils attending the school. It also appears from appellant's own statements that she was clearly unable to manage and discipline the school. The school had become so demoralized through lack of proper discipline that it was of little value, if any. Under the circuinstances it would be unwise to reinstate appellant as teacher and it must be held that the trustee acted for the best interests of all concerned and within his legal right in dismissing her. The appeal is dismissed. 5173 In the matter of the appeal of Thomas H. Le Roy froin the action of the board of trustees of school district no. 5, town of Southampton, Suffolk county. When a contract provides for nine consecutive months at a monthly compensation of $55 payable at the end of each vwnth, the term month will be interpreted to mean calendar month if the conduct of both parties to the contract shows that they mutually under- stood these terms to mean a calendar month. Decided February I, 1905 1 102 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Commissioner On August 15, 1903, appellant entered into a contract with the trustee of district no. 5, town of Southampton, SutTolk county, under the terms of which it was agreed that said appellant should " teach the public school of said district for the term of nine consecutive months, commencing September 8, 1903, at a monthly compensation of $55, payable at the end of each month." The only question in dispute is, what constitutes a month under the above contract? The appellant taught from September 8, 1903 until June 15, 1904, excluding a two weeks' vacation, during the holidays. At the close of school he l)resented a bill to the board of trustees for 38 weeks and 3 days' service, or 9 months, 2 weeks and 3 days at $55 per month, claiming that the term month in his contract meant a period of four weeks or a " school " month. The board of trustees paid him for nine months' service at $55 per month and refused to pay him for the extra lime claimed of two weeks and three days. The board of trustees insist that the term "month " meant a calendar month and that appel- lant so understood it. The pleadings show that appellant commenced teaching on September 8th and that November 7th, at the expiration of two months, he was paid by the district and accepted $110 in payment of his salary for such period of two months. He was again paid by the district December 7th at the expiration of the third month and accepted as salary therefor $55. On December i8th he was paid $20 and on January 7th $35 which made $55 at the expiration of the fourth month, and he accepted such payments as his salary for such fourth month. At no time when receiving such payments did he claim additional com- pensation or protest against receiving the amount tendered him as not being in full of all claims and demands until the close of the year. The language of the contract calls for nine consecutive months at a monthly compensation of $55 payable at the end of each month. The conduct of both parties to this contract shows that they mutually understood these terms to mean a calendar month. The board of trustees certainly so understood them. The conduct of the appel- lant shows that he placed the same interpretation upon them because he taught two calendar months and accepted $110 therefor. At the end of the third calendar month he accepted the third payment and so on. If he understood the terms of his contract to mean that he should be paid at the end of every four weeks why did he not demand his pay at the end of each of such periods or make some comment in relation to it instead of accepting part payment at the end of each calendar month and thus acquiesce in the understanding which his board had of the contract? The contention of appellant could be sustained only by a technical holding and the rights, if any, to which he may have been thus entitled were waived by his voluntary acceptance of his salary of $55 at the end of each calendar month. The appeal herein is dismissed. JUDICIAL decisions: teachers contracts 1103 5155 In the matter of the appeal of Peter Cruikshank from the action of Harvey L,. Qua, trustee of school district no. 2, town of Salem, Washington county, in employing his son Coulter Qua, to teach the public school therein. The approval of a district meeting regularly convened is absolutely essential to a valid con- tract w^hen relationship of any degree whatsoever exists between the trustee and the teacher. A written statement signed by every legal voter of the district approving a contract between related parties does not satisfy the requirements of the law. Decided December 2, 1904 Frank C- Brown, attorney for appellant. Draper, Commissioner The appellant shows that Harvey L. Qua, sole trustee of school district no. 2, town of Salem, Washington county, employed his son, Coulter Qua, about October i, 1904, to teach the school in said district without authorization by a district meeting, as required under subdivision 9 of section 47, article 6, title 7 of the Consolidated School Law. This provision of the law prohibits a trustee from employing any person related to him by blood or marriage, as teacher of the school of his district, except upon the approval of two thirds of the voters of the district present and voting upon the question at an annual or special meeting thereof. This approval by a district meeting is absolutely essential to a valid contract when relationship of any degree whatsoever exists between the trustee and the teacher. Such approval must be obtained at a district meeting, regularly convened. A written statement signed by every legal voter of the dis- trict approving a contract between related parties does not satisfy the require- ments of the law. The appeal herein is sustained. It is ordered, That the said Harvey L. Qua, trustee of school district no. 2, town of Salem, Washington county, shall immediately dismiss the said Coulter Qua as teacher in the school of said district and that the said Trustee Qua shall immediately employ a duly licensed teacher as required under the provisions of the ConsoHdated School Law. 5295 In the matter of the appeal of Mabel Griffin from the action of John Eignor as sole trustee of district no. 6, town of Shawangunk, county of Ulster, in refusing to recognize her as teacher in said district. A teacher having earned a certificate and received official notice thereof is legally qualified to contract to teach. J\. trustee can not dismiss a teacher under legal contract for laches under a previous • contract which has terminated. Decided October, 1906 II04 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Commissioticr John Meredith was trustee of school district no. 6, town of Shawangunk, Ulster county, for the school year 1905-6. During that year Mabel Griffin, appellant herein, taught the school in said district. Mr Meredith's term of office expired on August 7, 1906, the date of the annual meeting. On July 25, 1906, he made a written contract with Miss Griffin to teach the school in that district for the ensuing school year. At the annual meeting of the district, held on August 7, 1906, John Eignor was elected trustee to succeed Mr Meredith. On August 9, 1906, Mr Eignor employed another teacher. He refused to permit Miss Griffin to open school and serve as teacher in accordance with the pro- visions of her contract. Hovv'ever, he did not open school in his district until October nth, when he placed Nellie Ackerman, the teacher with whom he con- tracted on August o, 1906, in charge of the school. Miss Griffin reported at the schoolhouse ready to assume work on September lOth, but no children were present and she also reported on September 24th, but the building was not open. She has reported daily since October nth although the trustee has refused to ])emiit her to teach. It appears that the night of the annual meeting was stormy and the attend- ance was not large. Trustee Meredith was not present and did not report the contract he had made with ]\Iiss Griffin, but a copy of such contract was in the school register. Mr. Meredith did notify Trustee Eignor on August 9th, two days after the annual meeting of the contract with Miss Griffin. Eignor swears in his answer to this appeal that he made a contract with Miss Ackerman on August 8th. There appears to be some question as to the date on which this contract was executed and I directed School Commissioner Rhodes to take testi- mony on this point. He obtained the afiidavit of Miss Ackerman and she swears that she did not sign such contract until August 9th. On August 9th, Meredith notified Eignor of the contract with Miss Griffin. Respondent alleges that Meredith did not make a contract with Miss Griffin until after the annual meeting. He does not offer competent evidence in proof of this allegation. Meredith swears the contract was made on July 25th. Miss Griffin also swears that the contract was made on July 25th. A daughter of Mr Meredith swears that she was present July 25th when this contract was agreed upon and saw It signed by the parties thereto. There is no evidence in proof to the contrary. _ Respondent also alleges that Miss Griffin was not legally qualified to teach in the second school commissioner district of Ulster county as the school com- missioner of that district had not indorsed her teachers certificate. Respondent IS wrong ,n this contention. The records of this Department show that in the April 1906 examination Miss Griffin completed the work for a certificate of the second grade in the first commissioner district of Orange county An official report was forwarded to Miss Griffin advising her of that fact- Having earned her certificate, she was. under the rulings of this Department, legally qualified to JUDICIAL decisions: teachers' contracts 1105 contract to teach in any school district in the State. The mere formality of the issuance of such certificate did not disqualify her from making such contract. Her certificate might have been issued for first Orange or for second Ulster. Any school commissioner in the State was required to indorse it or give valid reason for not indorsing it. The right of appellant to contract to teach was not restricted to the district of the school commissioner who issued her certificate. She was legally qualified to contract to teach in any school district in the State and before the indorsement of her certificate by the school commissioner having jurisdiction. The commissioner had expressed his willingness to indorse the certificate when presented to him. [See decision no. 4488, October 1896] It is claimed by respondent that he did not refuse to recognize appellant as teacher but that he dismissed her from service. A trustee has legal authority to dismiss a teacher provided good reason exists for such action. The law provides that such reason must be one which the Commissioner of Education approves. The reason assigned in this case is, in substance, the failure of appellant to keep full and regular hours and maintain proper discipline during the past year. This would have been good ground for dismissal under last year's contract but it is not good ground for dismissal under this year's contract. The present contract can not be set aside for failure to perform obligations to which appellant was bound under a previous contract. Trustee Eignor appears to have been incensed because the retiring trustee had employed a teacher. The retiring trustee had full power under the law to hire a teacher for the ensuing year. It was the duty of the incoming trustee to honor such contract and recognize the teacher employed thereunder. His plea that he had no official knowledge of such contract is not entitled to considera- tion. He admits that the trustee was not at the annual meeting and his report was not received. It was the duty of the incoming trustee to obtain from the previous trustee all official books, papers and records before he proceeded to make contracts which bound the district. At least he should have made reason- able effort to obtain them. It is not claimed that he made any effort whatever to obtain such official documents. The previous trustee who was not at the meet- ing because of a storm appears to have made reasonable eflrort to notify his successor that he had contracted with a teacher as such notice was given the second day after the annual meeting. This must be regarded as a reasonable time in a rural community. Appellant had a valid contract to teach in this district for 34 weeks from September 10, 1906, at $9.50 per week. She is entitled to full compensation from that date. Trustee Eignor is responsible for the embarrassing position in which he has placed his district. The appeal herein is sustained. It is ordered, That John Eignor, trustee of school district no. 6, town of Shawangunk, county of Ulster, shall immediately install and recognize Mabel griffin, the appellant herein, as teacher of the school in said district. IIOO nil. UM\ liRSITV OF THE STATK OF NEW YORK It is also ordered, That the said John Eignor, trustee of said district no. 6, Shavvangunk, shall, without unnecessary delay, pay the said Mabel Griffin the sum of one hundred thirty-three dollars ($133) the same being the salary due her from September 10, 1906, at $9.50 per week. 5454 In tlie matter of the appeal of Elizabeth Maconiber from the action of the board of education of union free school district no. 12, town of Salem, Washing- ton county, in terminating her contract. Teacher's contract; right of board of education to transfer teacher. A contract with a teacher contained a clause that " said teacher may be transferred from one grade to another as circumstances may require, or may be deemed advisable by the principal of .'.aid school." Such teacher, after having taught French, German, ancient history, physiology and botany in the academic grades for a year or more, was notified that she must teach in grade seven in the elementary department. No ground of complaint existed against the teacher for her work in the academic grades, and no tangible reason wa^s given for the transfer. The teacher appeals from the action of the board in transferring her to the elementary grades. Held, that the power of transfer reserved in the contract was not absolute; that its action in making such transfer was review- able on appeal; that under all the circumstances the transfer was unjustifiable. Rules as to treatment of teachers. If a board of education charges that a teacher is ineflicicnt, that she did not teach competently or was unable to control her pupils, that she had been insolent to the board or her superior officer, or that she had done some- thing to demoralize or discredit the school, and such charges are supported by evidence, the action of the board in respect to such teacher will be pronounced to be proper. But a board of education has no absolute power to discipline a teacher without assign- able reason, especially where the teacher demands a statement of the reasons of the board's action concerning her. Decided June 3, 1910 Abner Robertson, attorney for appellant James Gibson, jr, attorney for respondent Draper, Commissioner The appellant, a graduate of Wellesley College in the class of 1906, was employed as teacher in Washington Academy, which is the public school of union tree school district no. 12 of the town of Salem, Washington county, by resolu- tion of the board of education, on the 3d day of June 1907. A written contract was executed between the board and the teacher. This contract was upon a form specially printed by the board of education. There were several unusual features m the terms of the contract; among others was one to the effect that • said teacher may be transferred from one grade to another as circumstances may require or may be deemed advisable by the principal of said school." The appellant was reemployed for the two succeeding school years of 1908-9 and 1909-10, and similar contracts were executed for these years. Therefore she JUDICIAL DECISIONS: TEACHERS' CONTRACTS . IIO7 has been in the school for three school years, with the exception of the few days that remain of the present year. In the beginning of her work, the appellant taught in the elementary grades, but in the latter part of her service she has taught German, French, ancient history, physiology, and botany, in the academic grades. She was so teaching when on the 29th day of April 1910, she was served with the following notice: Salem, N. Y-, April 2p, ipio Miss Elisabeth Macomher Salem, N. Y. Dear Madam : Pursuant to instructions of the board of education of the village of Salem, N. Y., I hereby notify you that your services are no longer required as a teacher in Washington Academy, and that you may consider your contract with said board terminated as of this date. Very truly yours [Signed] Robert N. Wilson Clerk of the hoard of education From this action of the board of education the appellant took an immediate appeal to the Commissioner of Education. Upon being served with this appeal the board of education convened, and on the 6th day of May 1910, the appellant was served with the following notice: Salem, N. Y., April 2p, ipio Miss Elisabeth Macomher Salem, N. Y. Dear Madam : I am directed by the board of education of the village of Salem, N. Y., to notify you that the action taken by the board at a meeting held on the twenty- ninth day of April 1910, in dismissing you as a teacher in the Washington Acad- emy was reconsidered and rescinded at a meeting of said board held tonight, leaving your contract with said board in full force and effect as though the said action had not been taken. Very truly yours [Signed] Robert N. Wilson Clerk of the hoard of education In view of this, the appellant attempted to resume the service which had been thus briefly interrupted, and thereupon the principal of the academy called her to his office and notified her that her services in the department where she had formerly taught would no longer be needed; that another teacher had been engaged for that work, and that she must teach in grade seven of the ele- mentary department. He read to the appellant a resolution to that effect which Jie said had been passed by the board of education. The appellant states than she advised the principal that she would accept said position of teacher in the II08 THE UNIVERSITY OF THE STATE OF NEW YORK seventh grade and would obey the directions of the board of education and of the principal, but under protest and without prejudice to her rights in the premises. From this action of the board of education in transferring her from work of an academic to work of an elementary grade, this appeal is taken. The teacher alleges and swears that she has received no explanation or infor- mation of any kind and that she does not know why she was discharged, or why (the attemjit to discharge her having failed) she was removed from the academic work and given work of an elementary grade. I have read the somewhat voluminous papers with care, to ascertain what the ground of complaint was against her, if there was any. I can not assume that a board of education would so humiliate a teacher only a few days before the close of the school for the year, by severing her relations with a class that she had been teaching and which was about to be graduated, without some reason which, to the board at least, might seem sufficient ; but from first to last there is no reason assigned by the board, except in the most undefined and intangible way. Notwithstanding the fact that the board is represented upon this appeal by one of its number, who is a capable attorney, there is no allegation made against the appellant beyond such a state- ment, for example as that " we were loath then, and are now, to prefer charges against appellant, and we felt that we could avoid such action by taking her out of die academic department." In view of the distinct admission on the part of the board that there is nothing savoring of moral delinquency on the part of the teacher, and particularly in view of the fact that she is as aggressive in securing her rights as she has proved herself to be, it is clear to me that the board should have left her in no doubt about the ground of their complaint against her, if there is any ground, and that they should have made the reason for their action entirely clear in the papers on appeal. This should certainly be so unless the clause which I have quoted from the contract, to the effect that the board or the principal might transfer the teacher from one grade to another, may be acted upon at any time and without any reason. Such construction of a contract with a teacher will no longer stand in the State of New York. In so far as a written contract should attempt to reserve such an absolute power to a board of education, it would to suc'h extent, at least, be in violation of law. The authority of a board of education over the aflfairs of a school is certainly large, but it is not absolute. The board can not deal with such a matter as many individuals transacting their personal business. The board IS a public board and is transacting public business. It must transact that busi- ness in ways that are open to the public and for reasons that may, if need be, be given to the public. A teacher has rights which in the common interest of teachmg must be maintained. It is no small matter to the school system that a board of education assumes to peremptorily dismiss a teacher without assigning any reason. The act is specially aggravating when it is performed only a month before the school is to be closed for the year. Attempting to do this and failing because manifestly in violation of the law, it is hardlv less aggravating to restore the teacher to her right to compensation and then transfer her from one class of JUDICIAL decisions: teachers' contracts 1109 pupils to another and from academic to elementary work, without giving any reason therefor. Only in February last the principal of the school gave to the appellant this certificate : February 4, 1910 To whom it iiiav concern: It gives me pleasure to speak a word in behalf of Miss Elizabeth Macomber and to recommend her to any board desiring the services of an excel- lent teacher. Her work in the classroom is of the highest order, thorough, systematic and inspiring. Miss Macomber possesses a strong and pleasmg personality so that her discipline is at all times of the best. She enjoys the respect and confidence of the entire school and community. In fact, J\Iiss Macomber is in every sense of the word an excellent teacher, and I can not recommend her too highly. While we would greatly regret losing Miss Macomber from our faculty, yet we feel that she is deserving of a better position than we are able to offer her. Very truly yours Seymour B. Smith In the face of this and of all the circumstances that appear in the case, and in the absence of all tangible allegations of immorality, misconduct and inefh- ciency, it is not enough to merely assert that the board is " in the unfortunate position of having to make this contest with a woman," nor is it enough to allege that the board is prejudiced because " of the constant personal solicitations of the appellant and her various counsel at the door of the Department," when the element of time is an important factor in her case, and when her counsel and the officers of the Department have for a considerable time urged the board to come to the Department and present whatever they thought well, orally or in writing. The Commissioner of Education never saw the appellant, and he has afiforded ample time and opportunity for the respondent to appear at the Educa- tion Department and confront appellant's counsel. Neither is it sufficient for the principal of the school to set forth that the pupils have been demoralized by reason of what has happened;, that the teaching results in the academic work have been as good since the appellant's transfer therefrom as before, and that additional demoralization will result from her reinstatement. All this ignores the teacher's rights. They are not any too many or any too great, and, such as they are, they should be conserved. If the board of education had charged in any definite or tangible way that the appellant was inefficient, that she did not teach competently or was unable to control the pupils, that she had been insolent to the board or to the principal, that she had done anything to demoralize or discredit the school, and if they had produced any evidence to sustain such alle- gations, I should be disposed to uphold the board on the ground that they must be presumed to act honestly and with information superior to my own, but it would be a violation of the statutes of the State and a serious hurt to the school system, as well as an outrage upon the rights of the teacher, to hold that a board ol \education has any absolute power to remove a teacher without assignable reason, and this would be most emphatically so when the teacher pursues the mo THE UNIVERSITY OF THE STATE OF NEW YORK course of the appellant and demands a statement in the open of the reasons of their action concerning her. The appeal is therefore sustained, and the board of education is directed to forthwith restore the appellant to the position in which she was and to the work which she was floing prior to their action assuming to dismiss her. 3898 In the matter of the appeal of Catharine L. Valentine v. The board of education of the city of Brooklyn. The authority of a board of education to transfer a teacher in its employ from one position to another, where there is no reduction of compensation, and which shall seem to such l)card calculated to promote the ellkiency of the schools in its charge, upheld. Decided August 2, 1890 JJraper, Superintendent In 1868 the appellant was appointed a class teacher in public school no. 34 of the city of Brooklyn, and about the ist of September 1881, she was appointed head of the intermediate department in said school. Previous to March 1889, she was absent from her work for a period of more than two years in conse- quence of sickness. This absence was by the leave of the board. On the 7th of March 1889, she resumed her position and occupied it until the summer vacation. In November 1889, she was absent from her work for several days, by further sickness. On the 14th of November 1889, she received a letter from the chairman of the local committee having charge of her school, advising her that it had been decided by a unanimous vote of that committee, to transfer her from the position of head of the department to the second primary grade. This letter was very kind in its allusions to her, advising her that she was being transferred to a position where she would receive the highest pay in the department, and which would call for the least expenditure of strength. The appellant declined to accept this transfer, or to enter upon the new position assigned her. She appealed to the board of education. The matter was investigated by the teachers' committee of the board which sanctioned the action of the local committee. The report of the teachers' committee was approved by the board of education. The appellant still refused to accept the transfer. The matter was again considered by the teachers' committee of the board of education, and the committee reported, recommending that she be dismissed from the service of the board in conse- quence of such refusal. The board adopted the report. From such action this appeal is taken. I can entertain no doubt of the authority of the board of education to trans- fer teachers in its employ from one position to another in any way which shall seem to such board best calculated to promote the efficiency of the schools in its charge. Nothing appears in the papers presented to indicate that the respondent JUDICIAL decisions: teachers' contracts nil in the present case did not act upon a clear conviction of duty, and for the pur- pose of advancing- the best interests of the school. I must add, moreover, that it seems to have acted with deliberation, patience, and with great consideration for the circumstances and feeling of the appellant. It is much to be regretted that she could not accept the same gracefully and in the same spirit- The appeal must be dismissed. 5416 In the matter of the appeal of Jennie Wight from her dismissal from the faculty of the Delaware Literary Institute and union free school district no. 10, town of Franklin, Delaware county. Dismissal of teacher. Where a teacher has been paid in full and dismissed by a board of education for cause which does not affect her reputation as teacher, the Commis- sioner will not interfere with the determination of the board; this is especially so where the teacher is not injured by such determination and the appeal is apparently brought to settle a personal controversy. Decided October 13, 1909 E. A. Mackey, attorney for appellant Draper, Commissioner The appellant seeks to set aside the action of the board of education of union free school district no. 10, town of Franklin, county of Delaware, in dis- missing her from her position as teacher in the Delaware Literary Institute and Union Free School, and refusing to reinstate her in said position. The appel- lant was notified of her dismissal June 18, 1909 only a few days prior to the termirtation of her contract of employment. At this time she had been engaged to teach for the following year in another school. Subsequent to her dismissal she received full payment for her services as teacher in such school. No charge is made against Miss Wight which affects her teaching capacity or her conduct. From the facts alleged in the papers herein, the controversy seems to be a personal one between the teacher and the principal. The board apparently determined that the educational interests of the school required that the principal should be sustained. This detemiination may have been affected by the fact that the principal had been reengaged for another year, and that the appellant had secured a position in another school. The appellant was paid in full for her services, which is in eft'ect an admission on the part of the board that she had satisfactorily completed the terms of her contract. It does not appear that the appellant has been materially injured in her profession by the action of the board, for at the time of her dismissal she was engaged as teacher in -a larger school, presumably at a greater compensation. In view of these cir- cumstances I do not deem it necessary to interfere with the board's determina- 1 1 12 THE UNIVERSITY OF THE STATE OF NEW YORK lion. To do so would be merely to settle the personal controversy which arose l.ctwccn the appellant and her principal. This is not witliin my province. I therefore dismiss tlie appeal. 3603 A contract of employment lictwcen a trustee and teaclicr " for one day only and to close every night," is void as being in conflict with the spirit of the school laws and against sound public policy. Decided July 20, 1887 Draper, Superintendent The appeal is from the action of the trustee in discharging teachers. The main issue is as to the terms of the contract of employment. The appellants each swear that the employment was " for the term of one year or so long as said Phillips was trustee of said district." The respondent swears "that he informed said teachers when he employed them that he hired them for one day only and that their time would close every night, but that if they gave satisfaction he would keep them as long as he remained trustee." But if I assume that the agreement was as the trustee alleges, which I am obliged to do because it is not clearly proved otherwise, I find myself unable to uphold such a contract because I think it was an unconscionable contract, with- out sanction of law or good usage and against sound policy. I am of the opinion that a contract of employment between a trustee and teacher " for one day only and to close every night " is void as being in conflict with the spirit of the school laws and against sound public policy. Teachers are compelled to have a license issued pursuant to law before they contract to teach. This license carries with it an assurance of qualifications and fitness. The law provides for revoking any license where sufficient cause is shown for such a step. The revocation of a license works a dissolution of any contract which may have been based upon it. This is the ordinary course of procedure for getting rid of an unworthy or unfit teacher in the middle of a term of employment. Trustees may, undoubtedly, at times summarily dismiss a teacher for a palpable breach of contract or gross and open immorality, but such action must be taken, if at all, upon the personal responsibility of the officer. But these are exceptional cases, outside of the gen- eral rule. There can be no pretense that the case under consideration is one of that nature. Moreover trustees ought not to be permitted to absolve themselves from the responsibility of making investigations and of exercising proper pre- cautionary care and good judgment when employing teachers, by reserving the right to discharge them at any moment. A duly licensed and employed teacher ought to have security of position for a reasonable length of time, which should be long enough to prove himself successful or to demonstrate his inability to do so. It is humiliating to self-respecting teachers to be at all times liable to dis- JUDICIAL DECISIONS: TEACHERS' CONTRACTS III3 charge from employment because others may want their places or because of the antagonisms which a vigorous and wholesome performance of their duties in the schoolroom, may engender. To adopt this doctrine is only to drive the most self-respecting and the best qualified persons from teachers' work. This is unquestionably against wise policy. Furthermore, if the trustee could discontinue these teachers at any time, they could abandon their places at any time. But the school must continue without interruption. Teachers must be under a legal and honorable obligation to so continue it. An agreement between trustee and teacher, which does not involve this is manifestly against the interests of the public school system. What is a reasonable length of time for which a trustee and teacher may properly enter into a contract of employment, depends upon the circumstances and custom in each district and must be determined upon the fact of each case as it arises. It appears in the papers in this case that the appellants had taught one term of nine weeks and that they had commenced teaching another term when dismissed. I am, therefore, led to hold that their employment must have been for terms of at least that length of time and that having taught one such term and entered upon another, they were entitled to employment for at least another term of the same length if they were ready and able to fairly discharge the duties of the places in which they were employed. It only remains to consider whether the trustee was justified in discharging them in the middle of a term of employment. As already suggested there may be exceptional cases in which a trustee would be justified in summarily dismissing a teacher for gross immorality or for utter failure to fill the position properly resulting in a palpable breach of contract. In such a case he would act upon his own responsibility relying upon the clearness of the case and the exigency of the occasion for his justification. Was this such a case? I think not. The trustee alleges as the reason for discharging the appellants that their work was not satisfactory. He says they failed in discipline and did not produce desirable results. This is strenuously contradicted by a large number of repu- table patrons of the school. In any event, the trustee could hardly expect the highest professional talent for four dollars per week. The trustee also alleges certain improprieties between the appellants, such as being out together late at night and kissing each other in the presence of pupils in the school. Such allega- tions as these should not be set up unless capable of unquestioned proof. Char- acter ought not to be attacked by anyone, much less a public ofticer, wantonly or carelessly. There is no proof whatever to sustain these allegations so far as I can see. Making such allegations without following them with competent proof, ought to weigh against the party responsible for it. I am unable to sustain the respondent in dismissing the appellants in the summary manner he did. It is shown that they stood ready to continue their service and I am of the opinion that they have a legal claim against the district for nine weeks pay at the rate of four dollars per week. Appeal sustained. I I 14 THE UNIVERSITY OF THE STATE OF NEW YORK Where a teacher after teaching three days of his term found the schoolhouse locked against him, and without applying to the trustee left and made no demand for opportunity to continue his school until fifteen days afterward, held that he had abandoned the contract voluntarily. Decided March 30, 1861 Van Dyck, Superintendent This is an appeal from the refusal of the trustee to carry out a contract made by a former trustee with the appellant. The appellant fails to establish that the contract was first violated by the trustee. He admits that he was suffered to occupy the schoolhouse for three days, and that then the door was locked against him. He does not say by whom this \\as done, and admits that the first demand he made upon the trustee for oppor- tunity to continue his school was fifteen days after the time at which he alleges the door was closed against him. There is no evidence produced by him that he sought any opportunity to continue his engagement, or made any demand for such opportunity, prior to the expiration of fifteen days. This I think effectually conclutles the case against him. By all ordinary construction and usage I think this must be regarded as an abandonment of the contract on his part, which left the district to enter into another engagement. 3468 A teacher is entitled to pay for services during the time a school shall be closed hy the trustee on account of an infectious or contagious disease in the district, when such closure occurs during a term for which the teacher was employed. A teacher can teach another school or engage in any other occupation during vacation time between terms for which such teacher was hired. Decided January 18, 1886 Morrison, Acting Superintendent The appeal is brought from the refusal of the trustee to pay the teacher for three weeks of service as claimed. On the 2d day of September 1884, this appellant and P. P. Warren, the trustee of school district no. 9, Schroon, entered into a contract under the terms of which P.elle M. Doherty, then a duly licensed teacher, was to teach the dis- trict school in said district for a period of thirty-two weeks at a weekly com- pensation of eight and one-fourth dollars. The thirty-two weeks were to be divided into two terms, the first term com- mcncuig on the 15th of September and ending on or about the ist day of January followmg. The school was then to be closed during the winter months and until the last of April, owing " to the condition of the roads, severity of the weather, and the distance of the houses of the children from the schoolhouse which is in a JUDICIAL decisions: teachers' contracts his sparsely-settled portion of the Adirondack region." The balance of the thirty- two weeks were then to be taught. In accordance with this contract, the appellant commenced teaching the school on the 15th of September 1884, and continued to teach the same until the 3d day of December 1S84, when the school was closed by the trustee in obedience to an order of the board of health of said town " through fear of contagion of some disease then prevailing in said town.'' The school remained closed by virtue of said direction during the remainder of the first term. The school was not again open until the 27th day of April 1885, when the trustee directed that the second term should be commenced. This second term was continued until closed by the trustee at the end of the school year, making the time actually taught twenty- eight weeks and two days. It will be seen from the above that there were three weeks and three days of this time during which the school was closed by order of the trustee ; and the trustee of the district, elected at the annual meeting in 1885, refused to pay appel- lant for such time. The appellant thereupon offered to continue the school to make up for the lost time, but said offer was also refused by the trustee. The question to be passed upon is, that of the liability of the district to the teacher for three weeks and three days. This is easily disposed of for the follow- ing reasons : First. As a matter of law, a teacher is entitled to pay for services during the time a school shall be closed by the trustee on account of an infectious or con- tagious disease in the district, when such closure occurs during a term for which the teacher was employed. The school was not taught by this appellant for the three weeks and three days for the reason that it was so closed. Second. It does not appear that there was any good or sufficient reason for refusing to allow the appellant to continue the school long enough to complete a period actually taught of thirty-two weeks, although under the law, as above stated, this offer of service was not necessary upon the part of the teacher. It is urged by the respondents that the appellant is not entitled to any com- pensation for these three weeks and three days for the reason that during the period the school was closed she taught a school in another district for a few weeks. This objection is without any force, as it appears that under the termS of the contract there was to be a vacation during the winter months, and it was during this vacation period that the appellant taught for three or four weeks a school in another district. This she was legally entitled to do, or to engage in any other work or business she might desire, as district no. 9, town of Schroon. had no claim upon her whatever for such service during the vacation period between the close of the first term, on or about the first of January and the open- ing of the summer term on the 27th day of April. The district is, therefore, indebted to this appellant under the contract for three weeks and three days at eight and one-fourth dollars per week, amounting to tlie sum of twenty-nine dollars and seventy cents. Ill6 THE UNIVERSITY OF THE STATE OF NEW YORK Where one of the trustees is delegated to make known to teachers the conditions of cnga','ement to teach, lie acts as agent for the whole board, and the board is bound by the terms of agreement as stated by him and accepted by the teachers. Decided January 25, 1862 Kcycs, Acting Superintendent On aii[)eal from the action of the trustees in dischargnig certain teachers from employment before the close of their engagement, the question l)cfore the Department is whether the act of the trustees in discharging said teachers was or was not in violation of the contract entered into with them. The following facts are disclosed by the testimony submitted. 1 On the 19th of September 1861, the trustees, at a meeting duly held, all being present, passed a series of resolutions, to the effect that it was the mind of the board to employ as teachers in the diflerent departments of the district school the appellants in this case, for the term commencing October ist, then ensuing, at wages named in the resolutions, and subject to the condition of a liability to be discharged if they should fail to fill their situations respectively to the satisfaction of the trustees. 2 G., one of the trustees, was formally or informally authorized to contract with the ai)pellants under the authority of said resolutions. 3 The said appellants were employed by the trustee above named, but with- out any intimation on his part that any such condition as that named in the reso- lution, relating to the teiuire of their term of service being dependent upon giving satisfaction to the trustees, was a part of the contract. Each of the teachers on her part consented to an engagement understood to be for a term of six months, at wages specified and subject only to the ordinary conditions that attach to any such contract. 4 The appellants entered upon their term of engagement, and discharged their duties to the evident and expressed satisfaction of the trustees until Decem- ber loth. On that day the trustees adopted resolutions to the effect that the teachers then employed had failed to give satisfaction, and that the school be closed and the teachers discharged on the Friday following, December 13th. . 5 Notice was given to the appellants respectively of these resolutions, and causes of their discharge duly assigned, and they were directed to leave the school ; but, by the advice of the dissenting trustee, they still continue in posses- sion, and to discharge their duties as heretofore. The question before the Department, as previously stated, relates to the just and legal claim of these teachers for a continuance of their services in said school until the expiration of six months, and for the wages agreed to be paid to them for such term. In regard to this claitn, it must be determined by the principles that govern and control the relations of principal and agent. The said trustee, G., in con- tracting with these teachers, acted as agent for the board of trustees. In con- sidering how far the act of the agent is binding upon the principal we are not to JUDICIAL DECISIONS: TEACHERS' CONTRfVCTS III 7 look SO much to the actual authority conferred, as to what third parties may rea- sonably have supposed the agent to be invested with. No principle of law is bet- ter established than this, it having been repeatedly affirmed by the highest courts. The teachers had a right to presume that the terms offered to them were author- ized by the board of trustees. They assented to no other terms than these, hence were parties to no other contract- They can not be permitted to suft'er from the laches of the board, who permitted them to take their situations without inform- ing them of the terms prescribed by the resolutions. A contract made with a person authorized to represent the trustees is binding upon them-, though contrary to the letter of their instructions. If any damage results to the trustees from this disregard of their instructions, the agent is responsible to them, but the trustees can not shield themselves from the responsi- bility to the teachers. The conclusion is, therefore, that the contract with the appellants for a term of six months is valid and binding upon the trustees, and the services of these teachers can not be discontinued before the expiration of said term. Appeal sustained. A teacher can be employed only by the trustees. Therefore, a vote taken at a district meeting to dismiss a teacher and to substitute another in her place is illegal and void. Decided March 17, 1849 Morgan, Superintendent Samuel T. Peck and James Smith, two of the trustees of district no. i, Liv- ingston, hired Miss Susannah Smith to teach their winter school, to commence November 30, 1848. Mr Lament, the other trustee, was consulted, but did not consent to the contract. Miss Smith commenced the school in the schoolhouse of the district at the stipulated time. Mr Lament, not being satisfied with the agreement of the other trustees, hired Miss Horford to teach a school in another room. At a special meeting held in the district January 20, 1849, for the purpose of voting a tax to repair the schoolhouse, and for other purposes, a vote was taken and carried to substitute Miss Horford in the schoolhouse as teacher in place of Miss Smith. From this proceeding the two trustees appeal. In employing teachers, the trustees should consult, as far as possible, the wishes of the inhabitants of the district. But when the trustees have contracted with a teacher, thereby binding themselves and the district, the inhabitants can not free themselves from the obligations thus imposed by the official acts of the trustees. Teachers can be employed only by trustees. "" '. A contract made by two trustees, the third being consulted, is valid ; but one trustee can perform no official act without the concurrence of at least another and a consultation with both. lIlS THE UNIVERSITY OF THE STATE OF NEW YORK 111 this case, Miss Smith was legally employed as the teacher for the dis- trict, and could not be dismissed except by the trustees. Therefore, the pro- ceedings of the district meeting on the 20th of January, to dismiss Miss Smith and substitute Miss Horford as teacher, were illegal and void, and Miss Horford is not entitled to recover any of the public money or to continue her instruction in the district schoolhouse. Appeal sustained. A teacher who closes his school upon other than legally authorized days ^for closing, without the consent of the trustees, abandons his contract and is liable to be super- seded. Decided March 21, i860 Van Dyck, Superintendent This is an appeal of V. H., a teacher, from the action of the sole trustee in discharging him from the school before the term of his contract had expired. On a careful examination of the statements I discover two facts, namely, that the appellant dismissed his school on Tuesday, January 24, i860, for the rest of the week, without permission from the trustee, but rather in opposition to his expressed wishes, and that on Thursday, January 26th, the trustee dis- charged him from the remainder of his engagement. Among the clearly implied conditions of every contract to teach is this one, that the school shall be regularly taught from the beginning of the term until its close. The teacher can not, therefore, close his school except upon the regularly appointed days, unless with the approval of the trustee. In doing so he renders himself liable to the charge of abandoning the contract, and the trustee has the legal right to regard the contract as concluded. 3504 When a teacher utterly fails as a disciplinarian, and does not possess the ability to detect and search out the beginnings of disorder, the board of education will be sustained in discharging him. It is the duty of a member of the board of education, upon hearing that a disturbance is tlircatcned in the school of a serious nature, not only to warn the teacher and advise him to send for a constable, but to remain at the school and see that the peace is kept, and the order of the school and community maintained. Decided .\pril 6, 1886 Morrison, Acting Superintendent The appellant entered upon the discharge of his duties as principal of the school at the time when he feared that his health would not permit him to endure the work. He was, at the time of his employment, wholly without experi- ence as a teacher. The appellant commenced his term of service on the 31st day JUDICIAL DECISIONS: TEACHERS' CONTRACTS II I9 of August 1885, for a trial term which would expire on the 27th day of Novem- ber of that year- On the 31st day of October he wrote a letter of resignation, stating that on account of his health he thought it his duty both to himself and to the district, to sever his connection with the school. This letter was placed in the hands of the president of the board, with the request that it be presented at the next meeting. The president, however, advised the withdrawal of the resignation, stating that the appellant was giving better satis- faction than had been expected, and advising him not to resign imder the cir- cumstances, but that if he still wished to resign he could return the letter before the meeting of the board that evening, November 2d. The letter was not re- turned, but at the meeting of the board, on the 2d day of November, with but one dissenting voice, it was voted to retain him in his position for the remainder of the year. The appellant's second term commenced on the 30th day of November. It appears that he had trouble in disciplining the school and this trouble was of so grave a character that on the 7th day of December the board unanimously voted to sustain him in his position. On the 9th day of December, while engaged in teaching, he was set upon and forcibly removed from the schoolroom by sev- eral of the boys of his class. The leader of them was the son of a member of the board of education, and had been suspended for misconduct and was at school in defiance of the principal. At a meeting of the board, in the afternoon of the same day, the appellant was requested to resign. On his declining to do so, the schoolroom was closed against him. Due notice of that fact and that he stood ready to fulfil his contract was given to the board, and on the 14th of December the board voted to discharge him from his employment. On the 23d of December a tender was made to him of $10.50 in payment in full of the services rendered up to noon of December 9th, it being claimed that he abandoned his contract, whereas he was not discharged until the 14th day of December following. He declined to receive the amount so tendered to him. The appellant further alleges that the boys were encouraged and abetted in their plot to put him out, by at least one of the members of the board of edu- cation. I find from the evidence that, after the appointment of the principal at a regular meethig of the board in November, during the first days of the winter term, serious disturbance and disorder in the grammar department was reported to various members of the board. A committee of the board visited the school and found the class taught by the principal without discipline and in a condition where proper teaching was out of the question. It was suggested that the prin- cipal might be encouraged and the pupils brought into proper relations to tlieir teacher by the passage of a resolution sustaining all teachers in disciplining the school, and the appellant in particular. The resolution was passed and was .announced by the president of the board, the object being to encourage and sup- p(3rt discipline. II20 THE UNIVERSITY OF THE STATE OF NEW YORK In all the evidence of this case I fail to see how the board could have taken other action than it did. The teacher seems to have utterly failed as a cfisciplin- arian, and I am led to agree with the board that had he possessed the ability to detect and search out the beginnings of the disorder, and had he earnestly and wisely endeavored to check the disturbance in the beginning, he might have filled the position to his credit and to the satisfaction of the community. I am free to say that I can not consider that member of the board of edu- cation blameless, who, having been advised of a conspiracy among the more turbulent spirits of the class in charge of the appellant forcibly to eject liim from the room, considered his whole duty done when he informed the prin- cipal of the anticipated outrage and suggested to him to go for a constal)le. That member of the board, himself an officer of the peace, should have remained at the school to see that peace was kept and the order of the school and of the community be maintained. Had he done so, the necessity for this appeal might not have arisen. Nevertheless, I think from all the evidence in this case, the appellant showed himself at the time unable to perform the terms of his contract. 3732 In the matter of the appeal of Henry C. Alapes, Irving Washburn and others v. the board of education of union free school district no. i, town of West- chester, and Alichael E. Devlin- A board of education previous to the annual school meeting employed a new principal of a union school. At the annual meeting trustees were elected known to favor the retention of the old principal, and a resolution was adopted directing the board to re-employ the former principal, and raise by tax sufficient money to meet any claims which might be adjudged to the teacher employed by the old board, in consequence of the violation of the contract entered into with him, and the board acted accordingly. Held, first, that the district had no power to compel the board to take any specific action touching the employment and pay of teachers. Second, that the district meeting had power to authorize the trustees to raise the additional sum by tax for teachers' wages. Third, that the board, having the support of the district, had power to disregard the action of the former board touching the employment of teachers upon the payment of damages suffered by the aggrieved teacher in consequence of such action, or upon provision being made therefor. Decided November 21, 1888 Milton A. Fowler, attorney for the appellants H. C. Henderson, attorney for the respondents Draper, Superintendent The respondent, Michael E. Devlin, has been principal of the school in union free school district no. i, of the town of Westchester, since 1881. At a meeting of the board of education held on the 7th of August 1888, it was determined by JUDICIAL DECISIONS: TEACHERS' CONTRACTS II2I tl^ie board by a vote of five to four to appoint the appellant, Irving Washburn, as principal of the school for the ensuing year, at a salary of $1800 per annum. Subsequently a written agreement was entered into between said Irving Wash- burn and the president and clerk of the board, whereby Washburn agreed to serve the board as principal for the period of one year from the 20th of August 1888, and the board agreed to pay him for such service the sum of $1800. The action of the board in employing a new principal is shown to have aroused con- siderable feeling in the district and the annual school meeting held on the 28th of August was largely attended. At such meeting three trustees were elected to serve for a term of three years each, and one to serve an unexpired term of two years. Two tickets were presented for these places. The main issue between them being the retention of the old principal or the recognition of the new one. Some 350 votes were polled and trustees favorable to the retention of the old principal were selected by a vote nearly double that given to their opponents. The meeting also adopted the following resolutions : Resolved. That the action of the board of education of this district in dis- charging Michael E. Devlin without cause is hereby condemned, and the board of education is hereby directed by the legal voters of district no. i of the town of Westchester to discharge immediately Irving Washburn. Resolved, That the sum of $2100 is hereby ordered to be added to the requisition asked for by the board of education to be paid to Alichael E. Devlin in event that the courts decide Irving Washburn entitled to his full salary under his contract; and, Resolved. That the said board of education is hereby empowered by this district to employ counsel to contest the right of Irving Washburn to any salary under his contract with the board. At a meeting of the new board of education held on the first of September following, the following preamble and resolution were adopted : Whereas, The taxpayers and legal voters of district no. i of the town of Westchester, at their annual school meeting held August 28, 1888, voted unani- mously a resolution directing this board of education to employ Michael E. Devlin for the ensuing year at a salary of $2100; therefore, be it Resolved, That Michael E. Devlin is hereby appointed by the board of educa- tion to be principal of this school district for the ensuing year, beginning Septem- ber I, 1888, and ending August 31, 1889, at a salary of $2100 per annum. Mr Devlin accepted this reemployment and has since been acting as the pirncipal of the school. Mr Washburn has claimed the right to act as principal, but has been enjoined from interfering with the school or assuming to perform the duties of principal, by an order of the Supreme Court in proceedings com- menced after the petition in this appeal had been served. Mr Washburn as well as numerous residents and taxpayers in the district now appeal against the action of the district meeting and the subsequent action of the board of education above quoted. 36 Iij2 Tllli UNIVKKSITV OF THE STATE OF NEW YORK There arc niany other tilings set forth in the voluminous papers served and nied by the resi)eclive parties, but I consider the foregoing to be the material facts upon which I am called to act. It has always been held by this Department that a district meeting could neither control the selection of a teacher, nor determine the amount of salary which should be paid for his services. It is the policy of the law to leave those matters exclusively to the discretion of trustees. The action of the district meet- ing, therefore, in directing the board of education to discharge Mr Washburn, or disregard his employment, and to reemploy Mr Devlin, had no binding force upon the board. It was under no lawful obligation to follow such direction, but the board seems to have been more than willing to take such action. It is true that in its action it recites the fact that the annual school meeting has directed it to take such action, but there can be no pretense that any coercion was required to induce the board to pursue the course which it did. Indeed, the greater number of the members of the board seem to have been chosen for that particular pur- pose. The annual school meeting recognized the fact that the district might be liable, under the contract with Mr Washburn, for it directed sufficient additional money to be raised to meet the whole of his year's salary, provided so much should be necessary. The question is then squarely presented whether a board of education or a trustee, at the desire of a majority of the electors of the district, as expressed at an annual school meeting, can disregard a contract previously entered into for the employment of a teacher, provided only that the district shall pay such damages as may be adjudged against it for such breach of contract. The learned counsel for the appellants argues very strongly and closely that the resolution of the district meeting to raise the sum of $2100 additional to the estimated expenditures, presented by the board of education, was illegal and void. Section 15 of title 9 of the Consolidated School Act makes it the duty of the board of education in a union free school district, to present to the annual school meeting a detailed statement in writing of the amount of money which will be required for the ensuing year for school purposes, exclusive of the public moneys. Section 16 provides that after the presentation of such statement the question shall be taken upon voting the necessary taxes to meet the estimated expenditures. It directs that the question shall be taken upon each estimate separately upon the demand of any voter present and then in words provides " that the inhabitants may increase the amount of any estimated expenditure or reduce the same, except for teachers' wages and the ordinary contingent expenses of the school or schools." Counsel insists that the language here quoted prevents the district meetmg from raising any more or less money for teachers' wages, than may have been shown to be necessary in an estimate presented to the meeting by the board of education. I am unable to agree with him in this view. It seems to me very clear that the intent of the statute is to prevent reducing the estimate for teachers' JUDICIAL DECISIONS: TEACHERS' CONTRACTS II23 wages, but I can not think that it was intended to precUide the annual meeting from increasing such estimate. Section lo of title 9 of the Consolidated School Act is the one which con- fers upon the annual meeting in union free school districts, other than those whose limits correspond with an incorporated city or village, power to levy taxes for school purposes. Among the powers, by this section conferred upon the annual meeting, is authority to levy taxes. " For paying the wages of teachers and the necessary expenses of the schools, or for such other purpose relating to the support and welfare of the school, as they may by resolution approve.'" This same section 10 goes on and provides that no tax for the purchase of a new site or an addition to a site, or for the erection of a new schoolhouse, or an addition to an old one, etc., shall be levied except after notice of such proposed action shall have been given by publishing or posting the same in advance of the annual meeting. But there is no such limitation placed upon the authority conferred for raising money for teachers' wages or other ordinary expenses. It must be remembered too that the statutes confer larger powers upon boards of education and an annual school meeting in a union free school district, than in an ordinary common school district, and taking all of the provisions of the statutes together I have no difficulty in arriving at the conclusion that the annual meeting had the legal power to authorize the levying of an additional tax, over and above the sum estimated by the board of education for teachers' wages, moreover, it is to be remembered that the real question here is not whether the annual meeting had the power to raise the additional sum of $2100, but it is whether the board of education has the power to disregard a contract made by a previous board, involving the displacement of an old teacher and the employ- ment of a new one after such action is shown to have been opposed by a majority of the district as represented in the annual meeting. If the board has the right, then there certainly would be no trouble upon the residents' view of the statute in raising the additional money necessary to pay the salary of the teacher last employed and liquidate the damages adjudged to the one first employed, for the board could present its estimate at any special or annual meeting of the dis- trict, when the meeting would be called upon to vote the amount. I come then to what I consider the principal question involved in the case, namely, Is Mr Washburn entitled to a specific performance of the contract made between himself and the old board, or, can the present board of education dis- regard such contract upon the payment of such damages as he may be adjudged to be entitled to, by competent authority? It is well settled that one party to a contract can claim a specific performance of the same only when he can show that other legal remedy is inadequate, and that without such specific performance injustice or irreparable injury will be done him. A claim for such a perform- ance is one which is always addressed to the equitable jurisdiction of the court. The relief sought by the claimant in such a case is not one which is asked as a "right, but one which is addressed to the discretion of the court, after showing that leo-al remedies are inadequate. The appellant, Washburn, can not bring 1 1J4 THE UNIVERSITY OF THE STATE OF NEW YORK himself within these well-settled rules of law. The injury to which he may be subjected by the later action of the board of education is one which can readily be compensated for by the payment of money. The action of the district meet- ing i)laiiily contemplates a settlement with him upon some moneyed basis. The interminable quarrel in that district leads me to apprehend that such a settlement will be more to his interest than it would be to be able to exact a specific per- formance of his agreement with the board. If Washburn is not entitled to exact a specific performance of his agree- ment, it seems to be that taxpayers in the district are not. They are bound to pay such taxes for school purposes as ma}-, in the discretion of the district meeting and the board of education, acting within their legal authority, deter- mine to be necessary to the best educational interests of the district. Finding no insuperable legal objection to the course pursued by the district meeting and the board of education, I am led to inquire whether there is any objection on principle and whether upholding such action would be a precedent unwise to establish. It may be said that when a teacher has once entered into a contract with a board of education he ought to know that the agreement means something, and that the board will fulfill the same on its part. It may be said also that school districts ought not to be subject to endless confusion and uncer- tainty about the employment of a teacher or to the manipulation of interested persons, but I see no good reason why contracts touching the employment of a teacher should be subject to any other limitation or regulation than other con- tracts. The fact that the district must pay such damages as may be suflfered by the teacher who has been employed, but is subsequently displaced, would seem to be sufficient to deter the board of education from such action, unless the manifest sentiment of the district approves it. In cases where such general sentiment does approve such action and is willing to pay the expense involved, it seems to me that it ought to have its way. In view of the foregoing considerations, I come to the conclusion that it is my duty to dismiss the appeal. 5422 In the matter of the appeal of Margaret E. McCullough from the action of the trustees of school district no. 3. town of North Hempstead, Nassau county. Teacher's contract; annual compensation paid monthly. A contract witii a teacher n-hich provides that she shall teach " for a term of forty-two consecutive weeks . . . at a yearly compensation of $600, payable one-twelfth at the end of each thirty days until close of year in June, when balance shall be paid " is not to be construed as pro- viding for a deduction in case of a failure to complete the term of forty-two weeks. Decided November 18, 1909 W. H. Weller. attorney for appellant Harry W. Moon, attorney for respondents JUDICIAL decisions: teachers' contracts 1 125 Draper, Commissioner The appellant, Margaret E. McCullough, was employed as teacher by the trustees of school district no. 3, town of North Hempstead, county of Nassau, for the year 1908-9. She commenced her services under her contract September 8, 1908, and continued them until March 12, 1909, when she was released at her request by the trustees of the district. She had then taught, according to her statement, which is not denied by the respondents, for a period of twenty-six weeks. The contract executed by the parties provided that the appellant should " teach the public school of said district for a term of forty-two consecutive weeks, except as hereinafter provided, commencing September, 1908, at a yearly compensation of $600 and no cents, payable one-twelfth at the end of each thirty days until close of year in June when balance shall be paid. The trustees paid the appellant under this contract $50 at the end of each thirty days, and upon her leaving the school, $25 for the time taught in March, making a total of $325. At the close of school in June she demanded payment of $65, which she claimed was the balance due her under the contract. The trustees refused to pay her anything and insist that nothing was due. They base this claim upon the assumption that the contract calls for the payment of only $50 for each calendar month, and that since the appellant failed to complete the year, there was nothing due her at the close of the school in June. This is an unwarranted interpretation of the contract. The contract must be construed as requiring the payment of $600 for forty-two weeks of teaching. The appellant actually taught twenty-six weeks and she is entitled to full com- pensation therefor. The trustees voluntarily released her from her contract without reservation or condition. The contract did not specifically provide for a deduction in case of a failure to complete the term of forty-two weeks, and in the absence of an express provision to that efifect it should not be so con- strued. The amount which should be paid the appellant for twenty-six weeks of teaching is $371.41. She has been paid the sum of $325, and there is now due her the sum of $46.41. The appeal is sustained. It is hereby ordered, That the trustees of school district no. 3. town of North Hempstead, county of Nassau, issue an order in the manner provided for by law for the payment of the sum of $46.41 to the said Margaret K. ^kFcCnllough, and that if no funds are avail alile for such payment, the trustees of such district raise by district tax a sum sufficient for such payment. 5437 In the matter of the appeal of Syrena H. Stackpole from the action of the board of education of district no. 5, Islip, Suffolk county, in dismissing her from her position as preceptress in Bayport Union School. Dismissal of teacher by board of education; dismissal not sustained for alleged insub- ordination. The dismissal of a teacher by a board of education will not be sustained where the only facts presented are to the effect that the teacher was the aggressor 1 126 THE UNIVKKSITV UF THE STATE OF NEW YORK in a controversy with the principal whicli occurred out of school hours and which did not aflfect directly the discipline of the school. Lack of harmony between a teacher and the principal is not of itself sufficient cause for dismissal. A board of education can only insist that a teacher properly perform her duties as such and that she comply with the reasonable directions of the principal relative to the school over which he has control. Decided February 17, 1910 John R. Vunk, attorney for appellant R. S. Pelletreau, attorney for respondent Draper, Commissioner The appellant, Miss Syrena H. Stackpole, was employed as preceptress of the Bayport Union School, by the board of education of union free school dis- trict no. 5, town of Islip, in the county of Suffolk, for a period of forty weeks, commencing September 7, 1909. She served in such position until December 8, 1909, when she was summarily dismissed therefrom by the board of education. She brings this appeal from such dismissal and asks that such dismissal be set aside and that she be reinstated with all the rights and emoluments to which she is entitled under her contract with such board of education. The grounds for the dismissal as stated in the notice is that the appellant questioned the authority of the principal and declared that she had no respect for him and told him he was no gentleman. It was further stated in the notice that the appellant had not " fulfilled her contract as a teacher in said school," and that to retain her " would be detrimental to the welfare of said school." It is apparent from the papers that there was a personal difference between Miss Stackpole and the principal, Matthew J. Pechtel. The only question for decision seems to be whether the appellant has been guilty of a sufficiently griev- ous offense to justify her summary dismissal. She expressed her unfavoi"able opinion of the principal in his presence, outside of school hours, in forcible language. The principal naturally resented such conduct on her part and sub- mitted the matter to the board of education. The board was apparently com- pelled to decide as between the two teachers, for it seems established that the principal proposed to resign unless the board dismissed the appellant. It is probable that in determining the matter against the appellant the board acted in good faith and for what it deemed the best interests of the school. There is nothing in the record against the efficiency of the appellant as a teacher. There is no charge of incompetency. The board merely asserts that she was the aggressor in the controversy with the princii)al and that her conduct was. in effect, insubordination. It is probably true that the appellant was unduly severe in her language, and that she was somewhat hasty in her action. There is nothing here to indicate insubordination on her part. There is not sufficient proof of the allegation that the appellant questioned the authority of the principal. She professes her willingness to obey the principal and perform her duties under his reasonable direction and control. JUDICIAL decisions: teachers' contracts 1 127 The conclusion necessarily is that the board dismissed the appellant for her part in a controversy with the principal which occurred outside of school hours, and which did not affect directly the discipline of the school. If both parties to the controversy continued in the proper exercise of their respective duties there was no reason why the school could not have been successfully conducted with both teachers in the positions for which they had been employed. The wrong committed by the appellant was too trivial in itself to justify her dismissal. The board could not legally terminate her contract upon the ground that the lack of harmony between the appellant and the principal threatened to break down the discipline of the school and to demoralize its work. The board may properly insist that she perform her duties in such position, and that she comply with all reasonable directions of the principal, relative to the school over which he has control. The board may not complain of the personal differences between these teachers, so long as they perform their duties in an efficient manner. The school may prosper even if they have no mutual respect or regard for each other. In any event, the appellant should not be punished by loss of her position and the consequent injurious eft'ect upon her reputation as a teacher because she has pro- fessed her lack of respect for the principal. The appeal herein is sustained. It is hereby ordered, That the dismissal by the board of education of union free school district no. 5, town of Islip, county of Suffolk, of Syrena H. Stack- pole, as preceptress of the Bayport Union School, under date of December 8, 1909, to take effect at the close of school on such day, is hereby set aside and declared of no effect, and that said board of education shall immediately, upon the filing of this order, reinstate the said Syrena H. Stackpole as preceptress in said school, under and pursuant to the terms of the contract entered into by the said board and the said Syrena H. Stackpole, and that the said board shall pay to the said Syrena H. Stackpole all such sums as may be due to her under such contract from the date of such dismissal to the date of her reinstatement as above directed. 5458 In the matter of the appeal of Ella Baldwin from the action of Gilbert L. Mosher, as trustee of school district no. 9, town of Danube, Herkimer county. Dismissal of teacher; lack of punctuality. The persistent failure of a teacher to observe the hours fixed by a trustee for opening school is sufficient cause for dismissal. A trustee is authorized, and it is his duty, to insist that the teacher employed by him shall keep the hours prescribed. A teacher can not expect promptness on the part of her pupils who is herself guihy of habitual lack of punctuality. Decided June 11, 1910 Lewis & Mcintosh, attorneys for appellant Robert T. Livingston, attorney for respondent 1 1 28 THE UNIVERSITY OF THE STATE OF NEW YORK Draper. Commissioner The appellant Ella Baldwin, was employed by the respondent, Gilbert L. Mosher, as trustee of school district no. 9, town of Danube, Herkimer county, to teach the school in such district for a term of thirty-two weeks, commencing September 13, 1909. The appellant was dismissed from her employment De- cember 10, 1909, according to the statement of the respondent, although the appellant alleges that she was dismissed on December 20th. The appellant con- tends that the dismissal was without cause and asks that she be reinstated and that the trustee be directed to pay her the balance due under the contract. The evidence presented is conflicting and it is difficult to definitely ascertain the actual facts as to all the issues raised. The respondent evidently did not act hastily in dismissing the appellant. The record shows that he sought the advice of the school commissioner of his district and of the State Education De- partment before taking any action. He had a perfect right, and it was indeed his duty, to do tliis, although the appellant seems to resent it. The chief cause of complaint against the teacher by the trustee is her failure to open and close the school regularly at the hours prescribed by him. The teacher resided during the term at her home in Little Falls, a distance of about six miles from the school. She proposed to drive to and from the school morning and night. The trustee knew this and refused to engage her until, as alleged in his affidavit, she promised that she would be punctual in the morning and would not close her school until four in the afternoon. The respondent trustee then asserts that after a week or so the appellant failed to be punctual and from then until the time of her dismissal " she usually arrived late and failed to open the said school until 9.15 to 9.45 o'clock in the morning and made almost a daily practice of closing said school at from 3 to 3.10 o'clock in the afternoon." The respondent insists that he had many talks with appellant about it and had frequently told her that " she must be there and open the school at 9 o'clock in the morning and keep it until 4 o'clock in the afternoon; otherwise he would not continue her services and that she would be dismissed according to her agreement which she had made in the beginning." The appellant says that the trustee consented to a shortening of the noon hour and afternoon recess so that the school should be closed at 3.30 o'clock, but she does not deny the charge of want of punctuality, nor has she specilically denied that she has frequently closed the school before the prescribed hour. The respondent's statements as to the late opening and early closing of school are supported by the affidavits of two other persons. The respondent has shown by a preponderance of evidence that the appellant has been habitually late in opening her school against his frequent protest and that she has also closed the school without his consent at an hour earlier than that pre- scribed by him. The que.'^tion to be determined is whether the persistent failure of the ap- pellant to observe the hours fixed for opening and closing school is sufficient cause for her dismissal. A trustee is authorized, and it is his duty, to insist that the teacher employed by him shall keep the hours prescribed. Irregularity in JUDICIAL decisions: teachers' contracts 1 129 the time of opening the school must lead to confusion. A teacher, who is herself guilty of habitual lack of punctuality, can not expect promptness on the part of her pupils. If a teacher wilfully or persistently fails to comply with a trus- tee's directions as to the time of opening her school, she should be disciplined. Such conduct is a sufficient cause for dismissal. The facts in this case indicate that such a cause exists, and for this reason the appeal must be dismissed. There are a number of other causes alleged in the respondent's answer, which he claims were sufficient to justify the appellant's dismissal. Having de- cided that the cause above considered was sufficient, it will not be necessary to give attention to the other causes. The ai)peal is dismissed. 4349 In the matter of the appeal of Edith L. Porteus v. Joseph Rutherford, trustee, school district no. 15, town of Lisbon, St Lawrence county. Under the school law and the decisions of this Department and the courts of the State, a trustee has the right, for cause, to dismiss a teacher during a term of employment, and that the failure on the part of a teacher to maintain order, good government and discipline in the school, is sufficient cause for such dismissal. The certificate held by a teacher is prima facie evidence of his or her moral and mental qualifications to teach, and he or she may possess an excellent method of imparting instruction to pupils and still be deficient in the ability to manage and govern the school. Without good government and discipline which secure obedience, command respect and preserve order learning is of little avail. Decided April i, 1895 Sellar Leishman, attorney for appellant George E. Van Kennen, attorney for respondent Crooker, Superintendent The appellant in the above-entitled matter appeals from the action of the respondent in dismissing her as a teacher during a term of employment without cause. The respondent has filed an answer to the appeal, and to said answer the appellant has replied, and to the reply a rejoinder has been made, and to the re- joinder the appellant has filed a replication. The pleadings and proofs have received careful consideration and examination. The questions presented to me for decision are, first, was the appellant dismissed during a term of employment, and, second, if yes, was there sufficient cause for such dismissal. Upon the proofs presented the following facts are established: That on or about August 25, 1894, the appellant herein, then holding an unexpired second grade certificate, and the respondent herein, the sole trustee .of school district no. 15, town of Lisbon, St Lawrence county, entered into a verbal contract by which the respondent employed the appellant, and the appellant contracted to teach the school in said district for twenty weeks, of which twelve 1 130 THE UNIVERSITY OF THE STATE OF NEW YORK weeks were to constitute the fall term and eight weeks the winter term of said school; that for the fall temi the respondent agreed to pay and the appellant agreed to receive $5 per week and be boarded, and for the winter term $6.50 per week ; that the appellant entered upon her duties as such teacher and taught eight weeks when a further agreement was made between the appellant and respondent, whereby the appellant taught two additional weeks, making the fall term one of ten weeks, and the winter term to be one of ten weeks instead of twelve weeks as agreed upon in the original contract of the said parties thereto; tiiat the appellant was paid in full by the respondent for the ten weeks taught by her as aforesaid; tliat on or about December 17, 1894, the appellant com- menced teaching said school for said winter term of ten weeks and taught said school until on or abt)ut January 16, 1895, when the respondent came to the schoolhouse and informed the appellant that he (respondent) would not allow her to teach said school any longer, and that he should close the school that night, and then and there dismissed the appellant as such teacher; that subse- quently the respondent hired another teacher for said school ; that the appellant has not been paid for her services for teaching said school for the two weeks she taught in said winter term ; that the reasons given to appellant by the respondent for dismissing her as such teacher were that she did not maintain good order and government in said school and that she failed as a disciplinarian. By subdivision 9. of section 47, article 6, title 7, of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894, it is enacted, " nor shall any teacher be dismissed in the course of a term of employment, except for reasons which, if appealed to the Superintendent of Public Instruction, shall be held to be sufficient cause for such dismissal." The respondent herein alleges that during the fall term of said school many complaints were made to him that the appellant was not maintaining proper order and discipline in said school, and that by reason of the dissatisfaction on the part of many of the patrons of the school by reason of such want of proper order, government and discipline pupils were not attending the school regularly; that the respondent visited the school at the beginning of the second week of the winter term and found said school unsatisfactory as to order and discipline therein. It is clear that during the fall term of said school there was dissatisfaction among the patrons of the school as to the order, government and discipline of the school by the appellant, else why should Messrs Hyde and Randies, as sworn to m the affidavits filed with the reply of the appellant, have called among many of the patrons of the school on December 14, 1894, to ascertain and learn how the appellant pleased them as a teacher? The respondent, with his rejoinder herein, has filed the affidavits of every person in said district who had children attending said school (except one Hyde, who is a brother-in-law of the appellant) and with said exception, and one other the affidavits of every other resident taxpayer of said district, showing the ab- sence of order, good government and discipline in said school while the same was being taught by the appellant. JUDICIAL DECISIONS: TEACHERS' CONTRACTS II3I The said affidavits showed that noise and confusion existed in the school- room during school hours, thereby disturbing those pupils who desired to study ; that pupils during school hours would stroll about the schoolhouse grounds ; that pupils did not obey the bell calling them to resume their studies after recess or the noon hour ; that pupils during school hours would move about the school- room and talk and failed in obeying the appellant, and that she had no control over said pupils. The respondent alleges in his answer that at the time of en- tering into contract with the appellant it was expressly understood and agreed between the parties that if in the opinion of the respondent the appellant failed to maintain order, decorum and good government in the school he might termi- nate the contract at the termination of any term, and that said contract was con- ditional and dependent entirely upon the ability of the appellant to maintain order and discipline and control the pupils attending said school. This the appellant denies and alleges that the contract was positive and absolute and not contingent in any respect whatsoever. It is not material whether the respondent is correct or not in his understanding of the conditions of the contract, as under the school law, and the decisions of this Department and the courts of the State, a trustee has the right, for cause, to dismiss a teacher during a term of employment, and that the failure on the part of a teacher to maintain order, good government and discipline in a school is sufficient cause for such dismissal. A contract with a teacher, without expressed conditions, is to be inter- preted by the conditions implied in the very nature of the contract, and the pur- poses for which it is entered into. Every such contract implies distinctly that the teacher employed possesses the essentials of moral character, learning, ability and will. In Gillis v. Space, 63 Barb. 177, the Supreme Court said " The hcense which he holds from the proper officer is prima facie evidence only that the ap- plicant possesses these requisites, but it is not conclusive ; the presumption raised by it may be rebutted by direct evidence tending to show that the holder of such license lacks any or all of these qualifications." The certificate held by the appellant was prima facie evidence of her moral and mental qualifications to teach, and she may have possessed an excellent method of imparting instruction to her pupils and still have been deficient in the ability to manage and govern a school. Without good government and discipline, which secure obedience, command respect and preserve order, learning is of little avail. I am satisfied that the respondent has, by a preponderance of proof, estab- lished the fact that the appeUant did not maintain order and good government in the said school, and that she failed as a disciplinarian, and that the respondent had sufficient cause to dismiss the appellant as teacher in said school during her term of employment. The appellant alleges that she has not been paid the sum of $13 for the two weeks of the winter term in which she taught the school. She should be paid such said sum by the respondent. '. The appeal herein is dismissed. 1132 THE UNIVERSITY OF THE STATE OF NEW YORK In the matter of the appeal of Peter E. Demarest v. the board of education of Long Island City. Where a teacher was hired for the term of one year from September 12, 1892, and was dismissed before tlie term of employment had expired by the board of education with- out cause; held that such dismissal was unlawful. Decided November 2, 1893 Foster & Foster, attorneys for appellant William E. Stewart, attorney for respondent Crocker, Superintendent This is an appeal from the action of the board of education of Long Island City, county of Queens, taken at a meeting of said board on the 30th day of January 1893, purporting to remove the above-named appellant from the position of principal of the fifth ward (new) school in Long Island City. The appellant alleges as grounds of appeal : 1 The meeting of said board at which such action was taken was a special meeting and not called for the purpose of acting upon said matter. 2 That appellant's term of sen^ice for which he had been employed had not expired, and no cause whatsoever touching the qualifications or duties of appel- lant as principal of said school, was assigned for said action. 3 No actual cause existed for said action, arising from any fault or mis- conduct whatever on the part of the appellant. 4 That no charges or specifications were ever served upon or delivered to the appellant. 5 That no proper opportunity was given to or afforded the appellant to appear before said board of education, or opportunity given him to be heard. 6 That the alleged acts of said board of education were illegal and void. An answer to the appeal herein was interposed by the board of education of Long Island City. The papers presented by the respective parties in this appeal are quite volu- minous, and have been carefully read and considered. It is admitted by the respondents that the appellant was employed as prin- cipal of the fifth ward (new) school. Long Island City, for the term of one year, from September 12, 1892. at the annual salary of $1800, payable monthly in ten equal parts at the end of each month, except the months of July and August; and that said appellant was dismissed as such principal by the respondents be- fore the expiration of the term for which he was employed. The following facts are established by the papers presented upon this appeal : That the appellant after his employment as principal of the said fifth ward school, duly entered upon the performance of his duties as such principal, and continued in the performance of the same, until forcibly prevented as herein- after stated. That at a meeting of the board of education of Long Island City, held on January 11. 1893, a resolution was adopted that the appellant, principal of the fifth ward school, be directed to act as superintendent of schools of JUDICIAL decisions: teachers' contracts 1 133 Long Island City, in addition to his duties as principal of the new fifth ward school, without compensation, until further notice from said board; that a com- munication dated January 11, 1893, signed by Thomas A. Larkin, president board of education, and addressed to the appellant as principal of said fifth ward school, in which the appellant was informed that said board of education, at a meeting held that evening, had appointed appellant " acting superintendent " of schools in addition to his then position of principal of said fifth ward school, he to hold such position until the further orders of said board, such duties to commence at once. That said appellant received a communication, under date of January- II, 1893, signed by Thomas A. Larkin, president, addressed to appellant as prin- cipal of the fifth ward school, informing the appellant that Mrs Alary L. Woods had, on that day, been appointed your (the appellant's) assistant principal to take charge of school in your (appellant's) absence, at same salary as at present, until further orders of said board, and that a teacher for Mrs Woods's class would be sent in a day or two. That the appellant continued to perform his duties of principal of said school, until the morning of Januar\' 30. 1893, when he was prevented by force from entering the school building and house, and performing his duties as such principal. That the new mayor of Long Island City qualified and assumed the duties of said office on January 21, 1893, ^"^ on January 24, 1893, the respondents herein qualified by filing their oaths of office. That the following is an extract from the minutes of said board. " City Hall. January 24, 1893, 8.30. The following letter was prepared and ordered sent to each of the several schools of the city, and the same directed to be read aloud to the teachers by each principal: Long Island City, N. Y., January 24, i8p3 To all the principals and teachers in the public schools of Long Island City : In consequence of the recent outrageous attempt of the late mayor of this city, to usurp the authority and powers of the rightful incumbent and present legally constituted mayor of this city, Hon. Horatio S. Sanford, by appointing and dismissing persons without authority, we, the duly appointed and qualified board of education of Long Island City, hereby direct that until further notice from this board, you are requested to recognize Mr Sheldon J. Pardee as the superintendent of schools of this city. Any principal or teacher failing to fully assent to and act upon this requirement will be considered as insubordinate and will be disciplined or dismissed, as in the opinion of this board may be considered advisable By order of the Board of Education. There is no proof produced of the time and place when and where such letter was served upon the appellant. Mr Pardee alleges that he delivered it to appellant, and the appellant alleges Pardee did not deliver it to him. That the appellant, on or about January 30, 1893, and after he had been - forcibly prevented from entering the schoolhouse in the fifth ward, received a communication, under date of January 28, 1893, signed by Sheldon J. Pardee, I 134 THE UNIVERSITY OF THE STATE OF NEW YORK superintendent, suspending the appellant from his position and directing him to appear before the board of education, at a meeting to be held in the board rooms in the city hall on Monday, January 30, 1893, t>"t there was nothing in said communication to show that it was written by direction of, or authorized by, such board. That on January 30. 1893, the board of education adopted the following resolution: "That Peter E. Demarest, principal of the fifth ward new school be dismissed upon evidence before this board for deserting his school and for insubordination, having refused to obey the order issued by this board on January 24, 1893. The above to take effect immediately"; that notice of the foregoing resolution was transmitted to appellant by letter signed by Sheldon J. Pardee, superintendent, and dated January 31, 1893; but was not received by appellant until March 8, 1893. That no charges or specifications against the appellant as teacher in said public schools of Long Island City, or as principal of said fifth ward school, whatever, were ever served upon or received by the appellant, nor does it appear that any such charges were ever made by or filed with the respondent, the board of education. The respondent present with their answer statements that on January 26, 1893, the appellant visited certain schools, and that on January 13 and 24, 1893, he visited the fourth ward school, that up to 1.30 p. m., January 22, 1893, he was not present at the fifth ward school; also an affidavit of Mary L. Woods that appellant after January 11, 1893, did not attend the fifth ward school as principal, but came to the school occasionally, asking her how matters were going on. Mrs Woods corrects this affidavit and states that the words " did not attend as principal " should read " did attend as principal." In connection with these statements, which are evidently presented to sustain the allegation that the appellant neglected his duties as principal of the fifth ward school, should be taken the fact that on January 11, 1893, the appellant was appointed by the board of education as acting superintendent of the schools of Long Island City, in addi- tion to his duties as principal of the fifth ward school, and that Mrs Woods, a teacher in said school, was designated as assistant principal of said school to take charge of the school during the absence of the appellant. The board of education knew that the appellant in the duties of acting superintendent would necessarily be absent at times from his school; that such necessary absence had the sanction of said board, and Mrs Woods was authorized to take charge of the school in such absence of the appellant. The respondent's charge of insubordination seems to be based upon the allegation contained in the affidavit of Mr Pardee that the appellant did not recognize the authority of Pardee as superintendent of schools, or to read the resolution passed by respondents on January 24, 1893, hereinbefore mentioned. Pardee avers a copy was given to the appellant, and the appellant avers it was not delivered to him. The affirmative is upon the respondents to establish the allegation of Pardee and in this the respondents have failed. JUDICIAL DECISIONS: TEACHERS' CONTRACTS II35 It appears that there was a contest in Long Island City relative to the election of a mayor, in which the schools were drawn so far as the personnel of the board of education was concerned, and the inhabitants of the city were greatly excited and each inhabitant took sides with one or other of the contestants for the office of mayor. On January i, 1893, Mr Gleason, as mayor, appointed cer- tain persons to constitute the board of education of said city and such board removed Pardee as superintendent and appointed the appellant as acting super- intendent, as hereinbefore stated. On January 21, 1893, Mayor Sanford assumed the duties of mayor and claimed Mr Gleason was without power to appoint the members of the board of education and that the board so constituted was without power to remove Pardee as superintendent of schools. It is claimed that appel- lant refused to recognize Mr Sanford, but even if this was true, the failure of a school teacher to instantly recognize a change in the political government of a municipal corporation is not sufficient ground for dismissal. It would seem that under the excitement existing in said city by reason of the mayoralty contest, the position taken therein by the appellant, was, to some extent, the cause of the action taken by the respondents on January 30, 1893, ^^ dismissing the appellant as principal of the fifth ward (new) school. The respondents contend that the Superintendent of Public Instruction has not jurisdiction to entertain and decide the appeal herein. The board of educa- tion of Long Island City exists under acts of the Legislature relating to said city and is a body corporate. The trustees of the common and union free school districts of the State are elected pursuant to the Consolidated School Laws of the State, passed May 2, 1864, and the acts amendatory thereof, and are bodies corporate. The schools of said city are not designated as " common " or "union free schools," but they are public schools, forming a part of the common school system of the State, and supported in part from public school moneys of the State, and under the supervision of the Superintendent of Public Instruc- tion of the State. By section i of title 12 of the Consolidated School Law, it is provided that any person conceiving himself aggrieved in consequence of any decision made as specified in subdivisions i to 6, inclusive, may appeal to the State Superintendent, and subdivision 7 enacts : " By any other official act or decision concerning any other matter under this act, or any other act pertain- ing to common schools, may appeal to the Superintendent of Public Instruction, who is hereby authorized and required to examine and decide the same ; and his decision shall be final and conclusive, and not subject to question or review in any place or court whatever." By section 23 of Charter Laws of 1871, chapter 461, page 969, the right of appeal to, and the jurisdiction of, the Superintendent of Public Instruction to entertain appeals is recognized in the provisions that in any suits which shall be brought against the said board, etc., for any act performed, etc., which might have been the subject of an appeal to the Superintendent, no costs shall be al- lowed the plaintiff, etc. 1 136 THE UNIVERSITY OF THE STATE OF NEW YORK The provisions of section 2;^ are, in substance, the same as the provisions contained in section 6 of title 13 of the Consolidated School Law of 1864. The contention of the respondents is not well taken. The respondents contend that the appellant is guilty of laches in bringing his appeal. It appears from the proofs that although the resolution of the re- spondents, dismissing the appellant as principal of the fifth ward school, was passed on January 30, 1893, no copy of said resolution was given to the appel- lant until March 8, 1893. The appeal herein was verified April 5, 1893, a copy was served upon the respondents on April 6, 1893, and the original appeal, with proof of ser\ice of a copy on respondent, was duly filed in the Department on April 7, 1893. By rule 5 of the rules of practice of this Department on appeals, it is pro- vided that the original appeal and all papers annexed thereto, with proof of service of copies, must be sent to this Department within thirty days after the making of the decision or the performance of the act complained of, or within that time after the knowledge of the cause of complaint came to the appellant, or some satisfactory excuse must be rendered in the appeal for the delay. The contention of the respondents that the appeal was not brought in time is not well taken. The courts of this State have held that the trustees can not dismiss a teacher, without cause and against his consent, before the expiration of his contract. This Department has so held. In appeal no. 3864, A. Hall Burdick v. the Board of Education of Long Island City, and appeal 3865, Annie M. Law- ton V. the Board of Education of Long Island City, decided March 26, 1890, my predecessor, Superintendent Draper, so held. In appeal no. 3864, Superintendent Draper says: "There is no diflference between the legal powers and duties of school trustees in cities, and like officers in all other parts of the State, except as such differences have been created by statutes having special application to a particular city. It does not appear that there is any special statute conferring any greater or different powers upon the board of education of Long Island City, so far as the dismissal of teachers is concerned, than trustees of schools have m general." I concur with Superintendent Draper. In subdivision 9 of section 49, title 9, of the Consolidated School Law, as It existed at the time of the employment of the appellant herein, it is provided: " Nor shall any teacher be dismissed in the course of a term of employment except for reasons which, if appealed to the Superintendent of Public Instruc- tion, shall be held to be sufficient cause for such dismissal." I decide that the reasons for which the appellant was dismissed are not held by me to be sufficient cause for such dismissal. This being so, the action of said board in attempting to dismiss the appellant in January 1893, without cause, was unlawful. The appeal is sustained, and the action of the board in dismissing the appel- lant is held to be unlawful and invalid. JUDICIAL decisions: teachers contracts 1137 3824 In the matter of the appeal of E. Grace McDowell v. school district no. 2 of the towns of Middletown and Southfield, in the county of Richmond. The employment of a teacher by two of three trustees without consulting the third, illegal. The teacher may have her remedy against the persons who employed her, but her claim for damages, if any, can be enforced only by an action. Decided November 9, 1889 John Widdecombe, attorney for appellant Van Hoevenberg & Holt, attorneys for respondent Draper, Superintendent The appellant alleges that on the 15th day of July last she was employed to teach the school in the above-named district for the term of one year, commenc- ing on the 2d day of September; that she has held herself in readiness and attempted to fulfil the terms of the employment on her part, but has been alto- gether prevented from doing so by the majority of the present board of trustees. She has demanded her pay for the first month of the term of employment, and been refused. She brings this appeal for the purpose of determining and enforc- ing her rights. Two of the three trustees answer and say that the appellant was never legally employed, inasmuch as one of the three trustees received no notice of the meeting at which such action was assumed to be taken. They also say that one of the two trustees who assumed to employ her, went out of office by expira- tion of his term, and was not reelected. They admit that they have declined to recognize the employment or to pay appellant. This is evidently one of many cases in which trustees endeavor to forestall the action of school meetings, or their successors in office, by acts just prior to the close of their term of office. The Department does not look with favor upon such acts, and wall not uphold them, unless clearly and unmistakably authorized by law. It is undisputed that the appellant was employed, if at all, by the action of two trustees without consultation with the third. This was illegal, although the teacher might possibly have redress against the two who assumed to employ her. If she has any remedy, it is by an action at law for damages, rather than by an appeal to the Department to have the contract enforced. The Department has no facilities for measuring damages. Whether the appellant is entitled to recover damages, and if so, to what extent, should be determined by the courts. The appeal is dismissed. 1 138 THE UNIVERSITY OF THE STATE OF NEW YORK 3565 In the matter of the appeal of W. M. Hill, D. A. Stark and others, composing the board of education of Millport free school district no. 8, town of Veteran, Chemung^ county v. Harris Wickham. The State Department will not remove a teacher on the ground that he disregards the wishes and directions of a board of education. It is for the board to dismiss him if he is guilty of such insubordination as to justify it. From such act an appeal will lie, but the aid of the Department can not be invoked in the first instance. Decided February 14, 1887 Draper, Superintendent This proceeding is brought by the board of education of Millport union free school district no. 8, of the town of Veteran, for the removal of Harris Wick- ham, a teacher in the employ of said board. The board alleges, as reasons for the removal of Wickham, that he acts contrary to the directions of the board, and specifies several instances in which this has occurred. It is said that he com- menced the term of the school contrary to the directions of the board; that he refused to permit the board to clean the school building; that he has insulted the board by undertaking to have the members arrested when endeavoring to have the building cleaned and repaired ; that he has refused to meet the board for the transaction of school business ; that he has exchanged textbooks contrary to the wishes of the board ; that he has received nonresident pupils without the knowl- edge of the board, and that his discipline in the schoolroom is inefficient. The teacher sets up in answer, that this Department can not remove him as a teacher except by revoking his license to teach. This is not a proceeding to revoke the teacher's license on the ground of immoral conduct. No allegation is made against the moral character of the teacher, nor against his mental capacity. The things complained of are, if true. indicative of insubordination on the part of the teacher toward the board, for which the board itself would have the right to discontinue his services. The teacher does not say whether they are true or not. He takes the position that it is for the board, and not the Departrnent, to remove him, in the first instance. In this he is right. If the proceeding had been one for the revocation of his license to teach, the Department would have had jurisdiction; but, as it is, the board itself must act in the first instance. The act of the board may be made the subject of appeal, when the truth or falsity of the allegations against the teacher will have to be inquired into. The appeal must be dismissed. 4588 In the matter of the appeal of William H. Witbeck and others v. Myron Hunger- ford, James Johnston and Andrew J. Stable, jr, as trustees of school district no. II, town of Guilderland, Albany county. When a trustee or the trustees of a school district employ a teacher for the school in such district who IS related by blood or marriage to such trustee or to some one of the JUDICIAL decisions: teachers' contracts 1139 trustees and a special meeting of the inhabitants of the district is held to act upon the question of approving ;such contract and at such meeting two-thirds of the voters present and voting approved of such employment, such trustee or trustees during their term of office may legally enter into a further contract with such person to teach in the district without any further action by the voters of such school district. Decided October 8, 1897 A. Helme, attorney for appellants Clute & McCormic, attorneys for respondents Skinner, Superintendent This is an appeal by the appellants in the above-entitled matter from the action of the respondents herein as trustees of school district no. 11, town of Guilderland, Albany county, employing a teacher for the school in such district for the school year of 1897-98, a person related to one of said trustees, namely, ^Myron Hungerford, in violation of the provisions of the Consolidated School Law. The above-named trustees have answered the appeal. From the uncontroverted statements contained in the appeal and answer it appears : That for the school year of 1896-97, Messrs Hungerford, Johnston and Stable constituted the board of trustees of said school district, and early in such year desired to employ one Anna Radcliff, a relative of Trustee Hungerford, to teach the school in such district; that on August 17, 1896, at a duly called special meeting of such district, by the affirmative vote of two-thirds of the voters of such district, present and voting upon the question of approving such hiring by such trustees of Miss Radcliff, as such teacher, such hiring was approved; that such special meeting did not determine or specify any term of time for which such employment of Miss Radcliff should be made, but simply voted to approve her hiring by such trustees notwithstanding her relationship to Trustee Hunger- ford; that after such special meeting of August 17, 1896, said board of trustees employed Miss Radcliff to teach the school in such district, and under such con- tract of employment she taught such school, commencing on September 7, 1896, and terminating on June 30, 1897; that on July 28, 1897, such trustees employed Miss Radcliff to teach the school in such district for the school year 1897-98, to commence on or about September i, 1897, and terminate on or about July i, 1898. It further appears that the board of trustees of such district for the present school year is composed of the same persons as in the school year of 1896-97 ; Mr Johnston, whose term as trustee expired on August 3, 1897, was at the annual meeting of the school district, held on August 3, 1897, reelected as trustee for the term of three years. The trustees of school districts alone, under the provisions of the Consoli- dated School Law of 1894, can make contracts with teachers for the district schools. The qualified voters of a district can not control the action of the •trustees in the matter, although they may, as provided in such school law, approve 1140 THE UNIVERSITV OF THE STATE OF NEW YORK liie liiring of a teacher in certain cases in which such trustees are prohibited from hiring without such approval. In subdivision 9 of section 47, article 6, title 7, of the Consolidated School Law of 1894, it is enacted that no person who is related to any trustee or trustees (that is. to a sole trustee, or to any of the trustees, if there are more than one), by blood or marriage shall be employed as a teacher except with the approval of two-thirds of the voters of such district present and voting upon the question at an animal or special meeting of the district. Prior to June 30, 1894, when the Consolidated School Law of 1894 became a law, no person could be employed as a teacher by any trustee or trustees who was within two degrees of relationship by blood or marriage to such trustee or tnistecs, except with the approval of two-thirds of the voters of such district present and voting upon the question at an annual or special meeting of the dis- trict. L'nder the law, since June 30, 1894, no person who is related to any trustees by blood or marriage in any degree whatever can be so employed without such approval as aforesaid. The approval on the part of the voters of the district must be by a vote either at an annual meeting or at a special meeting called for that purpose. Such approval can not be given individually, and although every inhabitant of the district might sign his or her approval to a paper circulated in the district it would not meet the requirements of the school law, and would not make a contract of employment legal and binding upon the district. The ruling of this Department has been that such consent may be made after as well as before the time of employment. When, at any meeting in a school district, the question presented for its action is simply the approval, on the part of the qualified voters present and voting, of the employment of a person named as a teacher in the school in the district notwithstanding such person is related in some degree, by blood or mar- riage, to the trustee, or to some one of the trustees if the district has more than one trustee, the voters are not called upon, nor have they any authority under the school law, to approve any specific contract of employment of such person for a term of time, or at a specified rate of compensation, but only to approve or refuse to approve his or her employment as a teacher notwithstanding such relationship. From anything that is stated in the papers presented herein, the only ques- tion considered and acted upon at the special meeting held in such district on August 17, 1896, in reference to the employment of Miss RadcliiT, as a teacher in the school therein, was. Shall we approve her employment as such teacher notwithstanding her relationship by blood or marriage to Mr Hungerford, one of the trustees of the district? and that such approval was given pursuant to the provisions of the school law. The contention of the appellant is, that such approval was given for the employment of Miss RadcliflF for the school year of 1896-97 only, and that the respondents could not. as trustees of such district, legallv employ her on July 28 1897. for the school year of 1897-98, or any part of such school year, except with JUDICIAL DECISIONS: TEACHERS CONTRACTS II4I the approval of two-thirds of the voters of such district present and voting upon the question at the annual meeting on August 3, 1897, or at a special meeting duly called. Such contention is not supported by the facts, or the school law, or decisions of this Department. 1 It is not established by the proofs that the approval of the school meet- ing of August 17, 1896, was limited to the employment of Miss Radcliff as a teacher for the school year 1896-97. 2 Admitting for the purpose of argument that the approval was limited to her employment for such school year, I am of the opinion that the meeting did not possess the authority to approve or disapprove any specific contract between the trustees and the teacher, but could only approve or refuse to approve her employment by such trustees notwithstanding her relationship to one of the trustees. 3 That the approval of the special district meeting of August 17, 1896, of the hiring of Miss Radclifif as a teacher, being given, the trustees, during their term of office, could legally enter into a contract with her to teach in the district, without further action by the voters of the school district. 4 That it appears that the trustees of such district are composed, the present school year, of the same persons as during the school year of 1896-97; James Johnston, one of such trustees, whose term of office expired at the annual meet- ing held on August 3, 1897, at such meeting, was reelected as trustee for the full term of three years. The appeal herein is dismissed. 3758 In the matter of the appeal of Ambrose Green v. John H. Galloway, sole trustee of school district no. 15, town of Cambridge, Washington county. The hiring of a teacher who is related to the trustee within the prohibited degrees, without the requisite consent of the voters at a district meeting being previously secured, is cured by subsequent action of the voters by a two-thirds vote, approving such employment. The trustee, the teacher, and their relatives, if qualified voters of the district are entitled to vote upon such a question. Decided January 26, 1889 Draper, Superintendent This is an appeal taken by a voter in school district no. 15, town of Cam- bridge, Washington county, from the action of the sole trustee of said district, in employing as a teacher a person related to the trustee within the prohibited degree. The respondent has filed an answer and therein admits the fact as alleged by the appellant, but shows affirmatively that since the hiring, a district meeting, by a two-thirds vote, has approved and ratified the employment of such teacher by the trustee. I 142 THE UNIVERSITY OF THE STATE OF NEW YORK The appellant replies and avers that the meeting v^as not properly called and conducted, and that the teacher and trustee and relatives of each voted upon the question in the aflirniative, thereby making the requisite vote. The provision of the law relative to the employment of a teacher who is related to the trustee, is sufficiently complied with when it is made to appear that the legal voters of the district, by a two-thirds vote of their number present and voting, have shown their satisfaction with such employment. It is not claimed that the trustee and teacher and their relatives who voted were not qualified voters. If they were qualified, they had a perfect right to vote upon the question. I am satisfied that a proper notice of the meeting was given and the meeting properly conducted, and that the meeting, by the requisite vote- approved the hiring. That the vote was taken subsequently to the time of the emplovment is not consequential. I conclude, therefore, that a decision of this appeal is unnecessary, and have made such note upon the records. 3575 In the matter of the appeal of Ida L. Griswold v. Alexander Rossman, trustee of school district no. 4, town of Claverack, county of Columbia. At the time of employment of a teacher, it was agreed that she should board with the trustee. Held, That such agreement was void, and that she could change her boarding place at any time. While a teacher may board with a trustee, it can not be made obligatory upon the teacher to do so. A trustee is guilty of gross neglect of duty in delivering a tax list and warrant to a collector before a satisfactory bond has been furnished. A collector who voluntarily pays over the district money to a trustee is personally liable therefor, and a trustee is censurable for receiving it. Decided May 25, 1887 Charles Beale, attorney for appellant John v. Whitbeck, attorney for respondent Draper, Superintendent This is an appeal by Ida L. Griswold, who was employed as teacher of the school HI district no 4, town of Claverack, county of Columbia, against the trustee of said district, demanding the removal of said trustee from office. The appellant alleges as grounds therefor that the trustee has used insulting language toward her and in relation to her; that he has prevented her from ful- hlhng her term of teaching; that he has taken from the collector the district nioneys and retained them, and that he has neglected to pay her for the services she has rendered. The respondent in ansxv^r admits that he received from the collector all th<' district moneys then held by that officer, and alleges as an excuse therefor that JUDICIAL DECISIONS: TEACHERS' CONTRACTS 1 143 while he, the trustee, was responsible for the safe keeping of the .same, the collector was not and had given no bond as such collector. He admits also that the teacher taught from September 4, 1886, until February 4, 1887, when dissatisfaction having been manifested in the district with her teaching, and the funds not being sufficient to continue school longer, he closed the school. He alleges that he reserved the right to terminate the teacher's engagement for either cause. The trustee denies that he had insulted the teacher, but admits using strong language toward her while in a passion caused by alleged tantalizing conduct toward him on the part of the teacher. The trustee makes other charges against the teacher which are not necessary to be considered upon this appeal, as the trustee and not the teacher is the accused person. The allegations are so conflicting that I directed Oliver W. Hallenbeck, school commissioner of the first district of Columbia county, to give notice to the respective parties and take their testimony, as well as that of such witnesses as might be offered by them. Notices having been regularly given by the commis- sioner, the hearing was proceeded with and the testimony returned to me. From the evidence so taken and from the admissions made by the parties, I find the facts to be as follows : The appellant was employed to teach by the respondent as trustee for from thirty to forty weeks of school to commence September 4, 1886, or until the district moneys were exhausted, unless in the meantime general dissatisfaction should prevail in the district toward the teacher when her term should end. She was to receive six dollars a week and board with the trustee, he to charge her for such board, including washing, at two dollars and fifty cents per week. The appellant taught from September 4, 1886, until February 4, 1887, when the trustee discharged her and closed the school. As the teacher was absent several days, I can not determine from the testimony before me just how much salary she is entitled to. During Christmas week the appellant ceased to board with the trustee, and a bitter feeling sprang up between the parties to this appeal. The teacher had a perfect right to change her boarding place at any time. An agreement with the trustee to the contrary is illegal and void. While a teacher may board with a trustee, it can not be made obligatory upon the teacher so to do. The trustee has been guilty of gross neglect of duty in delivering a tax list and warrant to a collector before a satisfactory bond has been executed and delivered to him as required by law, and a person who has held the office of trustee for three successive years can have no reasonable excuse for such neglect. The collector rendered himself personally liable when he voluntarily paid over the district moneys to the trustee, as the trustee was blamable when he received them. I have concluded in view of all the facts, to make the following disposition of this appeal: The trustee is hereby ordered and directed to pay over all the "district moneys in his hands to the collector, first requiring such collector to give a sufficient bond to protect the district from loss, and take his receipt there- 1 144 THE UNIVERSITY OF THE STATE OF NEW YORK for. He is also directed to deliver or offer to deliver to the appellant an order upon the collector for the full amount due her for teachers' wages. This I direct to be done within ten days from the date of this decision. Upon satisfactory proof of a compliance with this order, this appeal will be dismissed; otherwise, a further order will be made in the premises. 3640 In the matter of the appeal of Pierce Craw v. Elisha Teter, Charles Rice and Reuben W. Mackey, trustees of school district no. 12, town of Rensselaer- ville, Albany county. In a district having three trustees, a teacher was engaged for the school year in advance of the holding of the annual meeting. Held, that the hiring was both proper and legal. No written memorandum was delivered at the time of hiring, nor has one been filed with the district clerk. Held, that the failure to give such memorandum to the teacher would not invalidate the contract. It could be given at any time. Filing of such a memorandum is not required. Where a district lies in a cold, hilly country, and in winter the woods are frequently impassable by reason of snow, the trustees exercise a proper discretion in deferring to fix the time of the next winter term until the condition of the roads can be determined. Decided October 25, 1887 Draper, Superintendent This proceeding is an appeal by a resident and taxpayer of school district no. 12, town of Rensselaerville, Albany county, N. Y., against the action of the trustees of last year, two of whom continue to be trustees this year, in employing a certain person as teacher for the present school year, in advance of the holding of the annual school meeting in said district, and from the action of the annual meeting in letting a contract for furnishing wood for fuel for the school year, to the person whose term as trustee had just ended by the election of his successor. It is averred by the appellant that the trustees refuse to continue school in the winter months, and thereby deprive many children of the district from the benefits of the school. It is alleged that in hiring the teacher, the trustees did not act as a board, and did not at the time of hiring make and deliver to the person so employed a memorandum in writing of the terms of the agree- ment as required by law, and that no such memorandum was filed with the district clerk. The respondents, in answering the petition of the appellant, First, raise a technical objection to the form of the appellant's papers; second, aver that the hiring of the teacher was legal ; that the person so employed was the teacher who taught the district's school the preceding year, and that the eariy action by the board was necessarily taken to secure the services of the teacher who had repeated offers of other schools ; that the employment was for a period of twenty-eight weeks, and was, after consultation between all of them JUDICIAL decisions: teachers' contracts 1 145 to be divided into terms, as the interests of the children of the district would seem to demand; school, however, to commence on September 19th. The written memorandum was not prepared and delivered to the teacher, for the reason that the respondents were unaware of the enactment of the law of last winter, which requires it; since the appeal, this provision of law has been complied with. The respondents further state that the district is located in a hilly country, and the roads in winter are blockaded with snow, and for this reason the trustees have not yet decided upon the terms of the school, and their action relative thereto will depend upon the condition of the roads. Relative to fuel, they allege that the contract was let to the lowest bidder, and the price to be paid therefor was not exorbitant. In considering the question raised by the pleadings herein, I shall not pass upon the technical defects in appellant's papers, but must hold : That the trustees being in a district composed of three trustees, had the right to employ a person as teacher for one year in advance; that proper con- sultation was had between all three trustees, and a valid contract entered into ; that, while the trustees were derelict in duty in failing to give to the teacher a written memorandum of the terms of the hiring, that failure did not vitiate the contract, and that the law does not require the memorandum to be filed in the clerk's office, or elsewhere ; that, from the pleadings and proof presented, I do not find that the trustees were acting contrary to the wishes of the inhabitants in hiring a teacher for only twenty-eight weeks, or for neglecting to hold school in the severe winter, in a district situated as is the one to which this appeal relates. I am unable to determine, from the appellant's statement, that the price for furnishing fuel to the district was exorbitant. I therefore dismiss the appeal. 4002 In the matter of the appeal of T.ouise Clemens v. Tsleton Stedman. sole trustee of district no. 7, of the town of Osceola, in the county of Lewis. A school district trustee refused to continue a teacher in school who had failed to receive a renewal of her certificate. It appears that a second temporary license was not received by the teacher until after the time of the trustee's action. Held, that the trustee acted legally. He could safely have taken no other course. Decided September 15, 1891 Draper, Superintendent The appellant alleges that she was employed by the respondent to teach the school in the above-named district, for the term of sixteen weeks at $5.50 per w-eek. The agreement was a verbal one and no memorandum of the hiring was 1I4() THE UNIVERSITY OF THE STATE OF NEW YORK ^'iven the teacher. After she had taught seven weeks in all, the trustee prevented iier from continuing. He alleges that the reason for. this was because she had no license. It seems that she had no license at the time of the alleged hiring, but that she received from the school commissioner two temporary permits, one dated April 6th, and the other May i8th. The second permit was granted by the school commissioner after asking leave of the Department. The school district is some distance from the school commissioner and the communication is irregu- lar, and considerable time was consumed in correspondence over the matter, so that the second temporary permit was not received by the teacher until after the time when the trustee had prevented her from continuing. I find nothing in the papers to lead me to believe that the action of the trustee in causing the teacher to cease work was due to any other cause than the lack of a certificate on her part. If this was the only cause, then he acted with entire propriety, indeed he could safely have done nothing else. It does not matter that a second temporary permit had at that time been granted, and was in course of transmission. There can be no question upon the papers but that the teacher was remiss in the matter of a certificate. In view of these facts, the appeal must be dismissed, but the trustee is directed to settle with the appellant for the time actually taught. 3586 Tn the matter of the appeal of Nellie A. Hennessy v. Fred W. Rocks, trustee of school district no. 6, town of Fabius, Onondaga county. The contract of hiring made between a de facto (but not a dc jure) trustee and a teacher who entered upon the performance of her contract, sustained. Decided April 16, 1887 Draper, Superintendent This is an appeal made by Nellie A. Hennessy, a person employed as a teacher by one Lawrence Long, then acting as trustee of said district, from the action of the respondent, the trustee of said district, in refusing to pay her in accordance with the terms of said employment. It is alleged by the appellant. and the facts seem undisputed, that the appellant was employed to teach school for a period of sixteen weeks at the agreed price of $5.50 per week, to commence on the 4th day of October 1886. The contract was entered into on the 25th day of September 1886, and she taught pursuant to said agreement, up to and including the 14th day of January 1887, when she was prevented from further fulfilling the terms of her contract by the action of the trustee, who locked the door and would not admit the appellant to the schoolhouse. The respondent denies that Long was ever elected trustee of the district; asserts that he did not serve under color of title, and that he was a mere usurper. and consequently that the contract was illegal and in no way bound the trustee. JUDICIAL decisions: teachers' contracts 1147 In order to properly understand the case, it is necessary to refer to a former appeal decided on the 5th day of January 1887, by the decision of which it was held that F. W. Rocks was duly elected trustee of said district at the meeting held for that purpose on the 7th day of September 1886. Upon the evidence adduced on that appeal, it appeared that there arose a dispute at the school meet- ing as to whether Lawrence Long or Rocks was elected trustee. The evidence was quite conflicting. It appeared that Lawrence Long assumed the duties of the office of trustee immediately after said meeting, employed the appellant as teacher and commenced school, and school was continued under his supervision as such acting trustee until the decision of said former appeal, when, upon the assumption of said office by the respondent herein, the appellant was prevented from further continuing school. There is but one question raised by this appeal and that is, whether the action of Long, while acting as trustee, in employing Miss Hennessy for the term of sixteen weeks, was a valid contract so far as the district and the appel- lant were concerned, and whether the respondent herein is compelled by law to fulfil the conditions of the contract. It can not be disputed, from the evidence elicited upon the former appeal, that Lawrence Long acted as trustee under some color of title. From the action of the district meeting, at which the trustee was elected, I can not fail to reach the conclusion that Long was claiming and exercising the powers of trustee when the contract was entered into between him and the appellant, with some color of right to do so, and that the agreement became binding upon the district. Miss Hennessy was not obliged to wait until the dispute over the office was determined before she took the school. She was justified in contracting with a man who was acting and recognized as trustee. I, therefore, conclude that this appeal must be sustained, and the respondent is hereby directed to issue to Miss Hennessy, upon receiving from her the school register properly verified up to the date on which she was prevented from con- tinuing the school, an order upon the supervisor of the town, if there are moneys in his hands to meet the same; and, if there are not, then he will levy a tax upon the district therefor, and deliver to her an order upon the collector of the dis- trict for sixteen weeks' pay, at the rate of $5.50 per week. 4355 In the matter of the appeal of Roy O. Carver v. Hugh McCarrell, sole trustee, school district no. 3, town of Portland, Chautauqua county. Where it appears by a preponderance of proof that a teacher did not maintain order and good government in a school taught by him, and that he failed as a disciplinarian; held, that the trustee had sufficient cause to dismiss such teacher. Decided June 25, 1895 H. C. Kingsbury, jr, attorney for appellant Ottaway & Munson, attorneys for respondent 1148 THE L'NIVEKSITY OF THE STATE OF NEW YORK Skinner, Superintendent The appellant in the above-entitled matter appeals from the action and de- cision of the respondent therein in dismissing the appellant as a teacher in school district no. 3, town of Portland. Chautauqua county, as alleged in said appeal, in the course of a term of employment, without sufficient cause. The appellant alleges that in August 1894, he and the respondent as trustee of said school district, entered into a verbal contract by which the appellant con- tracted to teach the school in said district for the term of thirty-four weeks at a compensation of $9 per week for one-half of the time and $10 per week for the remaining half of the time, but that said contract was subsequently modified as follows: Said appellant was to be paid $9 per week for the fall term, $10 per week for the winter term and $9 per w^eek for the spring term; that the appellant in August 1894, commenced teaching said school under said contract, and continued to teach until April 12, 1895, ^^'hen by order of the respondent said school was closed for two weeks; that on April 22, 1895, the appellant received a letter from the respondent, dismissing the appellant as such teacher; that on April 29, 1895, the date when the appellant understood the school was to be resumed, he went to the schoolhouse prepared to resume his duties as teacher, but the respondent, whom he found at the schoolhouse, would not permit him to teach. The respondent denies that he ever entered into a verbal contract with the appellant that the appellant should teach the school in said district, but avers that he made two written contracts with the appellant to teach said school, each for the tenn of ten weeks, one of w^hich was made on August 20, 1894, and the other on December 10, 1894. The respondent also alleges that the appellant as such teacher disobeyed the rules for the government and discipline of said school as prescribed by the respondent, especially in administering corporal punishment, and that the appel- lant did not maintain good order and government in said school, and failed as a disciplinarian. From the proofs presented by the parties to this appeal, the following facts are established : That early in August 1894, the appellant applied to the respondent to teach the school in said district, and on August 8, 1894, also applied to the trustee of school district no. 10, of Portland, to teach the school in that district, and requested said trustee to let him know on August 10, 1894, whether he would entertain such application ; that on or about said August 8, 1894 (the date at which the appellant alleges the verbal contract to teach the school was made by the respondent), in an interview between the appellant and respondent, at which a Miss Hale was present, the respondent stated he would hire the appellant to teach said school for the coming school year, providing he did not hire Miss Sawin : that on August 9, 1894, the respondent, in reply to an inquiry of the trustee of district no. 10, as to whether respondent had hired appellant, said that he had not. and that a lady teacher who taught the last term of school in his district had made application for his school and he was waiting to hear from JUDICIAL decisions: teachers' contracts 1149 her before engaging any other teacher; that on August 20, 1894, the respondent dehvered to the appellant a memorandum in writing, signed by him, hiring the appellant as a teacher in said school for the term of ten weeks from the date of such memorandum at the compensation of $9 per week, payable monthly, and appellant accepted said memorandum and entered at once on the discharge of his duties as a teacher in said school thereunder; that on December 10, 1894, the respondent delivered to the appellant another memorandum in writing, signed by him, hiring the appellant as teacher in said school ior the term of ten weeks from the date of such memorandum, at the compensation of $10 per week, pay- able monthly, and appellant accepted said memorandum and entered upon the discharge of his duties as a teacher in said school thereunder; that after the expiration of the term mentioned in said memorandum, dated December 10, 1894, the appellant continued to teach said school without any further contract, verbal or w^ritten, between the appellant and respondent, until on or about April 12, 1895, when said school was closed by order of the respondent for two weeks; that on or about April 22, 1895, the appellant received a letter from the respond- ent, under date of April 20, 1895, in which respondent referred to the action of the appellant in whipping one Claude Alden, stating that the appellant knew that it was against the orders of the respondent for appellant to whip any scholars in the school, but when scholars did not obey, the appellant should send them home ; that he had lost confidence in the appellant, and requesting the appellant to come and complete the register and verify it, and that he would settle with ap- pellant and put in another teacher, and that appellant could not teach the school any longer; that at the expiration of the said two weeks' closure of the school and on April 29, 1895, the appellant went to the schoolhouse in said district prepared to continue to teach said school and there met the respondent, who refused to permit the appellant to further teach in said school. It further appears that prior to the appellant commencing to teach the school in said district the respondent in the establishing of the rules for the government and discipline of said school, forbade the appellant to administer corporal punish- ment to any of the scholars; that on April 11, 1895, one Claude Alden, a pupil about nine years of age, at the close of the afternoon recess did not return to the schoolroom until some ten minutes after the pupils were called to the schoolroom, and appellant directed said Alden to remain after the school was dismissed for the day, and explain why he did not return to the schoolroom with the other pupils ; that after the school was dismissed and the appellant was engaged in some work, the pupil, Alden, left the schoolroom without the per- mission of the appellant and went home; that on April 12, 1895, at the time of the forenoon recess, the appellant kept said pupil, Alden, in the schoolhouse and punished said pupil by striking him with a stick or limb of a tree around the legs four to six times, stating to said Alden that he (appellant) was punish- ing him for not remaining in the schoolroom the afternoon previous after the close of the school, and giving appellant an explanation why he (Alden) did not come into the schoolroom with the other pupils at the close of the recess. I 150 THE UNIVERSITY OF THE STATE OF NEW YORK It also further appears that during the time appellant taught said school complaints were made by patrons of the school to the respondent in reference to the absence of order and discipline in the school ; that the school was noisy and disorderly ; that certain pupils were permitted to whisper and move about the schoolroom ; that on more than one occasion the respondent was called in to quell disturbances in the school. The appellant has failed to sustain his allegation in his appeal that in August, 1894, a verbal contract was made with the respondent by which the appellant was hired to teach the school in said district for thirty-four weeks during the school year of 1894-95. Had such a contract been made the appellant should not have accepted the memorandum of hiring, dated August 20, 1894, for ten weeks' service as teacher, but should have refused it, and insisted upon receiving a memorandum for the thirty-four weeks, and failing to obtain that, to stand upon his verbal contract. It is a well-settled principle of law that when a con- tract is reduced to writing and executed such written instrument is the contract of the parties, and that all prior negotiations and conversations had between the parties with reference to the subject matter of the contract are merged in the written instrument. On December 10, 1S94, the appellant received, without objection, a second memorandum of hiring for ten weeks from the date of the memorandimi. It does not clearly appear from the proofs presented herein for what, if any. specified term of time, the appellant was hired to teach said school after the expiration of the ten weeks commencing December 10, 1894, and I am of the opinion that after the expiration of said term the appellant had the right at any time to terminate his services as such teacher, and the re- spondent had the right to dismiss the appellant as such teacher. Admitting for the purpose of argument only that the appellant on April 29, 1895, was dismissed by the respondent in the course of or during a term of em- ployment, I am of the opinion that the respondent had sufficient cause for such dismissal. The respondent, as trustee of said district, had authority to estab- lish rules for the government and discipline of the school, and it was the duty of the appellant to obey such rules and see that they were enforced. The appellant had no authority to establish rules, nor to punish by corporal punish- ment any pupil, nor to suspend or expel a single pupil without the order or con- sent of the respondent. The school law is silent in relation to corporal punish- ment ni the public schools ; it neither forbids nor permits it, but leaves the matter to the judgment and discretion of the trustees. In establishing rules for the gov- ernment and discipline of the school in his district the respondent, as trustee, notified the appellant he must not whip any pupil for violation of such rules, but to send home any pupil violating the rules. The appellant disobeyed the order of the respondent and administered corporal punishment to the pupil, Alden. Under the school law, the decisions of the courts of this State and of this Department, a trustee has a right, for cause, to dismiss a teacher, and that the failure on the part of a teacher to maintain order, good government and dis- cipline in a school, is sufficient cause for such dismissal. JUDICIAL decisions: teachers' contracts 1 151 I am satisfied that the respondent has, by a preponderance of proof, estab- lished the fact that the appellant did not maintain order and good government in the school taught by him, and that he failed as a disciplinarian, and by rea- son thereof the respondent had sufficient cause to dismiss the appellant as such teacher. The appeal herein is dismissed. 4311 In the matter of the appeal of Ella A. Woodward v. Hiram B. Hill, trustee, school district no. 10, town of Ancram, Columbia county. Where the sole trustee of a school district, prior to the annual meeting of the school district on the ist day of August 1894, entered into a contract for the employment of a teacher for the school in said district for not more than one year in advance, to wit, for the period of thirty-eight weeks, including the school year for 1894-95, the school to com- mence on September 3, 1894, at a compensation of $9 per week, such contract was legal and valid and binding upon the teacher and the trustee of the district elected at said annual meeting and upon said school district. The trustee elected at said annual meeting having neglected to open the school on the 3d of September and refusing to permit the teacher to commence teaching the school on that day and not commencing said school until October 15, 1894, was guilty of a breach of contract, and the teacher is entitled to be paid wages for the period of time between September 3d and October 15th, she being ready and willing to perform said contract upon her part. Decided December 22, 1894 Crooker, Superintendent On or about August 7, 1894, William H. Porter, then sole trustee of school district no. 10, town of Ancram, Columbia county, and the above-named appel- lant entered into a contract under which the said Porter, as such trustee, eni- ])loyed the appellant herein, a duly qualified teacher, to teach the school in said district for a period of thirty-eight weeks during the school year, commencing August I, 1894, said school to commence on September 3, 1894, at a compen- sation of $9 per week. That at the annual school meeting held in said district on the first Tuesday of August, 1894, the respondent herein was elected trustee of said district. That the appellant on September 3, 1894. went to the respondent and asked for the keys of the schoolhouse and to open the school, pursuant to the terms of the aforesaid contract ; but the respondent refused to give said keys to appellant or to permit the appellant to open said school. That on Sep- tember 4 and 5, 1894, the appellant made like application to respondent and re- ceived a like refusal thereto. That the respondent did not permit said school to be opened until October 15, 1894, upon which day the appellant asked re- spondent for an order for wages from September 3, 1894, which request was refused; but the respondent paid the appellant for the week she attended the teachers institute. That the respondent still refused to pay the appellant any further sum under said contract between September 3, 1894, and October 15, I 152 THE UNIVKRSITY OF THE STATE OF NEW YORK 1894. From said refusal of the respondent to pay her the appellant appeals. The respondent, in answer to said appeal, alleges first, that the former trustee hired the ajjpcllant for more than the school term; second, that the appellant has plenty of time to teacli the term ; third, that the district is willing that the ap- pellant shall teach the term if she fulfils the requirements called for; fourth, that respondent can not pay appellant for what she can not qualify to the register. Xo statement is made or proof given by the respondent why he refused to allow the appellant to open the school on September 3, 1894, under and pur- suant to the terms of her contract, nor why said school was not opened until October 15, 1S94. Under the provisions of subdivision 9 of section 47, article 6, title 7 of the Consolidated School Law of 1894, Porter, as trustee of said district, had authority to employ the appellant herein as a teacher in said district for not more than one year in advance, and to fix the date when such employ- ment should commence, and length of time such employment should continue, provided such term should be more than one year, and to fix the compensation to be paid, and such contract was binding upon the respondent as trustee of the district and upon said district. Under said school law the trustee or trustees of the respective school districts are authorized to determine the time during a school year in which a school shall be maintained in their respective districts. Such trustees are required to maintain a school in their respective districts dur- ing each school year for at least 160 days of school inclusive of all legal holidays that may occur during the term of said schools and exclusive of Saturdays, to enable such districts respectively to receive a proportion of the public moneys appropriated by the State for the pul?lic schools ; but such trustee may maintain a school in their respective districts for such length of time in excess of said 160 days as they may determine. Said Trustee Porter determined that a school should be maintained in said school district no. 10, town of Ancram, for the period of thirty-eight weeks for the school year, commencing August i, 1894, and that such school should commence on September 3, 1894, and made a con- tract with the appellant accordingly. Such decision of Trustee Porter and said contract are valid under the school law. and binding upon the respondent as trustee of said district and upon said district. The appellant was employed to teach in said district for the period of thirty-eight weeks, commencing on Sep- tember 3, 1894, and she is only required to perform her contract, and it is imma- terial whether or not she has plenty of time to teach in said district, during said school year, after October 15, 1894, for thirty-eight weeks. It is also immate- rial whether the district is willing she should teach or not, as the qualified voters of the district had nothing whatever to do with the employment of teachers. As to the verification of the school register of the district by the appellant section 53. article 6, title 7 of the Consolidated School Law enacts that teachers m the respective school districts are required to perform certain duties specified therem m making entries of daily attendance, etc., upon such register when the school shall be in session, and to verify such entries, and until such entries are made and verified, tmstecs shall not draw order for the payment of the teacher's wages. The provisions above cited are applicable when a school is JUDICIAL decisions: teachers' contracts 1153 being maintained in the district, and do not apply to a case where the trustee has refused to permit the school to be opened, and to allow the teacher to teach under her contract, and has been guilty of a breach of the contract. It is clear from the proofs that the respondent is guilty of a breach of the contract made between the appellant and Trustee Porter, which contract was binding upon the respondent as the trustee of said district and upon said dis- trict. No good, valid or legal reason for the refusal of the respondent to open the school in said district on September 3, 1894, and for the refusal to permit the appellant from commencing to teach on that day, or for his refusal to pay the respondent her wages under such contract from September 3 to October 15, 1894, after deducting the amount paid to her for the week she attended the institute, is given. The appeal herein is sustained. It is ordered. That the trustee of school district no. 10, town of Ancram, Columbia county, without any unnecessary delay, pay to the appellant herein, Ella A. Woodward, her wages as a teacher under the contract hereinbefore stated, from September 3, 1894, to October 15, 1894, to wit, for six weeks less one week, in which appellant attended the teachers institute, and for which she has been paid, being for five weeks at $9 per week, amounting in the aggregate to the sum of $45. It is further ordered. That if there is not a sufficient sum of money in the hands of the superA'isor and collector, or either of them, applicable to the payment of teachers' wages, or there are no moneys in the hands of said supervisor and collector, or either of them, applicable to the payment of teachers' wages, to pay said appellant said sum of $45, the trustee of said district is hereby ordered and directed forthwith to levy a tax upon the property within said district liable to taxation for school purposes in a sufficient sum to pay said appellant said sum of $45. 4244 In the matter of the appeal of Edna Cyener v. Jacob Meyer, trustee, school district no. 6, towns of Otto and East Otto, Cattaraugus county. Where a teacher and the trustee of a school district enter into an oral contract by which the teacher is employed to teach the school in a school district for the then school year, to be divided into three school terms, namely, fall term of ten weeks, winter term of fifteen weeks and the spring term, to be thereafter fixed, at a compensation of $7 per week for the fall and spring terms, and $8 per week for the winter term, said contract being for services to be performed within the year, was legal and binding upon the parties thereto and upon the school district ; that the dismissal of the teacher and refusal by the trustee to allow her to teach the school for the spring term, no sufficient cause being shown, was without authority of law; that the teacher is entitled to pay for the spring term at the rate of compensation agreed upon in said contract. Decided May i, 1894 C. Z. Lincoln, attorney for appellant D. E. Powell, attorney for respondent Z1 I 154 THE UNIVERSITY OF THE STATE OF NEW YORK Crocker, Supcrititcndcnt The appellant in the above-entitled matter appeals from the action and deci- sion of the respondent as trustee of school district no 6, towns of Otto and East Otto, Cattaraugus county, in dismissing her as a teacher in the school of said district in the course of a term of employment. The respondent has answered the appeal. It appears, from the papers presented, that on or about August 25, 1893, contract was made between the appellant and respondent that the appellant was to teach the school in said district no. 6 for the present school year; that the fall term was to continue for ten weeks and the winter term sixteen weeks, and the spring term was left to be fixed thereafter; that the appellant was to be paid $7 per week for the fall and spring terms and $8 per week for the winter term. This contract was not reduced to writing nor was there any memorandum thereof made, signed and delivered, as required by chapter 335 of the Laws of 1887. The respondent avers that it was agreed that the appellant should not teach said school any longer than she gave satisfaction. To sustain this allegation he pro- duces an affidavit of Eliza Meyer who avers that the appellant was not hired to teach said school for the term of one year absolutely, and there was no talk of her teaching said school for the term of one year, except upon the ground that she gave satisfaction. On the part of the appellant two affidavits are presented, one by Jennie Cyener and the other by John Cyener, in each of which is given, with some detail, the conversation that took place at the time the contract was made. Jennie Cyener, who is clerk of the district, swears that the respondent asked if Edna (the appellant) wanted the school, to which she (the deponent) replied that she did if they could agree upon wages; that the respondent asked what she (the appellant) wanted, and the deponent replied that she thought she could earn as much as other teachers there had been getting, and respondent asked what the others had been getting and deponent said $7 for fall and spring terms and $8 for winter term ; deponent then asked respondent how he wanted to hire her (the ai)pellant), whether as long as she gave satisfaction, or hozv, and respondent said he knew her (the appellant) reputation and he wanted to hire her for a year, and asked deponent how much school there must be in a year, and deponent replied that she understood that there must be at least thirty-two weeks and there might be more; respondent then asked if she (deponent) would see to making out the taxes and look after the business of the district, and deponent replied she would; that respondent then said to Edna (the appellant) " do you want the school," and appellant replied, " yes, sir," and he then said he would give her $7 for the fall and spring terms and $8 for the winter term and asked her if that suited her, to which she replied that it did, and respondent then said. " then it's a bargain." Respondent then talked about the time for com- mencing school and said he thought they had better have a long winter term and ten weeks in the fall, and as to the spring term, he said, •' we'll fix that all right." John Cyener swears in his affidavit that a conversation was had with JUDICIAL DECISIONS: TEACHERS' CONTRACTS Il55 respondent relative to hiring appellant, and states the terms of the bargain or contract as stated in the affidavit of Jennie Cyener. The respondent admits he had a conversation with Jennie Cyener about hiring the appellant, but does not state what that conversation was and does not deny the statements as to the conversation as stated by Jennie Cyener, except that he states that it was expressly agreed that appellant should not teach the school any longer than she gave satisfaction; that Eliza Meyer does not state the conversation had relative to hiring appellant, nor deny the said statements contained in said affidavit of Jennie Cyener, except she avers that there was no talk of hiring the appellant for a year except upon the ground that she gave satisfaction. The appellant states in her appeal, which is duly verified, that at the time of the conversation and agreement, in August 1893, there were no limitations or restrictions in said agreement, but was an absolute agreement for the school year. In her affidavit, verified March 24, 1894, in reply to the answer of respondent, she states that at the time of her employment, in August 1893, nothing was said about her teaching as long as she gave satisfaction, but that she was employed for the school year. It also appears that the appellant commenced teaching the school in said district in September 1893, and taught during the fall term of ten weeks; that she also taught the winter term of said school, consisting of sixteen weeks, which ended on March 9, 1894; that on or about January 17, 1894, the appellant directed a pupil in the school, one Rennie Meyer, a son of the respondent, in an exercise in language on the blackboard, to write out the parts of speech in a sentence written upon said blackboard, when said pupil replied he would not write them out and repeated such statement several times, whereupon the appellant went to the seat of such pupil and took up a book, and the pupil took hold of the hair of appellant and kept such hold some time, when he released it ; that appellant went to her desk and again asked the pupil if he would write out the lesson, and when he replied " no " the appellant then took her ruler and went to the pupil and struck him under the left arm, when he rose up and moved toward the appellant and the appellant struck at or struck the pupil, and the pupil then drew up his arm to strike the appellant, when another pupil took hold of his arm and prevented him from striking her and the affair ended ; the pupil's nose was bleed- ing, and after washing off the blood he took his books and left the school ; that just prior to closing the school for the day the respondent came to the school- house and inquired as to what had occurred, when the appellant and a pupil, one Walter, stated what had occurred as hereinbefore stated; that the said son of the respondent returned to the school on the next day and continued to attend the school until about February 19, 1894, when he left the school for that term. It does not affirmatively appear that the respondent, during the time the appellant taught the school, visited the school except twice — once when it was to inquire as to the punishment of his son and the other on the close of the spring term on March 9, 1894. It does affirmatively appear that the respondent, aside 1150 THE UNMVEKSITY OF TIIK STATE OF NEW YORK from the affair of his son, never at any time stated to the appellant that he \\as dissatisfied witli her conduct of the school or made any complaint in relation thereto ; that the respondent, in an interview about February 20, 1894, with one Bartlett, the only complaint he made in relation to appellant was that she had punished his son, and stated that the appellant could not have the school for the next term and that he had hired another teacher; that in an interview of the respondent with Jennie Cyener, the mother of appellant, he said to her that he did not like appellant to punish his boy, and that appellant could not have the school for the next term and he had hired another teacher. Tile respondent hired one Frank Smallman to teach the school for the spring term, which commenced on March 12, 1894. The respondent has filed sundry affidavits in support of the allegations in his answer that the appellant did not teach the school in a satisfactory manner. That of these affidavits, nine are by pupils attending the school whose ages are between that of 10 and 17 years and three are children of the respondent. This kind of evidence is not satisfactory nor can it have efifect in determining the condition of the school. The children of some of the affiants attended the school but a small portion of the fall and winter terms, and of seven persons who join in an affidavit, five of them have no children of school age. Not one of the affiants who were patrons of the school avers that he or she ever visited the school during the time appellant taught therein. The appellant denies specifically the allegations contained in the affidavits filed by the respondent. It appears in proof that the appellant holds a second grade certificate issued to her by Stanley N. Wheaton, school commissioner of the second commissioner district of Cattaraugus county, bearing date February 11, 1893, and has taught school one term in East Otto, and three consecutive terms in the town of Mansfield. By subdivision 9, of section 49, of title 7, of the Consolidated School Law it is provided, " nor shall any teacher be dismissed in the course of a term of employment, except for reasons which, if appealed to the Superintendent of Public Instruction, shall be held to be sufficient cause for such dismissal." The appellant was hired by the respondent in August 1893, for the school year, as admitted by respondent, although he qualifies the admission by stating that he hired appellant for the year, " if she gave satisfaction." The trustee of any school district has the power to dismiss a teacher hired by him for a specific term, before the expiration of said term, whether such hiring was upon the con- dition that he or she gave satisfaction or not; but he must take care that his reasons for such dismissal shall be held to be sufficient cause by the Superin- tendent of Public Instruction in the event the teacher shall appeal from the action of the trustee in such dismissal. In the event of an appeal the burthen is upon the trustee to show by preponderance of proof that he had sufficient cause for such dismissal. Admitting for the sake of argument, that the contract between the appellant and respondent was a hiring for the school year " if the appellant gave satisfaction," the respondent must do more than set up a plea that he was JUDICIAL decisions: teachers' contracts 1 1 57 " not satisfied." The courts of this State have held for years " that a simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere protest and can not be regarded." The respondent has failed to establish any good reason for his allegation, that he was " not satisfied. " I am of the opinion, upon the papers presented, that no sufficient cause for tlie dismissal of the appellant as such teacher has been established. I do find and decide : That on or about August 25, 1893, a contract was entered into between the appellant and the respondent, as trustee of school district no. 6, towns of Otto and East Otto, Cattaraugus county, for the hiring of the appellant as teacher in the school in said district for the present school year, to be divided into three school terms, namely: the fall term of ten weeks, the winter term of sixteen weeks, and the spring term, the length of which was to be thereafter fixed, at a compensation of $7 per week for the fall and spring terms, and $8 per week for the winter term; that said contract was an oral one; but being for services to be performed within the year, was valid and legal and binding upon the parties thereto and on said school district ; that the appellant taught said school for the fall and winter terms and had been paid therefor; that the appellant was dis- missed as such teacher by the respondent at the end of the winter term, on or about March 9, 1894, and the respondent refused to permit the appellant to teach said school for the spring term pursuant to the aforesaid contract, although the appellant was ready and willing to do so ; that no sufficient cause for the dis- missal of the appellant, as such teacher during the course of her employment, by the respondent, has been shown or established, and such dismissal was invalid and without authority of law ; that the appellant is entitled, under said contract, to be paid by, and to have and receive from said school district, pay for each week of school held and maintained in said district during the spring term for the present school year, commencing March 12, 1894, at the rate of $7 per week, she having been prevented from teaching said school for and during said spring term by the wrongful acts of the respondent as hereinbefore stated. The appeal herein is sustained. It is ordered, That the trustee of school district no. 6, towns of Otto and East Otto, Cattaraugus county, if the spring term of the school in said district for the present school year has been completed, forthwith pay to Edna Cyener, the appellant herein, under the aforesaid contract, the money due and owing to her by and from said school district, being the aggregate sum produced by multi- plying the number of weeks of school during said spring term by said weekly compensation of 7 per week; that if said spring term be not completed, then that said trustee pay her the amount due and owing by the district as aforesaid as soon as such spring term shall be completed. It is further ordered, That if there shall be no moneys belonging to said district applicable to the payment of teachers' wages, in the hands of the collector of said district, or the supervisor or supervisors of said town or towns, sufficient to pay the appellant herein, as herein ordered, or if there shall not be a suf^cient 11^8 THE UNIVERSITY OF THE STATE OF NEW YORK sum in the hands of said officers to make such payment, then in either event, the said trustee of said district sliall forthwith levy and assess upon said district a tax in such an amount as shall be sufficient to pay the appellant herein as afore- said, and cause said tax to be collected, and the proceeds thereof, when collected, to be applied as aforesaid. 4221 In the matter of the appeal of Jennie L. Patterson v. Georj^e N. PaflF, T. B. Bayles and Andrew Vandewater, trustees of school district no. 2, town of Hempstead, Queens county. Since May 16, 1887, all officers or boards of officers, who shall employ any teacher to teach in the public schools of the State shall, at the time of such employment, make and deliver to such teacher a memorandum in writing, signed by said officer, in which the details of the agreement between the parties shall be clearly and definitely set forth; that imder a contract to teach, such person can not be required, without his or her consent, to perform janitor work in the schcnj; that any teacher can not be dismissed in the course of a term of employment except for reasons which, if appealed to the Superintendent of Public Instruction, shall be held to be sufficient cause for such dismissal; that a refusal to perform janitor work by a teacher is not sufficient cause for dismissal; that a contract to teach in a school for a term not exceeding one year is valid although not in writing. Decided February 14, 1894 Crooker, Superintendent This is an appeal from the action and decision of the respondents, as trustees of school district no. 2, town of Hempstead, Queens county, in refusing to pay the appellant as a teacher in the school in said district for her services for the months of September and October 1893; for suspending her as such teacher, and for dismissing or discharging her as such teacher, on or about November 10, 1893. -'^n answer was interposed by the respondents, to which the appellant served and filed a reply. On or about December 5, 1893, upon request of re- spondents and others, I directed School Commissioner Merrill to visit the school district, take testimony and report to me. On February 9, 1894, I received his report, stating that the appeal herein was true. 'I he following facts are established in the proceedings herein: That the appellant was employed and performed services as a teacher in said school district for the school year ending in July 1893; that some time in the month of July 1893, the members of the board of trustees of said district, verbally agreed to and with the appellant, to retain her as a teacher in said district for the then ensuing school year at a salary of $400, payable in ten equal monthly instal- ments of $40; that on September 5, 1893, the school in said district was opened and the appellant duly entered upon her said employment as teacher therein ; that on September 8, 1893, the appellant was informed bv her associate teacher that the appellant would be required to perform one-half of the janitor work of said JUDICIAL DECISIONS: TEACHERS' CONTRACTS II 59 school, to which the appellant demurred; that on or about September 15, 1893, the respondents Paff and Bayles tendered to the appellant a memorandum of hiring signed by them and dated September 5, 1893, statin^ therein that they had engaged the appellant to teach in the school in said district for the term of ten months, commencing September 5, 1893, at a salarj' of $400, payable monthly, and to which memorandum was added " and she to do all the janitor work in the room in which she teaches " ; that the appellant declined to accept said memo- randum so tendered to her; that on September 27, 1893, the appellant received from the respondent, Paff, the following memorandum : " Uniondale, Sept. 27, 1893. This is to certify that I accept the contract drawn up by the trustees of school district no. 2, Uniondale, town of Hempstead, and consent to the terms and payment therein contained." That the appellant declined to sign said memorandum and sent to the respondent, Paff, the following: " I hereby agree to teach as assistant teacher in Uniondale school district no. 2 for one year at a salary of $400 per year. Jennie L. Patterson." To which the respondent Paff sent word to appellant, calling her attention to the fact that she had not referred to the janitor work; that on October 18, 1893, the appellant received by hands of the respondent, Paff', a letter from School Commissioner Merrill, con- taining the following : " The trustees propose that you suspend your services as teacher without prejudice to any of your rights or your compensation, until the matter can be decided by the State Superintendent, they, in the meantime, to supply a substitute without cost to you. This seems a fair proposition, for you can not be prejudiced in any way. They will give you a memorandum to this effect." That on October 20, 1893, the appellant addressed to the re- spondents a notice in writing, demanding her pay as teacher for the month of September, and that they deliver to her a memorandum of hiring, exclusive of janitor service; that on October 22, 1893, the respondents served upon the appellant a written order of her suspension as a teacher and appointed his daughter as a substitute; that a meeting of respondents was held on October 23, 1893, at which the appellant was present, when the following resolution was adopted, and a copy thereof given to appellant. "At a meeting of a board of trustees of school district no. 2, Uniondale, town of Hempstead. Present Geo. N. Paff, T. B. Bayles and Vandewater, it was voted upon and agreed between said trustees that we hire Jennie L. Patterson to be assistant teacher in said school district at a salary not to exceed the sum of (350) three hundred and fifty dollars, payable monthly, and the district to furnish a janitor at an expense not to exceed (50) fifty dollars"; that the appellant declined to accept a contract upon the terms of said resolution; that on November 9, 1893, the appellant presented to the respondents for their signature the following order : " Union- dale, L. I., Nov. 9, 1893. Mr Valentine Vandewater, School Tax Collector. Please pay to the order of Jennie L. Patterson, the salary for September and October 1893, amounting to eighty dollars, for services rendered as assistant teacher in Uniondale school district no. 2." That said order was thereafter signed by the respondents and delivered to said school district collector, who ll6o THE UNIVERSITY OF THE STATE OF NEW YORK handed to the appellant a sum of money and said original order, which sum of money she fonnd to be but $70 and that the word " eighty " had been erased in said order and the word " seventy " inserted, and the words " as assistant teacher" had also been erased; that the appellant at once returned said money; that on November 10, 1893. the appellant received the following notice from the respondents : " Uniondale, L. I. Miss Jennie L. Patterson. Your services as teacher and for other services rendered in school district no. 2, Uniondale, town of Hempstead, are no longer required. You are, therefore, at liberty to seek other employment. You are discharged. Mr Valentine Vandewater, the treas- urer of the district, will settle the amount due you for teaching in the months of September and October of the present year. T. B. Bayles, George N. PafT, A. Vandewater, trustees of district no. 2, Hempstead." That after the meeting of the respondents, held October 23, 1893, one Miss Abbott was employed as teacher in said school in place of the appellant. That the appellant, from the opening of the school on September 5, 1893, up to the time of her suspension, as aforesaid, faithfully performed services therein as a teacher under her con- tract of employment, and ever since such suspension has, at all times, been ready and willing to perform said work and services as such teacher, under said contract. That the appellant herein has never been paid any sum whatever for her services as teacher in said school, nor upon her contract to teach, as afore- said, by the respondents herein, nor by anyone for them or on their behalf. That at the annual meeting held in said school district in August, 1893, said 1^1 ff stated to the meeting that Miss Patterson (the appellant) had been engaged at a salary' of $400 as assistant teacher; that Miss Bates was to receive $500 as principal, and that $100 was appropriated for janitor service; that no statement was made by any of the respondents at said meeting, nor any intimation, that the appellant was to perform any janitor work. That the respondents did not, nor did either of them, ever say to the appellant anything about janitor work, or request her to perform janitor work, or state to her that they would require her to perform janitor work prior to September 8, 1893, nor was the subject of janitor work ever mentioned in any interview between the appellant and the respondents prior to said date. That the appellant never promised or consented to perform janitor work. Under the Consolidated School Act it is the duty of the trustees of school districts to provide for janitor work being performed by some person or per- sons in their respective districts, and any expenditure made or liability incurred therefor is a charge upon the district. Trustees may, under the law, make an arrangement with the teacher or teachers to perform said work, providing the teacher or teachers consent. There is no provision under the school law which requires any teacher under his or her contract to teach school in a school dis- trict to perform any janitor work whatever, nor is there any provision of the school law which gives trustees any power or authority to compel any teacher employed under a contract to teach, to perform janitor work, nor to suspend, JUDICIAL decisions: teachers' contracts ii6i dismiss or discharge a teacher, under a contract to teach, for refusing to per- form janitor work. By subdivision 9 of section 49 of title 7 of the ConsoHdated School Act, it is provided that any trustee or trustees shall not dismiss a teacher in the course of a term of employment except for reasons which, if appealed to the Superintendent of Public Instruction, shall be held to be sufficient cause for such dismissal. I find and decide that a contract was entered into between the respondents, as trustees of school district no. 2, town of Hempstead, Queens county, and the appellant herein, hiring and employing the appellant as assistant teacher in said school district, for the term of ten months, commencing on September 5, 1893, at a salary or compensation of $400, payable monthly, and that such contract is legal and valid, and binding upon the parties thereto. That under said con- tract the appellant could not be required, without her consent, to perform janitor work in said school, and that she never consented to perform said janitor work. That the reasons alleged by the respondents for dismissing and discharging the appellant as teacher in the course of a term of employment, are not held by me to be sufficient cause for such dismissal and discharge, and the action of the respondents in attempting to dismiss and discharge the appellant, without cause, was unlawful and invalid. That the appellant herein is entitled, under chapter 335 of the Laws of 1887, to have and receive from the respondents herein a memorandum in writing, signed by them, stating the employment by them of thtf appellant as assistant teacher in said school district for the term of ten months, commencing on September 5, 1893, at a salary or compensation of $400, payable monthly; and the appellant is entitled to have and receive from the respondents the sum of $40 each for the months of September, October, November, Decem- ber 1893, and January 1894, with interest upon said $40 monthly, from the date when each of said monthly payments of $40 became due; and also the payment of $40 monthly for the months of February, March, April, May and June 1894, as such monthly payments respectively become due. The appeal herein is sustained. It is ordered. That the trustees of school district no. 2, town of Hempstead, Queens county, forthwith deliver to Jennie L. Patterson, the appellant herein, a memorandum in writing, signed by them, stating the employment of Miss Patterson as assistant teacher in said school district for the term of ten months, commencing on September 5, 1893, at a salary of $400, payable monthly. It is further ordered. That the trustees of said district forthwith pay or cause to be paid to the said Jennie L. Patterson, under said contract of hiring, the sum of $40 for each of the months of September, October, November and De- cember 1893, and January 1894, with interest upon each of said $40 from the date when each of said monthly payments became due to the date of the pay- ment thereof. Il62 THE UNIVERSITY OF THE STATE OF NEW YORK It is further ordered, That the trustees of said district pay or cause to be paid to said Jennie L. Patterson, the sum of $40, under said contract, at the end of each of the months of February, March, April, May and June 1894. XoTE. — Under section 50, article 6, title 7 of the Consolidated School Law of 1804, it is mandatory upon trustees of school districts to provide for building fires and cleaning the schoolroom or rooms, and for janitor work generally in and about the schoolhouse or houses, and pay for such service such reasonable sum as may be agreed upon therefor. 4774 In the matter of the appeal of Charles E. Fairman, president of board of educa- tion of Lyndonville union school, from action of said board of education in re Miss Ella Morgan. Where a board of education of a union school district, in May 1899, adopted a resolution, offering to a teacher in the schools under its charge, the position then held by such teacher for the ensuing school year, and such action was communicated to such teacher who asked for, and obtained from the board, time to consider said offer, and sub- sequently accepted such offer in writing, which acceptance was read at a meeting of the board held on July 6, 1899; held, that a motion adopted at said meeting of the board, withdrawing such offer, was inoperative and void. IJccided August 4, 1899 Skinner, Superintendent This is an appeal from the action of the board of education of the Lyndon- ville union school, on July 6, 1899, in the adoption of a resolution that the board withdrew the offer made by it May 12, 1899, to Miss Ella Morgan, to employ her as a teacher in said school for the ensuing school year at the like compensation paid to her as a teacher in such school during the school year of 1898-99. From the papers filed in this appeal the following facts are established: The following persons constituted the members of the board of education of tlie Lyndonville union school during the school year of 1898-99, namely, C. E. Fairman, president, R. B. Wright, secretary, and Messrs Walter A. Tuttle, H. M. Hard and D. S. Eraser; that Miss Ella Morgan was a teacher in such school for the school year 1898-99 and had been such teacher for several previous school years; that at a meeting of such board, held on May 12, 1899, the fol- lowing motion was adopted, namely, " that R. B. Wright be appointed to wait upon Prof. Filer and Miss Ella Morgan and offer them their present positions for the ensuing school year, at the same wages"; that said Wright immediately notify Miss Morgan of said action of the board, and she requested time to con- sider such offer which was granted by said Wright; that on June 24, 1899, upon the request of President Fairman, said Wright asked Miss Morgan for her decision upon said proposition to employ her, and she inquired of Wright if all of the board were agreeable, and Wright told her the action of the board was unanimous, and thereupon Miss Morgan requested ten days further extension JUDICIAL decisions: teachers' contracts 1 163 of time before giving her decision which was granted by Wright. In a letter addressed to said Wright, dated June 28, 1899, Miss Morgan accepted the said offer of the board of education of the position as teacher in the school for the then ensuing year; that at a meeting of said board held July 6, 1899, the said letter of acceptance from Miss Morgan was read to the board; that at such meeting of July 6, 1899, a motion was adopted that the board withdraw the oft'er made to Miss Morgan ]\Iay 12, 1899. Upon the foregoing facts I decide that by the offer of the board of education, at its meeting May 12, 1899, to be, and which was, communicated to her by the secretary of the board, of the position of teacher in said school, then held by her, for the ensuing school year, at the like compensation paid to her. and her ac- ceptance of said offer in her letter, dated June 28, 1899, addressed to said Wright, a contract was entered into between said board of education and Miss Morgan by which said board employed Miss Morgan as a teacher in said Lyn- donville union school for the school year commencing August i, 1899, at the like compensation paid to her as a teacher during the school year of 1898-99, and Miss Morgan contracted to teach in said school for the school year 1899-1900 for the like compensation paid to her as a teacher therein for the school year of 1898-99; that said contract is binding upon said board of education and upon Miss Ella Morgan, and that the action of the said board of education on July 6, 1899, withdrawing said offer of May 12, 1899, after the acceptance, in writing, by Miss Morgan of such offer, on June 28, 1899, was inoperative and void. The appeal herein is sustained. 5000 In the matter of the appeal of Celia Roberts v. board of education of union free school district no. 9, Turin and West Turin, Lewis county. In a contract made between the board of education of a union free school district and a teacher, employing such teacher for thirteen consecutive weeks, in which it is stated that if at the end of the thirteen weeks both parties to the contract are satisfied, it shall become a contract for thirty-seven consecutive weeks, and at the end of the thirteen weeks neither of the parties having given notice of any dissatisfaction, and the teacher having taught an additional week ; held, that such contract became a valid con- tract for the term of thirty-seven consecutive weeks. Decided April 9, 1902 F. J. De La Fleur, attorney for appellant Capron & Bateman, attorneys for respondent Skinner, Superintendent This is an appeal from the action of the board of education of union free school district 9. Turin and West Turin, Lewis county, in dismissing the appel- 1164 THE UNIVERSITY OF THE STATE OF NEW YORK lant herein as a icachcr in the scliool in such district during a term of employ- ment, and, as she alleges, without sufticient cause. The appeal herein was filed January 18, 1902. On February 7, 1902, an answer was filed, and on February 19, 1902, the appellant filed a reply. Tile follow ing facts are established : On July 13, 1 901, S. Hart, clerk of school district 9, Turin and West Turin, wrote a letter to the appellant at Port Leyden, stating that the board of edu- cation of said district had decided to offer her the primary department of the school at $7 per week for thirteen weeks, and if both parties were satisfied for the year of thirty-seven weeks. On August 14, 1901, a contract was entered into and signed by the appellant and Messrs Crofoot, Hart, Capron, Allen, Doud, Kutan and Robert, members of the board of education of such district, and S. Hart as clerk, in which the appellant agreed to teach in the school in the district for the term of thirteen weeks, commencing September 16, 1901, at a weekly compensation of $7, payable at the end of each thirty days during the term of such employment, and if both parties are satisfied, for the year of thirty-seven weeks; and the members of said board agreed to employ the appellant for said period at said rate of compensation, payable at the times therein stated. In accordance with the temis of said contract the appellant on September 16, 1901, commenced teaching in the primary department in the school in such district, and continued to teach therein for the tliirteen weeks, and until the afternoon session of the school on Friday, December 20, 1901, an additional week, making in all a period of fourteen weeks. When the appellant went to her boarding place at noon on Friday, December 20, 1901, she found a letter which had been left for her, dated December 19, 190 1. signed by S. Hart, clerk of the board of education, stating in substance that owing to many complaints of lack of discipline and general dis.satisfaction, said board of education had decided that a change of teachers was desirable, and that her services would not be required " after this term." " Where a written contract is complete on its face, and clear and unam- biguous in its terms, oral evidence is not admissible to vary or contradict the writing." House v. Walch, 144 X. Y. 418. "A written instrument supersedes all oral negotiations or stipulations which preceded or accompanied its execution, except where the instrument has been procured through mistake, menace, duress, fraud or under influence." Altman v. Heckcr. 38 State Reporter 724. " Evidence which is in conflict with a written contract and which will nul- lify Its provisions, is not admissible." Gordon v. Neeman, 118 N. Y. 152 The respondents claim that at the time of hiring ihe appellant she was informed that if her services were not satisfactory at the end of the first term of school she would then be excused from further service, and in such arrange- ment she concurred: that such first term of school was a fourteen weeks' term. This contention on the part of the respondents is denied bv the appellant, and she alleges that nothing was said relating to the first term of school The JUDICIAL DECISIONS: TEACHERS' CONTRACTS I165 proofs herein fail to establish such contention on the part of the respondents, or that there was any mutual mistake in the execution of said contract of employ- ment between the parties thereto. It is in proof that during the thirteen weeks in which the appellant taught in such school no member of the board of educa- tion visited such school while in session, nor did the principal of the school, and hence the respondents had no personal knowledge as to whether the services of the appellant as such teacher were satisfactory to said board. It is claimed by the respondents that the services of the appellant were not satisfactory to some of the patrons of the school. The contract of August 19, 1901, was not that the services of the appellant during the thirteen weeks of employment should be satisfactory to the patrons of the school, but was that if both parties to the contract are satisfied, the contract was one for thirty-seven weeks of employment. 1 decide : i That said contract entered into between the appellant and respondents was not entered into through a mutual mistake of the parties thereto. 2 That such contract was one for the employment of the appellant as teacher in the school in district 9, Turin and West Turin, Lewis county, for thirteen consecutive weeks, commencing on September 16, 1901, at a compen- sation of $7 per week, payable at the end of each thirty days of employment; that if at the end of the thirteen weeks both parties to the contract were satisfied, it became a contract for the term of thirty-seven consecutive weeks from Sep- tember 16, 1901 ; that at the end of said thirteen weeks, namely, December 13, 1901, the appellant not having informed the respondents that she was dissatisfied, and the respondents not having notified the appellant that they were not satisfied with the services performed by the appellant under such contract, but permitted the appellant to teach for an additional week, such contract became a valid con- tract between the parties thereto for the term of thirty-seven consecutive weeks commencing on September 16, 1901. 3 That the dismissal by the respondents, on December 19, 1901, of the appellant as a teacher in such school was a breach of the contract entered into between the parties, and without authority of law. The appeal herein is sustained. It is ordered that the respondents herein, the board of education of school district 9, Turin and West Turin, Lewis county, without unnecessary delay, pay to Celia Roberts, the appellant herein, the sum of $7 per week for each v/eek commencing on December 22, 1901, to the time of payment, with interest on so much of such sum as under said contract became payable at the end of each thirty days. That after such payment the said board pay at the end of each thirty days to said appellant the sum of $7 for each week until such appellant shall have been paid the sum of $161, being the balance due and pay- able to her under said contract for the period of thirty-seven weeks at $7 per week. Il66 THE UNIVERSITY OF THE STATE OF NEW YORK 3838 In the matter of the appeal of Florence H. Thorn v. Edward B. Odell, trustee of school district no. 2, of the town of Yorktown, county of Westchester. A teacher brings an appeal to enforce the payment of wages for time which is a matter of dispute. The teacher neglected to verify and file her register. Held, that until the statute in this respect is complied with, the appeal will not be entertained. Decided December 9, 1889 Draper, Superintendent The appellant was employed as a teacher of the district school in school district no. 2, of the town of Yorktown, Westchester county, by the respondent for a term of seven months, to begin November 19, 188S. She was paid for five months and up to April 19, 1889, at the contract price, less six days' time which she had lost. The appellant taught until June 18, 1889, and claimed the right to make up the lost time at the close of the term, by an alleged agreern.ent with the trustee, which is denied. The pleadings contain much of no relevancy to the real issue. It appears that the trustee would not permit the appellant to make up the lost days at the end of the term, but was willing to pay the teacher for the closing two months of the term, and $5 for caring for the fires. The appellant, it seems to me, has been more contentious than discreet. She has not yet placed herself in a position to legally demand her pay; has not verified her register and filed the same so as to entitle her to her wages. The trustee on June 24th last gave the teacher an opportunity to get the register from the school desk, to which she had the key, and she neglected, and I think, in a captious manner, to do so. Until the register is properly made up, verified or sworn evidence given of Its correctness and appellant's inability to obtain the register, the appeal can not be entertained. I dismiss the appeal, but without prejudice to appellant's right to enforce her claim by an action against the district, or by an appeal, when she shall have complied with the statute and verified her school register. 3717 In the matter of the appeal of Aurelia M. Loveland v. school district no. 6, town of Windsor, Broome county. A teacher was to be paid at the rate of $5 per week if she provided her own board and *3-50 per week if the district provided her with board. The teacher agreed to board around a portion of the time, provided her mother, who was 111. should so far recover as to permit the teacher to remain away from home. me mother faded to improve and the district did not board the teacher Held That the teacher is entitled to compensation at the rate of $5 per week Decided October 15, 1888 juDici^^L decisions: teachers' contracts 1167 Draper, Superintendent It appears that the appellant was engaged by Isaac McMinn, trustee of the district above named, to teach school in said district for a term of fourteen weeks and that she has completed the service as she agreed. She states that the trustee agreed to pay her $5 per week for the service, provided she boarded herself, and $3.50 per week if she boarded around in the district. She states also that she agreed to board around a portion of the term, provided her mother, who was ill, should so far recover as to enable her to be away from home, but that she did not improve in health and she was unable to board away from home. She has been paid $61, leaving a balance due her of $9. At the time of the employment, the trustee filled out the memorandum of employment required by the statute and the same was left in the register and was returned to the trustee with the register at the close of the term of employment. Subsequently the teacher demanded this memorandum from the trustee, but he refused to give it to her. The trustee makes no answer, and I therefore assume the statements of the appellant are true in fact. The appeal must be sustained. The trustee of the district is hereby directed to draw his order upon the proper officer for the sum of $9 in favor of the appel- lant, provided that amount of money is in the hands either of the supervisor or collector to the credit of the district. If such is not the case, he will include the amount in the next tax levy, and when raised, pay it to the appellant. 3696 In the matter of the appeal of N. L. Miller v. the trustees of school district no. 39, town of Hector, Schuyler county. It was agreed between a board of trustees and a teacher that at some time during a term, a vacation should be ordered by the board, and that the time of vacation should not be a part of the term of employment. Held, That the teacher was not entitled to pay for the time of vacation. Decided June 19, 1888 Draper, Superintendent It seems that the appellant was engaged by the respondent to act as principal of the school in the above named district for a term of sixteen weeks, commencing on the 26th of September 1887, and ending on the 27th of January 1888, at $3 per day. In December the board entered into a further agreement with the teacher, by which he was to be retained for the balance of the school year, a further period of sixteen weeks. The resolution of reemployment by the board was as follows : " Resolved, That we retain Mr Miller as principal teacher for the balance of the school year, sixteen weeks, at the same wages." At the time of the reemployment there was some talk between the board and the teacher as to a vacation, but I am not able to satisfy my mind that there was Il68 THE UNIVERSITY OF THE STATE OF NEW YORK any definite agreement about the time of vacation. The action of the board seems clearly to imply that it was agreed that the teacher should teach during another term of sixteen weeks, and should receive $3 per day for his services, and that there should he a vacation at some time during the term of employment, which time should be fixed by the board, and that this vacation was not to be a part of the term of employment. As a matter of fact, the board subsequently resolved to close the school for the two weeks between the loth and the 26th of March 1888, and it was so closed. It transpires that, during the time of this vacation, the teachers institute for the county of Schuyler was held, and the teacher attended the same. The teacher now claims pay for the two weeks covered by the vacation. The board has paid him for the week of the institute, but he demands pay for the other week as well. The board refuses, and from such refusal this appeal is taken. I do not iliink the appeal can be sustained. From the statement of the terms of the agreement as above set forth, it necessarily follows that the teacher can not recover pay for the time for which he claims. All of the proofs submitted lead to the conclusion that the understanding between the parties was that there should be a spring term of sixteen weeks of school, and that the board was to declare a vacation of reasonable length at such time as it thought proper. The fact that the board has paid the teacher for the week during which he attended the teachers in.^titute is creditable to it, and indicates that the school was not closed at the particular time for the purpose of avoiding the payment of the teacher's wages during institute week. It seems to me that the board has done all which it was bound to do in the premises. The appeal is dismissed. 3917 In the matter of the appeal of Edwin R. Voorhies v. the board of trustees of school district no. 17, town of Friendship, county of Allegany. Teacher employed for a stated term at a stipulated price, who has held himself ready to perform on his part; held, entitled to the compensation provided for by the contract, although before completion of term, the building in which school was taught was destroyed. Decided October 30, 1890 Draper, Superintendent On or about September i, 1889, the appellant was employed by the trustees of school district no. 17. town of Friendship, county of Allegany, to teach the public .school in said district for the year, which was to consist of thirty-six weeks. Before completing the term, the school building was destroyed by fire, and in con- sequence thereof, school was discontinued. To complete the term for which the teacher was employed, would require nine weeks and two days. The appellant was paid in full at the contract price, $1.75 per day, up to the date of the destruction JUDICIAL decisions: teachers' contracts 1 169 of the schoolhouse. The appellant alleges that he held himself in readiness to fulfil the contract upon his part, and that the trustees have neglected to pay him at the stipulated price, for nine weeks and two days. No answer has been interposed by the board of trustees. Assuming the facts as alleged by the appellant to be true, which I am bound to do, I must sustain the appeal. The trustees of the district above named are hereby directed to forth- with provide for and pay the appellant the sum of $82.25, being the balance due upon said contract. 3840 In the matter of the appeal of Charles H. Ver Nooy v. John H. Slater, trustee of school district no. 8, town of Rochester, Ulster county. Teacher claimed pay for the time a school was closed by the trustee's direction, to prevent the spread of a contagious disease; held, that the teacher having resumed the school when directed by the trustee, and having held himself in readiness to teach while school was closed, is entitled to pay. Decided December 9, 1889 L. B. Haskins, attorney for appellant Draper, Superintendent This is an appeal by a person who was employed to teach the public school in district no. 8, of the town of Rochester, Ulster county, from the refusal of the trustee of said district to compensate him for seventeen days in February and March of the present year, when the school was closed by the proper direction of the trustee, to prevent the spread of a contagious disease then prevalent among the children of the district. The trustee has refused to pay, upon the ground that the teacher was hired by the day. There is some dispute in relation to the understanding at the time of hiring, but it is undisputed that the usual term of the school after the winter holidays continued until June, in fact, this very term was continued by the same teacher until June. Some days after school was closed in February as above stated, the trustee directed appellant to open the school, but a few children were allowed to attend, the teacher by direction of the trustee, again closed it and it remained closed seventeen days. During this time the teacher was in readiness to open the school when directed to do so, and I hold that he was then in the employ of the district and entitled to pay the same as if school had been taught. The trustee did not, in words or action, discharge the teacher; on the con- trary, he recognized him as in the employ of the district. The appeal is sustained. The trustee will give an order to the teacher for his wages including the seventeen days in difference. 1 170 THE UNIVLKSITV OF THE STATE OF NEW YORK 3803 In the matter of the appeal of Lydia Hunt v. Martin Vanderzee, trustee of dis- trict no. 14, town of New Baltimore, Greene county. A teacher who has not been paid as often as once each month during the term of employ- ment as required by statute is entitled to interest on the several monthly payments which have been withheld from the time when payable. A trustee has ample authority to levy a tax to meet the wages of teachers when due. It is no defense for a trustee, therefore, that he had no funds with which to pay the teacher monthly. A teacher is entitled to pay for the time a school is closed during the time of employment because of the prevalence of an epidemic in the district. Decided August i, 1889 Barlow & Greene, attorneys for appellant E. C. Hallcnbeck, attorney for respondent Draper, Superintendent The appellant has taught the school in the above-mentioned district during the past year under an agreement to teach thirty-five weeks at $7 per week. She has been paid $104.92. She claims a balance of $140.08 with interest from the time when the several payments became due. The trustee admits there is due her only $134.38. All the trouble is about the difference between these sums. The ground upon which the respondent insists that the teacher is not entitled to what she claims is that there existed in the district for several weeks during the term of employment an epidemic of measles, in consequence of which the school was closed ; that the teacher did not open the school upon the day when directed by him, and failed to do so for a period of four days thereafter. But it appears that this failure was due to a previous instruction of the trustee, and that the last direction was not delivered in person, and was not received until too late to enable her to comply with it. I am of the opinion that she fairly fulfilled the agreement on her part, and is entitled to the full amount agreed to be paid her. She also claims interest on the several monthly payments from the time they became due. The trustee resists this and says she relinquished her right to the monthly payment of her wages, and that he had no money with which to pay, and could not levy a tax because of insufficient data. The statute specifically provides that teachers' wages shall be due and payable as often as at the end of each calendar month of the term of employment. This IS mandatory upon a public ofticer. No agreement of hers could alter the terms of the statute or relieve the officer from the discharge of his statutory duty. If the trustee had no money, the law provided a way for him to get it. The appeal is sustained and the district is directed to settle with the appellant by paying her the sum of $140.08, with interest on the several monthly payments from the times when they became due, at the end of each calendar month' of the term of eiripjoyment. JUDICIAL decisions: teachers' contracts 1171 3679 In the matter of the appeal of Annie E. Robinson, Elizabeth A. Cowan and Margaret McAuliffe v. the board of education of union free school district no. I, town of Westchester. Teachers employed in the usual way, by a board of education, are entitled to their pay for time they are prevented from fulfilling their contract because of wrangling among the members of the board, and a consequent failure to open the schoolhouse for school purposes. Decided April 7, 1888 Baker & Risley, attorneys for respondent Draper, Superintendent This is an appeal brought by certain teachers in the district above named, from the refusal of the board of education to pay their salaries for the months of September, October, November and December 1887. Miss Robinson has been a teacher in the district for fifteen years. Miss McAuliffe for five years, and Miss Cowan for two years last past. At a meeting of the board of education, held on the 27th day of August 1887, the following resolution was adopted, namely: Resolved, That our present principal, M. E. Devlin, be reemployed as prin- cipal of imion free school district no. i for the ensuing year, commencing August 2T, 1887, and ending August 20, i888, at his present salary, $2100 per year; also the present teachers at their respective salaries. The appellants show that they held themselves in readiness to continue work at all times since reemployment, but that they were prevented from teaching until January 9, 1888, by reason of the fact that the school was not opened until that time, in consequence of disagreements in the board of education. Since January 9, 1888, w^hen the school was again opened, they have been teaching, as they claim, under no other employment than that of August 27, 1887. A portion of the board of education answer the appeal, and say that the applicants ought not to be paid for the time claimed, for the following reasons, namely: (a) That the resolution of employment, August 2-/, 1887, would not have been adopted but for the affirmative vote of Bernard Lavin, who had not attended a meeting of the board for eight months, and was corruptly procured to do so at that time for the purpose of voting for said resolution, (b) That the resolution was adopted just prior to the annual school meeting, at which five members of the board were to be chosen, (c) That no notice of the resolution was given by the clerk to the appellant, (d) That no application was made by the appellants to the board for reemployment, and that no notice of the acceptance of reemployment was given to the board, (e) That at the time of adopting said resolution, the board well knew that a new schoolhouse would not be in readiness for occupancy for several months, and that the old building had been disposed of. (/) That one of the appellants taught a private school during a portion of the •time for which pay is claimed from the board, (g) That the sum which would be required to pay the salaries of all the teachers during the time when the 1 172 THE UiNIVERSITY OF THE STATE OF NEW YORK school was not running would exceed $1800, and be paid for no corresponding service, (/i) That the salaries heretofore paid to the dififerent teachers are not relatively just, some being greater and some less than they ought to be. (i) That the board has not the money on hand with which to pay the claims. It seems to me that several of these objections have too little force to justify their separate or lengthy discussion. In general, it may be said that, neither the right of a member of the board, with a prima facie title to his seat, to appear and vote at a meeting of the board, nor the reasons which may have induced him to come at all or to vote in any particular way, can be denied, nor investigated, col- laterally, in this proceeding. The board had the legal power on the 27th of August 1887, to employ teachers for the ensuing year. It was not necessary that the appellants should make application for reemployment in order to enable the board to reemploy them. They had been employed again and again, year after year, and prior to the annual school meeting. They had never made application nor accepted employment in writing. It is not denied that they have held them- selves in readiness to go on with their usual work from the time of reemploy- ment, as in all preceding years. It did not belong to the appellants to provide a place in which to conduct the school. That was the business of the board, and if it failed to do so it was not their fault. It appears that for five weeks Miss Robinson, one of the appellants, taught a private school at her home, at the request of parents who were deprived of school facilities by reason of the failure of the board to open the public school. She was right in doing this. She was not bound to remain idle. The law placed upon her the obligation of earning whatever she reasonably could in the meantime. Proof upon this matter, taken before the school commissioner of the first commissioner district of Westchester county, shows that the receipts from such private school were $39.25, and the expenses, which appear to be reasonable, were $37.10, leaving a profit of $2.15. If no service was rendered to the board during the four months, by the appellants, it does not seem to have been through any fault of the teachers. The fact that salaries may be inequitable, is no reason why the appellants should not be paid what was agreed to be paid them. There is no pretense that the salaries of appellants are excessive. If the board has no money with which to pay teachers' wages, the law provides a way in which to get it. It also provides that the com- pensation of a teacher shall be due and payable as often as at the end of each calendar month of the term of employment. (Chapter 335 of the Laws of 1887). Other appeals which have been before the Department from this school dis- trict, as well as the papers in this case, have given abundant evidence of a most unseemly and disgraceful controversy between the members of the board of edu- cation, which has been so violent as almost to overthrow the local school system, and which unnecessarily prevented the opening of the district school for a period of four months after the usual time. I can see no good reason why these teachers, who have been in the employment of the board for a long time, and are now teaching in the school, and who were reemployed at the usual time and under the usual and ordinary circumstances, so far as they were concerned, by a board JUDICIAL decisions: teachers' contracts 1 173 possessing the lawful power to do so, should be compelled to suffer the loss of four months' pay, by reason of circumstances for which the board appears to be solely and only responsible. The right is clearly upon their side, and I have no doubt that the law is also. The appeal is sustained. The board of education is hereby directed forth- with to pay to each of the appellants her salary for the months of September, October, November and December 1887, at the rate which they were respectively receiving at the close of the last school year, after deducting from the account of Miss Robinson the sum of $2.15. 3623 In the matter of the appeal of James S. Carr v. Henry B. Taylor, Charles L. Knapp and Lucius L. Shedden, as trustees of school district no. 3 of the town of Mooers, Clinton county. Teachers will be entitled to pay for a week during which school was closed in consequence of a teachers institute having been designated for that week, but not held because of storms and floods which rendered it impossible. Also, to the week to which the institute was adjourned and held, school having been closed. A teacher can not charge for services in receiving nonresident tuition fees without an agreement with the trustees to that effect. Decided July 21, 1887 Draper, Superintendent The appellant has been principal of the high school in district no. 3 of the town of Mooers during the last year, under a written contract made with the board of trustees on the 2d day of June 1886. He was to teach for ten months, having twenty school days in each month, at the rate of fifty-five ($55) dollars per month. The parties fail to agree upon terms of settlement. One of the matters in difference seems to be a claim, on the part of the teacher, for two weeks' time, during which no school was held because of teachers institutes having been appointed to be held in the school commissioner district, one week of which is refused by the trustees. Another is a claim by the teacher for extra compensation for collecting the tuition of nonresident pupils, which is resisted by the trustees. I am of opinion that the board ought to pay the teacher for the two weeks during which institutes were appointed to be held in the commissioner district. It is true that during one such week there was no institute held in consequence of severe storms and floods which rendered it impossible, but this was not the fault of the teacher, and he ought not to suffer in consequence of it. An adjournment of the institute was taken to a time in the future, at which it was held, and it was probably impossible for the teachers to resume school during the week for which the institute was appointed, but, in fact, not held. The law contemplates that institutes may be held for a period of time not exceeding three weeks in any one year, and provides that during such time the schools 1174 THE UNIVERSITY OF THE STATE OF NEW YORK shall be closed and the teachers be allowed their wages if they attend the insti- tute. So it seems entirely clear to me that the board ought not to deduct from Ihe teacher's wages any amount for time lost when institutes were appointed to be held. The teacher claims that he should be allowed the sum of twenty dollars ($20) for collecting two hundred dollars and eighty-five cents ($200.85) during the last two years for the tuition of nonresident pupils. I think the board is justified in resisting this claim. The service was trivial, and may fairly have been considered as within the scope of the teacher's general employment. I notice that the $200.85 ^o^ nonresident tuition fees was collected during a period of two years' employment. If the teacher expected to exact extra com- pensation for attending to this small matter, it certainly should have been done at the end of a preceding year in which he occupied the same position and rendered the same service. He should not have entered upon his second year without bringing the matter to the attention of the board and securing an agreement upon it. The fact that he failed to do this is a strong reason for its disallowance now. I notice that the board refused to pay for one day's service upon which it is alleged the teacher was absent from school without supplying his place. Such absence is not denied, and the board is therefore probably justified in with- holding the day's compensation. It was agreed between the parties that the teacher should be allowed $15 extra for assistance in building fires. In view of the foregoing, it is directed that a settlement be efitected between the parties as follows: Ten months' services, at $55 per month $550 00 Assistance in building fires 15 00 $565 00 Deduct one day lost by teacher 2 75 $562 25 Amount shown to have been paid 422 50 Amount due the appellant $i3q 7 5 3892 In the matter of the appeal of Frank V. Hinman v. William Caywood, trustee of school district no. 2, town of Erin, county of Chemung. Arranging a period of vacation by a trustee so as to avoid the payment of wages to a teacher during the week of a teachers institute, and which the teacher duly attended IS contrary to the statute. Held, that the trustee shall allow the teacher the week and pay accordingly. Decided July 24, 1890 JUDICIAL decisions: teachers' contracts 1 175 Draper, Superintendent The appellant, a duly qualified teacher, alleges that he was employed by the respondent to fill out an unexpired term of ten weeks, as teacher in school district no. 2, of the town of Erin, Chemung county. The respondent alleges that the contract was for eight weeks and that a vacation of two weeks was to occur during such time. The only point at issue is whether the appellant is entitled to pay for the week the institute was held in the commissioner district of which this district forms a part, and the sessions of which institute the appellant attended. The undisputed facts are that appellant commenced to teach November II, 1889, and taught seven weeks, closing December 27th, when the trustee ordered a vacation of two weeks, and school was closed accordingly. The second week of the vacation the institute was held, commencing January 6th. Subsequently the appellant taught two weeks commencing Januar}^ 20th, having been prevented from resuming school one week earlier by illness. The claim of the respondent is that the institute having been held during the two weeks of vacation, the teacher is not entitled to pay for the same. Whether or not the vacation period was fixed by the trustee to avoid the law which gives to teachers pay for institute week when it occurs in their time, I can not determine, but I am impressed with the idea that it was. Any such subterfuge is contrary to the policy and spirit of the law. The holiday vacation is usual in many districts, and allowing the holiday week, the week of the institute commencing January 6, 1890, would be within the eight weeks the trustee claims the contract was for. Inasmuch as the district is allowed the same aggregate attendance for the week the school is closed during an institute, as was the average aggregate attendance of pupils during the remainder of the term, upon which pubhc money is apportioned to school districts, I am of the opinion that, upon the facts before me, the teacher should be allowed the week commencing January 6th, in which he attended the insti- tute, and receive pay therefor at the stipulated sum. The appeal is sustained, and the trustee is hereby directed to issue an order for the amount so due to the appellant. 3829 In the matter of the appeal of John B. Flett v. the board of education of union free school district no. 2, of the town of Springport, county of Cayuga. A teacher of a district school neglected to attend the session of a teachers institute, although the school was closed during the week, by the trustees' direction, because of a report which prevailed that a contagious disease was prevalent in the vicinity where the institute was held. Held, that the teacher was not entitled to recover pay for the week of the institute. Decided November 16, 1889 1 1-6 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent During the school year 1887-88, the appellant was a teacher in the above- named district. In the month of November, that year, a teachers institute was held at the village of Moravia, which it was the duty of the appellant to attend. His school was closed to permit him to do so. He did not attend because of reports of the prevalence of diphtheria at Moravia. The board of education refused to pay his wages, and he brings this appeal to compel payment. The records of this Department throw some light upon the cause which the appellant assigns for his nonattendance at the Moravia institute, for the attention of the Superintendent was called to the matter at that time. He caused an investigation to be made, and learned that there was no substantial reason why the institute should not be held there, as arranged, and directed the commissioner to advise teachers accordingly. The commissioner advised the appellant to this effect. The greatest care was exercised in the matter, and the appellant was not only generally advised in the same way that all teachers were, but he was specifically advised by letter from the school commissioner upon the authority of the health authorities of the town that there was no danger involved in his attending the institute. If, after this, he remained away, it should be at the loss of pay for the week, imless there were some other con- siderations to control his action. He says that he was advised by two of the three members of the board of education not to attend the institute. Two of the members of the board for that year deny this. But whatever there is of that is not very material. The board closed the school during institute week to enable the teachers to attend the institute. This is the important fact in the case as indicating the purpose of the board. The street talk of individual members would count but little as against the formal action of the board. The law provides that teachers shall be paid for time spent at an institute, as it does for time spent in teaching. If prevented from teaching during any portion of the term of employment by the action of the trustees, and for reasons with which the teacher is not chargeable, he is to be paid the same as though he had taught. It is quite possible that, although the school was closed during the institute week, a teacher might be entitled to pay who did not attend the institute, if his absence was due to the official action of the trustees, or was for a cause which met the approval of the trustees. But this case does not come within that rule. The board has closed the school to permit attendance at the institute. The board afterward did nothing to prevent the appellant attending the institute. In remaining away he assumed the responsibility. The board does not now think he had sufficient justification for his absence. In this I must agree with them, and I do not therefore think they should be com- pelled to pay the appellant his wages for the week. It follows that the appeal must be dismissed. JUDICIAL decisions: teachers contr.\cts 1177 3524 In the matter of the appeal of Sarah M. Peckhani v. the board of education of school district no. 5, of the town of Oyster Bay, Queens county. A rule of a board of education which provided that all contracts made with teachers should be subject to termination by either party on one week's written notice to the other party, held, not to apply to a teacher's contract, unless it is clearly shown that the teacher had notice of the rule at the time the contract to teach was entered into. Decided April 18, 1887 Benjamin W. Downing, attorney for appellant J. B. C. Tappan, attorney for respondent Draper, Superintendent This is an appeal from the action of the respondent in dismissing the appellant from her position as a teacher in the public school in the district and in refusing to pay her wages claimed to be due under a contract or agreement entered into between the parties. The appellant showed in her papers on appeal that she had been employed as a teacher in the district for about seven years, when in June 1885, she was reengaged for the ensuing school year, to commence on the 31st day of August 1885, with pay at the rate of $15 per week; that she accepted such reengagement and entered upon her duties pursuant thereto; that on the 22d day of March 1886, she received notice in writing from the board reducing her pay to $12 per week from the ist day of April following; that she replied that she should decline to accept pay at the reduced rate; that she was subsequently dismissed by the board and forcibly prevented from teaching the remainder of the year; that she at all times held herself in readiness to fulfil the agreement, but that the board had refused to pay her her wages from the 26th day of April 1886. to the close of the year. No answer having been interposed by the respondent, the facts set forth by her were assumed to be true and a decision rendered in her favor on the i6th day of November 1886. Subsequently, upon the application of the respondent, the case was reopened and the respondent allowed to interpose an answer. The respondent, now answering the appeal, admits that the appellant was a teacher in the school for several years, and was reengaged in June 1885, but alleges that such engagement was " subject to the rules of the board," and that, in 1879, ^ rule had been adopted providing that all contracts made with teachers should be subject to termination by either party on one week's written notice to the other party. The respondent states, on information and belief, that said rule " was fully made known to the teachers, including the appellant, at about the time of the enacting thereof, and also upon the occasion of the subsequent engagements of some of the same teachers, including the appellant." It is 1 178 THt; UNIVERSITY OF THE STATE OF NEW YORK insisted that this rule was well known to the teachers, and the affidavits of several of them, which are submitted, certainly show that it was known to them. No copy of the rule is submitted by the board. It is not shown to have ever been printed. The appellant denies that she ever was made aware of the enactment of such a rule, and even challenges the board to produce the record of its enactment, and they do not produce it. In any event, the board ought not to expect to bind teachers by a rule, said to have been adopted in 1879, in so important a matter as a contract of employment, without bringing such rule clearly and distinctly and undeniably to the attention of the teacher with whom it is contracting. Its proof comes short of showing that it did this, and, in the face of her sworn and unimpeached statements to the contrary I can not find that the contract was subject to such a limitation. Moreover, it appears clearly, from the statements of all the parties, that the alleged rule was invoked in the appellant's case only to compel her to accept less pay than the board had, at the beginning of the school year, agreed to pay her. No allegation was made against the character or the qualifications of the teacher. Indeed, the board, in writing, proposed to allow her to continue, provided she would accept the reduced pay. I am convinced from the corre- spondence between the parties, as set forth in the pleadings, that the understand- ing on both sides was that the engagement was for the school year, and that the board removed the teacher only because she insisted upon the board carrying out its original agreement. It seems to me that the equities are strongly with the appellant in the controversy, and I am confident that the law is also. It is too late to reinstate the teacher in her position, but the board should pay her to the end of the school year. It is ordered that the respondent pay the appellant for nine weeks at the rate of $15 per week, amounting to the sum of $135, together with interest thereon, at 6 per cent per annum, from the ist day of July 1886. 4521 In the matter of the appeal of Charles W. Townsend v. Peter J. Turck and Martin Lasher, trustees, school district no. 9, town of Saugerties, Ulster county. In contracts made between trustees and teachers, the compensation agreed upon may be a fixed sum per diem, per week, per month or per calendar month ; and such compensa- tion may be payable at the time or times agreed upon by the parties. When in such contracts the compensation is to be paid monthly, it means at the end of each school month, consisting of four school weeks of five school days in each week; when the compensation is to be paid at the end of each calendar month it means at the end of each thirty days of employment; when no time of payment is stated in the contract such compensation must be paid as often as at the end of each calendar month Decided December 4, 1896 Brmnier & Newcomb, attorney for respondents JUDICIAL decisions: teachers' contracts 1 179 Skinner, Superintendent On or about June 26, 1896, the respondents in the above-entitled appeal, as trustees of school district no. 9, town of Saugerties, Ulster county, contracted with the appellant herein to teach the school in such district for the term of one year, commencing September ist, at a monthly compensation of $55, payable monthly. The respondents refuse to pay the appellant such monthly compensa- tion for each school month of four weeks of five days each, of service by him, and refuse to pay such monthly compensation except at the end of each calendar month. From such refusal of the respondents the appellant takes an appeal to me. The respondents have answered the appeal in which they admit the employ- ment of the appellant for the term of time, and at the rate of compensation monthly, and that the compensation is payable monthly, as hereinbefore stated; but allege that under the provisions of subdivision 10 of section 47, article 6, title 7, of the Consolidated School Law of 1894, as amended by section 8 of chapter 264 of the Laws of 1896, the monthly compensation of $55 means a calendar month, and that such compensation is payable at the end of each calendar month. The contention of the respondents is not well taken. Subdivision 10 of section 47, article 6, title 7 of the Consolidated School Law of 1894, as amended by section 8 of chapter 264 of the Laws of 1896, enacts that all trustees of school districts who shall employ teachers in any of said districts shall, at the time of such employment, make and deliver to such teacher, or cause to be made and delivered, a contract in writing, in which the details of the agree- ment between the parties, and particularly the length of the term of employment, the amount of compensation and the time or times when such compensation shall be due and payable, shall be clearly and definitely set forth. Such subdivision went into effect on April 15, 1896, and this Department prepared a form of con- tract which will be found in the school register for the school year of 1896-97. Under section 6, title 2 of the Consolidated School Law, to entitle any school district to a district quota or quotas of the public money, a school must be maintained in such district in each school year for at least one hundred and sixty days of school, inclusive of legal holidays that may occur during the term of said school, and exclusive of Saturdays, and no Saturday shall be counted as part of said one hundred and sixty days of school. A school week consists of five school days, as no school can be legally held on Saturday and Sunday. A school month consists of four school weeks of five school days in each week. The appellant and respondents had the power to contract that the compen- sation of the appellant should be the sum of $55 for each calendar month of school, but they did not do so, but did contract that the appellant should be paid a monthly compensation of $55, that is. the sum of $55 for services rendered for each school month. This Department has uniformly held that when in a contract of employment of a teacher no time of payment of compensation is stated therein, that such Il8o THE UNIVKRSITY OF THE STATE OF NEW YORK teacher is cMititlcd to be paid at least as often as at the end of each calendar month of the term of employment ; that when in said contract it is agreed that the pay- ment shall be made monthly, such payment shall be made at the end of each school month of service. I decide, that under the contract of employment made between the appellant and respondents herein, on June 26, 1896, the appellant herein is entitled to be paid by the respondent, for each school month of four school weeks of five school days, of services rendered by him as a teacher the sum of $55 ; that the said sum of $55 should -be paid to the appellant by the respondents, at the end of each school month of service rendered. The appeal herein is sustained. It is ordered, That Peter J. Turck and Martin Lasher, trustees of school dis- trict no. 9, town of Saugerties, Ulster county, be, and they are hereby, ordered and directed to pay to Charles W. Townsend, a teacher employed by them, the sum of $55 for each and every school month of service rendered by him ; and that said sum of $55 be paid to him at the end of each school month of services per- formed by him during his term of employment as such teacher. 3965 In the matter of the appeal of Nelson P. Lasher v. the trustees of school district no. 7, town of Red Hook, county of Dutchess, A teacher's contract reads " employment for one year at a weekly compensation of fifteen dollars, payable monthly." It is claimed by the teacher that the year was to consist of forty- four weeks, if he could teach that time outside of usual vacations. The teacher taught forty-four weeks, the last four of which in spite of the protest of the board of trustees. The board insists that the year was to consist of forty weeks at fifteen dollars, and that the teacher was so informed, and that his salary would be $600. Held, as the proof greatly preponderates in favor of the trustees' position, that the school year intended was one of but forty weeks. Decided March 14, i8gi Draper, Superintendent The only question presented by this appeal is as to the effect of the contract of employment, by which the appellant was employed to teach the school in said district. The contract reads that the employment of the appellant was for one year, at a weekly compensation of $15, payable monthly. The appellant does not claim that by this contract, he was either to teach forty-two weeks, or be paid for that time. He does claim, however, that he was to teach forty-four weeks, if they could be made within the year outside of the usual vacations. The trustees, on the other hand, insist, and with much unanimity swear, that It was expressly stated to the appellant that he was to teach but forty weeks, and that his compensation, therefore, at the rate mentioned, would be the sum of $600. JUDICIAL DECISIONS: TEACHERS' CONTRACTS II81 The school year consists of thirty-two weeks, but districts are not limited to this time, and may employ teachers and continue school for a longer period. There seems to be no dispute but that the appellant taught forty-four weeks, but the last four weeks he taught against the express directions of the board of trustees, who notified him to close the school at the end of forty weeks. The teacher should have obeyed the directions of the trustees and closed the school at the end of forty weeks. He would have forfeited no right by doing so, to his claim for compensation for forty weeks, nor has he strengthened his position by arbitrarily continuing the school contrary to the action of the board of trustees. The evidence on the issue preponderates in favor of the respondents, and I feel constrained to hold that the contract was for the forty weeks, and that the appellant is entitled to pay for that time only. It appears that the district is indebted to the appellant in the sum of $2.25, a balance remaining due for teaching forty weeks of school. This the respondents admit, and express their willingness to pay, and they are hereby directed to do so. The appeal is overruled. 3961 In the matter of the appeal of Romane Saltsman v. Washington Fox, trustee of school district no. 8, town of St Johnsville, county of Montgomery. A school trustee holding over beyond his term because of the adjournment of the annual meeting, entered into a contract with a teacher to teach a term of twenty-five weeks, to commence more than one month after the date of the adjourned annual meeting. The adjournment of the meeting was at the suggestion of the teacher so employed, and for the convenience of the trustee holding over. The contract was entered into as alleged by the teacher, five days after the date of the annual meeting, at which an adjournment had been taken. At the adjourned annual meeting, a successor to the trustee holding over was chosen, where- upon the retiring trustee advised his successor of the contract he had entered into with the teacher. Upon appeal, the validity of this act is brought in question. Held, to be in violation of subdivision 9, of section 49, of title 7, of the Consolidated School Act (set forth in the opinion), and void as to the district. Held, also, that the proofs and evidence in the case show that the teacher was conversant with school law, and forces the impression that there was collusion between the teacher and former trustee in entering into the contract. Decided February 9, 1891 G. E. Phillips, attorney for appellant Draper, Superintendent Appellant, a duly licensed teacher, appeals from the action of Washington Fox, sole trustee of school district no. 8, town of St Johnsville, county of Mont- gomery, in refusing to issue to him a trustee's order for one month's salary as a teacher, under a contract entered into August 11, 1890, between appellant and one Il82 THE UNIVERSITY OF THE STATE OF NEW YORK Isaiah Failing who was the respondent's predecessor in the office of trustee. The contract provided that appellant should, on September 15, 1890, begin teaching a term of twenty-five weeks. The facts disclosed by the evidence, and which appear to be conceded, are that Isaiah Failing was the trustee of the district for the year ending August 6, 1890; that at the annual meeting held on the evening of August 6. 1.S90, an adjournment was had until the 9th instant, without electing a trustee, and that on the 9th instant, a further adjournment was had until the 13th instant. At the last mentioned date the respondent was chosen trustee. It is alleged by the respondent that the adjournments were taken in order to enable the outgoing trustee to present reports to the inhabitants, the second adjournment being suggested by appellant who stated that the trustee was ill. Immediately after the election of respondent, and on the 13th day of August, he was notified by the outgoing trustee that appellant had been employed as a teacher for twenty-five weeks. The only question, therefore, upon the appeal is as to the eflfect of the contract of August 11, 1890, between the trustee holding over and the appellant. Subdivision 9 of section 49 of title 7 of the Consolidated School Act, provides that a sole trustee shall not make a contract for the employment of a teacher beyond the close of the school term commencing next preceding the expiration of his term of office and continuing not longer than sixteen weeks, except with the approval of a majority of the voters of the district. Any person employed in disregard of the foregoing provisions shall have no claim for wages against the district. It is not claimed that any approval of a district meeting was asked for or given to this contract, and its legality, so far as the district's liability is concerned, must depend upon the power of the trustee in the premises. Failing's term, for which he was selected, expired with the annual meeting, but he was holding over lawfully because his successor had not been chosen. Had a term then com- menced during this period I should not question the right of the officer holding over, and it would have been his duty to employ a teacher for the term, but not for more than sixteen weeks. But this was not the case. On August nth, five days after the date of the annual meeting and two days after the first adjourned meeting, this contract is alleged by appellant to have been made for a term to commence September 15th (more than one month after the adjourned meeting at which the respondent was elected trustee) to continue not sixteen weeks but twenty-five weeks. This was clearly in violation of the provisions of the statute above referred to. I can not, therefore, sustain this appeal and uphold the contract The trustee had no authority to enter into it, and it was an attempt to take an undue and unfair advantage of the district and of the person to be chosen trustee. Contracts to extend beyond the term of a trustee are onlv permitted when the term has been entered into before such expiration, and to^avoid embarrass- ment which a change of teachers during a term might occasion. The appellant was fairly cognizant of the proceedings in the district and of the several rdjourn- ments of the annual meeting. His examination before the school commissioner JUDICIAL decisions: teachers' contracts 1 183 the result of which appears with appellant's proofs, shows he was conversant with school law, and the impression is carried to my mind that the appellant and the former trustee colluded to secure an unfair advantage. The appeal is overruled. 3603 In the matter of the appeal of Charles W. Hurlbut and lona Haskins v. Marvin Phillips, sole trustee of district no. 16, town of Harmony, Chautauqua county. A contract between a trustee and a teacher for " one day only," and to " terminate every night " is without the sanction of law or good usage, and is against sound policy. It is in conflict with the spirit of the school laws, and will not be upheld by the Department. Decided July 21, 1887 F. A. Brightman, attorney for appellants A. C. Picard, attorney for respondents Draper, Superintendent On or about the 31st day of August 1886, the respondent, above-named, employed the two appellants to teach in the school in his district, and agreed to pay them at the rate of four ($4) dollars per week. The appellants taught one term of nine weeks, when they were notified by the principal of the school, under the direction of the trustee, that there would be a vacation for one week. School was accordingly closed for a week. At the end of that time they returned, and had been teaching an hour or more, when they were discharged from employment by the trustee, in person, who appeared in the schoolroom and notified them that they must discontinue teaching. Each of the appellants insisted that the term of employment was for a year, and asserted a purpose to go on and fulfil the agreement, unless prevented from doing so, but the trustee refused to permit them to continue. The main issue is as to the terms of the contract of employment. The appel- lants each swear that the employment was for " the term of one year, or so long as said Phillips was trustee of said district." The respondent swears " that he informed said teachers, when he employed them, that he hired them for one day only, and that their time would close every night, but that if they gave satisfaction, he would keep them as long as he remained trustee." Several affidavits by dififerent persons are oflfered by the appellants and the respondent, in corroboration of their statements, which are no less contradictory than the affidavits of the parties themselves. So conflicting is the evidence that it is difficult to conclude with any degree of confidence what the real terms of the agreement were. The burden of proof is, however, on the appellants. Before I can overrule the trustee and hold the agreement to be what the appellants say it was, they miist prove it by a clear preponderance of evidence. This they fail to do to my satisfaction. 1 184 TIIK UNIVERSITY OF THE STATE OF NEW YORK But if I assume that the agreement was as the trustee alleges, which I am obliged to do because it is not clearly proved otherwise, I find myself unable to uphold such a contract, because I think it was an unconscionable contract, without sanction of law or good usage and against sound policy. I am of the opinion that a contract of employment between a trustee and teacher '* tor one day only and to close every night " is void as being in conflict with the spirit of the school laws and against sound public policy. Teachers are compelled to have a license issued pursuant to law before they can contract to teach. This license carries with it an assurance of qualifications and fitness. The law pro- vides for revoking any license where suflicient cause is shown for such a step. The revocation of a license works a dissolution of any contract which may have been based upon it. This is the ordinary course of procedure for getting rid of an unworthy or unfit teacher in the middle of a term of employment. Trus- tees may, undoubtedly, at times summarily dismiss a teacher for a palpable breach of contract or gross and open immorality, but such action must be taken, if at all, upon the personal responsibility of the officer. But these are exceptional cases, outside of the general rule. There can be no pretense that the case under consideration is one of that nature. Moreover, trustees ought not to be permitted to absolve themselves from the responsibility of making investigations and of exercising proper precautionary care and good judgment when employing teachers by reserving the right to discharge them at any moment. A duly licensed and employed teacher ought to have security of position for a reasonable length of time, which should be long enough to prove himself suc- cessful or to demonstrate his inability to do so. It is humiliating to self-respect- ing teachers to be at all times liable to discharge from employment because others may want their places, or because of the antagonisms which a vigorous and wholesome performance of their duties in the schoolroom may engender. To adopt this doctrine is only to drive the most self-respecting and the best qualified persons from teachers' work. This is unquestionably against wise policy. Furthermore, if the trustee could discontinue these teachers at any time, they could abandon their places at any time. But the school must continue without interruption. Teachers must be under a legal and honorable obligation to so continue it. An agreement between trustee and teacher which does not involve this is manifestly against the interests of the public school system. What is a reasonable length of time for which a trustee and teacher may properly enter into a contract of employment, depends upon the circumstances and custom in each district, and must be determined upon the fact of each case as it arises. It appears in the papers in this case that the appellants had taught one term of nine weeks, and that they had commenced teaching another term when dismissed. I am, therefore, led to hold that their employment must have been for terms of at least that length of time, and that having taught one such term and entered upon another, they were entitled to employment for at least another term of the same length if they were ready and able to fairly discharge the duties of the places in which thev were emploved JUDICIAL decisions: teachers' contracts 1185 It only remains to consider whether the trustee was justified in discharging them in the middle of a term of employment. As already suggested, there may be exceptional cases in which a trustee would be justified in summarily dismiss- ing a teacher for gross immorality, or for utter failure to fill the position properly, resulting in a palpable breach of contract. In such a case he would act upon his own responsibility, relying upon the clearness of the case and the exigency of the occasion for his justification. Was this such a case? I think not. The trustee alleges as the reason for discharging the appellants that their work was not satisfactory. He says they failed in discipline and did not produce desirable results. This is strenuously contradicted by a large number of reputable patrons of the school. In any event, the trustee could hardly expect the highest professional talent for $4 per week. The trustee also alleges certain improprie- ties between the appellants, such as being out together late at night and kissing each other in the presence of pupils in the school. Such allegations as these should not be set up unless capable of unquestioned proof. Character ought not to be attacked by anyone, much less a public officer, wantonly or carelessly. There is no proof whatever to sustain these allegations, so far as I can see. Mak- ing such allegations, without following them with competent proof, ought to weigh against the party responsible for it. I am unable to sustain the respond- ent in dismissing the appellants in the summary manner he did. It is shown that they stood ready to continue their service, and I am of the opinion that they have a legal claim against the district for nine weeks' pay, at the rate of $4 per week. The appeal is, therefore, sustained, and it is ordered that the respondent forthwith draw his order upon the supervisor of his town in favor of, and deliver the same to each of the appellants, for the sum of $36, if there should be such sum in the hands of the supervisor to the credit of the district. If there is not, then it is ordered that the respondent forthwith levy a tax upon the dis- trict for such amount, and that he make and deliver to each of the appellants orders upon the collector for the sums due them. 3735 In the matter of the appeal of Gertie L. Devoe v. the board of trustees of district no. 7, town of Rochester, county of Ulster. The school law does not contemplate the employment of a teacher " for such time as she suited." The employment must be for at least a reasonable length of time. In the absence of statutory regulations, a reasonable length of time would depend upon the custom in each district. It should be for a term of school at least. Nine weeks held to be as short a term as a teacher should be employed for in a common school district. Lincoln B. Haskin, attorney for the appcllarit 38 ii86 Tin-: university of the state of new york Draper, Superintendent The appellant alleges that, being a duly certified and qualified teacher, she was, on the 30th day of August 1888, employed by the respondents to teach the school in their district at the rate of seventy-five cents per day, boarding her- self, as long as she suited the trustees; that she commenced teaching on Monday the 17th of September 1888; that after she had been teaching about ten days, Henry De Witt, one of the trustees, called at the schoolhouse and informed her that her service would terminate the next night. She says that the reason the trustee assigned for discharging her was that she was too strict in her discipline, although no one of the trustees had visited the school during her service, and that during such time she in no case inflicted corporal punishment. She alleges that the real reason of the action of the trustee was because she had inflicted a slight punishment upon his daughter; that no complaints were made to her in reference to her course in the school, but on the contrary the same was generally com- mended by the resident? of the district; that the action of De Witt was his own action alone and had not been determined upon at any meeting of the board of trustees of the district; that she denied the right of De Witt to discharge her and claimed possession of the school on Monday morning, October i, 1888, and that she has held herself in readiness to fulfil the agreement on her part, but that she has been prevented from so doing by the action of said trustee. She therefore brings this appeal against the action of the trustees and demands that she be reinstated in the school. The trustees in answering the appeal say that they employed the appellant as she states, so long as she suited the trustees, and that they discharged her for incompetency and specify that she could not do certain examples in arithmetic. They allege that the school dwindled from twenty-two scholars to four scholars during the two weeks in which she was teaching. They say also that she was di.'-charged by the consent of a majority of said trustees. Tlicre is no doubt in my mind but that the appellant was discharged without any good and sufficient reason. The trustees set forth two reasons for their action. One is that she could not perform certain problems in arithmetic, the other that the attendance in the school had fallen ofT during the two weeks in which she had charge of it. The proofs indicate that the first reason assigned is frivolous and the last untrue. She held a certificate from the proper officer to her qualifications as a teacher. There is no proof whatever submitted by the respondents to show that she was not qualified. The trustee who undertook to discharge her, in an answer which it is almost impossible to decipher because of Its illiteracy, sets up this lame reason, but he advances nothing whatever in proof of his assertion. The school register shows that the attendance upon the school continued at about the same number up to the time when the trustee notified her of her dismissal and removed his own child from the school and exerted his influence to disparage it while she should remain. Equally clear is it that the appellant was not discharged bv any lawful action of the bo.ird of trustees. One of them. Henry De Witt, assumed to do all of JUDICIAL decisions: teachers' CONTIt.\CTS IlSj the business. Another presents affidavit, in which he swears that he has given his associates authority to hire and discharge teachers. He can do nothing of the kind, and his attempt to do so is sufficient ground for his removal from office. The third presents an affidavit in which he swears that he acquiesced in the dis- charge of the appellant. There is no pretense that the course of'De Witt in preventing the teacher from continuing in the school was the result of action taken at a meeting of the board. It was, therefore, without authority and unlawful. It is clear, however, that a majority of the board would have proceeded to take the action appealed from, if they had understood the necessity for doing so, and there is no occasion for resting the decision of the case upon a techni- cality alone. The agreement between the teacher and the board was not of such a character as this Department can sanction. In employing the teacher for such time as she suited, the trustees intended to reserve the right to do just what has been done — discharge her at any moment without cause. The school law does not contemplate any such procedure on the part of the trustees. All of the provisions of the statutes clearly indicate that it is the duty of trustees to exercise proper caution in employing teachers and to employ them for a reasonable length of time. The law does not permit trustees to assume dictatorial powers. It will not allow them to exact agreements of teachers into which a self-respecting person can not enter; nor will it allow them to turn a teacher out of a school- house in the midst of employment only because of pique or spite, or in order to put someone else in. The employment must be at least for a reasonable length of time. What is a reasonable length of time would, in the absence of statutory regulations, depend upon the custom in each district. It should be for a term of school at least — a time sufficient to enable a teacher to show proficiency or make so complete a failure that no district will employ him again. In the absence of any evidence upon which to determine the least time for which a teacher should be employed in the district under consideration, I have concluded to follow the time fixed upon in the case of Hurlbert v. district no. 6, town of Harmony (decided July 21, 1887), as the circumstances are not widely different, and I know that the time there fixed upon can not be unjust to the dis- trict. If it is unjust to the teacher, it can be nothing more than she ought to sufifer for assuming to enter into so unbusiness like an agreement. The term there fixed upon was nine weeks. The appeal is sustained and the respondents are hereby directed to settle with the appellant according to the terms of their agreement with her, for a period of nine weeks, deducting any payments which may already have been made to her. If there are moneys to the credit of the district now in the hands of the collector or supervisor, they will draw their draft upon the proper officer to her order forthwith. In case there are no moneys now standing to the credit of the district, they will raise the requisite amount by tax. Il88 THE UNIVERSITY OF THE STATE OF NEW YORK 3678 In the matter of the appeal of Fanchie C. Groom v. James Hough, sole trustee of school district no. 13, town of Venice, Cayuga county. Agreements between teachers and trustees that either party may terminate the employment at any time are against public policy. Employment should be for a specific length of time. It is a duty of a trustee to aid a female teacher, when appealed to, in reducing to subjection a vicious and disturbing pupil, and, if necessary, to remove such a pupil from the school. The fact that one disorderly pupil 18 years of age would not obey the teacher, is not sufficient reason for dismissing a teacher as incompetent to manage a school. Decided April 6, 1888 Draper, Superintendent The appellant above named was employed on or about the ist day of Sep- tember 1887, by the respondent to teach the school in the above-named district, for the term of fourteen weeks during the fall and winter following. After having taught for nine weeks and two days, the trustee discharged the teacher and forbade her continuance. The parties agree relative to the terms of the employment, except that the trustee insists that he was to have the right to discharge the teacher at any time, unless she gave satisfaction and properly governed and managed the school. The ground which the trustee alleges as the reason for discharging the teacher is, that she failed in government. No proof of this is offered. The teacher swears that she had no trouble in the school, except with one young man 18 years of age, who was vicious, profane and exceedingly troublesome. It can hardly be expected that a lady teacher should undertake to put her physical strength against that of a vicious boy 18 years of age, and it was the duty of the trustee in that case, to have aided the teacher in reducing such pupil to subjection, or he should have removed him from the school. She says that she called upon the trustee to aid her in this particular case, without avail. She says furthermore, that she protested against being discharged and has always held herself in readi- ness to fulfil the terms of the agreement. There is no evidence in this case aside from the statements of the parties. It appears that the teacher has taught several terms before, and successfully. I feel it my duty to discountenance agreements between trustees and teachers of the character such as the trustee in this case alleges that he made. He says that he employed this teacher with the right to discharge her at any time that she did not give satisfaction. She denies this. Whether or not it was a fact, it ought not to have been so. A trustee should employ a teacher only after being satis- fied of her ability to conduct the school properly and successfully. When he employs her he should do it for a reasonable length of time and he should live up to his agreement. It is against sound policy to permit trustees to discharge a teacher at any moment for some imaginary cause or for any cause at all, when they feel inclined to do so. It hardly looks reasonable that the teacher in this JUDICIAL decisions: teachers' contracts 1 189 case, after having taught more than nine weeks in a term of fourteen, could not, with safety to the interests of the district be permitted to finish her term. Her certificate of qualification and her previous experience, ought to count somewhat in her favor. I have, therefore, come to the conclusion that the appeal ought to be sustained, and the trustee of the district is hereby directed to settle with the appellant according to the terms of his agreement with her. 3850 In the matter of the appeal of Moses N. Roe v. Benjamin Snyder as trustee of school district no. 5, of the town of Candor, county of Tioga. The statute provides that teachers shall be employed for at least sixteen weeks. Any employment of a teacher, unless to fill out an unexpired term, will be held to be for at least sixteen weeks. An employment for less than one year is not invalid because verbally made. A trustee who neglects to give a teacher a written memorandum of hiring is guilty of laches. Dismissal of a teacher in the midst of a term for incompetency and lax discipline in the school, which clearly appears, will be sustained. Decided January 3, 1890 Stephen S. Wallis, attorney for respondent Draper, Superintendent About the first of October last, the trustee above named employed the appellant to teach the school in his district. No written memorandum of employ- ment was given. The appellant began service on the 14th of October, and was dismissed by the trustee on or about the 4th day of November for alleged incom- petency. The teacher insists that the dismissal was without cause, and brings his appeal to determine his rights in the premises. The trustee insists that the employment was for no specified length of time, and that he took the teacher only upon trial. The law does not recognize employments of such a character as that insisted upon by the trustee. The statute provides that no teacher shall be employed for a shorter term than sixteen weeks, and therefore, if the teacher in this case was employed by the trustee at all, it was for at least that length of time. The trustee insists also that the employment was invalid for the reason that no written contract was executed. He is clearly in error in this. An agreement between a trustee and teacher stands upon the same footing as any other agreement and may be verbal for a less period than one year. It is true that the statute requires the trustee to make and deliver to the teacher a memorandum stating the terms of the employment, but the fact that no such memorandum was given in a par- ticular case would not invalidate the employment. It was the purpose of the statute to require the making and delivering of the memorandum as a protection to the teacher. The trustee in this case was clearly guilty of laches for refusing 1190 THE UNIVERSITY OF THE STATE OF NEW YORK to make such memorandum when requested to do so by the teacher, as he admits he was. The statute provides that no teacher shall be dismissed in the midst of a term of emplovnient except for cause which would be sustained by the State Superintendent upon appeal. I have therefore read with care what the parties have to say touching the reason alleged for dismissal. I am of the opinion that the trustee makes out a sufficient cause for dismissing the appellant in the midst of a term of employment. He shows clearly that the discipline in the school, while under the appellant's charge, was lax in the extreme. No teacher can expect employment for any length of time or expect to be upheld by the State Depart- ment who is unable to command the respect and the unqualified obedience of pupils. I am satisfied that such respect and obedience were lacking in the present case. I therefore arrive at the conclusion that it is my duty to dismiss the appeal. 3864 In the matter of the appeal of A. Hall Burdick v. the board of education of Long Island City. A teacher having been employed by a board of education for several years, was reemployed, as he understood, for the ensuing year. In February following he was dismissed without cause. Held, that all the circumstances justified the teacher in thinking the employment was for a year, and that it was such in law. Held, also that he could not be dismissed in the course of the year, except for cause. Decided March 29, 1890 W. T. B. Milliken, attorney for appellant W. J. Foster, city attorney, for respondent Draper, Superintendent The appellant having been employed for two preceding years as principal of one of the public schools of Long Island City, was reemployed in September 1889, m the same position. He contends that the last reemployment was for the term of a school year. The board of education insists that it was for no specified length of time, but entirely at the pleasure of the board. The appellant was dismissed from his position by the board of education on the 14th day of Feb- ruary 1890. No reason is alleged for the dismissal. The board insists that it had the power to dismiss him at any moment, and without assigning a cause. The appellant brings this appeal from the action of the board in dismissing him, tor the purpose of determining his rights. It is clear at the outset that the broad claims of the board of education can not be upheld. An individual may manage his individual afifairs in any capricious way he hkes, so long as he does not interfere with the rights of others- but officers m managing the affairs of the public schools can not go as far as 'this JUDICIAL DECISIONS: TEACHERS' CONTRACTS II9I riiey are not only bound to respect the rights of others, but in addition to this they stand in a representative capacity, and must transact their official business in a way which will best promote the interests of the public for whom they act. The schools are continuous, and their substantial character and efficiency depend not only upon the character and competency of teachers, but also upon teachers who have these qualifications, being secure against the piques and caprices, the selfish and political interests of individuals. The rela- tions between school trustees and school teachers are reciprocal, and obligations are mutual. Trustees fail in their duty if they employ persons who are not com- petent and adapted to the employment. To uphold the claim that such persons may be employed only from day to day, and may be dismissed at any moment without warning and without reason, would be to drive qualified and self-respect- ing persons out of the teaching service. It is an unconscionable doctrine, so far as individual rights and interests are concerned; it is destructive of the efficiency of the schools, and subversive of the interests of the public. This principle has been previously maintained, notably in the case of DeVoe v. district no. 7, of the town of Rochester (appeal no. 3735). That case arose in a small and unstable school in a rural community. The principle has even much greater force in a large school regularly in operation during definite terms, as in the present case. But we are not left to reasoning alone in this matter. There is no difiference between the legal powers and duties of school trustees in cities, and like officers in all other parts of the State, except as such differences have been created by statutes having special application to a particular city. It does not appear that there is any special statute conferring any greater or different powers upon the board of education of Long Island City, so far as the dismissal of teachers is concerned, than trustees of schools have in general. Subdivision 9, section 48, title 7, of the Consolidated School Act, as it existed at the time of the employment in the present case, provided as follows : " Nor shall any trustee or trustees employ any teacher for a shorter term than sixteen weeks, unless for the purpose of filling out an unexpired term of school ; nor shall any teacher be dismissed in the course of a term of employment except for reasons which, if appealed to the Superintendent of Public Instruction, shall be held to be sufficient cause for such dismissal." The matter here in issue is then brought within narrower compass, for it is manifest that the employment could not have been merely from day to day, as respondents claim, but must have been in legal contemplation for some reasonable length of time, and that within such time, whatever it was, the appellant could not have been dismissed except for a reason which would be deemed sufficient by the State Superintendent on appeal. As no reason whatever is given for the attempted dismissal, either at the time thereof or now, the only question is, what was the length of the term for which the appellant was employed? I have read all that has been said by the respective parties upon this point, in their pleadings and affidavits, and by their able counsel on the oral argument. The appellant was first employed in September 1887, for the school year 1887-88. Il(j2 THE UNIVERSITY OF THE STATE OF NEW YORK In the summer of i8S8, he was reemployed for another school year. On the 25th of July 1889, he addressed a communication to the board of education in which, after speaking of the condition of the school under his charge, and sug- gesting that his salary ($1500) was less than had formerly been paid, he said: " I respectfully ask to be continued in my present position for the coming year with such increase of salary as my services have shown me to merit." He swears that on the 7th day of September 1889, he was verbally notified by the clerk of the board that at a meeting of the board his application had been accepted, and his salar}' increased to $1800, and that he reentered upon his position and con- tinued to act in that capacity, and was paid at the increased rate up to the time of the attempted dismissal. This is not disputed. But the board of education refers to certain resolutions as a justification for their action, which resolutions were adopted in July 1888, and were in the following words : Resolved, That any and all existing by-laws, rules and regulations, resolu- tions, orders etc., respecting appointments of teachers be and the same hereby are revoked, rescinded, made null and void; and all contracts therefore, if any, terminated and canceled. Resolved, That all future appointments of teachers shall be for term, sub- ject to the pleasure of the board. The board insists that these resolutions were known to the appellant, and that they governed the terms of his reemployment of 1889. He admits a general knowledge thereof, derived from newspaper reports, but says that he inquired of the member of the board having charge of his school whether there was any- thing in these resolutions affecting his position, and was informed that they were not .intended to apply to him. It is true that one member of the board could not, independently of his associates, bind the board, but it is also true, it seems to me, that the appellant was justified in giving much weight to the construction which the commissioner in charge of his school placed upon the action of the board. But I can not adopt the view that these resolutions in any event were bmding upon the appellant, except so far as they were lawful, and so far he must be deemed to have agreed to them. The resolutions relied upon by the board are of a most novel character, and seem to be almost, if not quite, devoid of legal life and ettect. That part of the resolutions touching the employment of teachers could certainly not be carried out unless it was " the pleasure of the board " to employ for a reasonable term of service any more than that other part of the same resolution which purported to cancel and annul all existing contracts without the assent of the other contracting parties. Moreover, the resolutions were intended only for the guidance of the board. Subsequent action could modify them or change their effect. The appli- cation of the teacher and the acceptance constituted an agreement upon which he had the right to rely, unless specially notified that the board had resolved to employ him on other lawful terms, which he was at liberty to accept or reject There is no pretense of this. On the contrary, it appears that he was notified JUDICIAL decisions: teachers' contracts 1193 by the clerk of the board and superintendent of schools that his application had been accepted, and no conditions or modifications were suggested. No doubt he reasoned as he was advised by his commissioner, that it was the pleasure of the board to employ him according to the terms of his application, and that the resolutions adopted more than a year previously were not intended to affect his position. More than this, there is no pretense anywhere that if the employment was for a term, as it seems clear it must have been, that that term was for any other time than a school year. That was at least the natural term of employment in a city, and it was evidently the term in the minds of the parties at the time of the agreement. I therefore conclude that the legal term for which the appellant was employed in September 1889, was for the school year. This being so, the action of the board in attempting to dismiss the appellant in February, without cause, was unlawful. The appeal is sustained, and the action of the board in dismissing the appellant is held to be unlawful and invalid. 3748 In the matter of the appeal of Clarence Edwards v. the board of education of union free school district no. i, town of Sharon, Schoharie county. A written contract to teach for a period of forty weeks, during which time a holiday vacation of one week occurred, would not entitle a teacher to pay for that week, when it was known by the teacher to be a custom observed in the district to require teachers to teach forty weeks exclusive of such holiday week. Decided January 9, 1888 Draper, Superintendent This appeal is brought by a person who was employed by the respondent to teach, to recover a balance of wages claimed to be due him. The appellant alleges that in May 1887, he was employed under a written contract, signed by the board of education, to teach the school in said district for the term of forty weeks, to con:mence in September 1887, the exact time of opening the school to be designated by the board of education, for the sum of $iocK); that school, in fact, was commenced September 19, 1887, and the appellant continued to teach until June 22, 1888, a period of forty weeks including institute week and legal holidays allowed by law ; that he has been paid $975 and that there remains due him upon said contract $25. The respondents answer and admit the contract of hiring, and that the school was taught by appellant as alleged, excepting during the holiday week, when a vacation occurred by the board's direction ; that school was continued for a week after Tune 22d, and that appellant neglected to teach that week. This 1 194 THE UNIVERSITY OF THE STATE OF NEW YORK Statement reveals the only question in the case. The teacher claims that he is entitled to the holiday week vacation, as part of the forty weeks, and this the respondent denies. It appears from the pleadings that it is customary in this district, and, in fact, it is. in nearly all of the schools in the State, to take the holiday week vacation. It appears that soon after the appellant entered upon his work, he inquired, or at least was informed that the term would be divided as usual, so as to allow the vacation of one week. The appellant did not dissent. All other teachers continued to teach the school until June 29, 18S8, in order to complete the term. While it is true the written contract does not specify this vacation, I must hold that it was unnecessary, as the teacher must have known the custom which had been uniformly observed in the district. The appeal is, therefore, overruled. 3791 In the matter of the appeal of Edwin J. Bennett v. school district no. 14, towns of Norfolk and Louisville, county of St Lawrence. A person was employed to teach for a term of sixteen weeks to commence at a stated time. After teaching about four weeks, the schoolhouse was burned, and seven weeks elapsed before a new one was erected. In the meantime, the teacher held himself in readiness to teach, and offered to do so, if temporary accommodations should be provided. The trustee of the district made an effort to secure temporary accommoda- tions, and claims he was unable to do so. The teacher finished out the remainder of the term, and claimed pay for sixteen weeks inclusive of seven weeks no school was taught because of the destruction of the school building. The trustee declined to pay for said seven weeks; held, that the loss of time being occasioned through no fault of the teacher, the teacher was entitled to pay the same as if scliool were taught. Decided April 27, 1889 Charles M. Hall, attorney for respondent Draper, Superintendent 1 his appeal is brought by the appellant, who was duly employed as a teacher m district no. 14, towns of Norfolk and Louisville, county of St Lawrence, on or before October 15, 1888, for a term of sixteen weeks, to commence October 15. 1888, at a weekly compensation of $7. It is alleged by the appellant, and admitted by the respondent, that on Friday night, November 16, 1888, the school- house was burned, together with the school furniture and books, and that a new schoolhouse was constructed and ready for occupancy seven weeks thereafter In the meantime, the appellant alleges that he offered to teach if the district would provide temporary accommodations which he very much desired, and the respondent alleges that he made an effort to do so, but was unable to secure a suitable place, and one that was satisfactory to the school commissioner and the district. JUDICIAL decisions: teachers' contracts 1195 The appellant finished out a term of sixteen weeks, including the seven weeks that no school was held, and, at the expiration thereof, demanded pay pursuant to the terms of the contract. The amount has not been paid. The evidence of the respondent shows that an effort was made to induce the teacher to teach additional weeks in order to make up for the time lost which was occasioned by the fire, and to pay him an increased rate for so doing, but this offer the appellant declined. The respondent rather insinuates that the appellant may have been the cause of the loss of the school building through his own carelessness, he having been the last person in attendance at the schoolhouse, but there is no sufficient evidence upon w^hich I can find any such fact. My decision is that the appeal is sustained, and that the district is liable to the teacher for the term of sixteen weeks at $7 per week, according to the terms of the written contract, and the trustee of said district is hereby ordered and directed to issue to the appellant his order for the amount so found due. 3854 In the matter of the charges against Andrew J. Mulligan, sole trustee of school district no. 4, of the town of Greece, county of Monroe. It is against sound policy for a trustee to continue an unlicensed teacher in school, even though she teaches without compensation. Decided January 18, 1890 Draper, Superintendent Charges are made against the respondent to the effect that he has employed one Sarah E. Kinsella, as a teacher in the school under his charge, while she has no certificate authorizing her to teach. Both by affidavit, as well as upon a personal appearance before the Super- intendent, the respondent has admitted the charges to be substantially true. In extenuation he has urged that he did not pay the unlicensed teacher anything for her services and this seems to be true. The fact undoubtedly is that the trustee has been continuing Miss Kinsella in the school in the hope that she would in tlie meantime procure a teacher's certificate. In this course he is clearly in error. The district is credited with four teachers' quotas in the last annual apportion- ment. There are but three licensed teachers employed. It follows, therefore, that one quota is being drawn for this unlicensed teacher; moreover, it is mani- festly against sound policy for a trustee to continue a person as a teacher in a school under his charge who is not duly licensed, even without compensation. Again, the patrons of the school are entitled, as a right, to have the school taught by a teacher certified by a public officer, and in the manner provided by statute, to be competent for that service. Upon the assurance of the trustee to the Superintendent at the time of the hearing that he would at once discontinue the services of Miss Kinsella and employ a duly certified teacher, the proceedings were dismissed. Iiy6 THE UNIVERSITY OF THE STATE OF NEW YORK 3670 In the matter of the appeal of Richard H. Ryder v. WilHam H. Warts, Christian Quaritious and William 11. Taylor, members of the board of education of union free school district no. 3, town of Flatlands, county of Kings. A board of education can not enter into a legal contract with persons to teach who do not possess certilkates authorizing them to teach. An agreement between a school commissioner and trustees touching tlie issuance of certifi- cates to persons whom the trustees desire to employ, is void. The certificate is to be based upon moral character and capability alone. Decided February 28, iHiiS Draper, Supcr'uitcndcnt The parties to this appeal are members of the board of education of union free school district no. 3, of the town of Flatlands, Kings county. The board consists of live members. The grounds of the appeal which are alleged, are that the board of education at a meeting held July 15, 1887, adopted a resolution to engage as teachers for the ensuing year, among others, Mrs Lizzie A. Ryder, Mrs Anna E. Bogart, and Miss Carrie N. Jansen, subject to their receiving their licenses to teach from the school commissioner of the commissioner district of which said school district formed a part ; that previous to said meeting the school commissioner had agreed to license said persons as teachers, and send their respective certificates to the clerk of said board ; that the respondents conspired with said commissioner and he was induced to withhold his certificates and refuse to license said persons as teachers. The respondents admit the adoption of said resolution to employ said teachers and aver that the said persons so named as teachers in the resolution failed to pass the examination on two occasions, and that, consequently, other teachers were employed in their stead. Although the appellant, who is not necessarily an aggrieved party asks as relief that the school commissioner be required to issue said licenses to Mrs Lizzie A. Ryder, Mrs Anna E. Bogart and Miss Carrie N. Jansen he has not made the said commissioner a party or caused him to be served with a copy of this appeal. The commissioner has therefore had no opportunity to be heard in the matter. The board of education could not enter into a legal contract with persons to teach who were not duly licensed and the possessors of certificates authorizing them to teach. It is not alleged that the persons named for teachers in the reso- lutions adopted by the board July 15, 1887, were qualified as aforesaid, or that subsequent thereto they secured the necessary certificates. The action of a commissioner in granting licenses can not be made dependent upon the wishes of a school district, and there is no proof that the school com- missioner was so influenced. The aim of the examinations by school commis- sioners would be lost by any such arrangement, and such an unjust, unfair and illegal agreement would not be upheld by the Department. If it is claimed that the ladies mentioned attained the standard required in the commissioner's exam- JUDICIAL decisions: teachers' contracts 1197 ination for licenses, and the school commissioner collusively refused to grant them, an appeal should have been taken by the aggrieved persons themselves from the action of the commissioner in refusing to grant certificates, and service of the paper should have been made upon that ofiicer. The appeal is dismissed. 4744 In the matter of the appeal of Julia Moynihan v. George P.helps as trustee of school district no. 17, Darien, Genesee county. Where a teacher, under an alleged contract of employment to teach the school in a district, was not permitted by the trustee to enter upon her duties of teacher; held, that the alleged contract not having been fulfilled, the claim of the teacher would be for dam- ages upon a breach of contract; that it is not the policy of the law to require a State Superintendent of Public Instruction to measure damages for a breach of contract when the extent thereof is altogether indefinite and uncertain. The remedy of the teacher is by an action in the courts. Decided February 17, 1899 Tyrrell & Ballard, attorneys for appellant Watson & Watson, attorneys for respondent Skinner, Superintendent This is an appeal from the action of George Phelps as trustee of school district 17, Darien, Genesee county, in refusing to permit the appellant, Julia Moynihan, to enter upon the performance or to perform, on her part, a certain contract made by her to teach the school in said district for the term of forty consecutive weeks, commencing September 6, 1898. The appellant alleges that on July 28, 1898, she entered into a contract, a copy of which is annexed to her appeal, with James J. McManis as sole trustee of school district 17, Darien, Genesee county, to teach the public school in such district for the term of forty consecutive weeks, commencing September 6, 1898, at a weekly compensation of $11.25, payable at the end of each thirty days during the term of such employment; that Trustee McManis contracted to employ the appellant as teacher for said period, at the aforesaid rate of compensation, payable at the times above stated, and reserving the right to said trustee to provide for a vacation or vacations of not more than one week in the aggregate during such term of employment; that on September 6, 1898, the appellant went to the resi- dence of George Phelps, the then acting trustee of such district, and the successor in office of Trustee McManis, and asked Phelps for the key to the schoolhouse of the district, informing him that she was ready to commence teaching the school therein, in accordance with the terms of said contract; that said Phelps refused to deliver to the appellant such key, and informed her that her services as teacher in the schools in the district, were not needed, and refused to allow her to com- mence to teach such school, according to the terms of such contract ; that she has ever since been denied admission by said Phelps into such schoolhouse, and by 1 198 THE UNIVERSITY OF THE STATE OF NEW YORK reason thereof she has been unable to teach in the school in said district, or to perform her part of said contract. Annexed to the appeal herein is an affidavit of James J. McManis, in which he states that he was the trustee of said district for the school year 1897-98, and as such trustee, entered into the contract with the appellant, as stated in her appeal ; that a copy of the contract is contained in the school register of the dis- trict, and that said Phelps, who was elected trustee of said district at the annual school meeting held therein on the first Tuesday of August 1898, was informed of such contract after his election as trustee, and that before the election of Phelps, said contract was read at such annual school meeting. The respondent Phelps has answered the appeal herein, and states among other things, that the appellant taught the school in said district during the school year of 1897-98, under a contract made by her with said McManis, the then acting trustee of the district, and that shortly prior to the expiration of his term of office as trustee, said McManis reengaged the appellant to teach the school for 40 consecutive weeks, commencing September 6, 1898, at a weekly compensation of $11.25; that shortly after a special meeting of the district, held .September 2, 1898, at which a resolution was adopted disapproving the said contract made with the appellant to teach the school in the school year of 1898-99, he left at the home of the appellant a copy of the resolution adopted at said meeting, with notice to her that she would not be permitted to teach under the said alleged contract. The pleadings filed herein, in addition to the appeal and answer, are, a reply, rejoinder, rebutter and surrebutter and, with the papers and affidavits annexed, are exceedingly voluminous. Only a small portion of their contents arc relevant to the contract of the appellant and Trustee McManis of July 28, 1898. It is admitted that the contract, as alleged by the appellant, was made, and that the appellant herein was not permitted by Trustee Phelps, either to enter upon her employment to teach or to teach the school in district 17, Darien. Genesee county, under said contract made by her and McManis, as trustee of the district, on July 26, 1898. I am of the opinion, however, that the appeal herein must be dismissed. The appellant herein, never having been permitted to enter upon the performance. on her part, of the contract, or to fulfil the contract, and such contract never having been fulfilled by Trustee Phelps, the claim of the appellant would be for damages for the breach of the contract. This Department has uniformly held that it is not the policy of the law to require the State Department of Public Instruction to measure the damages for a breach of contract when the extent thereof is altogether indefinite and uncertain. The remedy is to be sought by an action in the court. (See decision 3768 made by Superintendent Draper, March 23, 1889, in Tillson v. McNeeley, trustee; and decision 3797 by Superintendent Draper, July 29, 1889, in Hall v. Booth and others ; and decision 4784 made by me December 30, 1898, in Fitts v. Sweeny, trustee.) The appeal herein is dismissed. JUDICIAL decisions: teachers' contracts 1199 3716 In the matter of the appeal of Henry F. Albro v. Daniel L. DeMott, trustee of school district no. 14, town of Hempstead, Queens county. When a person who claims to have been employed as a teacher, has never entered upon employment, it will be necessary for him to show clearly and distinctly and by a preponderance of proof that he was actually employed and accepted such employment. The appeal being in the nature of an action for damages for a breach of contract might more properly have been brought in the courts. Decided October 4, 1888 Draper, Superintendent This is an appeal by Mr Albro against the action of the trustee of school district no. 14, of the town of Hempstead, Queens county, in refusing to pay him wages as a teacher in said district. He claims that he was employed by the trustee to teach a branch school in the district, to commence in January 1888. The trustee denies the employment, although he admits that there were numerous conversations between himself and the appellant relative to employ- ment, and that he also conversed with two or three other parties touching the employment of the appellant. It seems that a new school building had recently been erected and was nearing completion, but that it was not furnished, and that no funds had been provided for procuring furniture. There seems to have been talk about furnishing the building by voluntary subscription, payment of which was long delayed. The trustee admits that he contemplated employing the appel- lant, but had no intention of doing so until the building should be in readiness for occupancy, and denies that he did do so. The appellant never entered upon employment, if there was any, although he maintains that he held himself in readiness to do so, and made application from time to time for permission to open school. The only evidence beyond that of the immediate parties to the controversy is by two newspaper reporters, who swear that they ferreted out the fact that Albro had been employed, and published it in their newspapers, and of one other person, who, in conversation with the trustee, says he admitted the employment. The case has been referred to the school commissioner to take the testimony of the parties and witnesses, and I have read the testimony taken with care. It seems to me that the testimony, outside of that given by the appellant and the respondent, respectively, is not entitled to much weight. In view of the fact that the appellant never entered upon employment, it is necessary for him to show that he was actually employed and accepted such employment, clearly and distinctly, and by such a preponderance of proof as would leave no doubt as to what the fact was. He does not do this to my satisfaction. Furthermore, it may be said that, inasmuch as he never entered upon the employment, his appeal is in the nature of an action for damages for the breach of a contract. Such an action might more properly have been brought in the courts than brought here in the nature of an appeal. But regardless of that fact, there is no testimony whatever in the case upon which I could intelligently measure the damages which the appellant may have suffered. I200 THE UNIVERSITY OF THE STATE OF NEW YORK I am, therefore, compelled to dismiss the appeal. It is proper for me to add, however, that I do so without prejudice to the right of the appellant to bring an action in the courts of his locality. 4724 In the matter of the appeal of Henry J. Fitts v. Amos Severy as trustee of school district no. 7, Dryden, Tompkins county. A teacher who has taught a public school for two years and who claims he was subsequently reemployed for another school year, but who did not enter upon the duties of teacher under the alleged reemployment, not being allowed to perform such alleged contract by the trustee then in office, the alleged contract never having been fulfilled, the teacher's claim would be for damages for a breach of the contract. The appeal of such teacher can not be entertained, as his damages, if any, are unliquidated, and it is not for the State Superintendent of Public Instruction to measure them. The remedy of the teacher is to be sought by an action in the courts. Decided December 30, 1898 Skinner, Superintendent This is an appeal from the action and decision of Amos Severy as trustee of school district 7, Dryden, Tompkins county, in refusing to permit the appellant, Fitts, to perform a certain contract made by him to teach the school in said district for the period of forty weeks to commence September 5, 1898. The appellant alleges as the grounds for bringing his appeal that the action of said trustee was unlawful ; that there was no grounds authorizing or justifying said action ; that the appellant, a duly licensed teacher, had entered into a written contract of employment with G. W. Gibson, a duly elected trustee of said district, whose term expired the 2d day of August 1898, such contract having been made June 30, 1898, and which contract was in force at the time of the refusal of said trustee Severy to allow the appellant to perform such service. Trustee Severy has answered the appeal, and to such answer appellant has replied. It appears that during the school years 1896-97 and 1897-98, one G. W. Gibson was the trustee of said district 7, and during such years the appellant herein taught the school in such district; that annexed to the appeal herein is a contract alleged to have been made June 30, 1898, between the appellant and said Gibson as such trustee, by which the appellant was to teach the school therein for the term of forty consecutive weeks, commencing September 5, 1898, at a weekly compensation of $7, payable at the end of each thirty days during the term of such employment; that Gibson contracted to employ the appellant as teacher for said period at such rate of compensation, payable at the times stated therein, reserving the right to provide for a vacation or vacations of not more than three weeks in the aggregate during such term ; that there is also annexed to the appeal the affidavit of Gibson in which he states that he, as trustee of the JUDICIAL decisions: teachers' contracts I20I district, entered into the contract with the appellant as annexed to the appeal, and that at the annual meeting held August 2, 1898, in said district, said Severy having been elected trustee of the district, he notified Severy, in writing, of such employment of the appellant herein as teacher. The respondent, Severy, alleges in his answer that the patrons of the school were dissatisfied with the appellant as a teacher and desired that the respondent employ some other person than the appellant to teach the school in the district. It is admitted that the appellant herein was not allowed to teach, nor did he enter upon the duties of a teacher in the school in district 7, Dryden, Tomp- kins county, under the contract alleged to have been made by him and ■Sir Gibson, as trustee of said district for the school year of 1897-98, June 30, 1898. The appeal herein must be dismissed. The alleged contract not having been fulfilled, the claim of the appellant would be for damages upon a breach of contract. This Department has held that it is not the policy of the law to require the State Superintendent of Public Instruction to measure damages for a breach of contract when the extent thereof is altogether indefinite and uncertain. The remedy is to be sought by an action in court. (See decision 3768 made by Superintendent Draper, March 23, 1889, in Tillson v. McNeeley, trustee; and decision 3796, also made by Superintendent Draper, July 29, 1889, in the appeal of Hall v. Booth and others.) The appeal herein is dismissed. 4294 In the matter of the apj^cal of Analusia Barnard v. the board of education of union free school district no. 3, town of Mount Pleasant, Westchester county. Boards of education of union free school districts, under the school law of the State in force prior to June 30, 1894. have power to remove teachers employed by them for neglect of duty for immoral conduct; but such teachers should have notice of the charges pre- ferred against them and an opportunity to be heard thereon, especially when such charges affect the moral character or responsibility of the teacher. In prescribing the rules and regulations concerning the order and discipline of the schools under their charge, said boards must act as a board, and copies of the rules and regulations should be given to the teachers, and individual members of the board have no authority to make rules or to give orders to teachers. The method of imparting instruction is given, under the school law, to teachers, and a visiting committee of a board in visiting a school has no authority to interfere with the methods of instruction pursued by the teachers, nor to give orders to the teacher nor to interfere in the recitations or assume to conduct such recitations, nor to conduct examinations on their own account, without advising with the teacher. No members of such visiting committee of the board should reprimand or criticise the teacher in the presence of the school or any pupil attending the same, as such a course will b^ J202 THE UNIVERSITY OF THE STATE OF NEW YORK in the highest degree detrimental to the best educational hitcrests of the same. Where a teacher is dismissed by a board during the term of employment without an oppor- tunity to be heard and without sufficient cause, such teacher is entitled to receive pay for the balance of his or her term of employment, and such dismissal is unlawful, invalid and void. Decided November 20, 1894 James B. Lockwood, attorney for appellant L. T. Yale, attorney for respondents Crooker, Superintendent The appellant herein appeals from the action of the respondents herein, taken on December 29, 1893, in dismissing her from her position as a teacher in the union free school in district no. 3, town of Mount Pleasant, Westchester county, without sufficient cause and before the expiration of her term of employment. An answer has been filed to the appeal, a reply to the answer, a rejoinder to the reply; and also additional proofs on the part of the appellant. From the papers filed it appears : That the appellant, from an early age and until the summer of 1887, attended the public schools in the city of New York, when she graduated at school No. 57 in said city; that in September 1887, she entered the normal college in the city of Xew York, where she remained until the close of school in the summer of 1890; that on account of the removal of her family to Yonkers she entered the senior class of the Yonkers High School in September 1890, and graduated from said high school in June 1891 ; that from September 1891, until May 1892, she taught private pupils in the city of Yonkers. That during the school year 1892, begin- ning in the fall, she taught a graded school of third year pupils in Hackensack, New Jersey, to the approval and satisfaction of the principal and board of trustees of said school, and resigned such situation at the end of the school year on account of the climate at Hackensack ; that upon her examination by a board of examiners at Hackensack she received the following credits in the several subjects m which she was examined: Orthography, 93; reading, 84; writing, 95; geography. S; : practical arithmetic, 81 ; English grammar, 75 ; arrangement of examination papers, 95 ; and theory and practice of teaching, 95. That m August 1893, the appellant applied through a teachers" agency in New York City for employment as a teacher in the schools of this State, and having been put in communication with the respondent herein, she forwarded to the respondent her testimonials as a teacher, and subsequently had, at said teachers' agency, an interview with Mr Law and Mrs Sherwood, two of the respondents; that subsequently she received a letter, dated at Pocantico Hills, August 21, 1893, addressed to her, signed by Mr Law, by which she was informed that the board, at a meeting held on the evening of said date, had decided to engage the appellant as teacher in the union free school at said place for the coming year from September 1893, to and including June 1894, at a salary of 3500; t\m 5ajrl .letter stated that the trustees would want the school to open the JUDICIAL decisions: teachers' contracts 1203 first week in September; that the appellant accepted the terms of employment as stated in the said letter of Mr Law, and commenced teaching the school in the said district under the said contract on September 5, 1893; that during the time the appellant so taught in said school she received her pay for said services, at $50 per month, by orders signed by the clerk of said board of education, to wit, for the months of September, October, November and December 1893; that said school is an ordinary country school, consisting of pupils of the average age of about 11 years, and the average attendance was about forty in number; that the appellant had communicated to her verbally by one or more of the board of education of said district some of the rules of said board. She was not furnished with any copy of such rules prior to the month of November 1893; that the only members of said board who visited said school while the appellant taught therein were Mrs Rufus T. Weeks and Mrs Elizabeth Sherwood; that said two ladies, prior to November 1893, visited said school at rare intervals, but after said first of November their visits began to increase from once in a week to three times a week, such visits increasing in length from one hour to an entire school day ; that sometimes Mrs Weeks visited the school alone, and at other times she was accompanied by Mrs Sherwood ; that at the first visits nothing unusual took place, but after the said ist of November Mrs Weeks assumed to exercise supervisory powers over the methods of teaching by appel- lant, and on different occasions conducted recitations of various classes ; that on different occasions Mrs Weeks criticised the methods of appellant in the presence of the school and assumed to direct the work of the appellant in the presence of the pupils ; that on one occasion she took a book from the hands of the appellant with which the appellant was conducting a recitation and proceeded with the same to hear the recitation; that Airs Weeks also interfered with the arrangement of the appellant as to the seating of the pupils, and directed appellant not to reprimand a pupil in the presence of another; that in the month of December Mrs Weeks took possession of the school and subjected the pupils to a two days' examination, refusing to allow the appellant to have any control over said exam- ination, and that appellant had never seen the examination papers which were given to the pupils or the answers thereto; that on December 22, 1893, said school was closed for the usual holiday vacation; that on said day, in a conver- sation had by appellant, at the schoolhouse, with the clerk of the board or district, said clerk referred to some dissatisfaction with the conduct of said school by the appellant, and suggested to the appellant that she tender her resignation, which appellant declined to do; that the appellant, after the closing of said school on December 22, 1893, returned to her home in Yonkers to remain until the opening of the said school in January 1894; that on December 30, 1893, the appellant received by mail, at Yonkers, a letter dated at Tarrytown, December 30, 1893, signed by one William H. Crooks, district clerk, containing an extract from the proceedings of a special meeting of the board of education of union free school district no. 3, town of Mount Pleasant, held on Friday evening, December 29, 1893, reciting that. Whereas, The appellant, from the observation of the board 1204 THE UNIVERSITY OF THE STATE OF NEW YORK and the result of recent examination of the school, was a failure as a teacher; that, Whereas, Appellant in many respects and instances neglected her duty as a teacher and violated express instructions of the board; that, Whereas, Appel- lant's deficiencies in moral responsibility are such that it is impossible for he-r to exert a good influence over the children; and, Whereas, The duty of the board to the district and to the children will not allow us to continue them longer under the care of one who is of no benefit to them; therefore, be it Resolved, That Miss Analusia Barnard is hereby dismissed from the employ of said board, and that the clerk be instructed to mail a copy of the resolutions by special delivery to her; that after the receipt of said letter the appellant notified the respondents that she was ready to continue her services as teacher in said school, and tendered her services to said board under the contract entered into by respondent in that regard for the balance of the school year ; but the respond- ents refused to allow the appellant to reopen said school in January 1894, or to continue to teach in said school, but, on the contrary, entered into a contract with another person as teacher, and who taught said school for the balance of said school year. It also appears that Mrs Weeks and Mrs Sherwood were appointed by the respondents as a committee to visit the school in said district, and as such com- mittee made a report in writing to the board, and that upon such report the board acted in the dismissal of the appellant as teacher; that no charges were preferred against the appellant prior to her dismissal, nor was any copy of any charges served upon her, and no opportunity was offered her of being heard before said board on the subject of her dismissal, or of answering any charges against her ; that the said report of the visiting committee was not communicated to her, and the first knowledge she had of such report was the copy thereof attached to the answer of the respondent to the appeal herein, a copy of which answer was served upon her on February 2, 1894. The appeal herein has annexed thereto certain papers and affidavits in support thereof; to said appeal an answer has been filed to which are annexed certain affidavits with a copy of the report of the visiting committee to the board of education in support of such answer. A reply to said answer has also been filed and a rejoinder to such reply and also certain other proofs on the part of the appellant. The papers are quite voluminous and have received careful examination and consideration. Under subdivision 8 of section 13, title 9 of the Consolidated School law of 1864 and the amendments thereto, as the same was in force in 1893 and up to June 30, 1894. boards of education of union free school districts had power to remove teachers at any time for neglect of duty or for immoral conduct. Sub- division 9 of section 47, title 7 of said act of 1864, as amended, provided " nor shall any teacher be dismissed in the course of a term of employment, except for reasons which, if appealed to the Superintendent of Public Instruction, shall be held to be sufficient cause for removal." The courts of this State have held, and this Department has uniformly held, that the trustees of school districts can not dismiss a teacher during a term of employment without cause and against his or her consent. JUDICIAL decisions: teachers' contracts 1205 In a decision by Superintendent Van Dyck in 1858 in an appeal by a teacher from the action of the trustees of a school district in dismissing such teacher dvtr- ing a term of employment, he says : " The decision as to the propriety of the act and the power to perform it rest with the trustees. For an abuse of their discretion or an unwarranted exercise of their authority, they are, of course, responsible. On the complaint of the party sustaining what he considers a grievance or wrong, the issue becomes one of fact and it devolves upon the trus- tees to show by evidence that the teacher lacked the character, the ability or the will essential to a proper discharge of his duties, and that he failed thus to fulfil the obviously implied conditions of his contract. The mere fact of dissatisfaction on their part, or that of the inhabitants, is not sufficient to justify the discharge of a teacher employed for a definite period." I concur fully in the views expressed by Superintendent Van Dyck. The grounds alleged by the respondent for the dismissal of the appellant as teacher are substantially as follows: (i) failure of the appellant as teacher; (2) neglect of duty and violation of instructions of the board; (3) deficiency in moral responsibility. Admitting, for the sake of argument only, that the respondent had the juris- diction and authority to act without any notice whatever to the appellant of the charges preferred against her or any opportunity for her to be heard before such board and especially relative to the charge of " deficiency in moral respon- sibility," has the respondent shown by evidence that the appellant was a failure as teacher, or that she had neglected her duty as such teacher, or was guilty of a violation of the instructions of the board, or was deficient in moral responsi- bility, or of all or either? In the reply of the appellant to the answer of respond- ent to her appeal herein, she has met specifically every one of the charges made against her and controverts the statements in that regard in said answer; gives a full statement of the facts of matters in which in the affidavits on the part of the respondent there is a suppression of the full facts. Take the following affidavits in said answer, namely: One Ferguson swears on information, of course, from his son, that the appellant on one occasion wiped a filthy sponge over the face of his son, to which charge the api^ellant states that the boy had been detected in a falsehood, and by way of punishment she wiped his mouth with a moist, but not filthy, sponge. One Egan swears on information, of course, from his children, that the appellant threw his boy on the floor and struck him on the head with a ruler and used unbecoming language toward all his children, and that he was compelled to take his children from school, to which charge the appellant swears that one of the children of Egan caused a disturbance in the school, and that she suspended the child and reported the matter to the board and the board requested Egan to take the children from school and thereupon he removed all of his children from school. Delany, one of the board, swears that his children did not do well in the school, to which charge the appellant replies that their attendance was very irregular. The appellant is charged with being late in coming to the school, to which appel- I2o6 THE UNIVERSITY OF THE STATE OF NEW YORK lant answers that it was not until about October first that she was notified that she was expected to be at the schoolhouse at 8.30 in the morning, and she shows that after such notification, by her own affidavit and that of Mrs Ely, her landlady, that she left at an earlier hour. Mrs Weeks calls atten- tion to one occasion when she visited the school and the appellant did not arrive until a few minutes before 9, which statement the appellant admits; but states that on that day she was sufiFering with a sprained foot; the appellant is charged with a failure to funiish the board with an inventory of the school prop- erty, which charge the appellant denies ; and in my opinion such duty was not incumbent upon her under her contract to teach the school, but was a duty of the board. Tlie appellant is charged with a failure to give sewing lessons, to which she answers that under the rules of the board she was allowed to use her discretion in that respect. The appellant is charged with dismissing the school on the last half day of the school term, as sustaining the allegation against her disregard of her duties and the instructions of the board, to which the appel- lant answers, that it being the last day of the term the ordinary program of the school had been omitted to enable the school to close with appropriate exercises, the preparations for which had been going on for some time without any attempt at concealment. To the charge that appellant was deficient in moral responsi- bility, but one specification is made, and that is contained in the affidavit of Mrs Weeks relating to a sewing lesson. It appears that on a visit to the school by the visiting committee the appellant was asked if she was ready to give a sewing lesson, and the appellant, naturally assuming that the inquiry was as to whether she was then prepared to devote her time and attention to the exercise, replied *' yes," and because it transpired that one pupil was without a thimble and another without a needle, etc., the appellant is charged and convicted, without a hearing, as being deficient in moral responsibility, or, in other words, as not being of good moral character. The appellant produces an affidavit of Elias Bryan, who, for twelve years, was a trustee of the district, and of other persons, patrons of the school, who testify to the competency of the appellant as a teacher and her success in the school. Without going further into this part of the appeal, sufficient answer to the charges made against the appellant has been shown to warrant the assumption that, had the appellant been informed of the charges against her and been allowed an opportunity to be heard in relation thereto before said board, that said board, or at least a majority thereof, acting fairly, impartially and without prejudice or influence, would have dismissed the charges, and not the teacher. The ex parte action of the respondent in the dismissal of the appellant as teacher is not approved. It is not claimed that the appellant was a fully equipped teacher, as her age and limited experience do not warrant such an assumption ; but it is clearly established in proof herein that she was a young lady of good education, refinement and culture, and that had she been permitted to pursue her methods ot instruction in the school in said district without interference the JUDICIAL decisions: teachers' contr.\cts 1207 results would have been beneficial to the pupils attending the school. Where charges are preferred against a teacher, and affecting especially his or her moral character or responsibility, it is the duty of the trustees or boards of education to give the teacher notice thereof and an opportunity to be heard thereon. The principles of equity, justice and of fairness in dealings between employers and employees require this and forbid that anyone should be condemned without a hearing, and summarily discharged from employment before the expiration of the term of employment, and branded as incompetent, and deficient in moral responsibility. The respondent herein has failed to show that the appellant failed as a teacher in the school in said school district, or that she neglected her duty as such teacher and violated the express instructions of said respondent, or that she is deficient in moral responsibility; and has failed to show sufficient cause for the dismissal of the appellant as such teacher. Many of the acts and proceedings of the members of the visiting committee in the school in said district, taught by the appellant, as established in the proofs herein, are disapproved as being wholly unauthorized under the school law and contrary to the uniform rulings of this Department in relation to the power and duty of teachers and the methods adopted by them of imparting instruction to the scholars in the schools taught by them. Boards of education of union free school districts are bodies corporate, and must act as a board in making rules and regulations relative to the discipline and government of the schools under their charge; in prescribing the studies to be taught; in grading and classifying the schools and regulating the admission of pupils therein, and in the general management and superintendence of said schools. The rules and regulations of the board relative to the matters upon which, under the school law, they are authorized to act should be adopted by the board at sessions of the board, and copies of the rules and regulations should be given to the teachers. Individual members of the board have no authority to make rules, nor to give orders to teachers. Under the school law, the method of imparting instruction belongs exclusively to the teachers. The teachers assign seats to the scholars, regulate the order in which recitations of classes, pursuing the different studies taught in the school, are to be held, and conduct such recitations. A visiting committee of a board, visiting a school, has no authority to interfere with the methods of instruc- tion pursued by the teachers, nor to give orders to the teacher, nor to interfere in the recitations or assume to conduct such recitations, nor to conduct examina- tions on their own account, without advising with the teachers, nor to interfere with the seating of the pupils. Such committee should visit the school at such times as it shall deem necessary and proper, and watch carefully the methods pursued by the teacher, the government and discipline of the school, whether or not the teacher maintains good order and discipline, etc., etc., and report the facts relative to such matters to the board. If, in the opinion of the board, the condition of the school is such that, in its judgment, is not for the best educa- tional interests of the school, then it should call the attention of the teachers I208 THE UNIVERSITY OF THE STATE OF NEW YORK thereto. No members of a visiting committee or the board should criticize or reprimand a teacher in the presence of the school or any pupil attending the same, as such a course will be in the highest degree detrimental to the best educational interests of the same. In a rejoinder of the respondent, filed in this Department on April 4, 1894, to the reply of the appellant, it is alleged, upon information and belief, that at the time the appellant entered into the contract with said board of education and at the time appellant entered upon the alleged performance of her duties, and for several weeks thereafter, the appellant was without due license or certificate of any grade qualifying and enabling her to lawfully teach any of the public schools of the State. The foregoing allegations in said rejoinder are not in answer to anything contained in any of the pleadings on the part of the appellant, but are set up by respondent as grounds for sustaining its action in dismissing the appel- lant as teacher " if none of the several other reasons set forth in this proceeding were valid and sufficient grounds for the dismissal of the appeal," as stated in the brief of the attorney of respondent. From the proofs herein, it appears that prior to September 1893, the appel- lant had never taught a common school in this State, and was ignorant of the provisions of the school law of this State requiring teachers employed in said schools to have a diploma, certificate or license issued by competent authority, in order to receive for wages any of the public money raised for payment of such wages of teachers, or to have a claim against the district in which such teachers were employed to teach, for their wages as such teacher. That after appellant had commenced to teach she was informed by the then school commis- sioner of the commissioner district in which such school is situate, that it was necessary that she have a certificate ; that at the time of such examinations before said commissioner the appellant was unable, by reason of her illness, to attend such examination; that subsequently the appellant was examined by the school commissioner, and on December 2, 1893, received from him a third grade certifi- cate. It clearly appears that with the exception of a few weeks after the appel- lant commenced to teach the school, she was in possession of a license or certifi- cate as a qualified teacher under the school law, and was such qualified teacher at the time of her dismissal by the respondent on December 29, 1893. A con- tract of employment was made in August 1893, between the respondent and appellant for teaching the school in said district to commence early in September 1893. for the school year to consist of ten months, at a salary of $500, payable m ten equal payments of $50 at the end of each month; but whether under said contract the respondents as individuals, or the school district of which they con- stitute the board of education, were liable it is not necessary in this appeal to decide. It IS clear, however, that the appellant, having subsequently obtained a license and certificate which made her a qualified teacher under the school law and being continued by the respondent in the school, the contract made in August 1893. became a contract between the appellant and the district. It appears that the respondent, at the end of each month, commencing in September 1893, paid JUDICIAL decisions: teachers' contracts 1209 the appellant for her services as such teacher, by orders upon the fund of teachers' wages in the hands of the treasurer of the district, and unless the appellant was a qualified teacher when such payments were made, then each member of said board of education was guilty of a misdemeanor under the school law. Each member of said board of education had knowledge that the appellant was not licensed when they employed her. It is a well-settled principle of law that no person will be permitted to benefit by his wrongful acts. The position taken by the respondent in the rejoinder is, " we dismiss the appellant for cer- tain specified reasons, but if we did wrong, in any event, we had no right to employ her because she had no license or certificate entitling her to teach." This contention is not tenable. The counsel for the respondent contends in his brief that there was no contract made with appellant except by letter from the president of the board of education. The proofs show that said president addressed a let- ter, under date of August 21, 1893, to the appellant, stating that the board of trustees had decided to engage her as teacher in the school in the district for the coming year, from September 1893, to and including June 1894, at a salary of $500, and wished to have the school open on the first week in September. This letter contained a written ofifer of employment on the part of the board of educa- tion, and the appellant unconditionally accepted the offer and entered upon the employment, and hence such offer and its acceptance constituted a binding con- tract under the school law in force at the time of the aforesaid contract, and the board of education was required to make and deliver to the appellant, or cause to be made and delivered to her, a memorandum in writing, signed by the mem- bers of the board, in which the details of the agreement between the parties should be clearly stated and definitely set forth; but the board failed to comply with such provision of law. The counsel for the respondent also contends that as the appellant was an infant she was disqualified by reason of her infancy to make a contract. This contention is not tenable, for the courts of this State have held that the contracts of infants are not void, but voidable at their election. I find and decide, That in 1893 ^ contract was entered into between the respondent herein, the board of education of union free school district no. 3, town of Mount Pleasant, Westchester county, and the appellant herein, Analusia Barnard, employing the said appellant as a teacher in said school for the term of ten months, commencing in September 1893, and including June 1894, at a salary of $500, payable monthly, to wit, $50 at the end of each calendar month of said employment. The said appellant has been paid for services under said employment for the months of September, October, November and December 1893. That on December 29, 1893, while said appellant was a qualified teacher under the school law then in force, and in and during the course of a term of employment as such teacher in said school district, that said board of education, the respondent herein, dismissed and discharged her as such teacher in said school district. That the reasons alleged by said board of education for the dis- missal and discharge of the said appellant as such teacher during the course of a I2I0 THE UNIVERSITY OF THE STATE OF NEW YORK term of employment, are not held by me to be sufficient cause for such dismissal ant! discharge, and the action of said board of education in such dismissal and discharge of the appellant without sufficient cause, was unlawful, invalid and void. That the appellant is entitled to be paid by, and to have and receive from, said school district the sum of $300, with interest upon the sum of $50 from the end of each of the months of January, February, March, April, May and June 1894, until paid by said district, this Department having uniformly held that where a teacher is not paid her wages as often as at the end of each calendar month, such teacher is entitled to be paid interest upon such monthly payments. The appeal herein is sustained. It is ordered. That the board of education of union free school district no. 3, town of Mount Pleasant, Westchester county, without unnecessary delay, pay to the appellant, Analusia Barnard, out of any funds belonging to said school dis- trict, applicable to the payment of teachers' wages, said sum of $300, with interest upon each of said monthly payments of $50 from the respective dates when each of said monthly payments became due to the date of the payment thereof. It is further ordered, That should there not be any sum of money belonging to said school district applicable to the payment of teachers' wages, or not a suffi- cient sum of money of said fund to pay to the said Analusia Barnard said sum of $300, with interest, as aforesaid, the said board of education is hereby ordered, without unnecessary delay, to raise by tax upon the real and personal property within said school district, liable to assessment and taxation for school purposes, a sum sufficient to pay to said Analusia Barnard said sum of $300, with interest as aforesaid. 3493 In a contract leasing a school building from the trustees of St Raphael's church, by the board of education of a union free school district, the provision that three teachers from the class commonly called "sisters" shall be kept employed, is contrary to the spirit of the school law and against public policy. The local school authorities have no right to limit the class of persons, who have reached the required standing of learning and ability to teach, from which the teachers of the school may be selected. Decided April i, 1886 Morrison, Acting Superintendent This is a proceeding by Leauder Colt, appealing from the action of the board of education of union free school district no. 7. in the village of Suspension Bndge, town of Niagara, county of Niagara, in making a lease of St Raphael's Catholic School building, situated in said village, for the term of one year from .November 10, 1885, and the making of covenants and agreements in said instru- ment of lease, by the said board of education, " with the trustees of the Roman Catholic school, wherein said board of education undertakes, in substance, t6 support a Roman Catholic school out of the school moneys appropriated to such JUDICIAL decisions: teachers' contracts 121 1 free school district no. 7, or realized from school taxes levied upon the inhabit- ants of said district." (Several grounds of appeal are stated.) It is unnecessary to reviev^ these grounds of appeal, further than to examine and ascertain the effect of the lease itself. It can not, of course, be assumed that the board of education has no power to lease the premises belonging to a sec- tarian body for school purposes, for it must be presumed that when these premises come into the possession of the school authorities, the laws of the State, pro- hibiting sectarian instruction, will be observed. But this agreement, entered into by Felix Nassory and his associate trustees of the St Raphael's school, together with the Right Reverend Bishop Ryan of the city of Buffalo, parties of the first part, and the board of education of union free school district no. 7, party of the second part, is open to this fatal objection: namely, the board of education agrees in said instrument, during the term of the lease, to cause one of the schools of the district to be kept in operation in said schoolhouse building, and to keep employed as teachers therein for such school, three competent teachers " of the class commonly called ' sisters,' provided such teachers shall make application in the due form to be so employed, and shall be found to be duly qualified accord- ing to law to act in the capacity of teachers, and should any of these teachers be withdrawn from the school, others may be employed in their stead ' of the same class,' provided, ' three such teachers of the class called sisters be so employed during the term of the lease.' " This provision is contrary to the spirit of the school law and against public policy. The board of education, doubtless, has a right to employ as teacher, any person of the requisite age and possessed of the qualifications recognized by the statute. But the local school authorities have no right to limit the class of persons, who have reached the required stand- ing of learning and ability to teach, from whom the teachers for the school may be selected. As this provision seems to be the controlling condition of the lease, the action of the board of education must be set asiide. 4488 In the matter of the appeal of Eugene G. Putnam v. the board of trustees of union free school district no. 6, Port Richmond, Richmond county. Under the school laws and rules and regulations prescribed by this Department governing uniform examinations of persons proposing to teach common schools and for com- missioners' certificates, a first grade certificate received by any such person so ex- amined legally, entitles the holder thereof to teach in any school commissioner dis- trict in the State; and such right can only be defeated by the refusal of the school commissioner, having a valid reason, to indorse such certificate. The first grade certificate granted to appellant in March 1896 entitled him to teach in Richmond county at any time after the date thereof during the term of time stated therein, subject to such right being defeated by the refusal of the school commissioner of such county, for a valid reason, to indorse the same. The contract entered into between the appel- ' lant and the then trustees of the district was a legal contract binding upon the parties 1212 THE UNIVERSITY OF THE STATE OF NEW YORK thereto and upon the succeeding trustees of the district and upon the district. It was the duty of the trustees of the district, for the school year of 1896-97 to recognize the legality of the contract and to have permitted the appellant to teach in the school of the district when the school therein was opened on September 8, i8g6, the appellant then holding such first grade certificate, indorsed by the school commissioner for Richmond county. Decided October 14, 1896 Thomas W. Fitzgerald, attorney for appellant Skinner, Superintendent The appellant in the above-entitled matter appeals from the action of the respondents therein in refusing to recognize the appellant as qualified to teach in the school in union free school district no. 6, Port Richmond, Richmond county, and refusing to permit the appellant to perform, on his part, a certain contract entered into on June 8, 1896, between the then trustees of said district and the appellant, in and by which contract the appellant was employed to teach in said district for the school year of 1896-97 at the annual compensation of $1600, payable in ten monthly instalments of $160 on the first day of each month, the first instalment payable on the ist of October 1896. The respondents have answered said appeal. The following facts are established by the papers filed herein : That in the month of March 1896, the appellant herein received a first grade certificate to teach in the public schools of this State, pursuant to the provisions of the school laws and the rules and regulations prescribed by the State Super- intendent of Public Instruction, pursuant to the authority given him by said school laws for the examination of persons proposing to teach in said public schools, not possessing said Superintendent's certificate of qualification, or a diploma of a State normal school, and governing uniform examinations for cer- tificates of school commissioners, which certificate covered a period at least as long as the contract of service hereinafter stated; that during the school year of 1895-96, prior to July 8, 1896, Charles H. Ingalls, Charles H. Vail and George H. Janneman were the trustees or members of the board of education of said school district; that Messrs Vail and Janneman, as such trustees, under date of April 6, 1896, sent to the appellant herein a letter, signed by them as such trustees, stat- ing that " we having considered your (appellant's) letters of recommendation, and having from other sources satisfied ourselves concerning your (appellant's) qualifications to fill the position of principal and teacher of our school, agree to employ you at a salary of $1600 per year, for the coming school year, commenc- ing about September i, 1896," and that they would ratify this action at a subse- quent meeting of the board; that the foregoing negotiations relative to the employment of the appellant as such teacher were opposed by Mr Ingalls, the third member of said board ; that on June 8, 1896, a contract was entered into between the said Vail and Janneman, as such trustees, and the appellant herein, of which the following is a copy : JUDICIAL decisions: teachers' contracts 1213 Memorandum of hiring required by the ConsoHdated School Law This is to certify that we have engaged Mr E. G. Putnam (a duly licensed teacher), whose certificate does not expire prior to July i, 1897, to teach in the union free school, district no. 6, town of Northfield, county of Richmond, for the term of (i) year, commencing on this date, at a yearly compensation of $1600, payable in ten monthly instalments of $160, payable on the first day of each month, the first instalment payable on the ist day of October 1896; this hiring and employment to be subject to the rules and regulations of the board of education of said district now in force and such other rules and regulations as may hereafter be made and promulgated by the board. Dated, Port Richmond, this 8th day of June 1896. C. H. Vail G. H. Janneman Trustees I accept the foregoing employment, subject to the conditions named therein. E. G. Putnam Teacher That on July 8, 1896, the State Superintendent of Public Instruction, in a decision made by him, upon proceedings on a petition to him for the removal of said Vail and Janneman as trustees of said district, duly removed them; that at the annual school meeting held in said district on August 4, 1896, it is claimed that a proposition to increase the number of the members of the board of educa- tion of said district from three to five was adopted, and that the respondents herein were at such meeting elected as trustees or members of the board of education of said district; that on August 21, 1896, Mrs Julia K. West, school commissioner of Richmond county, indorsed the said first grade certificate held by the appellant herein ; that the respondents herein decided to open the school in said district on September 8, 1896; that the respondents herein refused to recognize the aforesaid contract, dated June 8, 1896, between said Vail and Janneman, as trustees of said school district, and the appellant, and refused permission to the appellant to teach in said school under said contract or to allow the appellant to perform his part of said contract. It further appears, from the records in this Department, that on July 24, 1896, C. H. Ingalls, a member of the board of trustees of said district, was informed by me that before the appellant herein was permitted to enter upon the service of teaching in said district that he (Ingalls), as such member of said board, would have the right to demand that he (appellant) present his certificate of qualifications entitling him to teach in said district; that in the month of August 1896, the question of the legality of said contract employing the appel- lant herein to teach, was submitted to me upon certain papers and letters by the board of trustees of said district, and that on or about August 29, 1896, I informed said board through J. W. Wortz, its president, both by letter and telegram, and also the appellant herein, that I sustained said contract. I2I4 THE UNIVERSITY OF THE STATE OF NEW YORK The respondents herein, in their answer, allege, upon information and belief, that the said Vail and Janneman, in making said contract with the appellant herein against the protest of their cotrustee, Ingalls, did so with the purpose of fore- stalling my decision in the proceedings then pending before me for their removal from office and forcing upon the district a teacher of their selection; that such facts were known to appellant at the time he made the contract. Such allegations are not established by proof. While it may be that, as a matter of taste, said Vail and Janneman should have, pending the appeal against them, abstained from acting in the matter of employing teachers for the school year commencing on August i, 1896, it not appearing that any order was made restraining them from performing any. act which the school laws of this State permitted them to do, as two of the trusetes of said district they had the legal authority to act, until removed from ofifice, in the employment of a teacher or teachers. It is the custom in school districts, where a large number of teachers are employed, for the school authorities, before the schools of the districts are closed, to contract for teachers in the schools of their respective districts for the ensuing school year, and the school law authorizes such school authorities to make such contracts, provided the services are to be performed within the school year next following the date of the contracts. Negotiations relative to such employment are often entered into as early as was the one with appellant, namely, April 6th, which ripen into contracts concluded at different dates in May, June and July following. The respondents herein allege that the term of service of said appellant, being for one year from June 8, 1896, would expire seven weeks before the end of the school year, and that there was no vacancy in the office of principal or teacher in the school, the contracts with the teachers then teaching not expiring until June 30, 1896. Neither of these contentions is tenable. The communica- tion in writing to the appellant, under date of April 6, 1896, stated that the trus- tees agreed to employ the appellant for the coming school year commencing about September i, 1896. It was clearly understood between the appellant and Vail and Janneman that the appellant was not employed to teach any part of the school year of 1895-96, but was employed for the term of time during which the schools of the district were held during the school year of 1896-97. The main ground alleged by the respondents for their refusal to recognize the contract, made between the appellant and Vail and Janneman, is that at the tUTie of the making of said contract the appellant did not possess an unannulled diploma of a State normal school, or an unrevoked or unannulled certificate given by the State Superintendent of Public Instruction, or an unexpired certifi- cate of qualification given by a school commissioner within the district in which the said union free school district no. 6 of Northfield is situated, and that there- fore the appellant was not eligible to make a valid and binding contract accord- ing to the statute; that the respondents obtained the opinion of counsel and were advised that said contract was not binding upon said district under the JUDICIAL decisions: teachers' contracts 1215 statutes as repeatedly interpreted by the Supreme Court of the State; that the appellant did not have the certificate to teach held by him indorsed by the school commissioner of the school commissioner district in which said school district is situate until more than two months after said contract was made, and that his alleged employment was certainly not within the letter of the law, or the deci- sions of the courts as they are advised and believe. Annexed to said answer is a copy of the opinion of counsel consulted by the respondents. Counsel cites section 11, article 4, title 8 (undoubtedly intending to cite sub- division II of section 15, article 4, title 8), section 38, article 5, title 7; section 9 of same article (undoubtedly meaning subdivision 9 of section 47, article 6, title 7), of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894; and also the case of Gillis v. Space, 63 Barbour, 177, decided by the Supreme Court in June 1872, and the case of Blandon v. Moses, 29 Hun 606, decided in April 1883. The decisions of the Supreme Court were made under the Consolidated School Act of 1864 and the amendments thereof, and upon facts before the court in each case respectively. In Gillis V. Space it appears that the plaintiff and the then trustee of a school district on September 29, 1870, entered into a written agreement whereby the plaintiff was engaged to teach school in said district for the term of one year commencing October 17, 1870; that on October 11, 1870, the defendant Space was elected trustee of the district ; that at the time of entering into said contract the plaintiff had no license or certificate as a teacher as required by the school laws then in force; that the plaintiff claimed it was agreed that she should procure a certificate before the commencement of the school, but) it did not appear that such condition was embraced in the written contract ; that on October 12, 1870, the plaintiff procured, under the laws then existing, a certificate from a district commissioner, that is, a certificate of qualifications of the second grade; that on October 17, 1870, the plaintiff presented herself at the schoolhouse and offered to the defendant, then trustee, to enter upon her said contract to teach, and said defendant refused to permit her to teach and gave her a written notice of such refusal the same day, in which he stated the grounds of his refusal; that the plaintiff gave notice of readiness to teach the school, and that she would remain in readiness to teach for a year, and did for the whole year hold herself in readiness to teach such school ; that the plaintiff brought an action against the defendant in the Supreme Court which was tried and the court ordered a verdict in her favor for $480, the contract price for the whole year ; that exceptions were taken to the rulings of the court, and appeal was taken to the general term. The general term, in the opinion written by Barker, justice, passed upon the several objections taken and ordered a new trial. In his opinion Justice Barker said: " The trustee of a school district has no power to contract for the services of an unlicensed teacher and bind the district. If he should make a condition of hiring that the teacher should procure a certificate before entering upon the I2l6 THE UNIVERSITY OF THE STATE OF NEW YORK duties of teaching, such contract would doubtless be valid, for then the services of a licensed teacher are bargained for, citing provisions of the school act of 1864, and page 140 of the Code of Public Instruction of 1868. In Blandon v. Moses it appears the action was brought in the Onondaga county court to recover damages for the breach of an oral contract by which the defendant employed the plaintiff as a teacher for his school district for the period of twelve weeks; that after the making of the contract the defendant notified the plaintifT that he revoked the contract; that at the time the contract was made the plaintiff had no license to teach, but after the revocation of the contract, and prior to the time the school was to open he passed an examination and procured the requisite certificate; that a judgment was rendered in favor of the plaintiff from which an appeal was taken to the general term of the Supreme Court. In the memorandum of the court at general term, the court said : " Two questions are presented for our consideration on this appeal ; one is, was the contract valid and binding upon the parties thereto, or was it illegal and inopera- tive for the reason that the defendant, as trustee, had no power and authority to contract for the plaintiff's services as teacher, he at the time having no certifi- cate from the proper officers? In Gillis v. Space, 63 Barb. 177, it was held that a trustee of a school district had no authority to contract for the services of an unlicensed teacher, and that an executory agreement engaging the services of such a person was invalid and not binding upon the school district. This decision was made in this Department and we adhere to the interpretation then given to the statute creating and defining the duties and powers of school trustees as contained in chapter 555, Laws of 1864." The contract set out in this appeal was made under the provisions of the Consolidated School Law of 1894, chapter 556, of the Laws of 1894, and the rules and regulations made by the State Superintendent of Public Instruction pursuant to the authority given to him by said law, in force at the time said con- tract was made, and the factfe established relative to such contract, and its legality depends on whether it is in accordance with such provisions, rules and regulations. When said counsel cited in his opinion certain provisions of the Consolidated School Law of 1894, he overlooked, or at least omitted to cite, some other pro- visions of said law material to be considered in determining the legality of the contract made by the appellant and Vail and Janneman. Section 14, title i of said Consolidated School Law enacts that the State Supermtendent of Public Instruction shall prepare suitable registers, -blanks, forms and regulations for making all reports and conducting all necessary business under this act, and shall cause the same, with such information and instructions as he shall deem conducive to the proper organization and government of the common schools and the due execution of their duties by school officers, to be transmitted to the officers and persons intrusted with the execution of the same In subdivision 5 of section 13, title 3 of said Consolidated School Law, it is enacted that every school commissioner shall have power, and it shall be his duty JUDICIAL decisions: teachers' contracts 1217 to examine, under such rules and regulations as have been, or may be, prescribed by the Superintendent of Public Instruction, persons proposing to teach common schools within his district, and not possessing the Superintendent's certificate ot qualification or a diploma of a State normal school, and to inquire into the moral fitness and capacity; and, if he find them qualified, to grant them certificates of qualification, in the forms which are or may be prescribed by the Superintendent. In section 15, title 5 of said Consolidated School Law it is enacted that the school commissioners shall be subject to such rules and regulations as the Super- intendent of Public Instruction shall, from time to time, prescribe, and appeals from their acts and decisions may be made to him, as hereinafter provided. The rules and regulations prescribed and adopted by the State Superin- tendent, under the authority of the provisions of the school law above cited, have upon school officers the binding force of a statute. Among the rules and regula- tions prescribed by the State Superintendent, in force in the school year 1895-96, governing uniform examinations of persons proposing to teach in the common schools, and the granting of certificates, was the rule that a school commissioner shall indorse for the full period for which they are valid, when presented to him or her for indorsement, first and second grade certificates issued by any other school commissioner in the State, unless a valid reason exists for withholding such indorsement. A valid reason is held to mean, a reason based upon some fact known to the commissioner afifecting the moral or mental qualifications of the person to whom the certificate is granted, and must be stated by the commissioner. An appeal from the refusal of a school commissioner to indorse such certificate may be taken to the State Superintendent, and if in his opinion the school com- missioner gives no valid reason for his refusal, he may order the school commis- sioner to make the indorsement, and if such order is not obeyed he may remove from office such commissioner. As long ago as September 1891, upon the inquiry of a school commissioner, if the rules and regulations governing the uniform examinations for commis- sioners certificates, issued by the Department of Public Instruction were binding, and if it was within the power of the State Superintendent to make such rules, etc., the Attorney General of the State stated that he found nothing therein which attempts to annul or is in conflict with the statutory provisions then in force, or which is beyond the power granted to the State Superintendent. By subdivision 5 of section 13, title 5 of the Consolidated School Law of 1894, above quoted, school commissioners have the power to examine under such rules and regulations as have been or may be prescribed by the Department of Public Instruction, persons proposing to teach common schools, etc. The purpose of the rule that school commissioners shall indorse certificates of the first and second grade when no valid reason exists for a refusal to indorse is given, is that such certificates shall be good in all of the school commissioner districts of the State. 39 I2l8 THE UNIVERSITY OF THE STATE OF NEW YORK It does not appear when the appellant herein presented his certificate to teach to the school commissioner of Richmond county for indorsement, but it appears that it was indorsed on August 21, 1896, about eighteen days before the schools in the district were open, and his services as a teacher therein were required under his contract. It can not be seriously contended that a person holding a first grade certificate will present his certificate for indorsement to a school commis- sioner other than the one who signed the certificate, until he has secured employ- ment to teach in a district within the commissioner district of the school com- missioner whose indorsement is required. Upon the first grade certificate, letters and recommendations presented by the appellant herein, on or prior to June 8, i8g6, to the then trustees of said dis- trict, said trustees had the right to assume that there was no valid reason why the indorsement of said certificate by the school commissioner of Richmond county, should not be promptly made. As hereinbefore stated, in the month of August 1896, the respondents herein voluntarily submitted to me the question of the legality of the contract employing the appellant, and on or about August 29, 1896, received through the respondent, Wortz, both by letter and telegram, as did also the appellant, notice that I sus- tained the contract. It appears by a copy of the proceedings of a meeting of said respondents, at which all of the respondents were present, annexed to both the appeal and answer herein, that as the decision by me was adverse to their views, such decision was wholly ignored. Said copy of the minutes of said meeting con- tains the following: "Telegram and communication from the State Superin- tendent received, read and ordered placed on file. Mr Ingalls offered, and Mr Wortz seconded, a motion that Mr Putnam be requested to withdraw his claim under his so-called contract. On vote, the president declared it to be a tie vote, Mr Sheridan not voting. On motion (Ingalls and Wortz) it was voted that O. H. Hoag be employed as principal for three months. On motion (Ingalls and Wortz) it was voted that Mr Putnam be requested to withdraw his claim under his so- called contract." In the copy of said minutes of said meeting, annexed to the appeal herein, the following appears : Mr Ingalls moved, seconded by Mr Wortz, that O. H. Hoag be employed as principal for three months; Mr Ingalls and Mr Wortz votmg ' yes ' and balance of board not voting ; president declared motion carried." It clearly appears that the respondents herein, by their action at said meeting. not only wholly disregarded their submission to me by them of the question of the validity of the contract with appellant, but wholly ignored my decision by adopt - mg a resolution requesting the appellant to withdraw his claim under the con- tract which I had decided to be valid. Not only did the respondents by the aforesaid action on their part ignore and refuse to accept my decision upon a question submitted by them to me, and request the appellant to withdraw his claim under a contract decided by me to be valid; but they went further and employed, or attempted to employ, another person to perform the services, which JUDICIAL decisions: teachers contracts 1219 the appellant, under a legal contract of employment was ready and willing to perform, but which the respondents refused to permit him to perform. There is a conflict as to how many of the persons present at said meeting voted to employ Hoag. Assuming, for the purpose of argument only, that the five respondents present at the meeting constitute the members of the board of education either de facto or de jure, it required the vote of a majority of them, namely, three, to legally authorize the employment of Hoag. The respondents herein claim to be acting in the matter of the contract with appellant impartially, without malice, prejudice or bias either for or against the appellant, and with the sole desire to do what is right and. legal. Their action, as set out in the minutes of the proceedings of their meeting of August 31, 1896, has caused me to entertain grave doubts whether their claim is true. 1 decide : i That under the school laws and the rules and regulations pre- scribed by this Department governing uniform examinations of persons proposing to teach common schools and for commissioners certificates, that a first grade certificate received by any person so examined legally entitles the holder thereof to teach in any school commissioner district in the State ; and that such right can only be defeated by the refusal of school commissioners, having a valid reason, to indorse such certificate. 2 That the first grade certificate granted to appellant in March 1896, and held by him, entitled the appellant to teach in Richmond county at any time after the date thereof during the term of time stated therein, subject to that right being defeated by the refusal of the school commissioner of said county, for a valid reason, to indorse the same. 3 That the contract entered into on June 8, 1896, between the appellant herein and said Vail and Janneman, as trustees of said district, was a legal con- tract binding upon the parties thereto, and upon the succeeding trustees of said district, and upon said district. 4 That it was the duty of the trustees of said district, for the school year of 1896-97, to recognize the legality of said contract, and to have permitted the appellant to teach in the schools in said district under said contract, when the school for said school year was opened, commencing on September 8, 1896, the said appellant then holding said first grade certificate, indorsed by the school commissioner of Richmond county. The appeal herein is sustained. It is ordered, That the trustees or members of the board of education of union free school district no. 6, Port Richmond, Richmond county, be, and they are hereby directed, without unnecessary delay, to recognize the appellant herein, F.ugene G. Putnam, as a teacher in the school or schools of said district, under the contract entered into between the trustees of said district and said appellant, dated June 8, 1896, and to permit the said appellant to teach in said school or schools, and to perform, on his part, the terms of said contract. 1220 THE UNIVERSITY OF TIIF STATE OF NEW YORK 5172 In the matter of the appHcatioji of the board of education of union free school district no. 12, town of Warwick, Orange county, for the revocation of the certificate of S. Jennie Townsend. A teacher did wronK in accepting a more desirable offer before being released from a prior engagement which she made. The Commissioner of Education must decline going to the length of revoking her certificate under the circumstances of this case and putting a dark mark upon her life. Decided February 17, 1905 Draper, Commissioner The respondent herein was employed as teacher of music and oratory in the school of the above named district during the school year ending July 31, 1904- During the month of April the board of education otTered to retain her in the same position for the ensuing year at a salary of $600 per year. On April 25, 1904, she accepted the offer. A memorandum of agreement was signed by the board of education and delivered to Miss Townsend about April 29th and one bearing the same date was signed by Miss Townsend and filed with the board of education. On July 13. 1904, Miss Townsend forwarded to Doctor Wood, a member of the board of education, a telegram tendering her resignation and requesting an answer in relation to its acceptance on that day. Doctor Wood wired that he had no authority to accept the resignation ; that only three members of the board were in town and that he would write her. Miss Townsend had been offered the position of teacher of music and oratory in the State Normal College of Plymouth, New Hampshire, at a salary of $900 per year and the prospect of an increase if her work was satisfactory. She was required to give an answer within two days. Assuming that the board would accept her resignation she notified the New Hampshire Normal College that she would accept the position. She then wrote Doctor Wood of her acceptance of the position. The board of education at a meeting held July 28th directed its clerk to notify Miss Townsend that as she had broken her contract with them the board conceived it their duty to notify the State authorities of her action. The board of education filed a petition for the revocation of her certificate with this Department January 13, 1905, having made due service thereof on Miss Towns- end January 9, 1905, or nearly six months after the act complained of took place. The respondent has not filed an answer to the petition but has filed a request for the dismissal of the petition on the ground that rule 5 regulating the practice of appeals in this Department requires an appeal to be brought within thirty days after the act complained of took place or a valid reason must be assigned for failing to do so. The petitioners claim that this proceeding is not an appeal and not subject, therefore, to the rule. In this they are doubtless right. The teacher did wrong in accepting a more desirable offer before being JUDICIAL decisions: teachers' contracts 1221 released from a prior engagement which she had made. But the temptation was too much for her. She made the effort to secure release. She was not met with immediate refusal, or with decisive action of any kind, and she presumed upon a very common usage of trustees to grant release in such cases rather than to endure the consequences of disappointment. Doubtless teachers ought to be required to abide business contracts as sharply as other people, and women teachers as much as men teachers. It is difficult to do it, but if it was a question of enforcing or assuring the results of a contract the Commissioner would try to do it. But that is not it. He is asked to punish a woman teacher for a frailty. He will do it to the extent of telling her she did wrong and must not repeat the offense, but he must decline going to the length of revoking her certificate and putting a dark mark upon her life. The petition herein is dismissed. TEXTBOOKS 3583 In the matter of the appeal of Newton W. Edson v. the board of education of the city of Binghamton. The jurisdiction of the State Superintendent to hear and determine appeals is conferred by the general school laws, and extends to localities subject to local and special acts, unless such acts take it away, as to such localities, in language so clear as to admit of no doubt of such intent of the Legislature. An appeal will lie from acts of the board of education of the city of Binghamton. Where a textbook is in use for more than five years, without any designation and adoption of the same as a textbook, and the board of education by a majority vote decides that such book shall be continued in use for the remainder of the school year, held, not a designation and adoption of a textbook within the meaning of chapter 413, Laws of 1887. The board of education may, under such circumstances, by a majority vote, designate a textbook to be used in the schools under their charge, the same to go into effect at a stated time in the future, not unreasonably distant. Decided April 4, 1887 Arms & Curtiss, attorneys for appellant Chapin & Lyon, attorneys for respondent Draper, Superintendent The facts upon which this appeal arises are undisputed, and are as follows: Three textbooks, entitled respectively, " Our World," " Guyot's Grammar School Geography " and " Guyot's New Intermediate Geography," had been in use in the schools of the city of Binghamton for at least six years prior to the i8th day of October 1886, within which time there had been no action of the board adopt- ing the same as textbooks in the schools of the city. Upon the iSth day of October 1886, the board of education held a meeting, at which it was unanimously resolved that no change should be made in the geographies in use in the schools during the present school year. At the next meeting of the board, held on the 1st day of Xovcmber 1886, a motion or resolution was adopted, by a vote of seven to three, that the resolution of October i8th be reconsidered, pursuant to a standing rule or by-law of the board allowing such reconsideration at the same or next regular meeting. At a meeting held on the 6th of December following, the board, by a vote of seven to six, adopted the following resolution, namely: Resolved, That the use of the primary geography entitled " Our World," be discontmucd as a textbook in our schools, and that Barnes's Elementarv Geoo-- n^. Ivfhn ^'-^""^ '" '^? place, and that Barnes's Complete Geography be adopted rf th'txf scho^olVetr^^ ' "^ "^^' ''°-^^^^' ^^ ^^ P^^^P-^^ -tU L beginn\.g [1222] JUDICIAL decisions: textbooks 1223 At a meeting of the board held on the 3d of January 1887, the following resolution was offered, namely : Resolved, That Guyot's geographies be discontinued as textbooks in our common schools at the close of the present year. As objection was made to this resolution, its consideration was postponed until the next meeting, pursuant to the rules of the board, but at such meeting, held on the 17th day of January, the resolution was adopted by a vote of seven to five. It was admitted upon the argument of the case before me, that the term " present year " at the end of this resolution, meant the present " school year." The appellant alleges that, after the passage of the resolution of October i8th, providing that no change should be made in the geographies during the present school year, and relying upon it, he purchased two of Guyot's grammar school geographies for the use of his children, and that others did the same. It is claimed, on behalf of the appellant and these others, that the resolution of October i8th was, in purpose and effect, a designation of the Guyot's geographies as textbooks in the schools of Binghamton, within the provisions of chapter 413 of the Laws of 1877, and that, consequently, no other textbook could displace them for the period of at least five years thereafter, as provided by that act, except by a three-fourths vote of the board of education. It is accordingly insisted that the resolutions of November ist, December 6th and January 17th are in contravention of the " act to prevent frequent changes in textbooks in schools " and are, therefore, void. The appellant has brought two separate appeals, but they may more easily than otherwise be disposed of together. The respondent denies that the State Superintendent has any jurisdiction to hear and decide these appeals. It is said that the school system of the city of Binghamton is governed by a special act of the Legislature (chapter 322, Laws of 1861) and its amendments, and that there is nothing in this special act con- ferring upon the State Superintendent the authority to determine appeals from the acts of the board of education of that city. It is also insisted that the pro- visions of the Consolidated School Act (chapter 555, Laws of 1864), concerning appeals to the State Superintendent' from the acts of local school officers, do not extend jurisdiction to the act of a board of education in a city having a special school act. It is accordingly argued that there is no jurisdiction at all in the present case. The question is an important one, and I have endeavored to give it that examination which its gravity demands. I have examined the statutes specially referring to the supervision of the schools of the city of Binghamton with considerable care, and am of the opinion that, if jurisdiction in this case depended alone upon these statutes, it would not be difficult, reading the several successive acts together, to discern an intention to confer it on the part of the Legislature. But in my opinion it does not depend upon the provisions of the special acts, having reference only to a particular locality. Title 12, section i, chapter 555, Laws of 1864, is as follows: 1224 THE UNIVERSITY OF THE STATE OF NEW YORK Section i Any person conceiving himself aggrieved in consequence of any decision made : 1 By any school district meeting. 2 By any school commissioner or school commissioners and other officers, in forming or altering, or refusing to form or alter, any school district, or in refusing to apportion any school moneys to any such district or part of a district. 3 By a supervisor in refusing to pay such moneys to any such district. 4 By the trustees of any district in paying or refusing to pay any teacher, or in refusing to admit any scholar gratuitously into any school. 5 By any trustees of any school district library concerning such library, or the books therein, or the use of such books. 6 By any district meeting in relation to the library. 7 By any other official act or decision concerning any other matter under this act, or any other act pertaining to common schools, may appeal to the Super- intendent of Public Instruction, who is hereby authorized and required to examine and decide the same; and his decision shall be final and conclusive. and not subject to question or review in any place or court whatever. The seventh subdivision of this section contains language as comprehensive as could well be employed. It authorizes any person aggrieved at " any other official act or decision concerning any other matter under this act or any other act pertaining to common schools," to appeal to the State Superintendent. The contention of the respondent's counsel that the phrase " any other official act " refers only to acts by the same body or of the same nature as though specified in the first six subdivisions of the section, can not be adopted. It is an official act concerning " any other matter under this act or under any other act pertaining to common schools," which is the subject of appeal. It was the obvious intent of the Legislature to provide an easy, inexpensive, speedy and conclusive way for procuring a determination of complaints against any official act of any local school official. Both the language of the law and the different steps taken by the Legislature to bring it to its present state, sustain this construction. Enacted in the early days of the school system, it has from time to time been added to with the evident purpose of making it clear that the jurisdiction of the Superintendent is mtended to be statewide and is to cover all controversies touching any official act of local school officials. These provisions of the general law were, in substance, in force long before the passage of the special laws referring only to the city of Binghamton. If the Legislature had intended to cut off the right of appeal, as to that city, it would have so provided in the laws particularly applicable to it. It not only did not do this, but it is worthy of note that it expressly preserved the right in the first mstance and omitted to do this only upon a reenactment of the Binghamton school laws consequent upon the granting of a city charter to the place. It is fair to assume that the omission at that time was either because of inadvertence or because an express reservation was deemed unnecessary. In any event, the State Superintendent does not get jurisdiction from local school acts, but from the general school law. The authority mu.st be held to be general unless taken away by a special act, in language so clear as to leave no doubt of its intent, and there is no such taking away in the statutes applicable only to the city of Binghamton. JUDICIAL decisions: textbooks 1225 There is another consideration which has not been suggested by the able and alert counsel who appeared upon the argument of this appeal and which, in view of the foregoing, is perhaps not material to the determination of the question of jurisdiction, and yet it has sufficient bearing upon it to justify me in mentioning it. The appellant claims that the action of the respondent is in violation of chapter 413 of the Laws of 1877, entitled "An act to prevent frequent changes of textbooks in schools." This is " an act pertaining to common schools." The question brought here is one arising under it. The determination of this question may involve the construction of the provisions of this general law, rather than of the special laws relating to Binghamton. It will hardly be contended that the Legislature meant to leave it to the board of education or trustees in each city or district having a special school act, to place such construction as it should see fit upon this general law and to suit its acts to its views of the meaning of the law, without affording a means of redress to persons differing with it in opinions and aggrieved by its acts. Such a view would result in as many different con- structions of the meaning of this statute as there are different localities having special acts, and would defeat the purpose and intent of this general law. In view of these considerations, it seems clear to me that the grievance of the appellant is properly brought before the Department by means of an appeal, and that, under the laws, it is the duty of the Superintendent to determine the matter. Passing, then, to the consideration of the merits of the case, several questions present themselves. Has the appellant been aggrieved? Was the resolution of October i8th, providing that no change should be made in the geographies in use in the schools during the present school year, an adoption and designation of a textbook within the meaning of chapter 413 of the Laws of 1877, entitled "An act to prevent frequent changes of textbooks in the schools? " If so, had the board a right to reconsider such action at the same or next regular meeting, as provided by its by-laws? If it was an adoption of a textbook within the meaning of the act to prevent frequent changes of textbooks, was the subsequent action of the board in violation of that statute? If the action of October r8th was not an adoption and designation of a textbook, and if the subsequent action of the board was not in violation of the law to prevent frequent changes of books, still had the board power to provide by resolution that Barnes's geographies should go into use at the beginning of the next school year, when it is admitted that the board may be differently constituted prior to that time? It should be borne in mind that chapter 413 of the Laws of 1877, entitled "An act to prevent frequent changes of textbooks in schools," was not enacted for the benefit of book publishers, nor for the purpose of preventing progress in the schools. It is intended to prevent changes in textbooks upon the same subject oftener than once in five years, unless the sentiment in favor of such change should be so strong that a three-fourths vote of the board of education in cities, villages and union free school districts, or of the legal voters at the annual school meeting in the other districts of the State should be cast in favor of the change. When a book has been adopted and designated as provided in the act, it can not 1226 THE UNIVERSITY OF THE STATE OF NEW YORK be clianged k)r the period of five years, except by a three-fourths vote. After the expiration of such period, another book may be adopted in place of it by a majority vote of the board of education, or a two-thirds vote of the electors, as the case may be. It is conceded that Guyot's geographies had, at the time of the action of the board in question, been in use in the schools of Binghamton for more than five years. There had at no time been any formal action of the board designating them as textbooks, under the provisions of chapter 413 of the Laws of 1877, vv^hen the resolution of October i8th was adopted. That resolution simply provided that no change should be made in the geographies in use in the schools during the present school year. It is impossible to hold that this was an adoption or designa- tion of Guyot's geographies as textbooks under the provisions of the law to pre- vent frequent changes of textbooks, and that, consequently, they could not be superseded for the period of five years, except by a three-fourths vote of the board. If it was, why should the board have resolved to make no change during " the present school year." It was manifestly the expression of an intention not to supersede the book during the school year and nothing more. If the action of October iSth was not a designation of a textbook under the law, then there was certainly no statutory impediment to the reconsideration of that action within the time provided by the rules of the board. Moreover, the resolutions passed subse- quently by the board adopting Barnes's geographies, did not contravene or infringe upon the resolution of October 18th in the least. The last named resolution only provided that no change should be made during the present school year. The resolutions adopting Barnes's geographies provides that their use should not be commenced until the beginning of the next school year, 'i'he resolution of Janu- ary 17th, providing that the use of Guyot's geographies should be discontinued after the present school year, was only in completion of the purpose of the board. I do not see its materiality in any event. If the resolution adopting Barnes's geographies was lawful and it was regularly adopted, then it very eflfectually discontinued Guyot's geographies when it went into operation. If the resolution of October i8th was not an adoption of Guyot's geographies for the period of five years, and as already observed, it seems clear that it was not, then there would seem to be no reason why the board could not adopt another series of geographies at any time by a majority vote. But the board has provided that the Barnes's geographies should go into use at the beginning of the next school year, and the appellant says that, by reason of an intervening election or otherwise, there might be changes in the board before that time, and that the board as now constituted can not legislate for a board which may be diflferently constituted when its action is to go into operation. It is not improper to say that I have considered this question as more serious than any other which has been suggested in the case. But it is not well to anticipate difficulties. From the observations already made, it seems clear to me that the board had the power, by a majority vote, to adopt Barnes's geographies or any other and to direct that their use should begin immediately. This being so, there JUDICIAL decisions: textbooks 1227 would seem to be no good reason outside of the law, and I can see no provision in the law to prevent them directing that the use of the new books should com- mence at a fixed time in the future. Indeed, the fact that they had once resolved that Guyot's geographies should not be displaced during the present school year, and that patrons of the schools had purchased accordingly, bound the board in honor, if not in law, not to put the new books in use prior to the beginning of the next school year. Moreover, the beginning of a school year would seem to be the proper and appropriate time for taking such a step. Whether the board, as now constituted, could change its mind, or whether the board, after changes in its membership, could overthrow this action by less than a three-fourths vote prior to the time when the new books are to go into use, or prior to the time when it had become necessary for patrons to supply their children with books, are questions which it is not necessary to consider before such action should be taken. The appeals must be dismissed and it is so ordered. 3631 In the matter of the appeal of Joseph H. Chittendon v. the board of education of the city of Binghamton. A board of education adopted and designated a textbook under the provisions of chapter 413, Laws of 1877, and fixed a time in the future when the same should go into use. Before that time arrived, and before patrons were required to supply themselves with the book, rescinded and overthrew the action by less than a three-fourths vote. Held, That the board had the right to do so, notwithstanding the provision of chapter 413 of the Laws of 1877. That act is prohibitive in character and must be so construed as to leave with the board power not expressly taken away by it. The board had a rule of order that a question once decided could be reconsidered only at the next regular meeting. The action appealed from is alleged to have been taken in con- travention of this rule. Held, That the body which makes a rule of order is the highest authority for construing it. Again the rule could have been suspended by a majority vote, the same which adopted the action complained of. Furthermore, the board can not at one time take action which will prevent the board at another time from taking any lawful action it may deem best, and if the rule of order is antagonistic to this principle, it is opposed to the law and can not be upheld. Decided August 16, 1887 Chapman & Lyon, attorneys for appellant Arms & Curtiss, attorneys for respondent Draper. Superintendent Three textbooks entitled, respectively, " Our World," " Guyot's Grammar School Geography " and " Guyot's Intermediate Geography " had been in use in the schools of the city of Binghamton for at least the period of six years, 1228 THE UNIVERSITY OF THE STATE OF NEW YORK during which time there had been no action of the board of education of that city adopting and designating the same as textbooks in said schools, when, upon the i8th of October 1886, said board unanimously resolved that there should be no change in geographies in use during the present school year. Upon the 6th day of December 1886, the board, by a vote of seven to six, adopted the follow- ing, namely: Resolved, That the use of the primary geography entitled ^ Our World," be discontinued as a textbook in our schools, and that Barnes s Elementary Geog- raphy be adopted in its place, and that Barnes's Complete Geography be adopted as a textbook in our schools, its use, however, to be postponed until the beginning of the next school year. On the 17th day of January 1887, said board, by a vote of seven to five, adopted the following resolution : Resolved, That Guyot's geographies be discontinued as textbooks in our schools at the close of the present year. Following this action by the board Mr Newton W. Edson appealed there- from to this Department, claiming that the action of October i8th was an adoption and designation of geographies within the meaning of chapter 413 of the Laws of 1877, and that, consequently, no change could be made within five years, except as provided in that act. Beyond this, it was urged that the action of the board could not be upheld for the reason that it provided that the newly adopted books should go into use at a time in the future, before which time the board, by expiration of term or otherwise, might be differently con- stituted. The decision of that appeal was adverse to the position of the appellant. It was held that the action of October i8th was not an adoption and designation of a textbook within the meaning of the five-year act, and that the board had the lawful right to adopt a book to go into use in the future. The question as to whether, between the time of adoption and the time of going into use, the board could change its mind, or, being differently constituted, could reverse or change its action with less than a three-fourths vote was expressly reserved until cir- cumstances should make its consideration necessary. That time has now arrived. On the i6th day of May 1887, the board by a vote of seven to six adopted the following, namely : Resolved, That Guyot's Intermediate and Grammar School Geographies be and the same hereby are continued in use in our schools in the grades where they now are, and that no change of geographies be made. This to take effect immediately. On the 5th day of July 1887, the board by a vote of seven to five, adopted the following, namely : Resolved, That Barnes's Complete Geography be and the same hereby is dropped from the list of textbooks of the city of Binghamton. The appellant herein brings separate appeals, from the action of the board in adopting these respective resolutions, which, for the sake of expedition, will be considered and determined together. JUDICIAL decisions: textbooks 1229 Preliminarily, it is objected by the respondent that the appellant is not an " aggrieved " person within the meaning of the statute, and so not competent to bring the appeal. It appears that he is a resident and taxpayer of Binghamton, and has children who attend the schools of that city and who use the textbooks involved in this controversy. The statute authorizes any person conceiving himself aggrieved to bring an appeal and it then directs the Superintendent to dismiss such appeals when it shall appear that the appellant has no interest in the matter appealed from. In view of these provisions, it seems to me that this objection of the respondent ought not to be sustained. A close reading of the several resolves of the board, shows that the only book in controversy is Barnes's Complete Geography. The action of December 6th adopted Barnes's Elementary Geography in the place of Guyot's Primary Geography entitled, " Our World," and the book so adopted went into use immediately. No action since taken purports to overturn this. But that part of the resolution of December 6th adopting Barnes's Complete Geography is sought to be rescinded and nullified by the resolutions of May i6th and July 5th following. The appellant insists that this could only be done by a three-fourths vote. It was conceded upon the argument that there was no claim that patrons of the schools had, subsequent to the action of the board adopting " Barnes's Complete Geography " and before the action rescinding such adoption, purchased copies of that book. The most that was urged in this direction was that pupils passing from one grade to another would be required to change from one series of geographies to the other at added expense to the parents; but, having in view the fact that the city superintendent has unrestricted authority, under the by-laws of the board, to arrange grades and to rearrange them at any time, as well as to classify and promote pupils at will, and that it must be assumed that this authority would be so exercised as to adjust the proper grades of books adopted by the board to the grades of pupils so as best to promote the interests of the schools without unnecessary expense to patrons, it seems to me that this fact lacks sufficient substance and is too remote to be adopted as the foundation upon which to rest a holding that the action of the board contravenes the provisions of the five-year act. The question is then squarely presented whether a board of education, having adopted and designated a textbook to go into use at a fixed time in the future, can, before that time arrives and before patrons have supplied themselves with the book, and notwithstanding the pro- visions of chapter 413 of the Laws of 1877, rescind and overthrow such action with less than a three- fourths vote? I have no doubt of the power of the board to adopt a textbook and provide that its use shall commence in future. In the nature of things it must be so. But the board, as now constituted, can not usurp the functions of the board as it may be constituted nine months hence, in such a manner and with such effect as to cut off the succeeding members from the right to exercise their own pre- rogatives according to their own judgment. If the board could thus forestall action for a period of nine months, when within that time the term of one of 1230 THE UNIVERSITY OF THE STATE OF NEW YORK the members was to expire and a single vote would reverse the action, as in tlie present case, it could likewise do it for the period of five years. There is no difference in principle. It is to be borne in mind that the purpose of the Legislature in enacting chapter 413 of the Laws of 1877 was to protect patrons from the expense consequent upon frequently superseding one textbook with another upon the same subject and of like grade. The gist and substance of the act is contained in the second section, where it provides that " when a textbook shall have been adopted for use ... it shall not be lawful to supercede the textbook so adopted by any other book within a period of five years from the time of such adoption except upon a three-fourths vote of the board of education." The book here in controversy is not in use in the schools of Binghamton. It is, therefore, not superseded. No one has, by the action of the board, been oblici^ed to buy it and, .so far as is known, no one has bought it. No one, therefore, is injured and no one is in posftion to invoke the protection of this statute. Indepejident of this statute the board has unlimited power in the premises The statute is prohibitive in its nature and must be construed strictly and so as to leave with the board all those prerogatives which the law has always conferred upon it, and which are not specifically taken away by its provisions. Following this view I arrive at the conclusion that the resolutions appealed from did not require a three-fourths vote in order to give them force and effect, provided the board was not inhibited by its own by-laws from taking any action in the premises at that time. A rule of order of the respondent in force at the time of the adoption of the resolution appealed from is as follows: Rule 21. When a question has been once put and decided, it shall be in order for any member of the majority to move a reconsideration thereof at the same or at the next regular meeting." It is said by the counsel for the appellant that the board of education of the city of Binghamton is a corporate body of continuous life; that the members change, but not the board; that the board must act within its rules; that the resolutions appealed from were in fact and effect, so far as Barnes's Complete Geography is concerned, a reconsideration of the action of December last, and that It was taken after the time had gone by when a reconsideration could be had under the rules of the board. This view impressed me with considerable force upon the argument, but after full consideration I am led to the following conclusions : The body which makes a rule is the best authority to construe it. It may be said that the action appealed from is not a reconsideration of the former action, or at least such a reconsideration as the rule refers to Again the rule could have been annulled by a majority vote of the board; the same' vote which adopted the resolutions appealed from. Furthermore, as has already been said, the board can not today take action which will prevent the board in the future from taking any lawful action which it mav deem best. If the rule of order is in contravention of this, it can not be upheld. JUDICIAL DECISIONS : TEXTBOOKS I23I It is perhaps well to add that I have given no thought to the question of the merits of the respective textbooks involved, for the reason that I have con- sidered that subject one which should properly be left to the judgment and discretion of the local school authorities. The appeals are dismissed. 3691 In the matter of the appeal of Daniel W. Hall and another v. David Cordingly, trustee of school district no. 3, town of Scriba, Oswego county. Where a teacher and trustee have changed a textbook, which had been designated by a district meeting more than five years previous thereto, and it is made to appear that the change has been beneficial, the action will not be disturbed. The spirit of the act chapter 413, Laws of 1877, was not violated by such change. Decided June 9, 1888 Draper, Superintendent The appellants, taxpayers of district no. 3, town of Scriba, Oswego county, complain of the action of the trustee of said district in consenting to the change of certain textbooks which had for a nimiber of years been in use in the school. It appears from the appellants' papers that, in 1877, the district meeting selected certain textbooks, conformably to the provisions of chapter 413, Laws of 1877. In 1882 certain of the textbooks which had been adopted as above stated, were changed by a vote of the inhabitants and since that time no change has been made by the action of a district meeting. The teacher, with the approval of the trustee, has now made a change in reading books, which he avers was needed and which he did for the benefit of the school. The question presented is, whether the trustee exceeded his authority in the premises. Before the act of 1877, chapter 413, the power of selecting school textbooks was vested in the trustees of the several districts. The act of 1S77 vested certain rights in the inhabitants, which the inhabitants of the district in question exercised in 1877, and again in 1882. The law was intended, as its title indicates, to prevent frequent changes in textbooks, and provides that, when a designation is made by the inhabitants, the same shall be changed within five years only by a three-fourths vote of the legal voters present and voting at an annual school meeting. In the case presented, over five years have elapsed since any action relative to textbooks has been taken by a district meeting. I think the trustee acted within the scope of his authority. It is not claimed that a beneficial change was not made, and the lapse of time indicates that the spirit of the act has not been violated by frequent changes. The appeal is overruled. 123-2 THE UNIVERSITY OF THE STATE OF NEW YORK 3743 In the matter of tlie appeal of Henry W. Ellsworth v. the board of education of the city of Dunkirk. A textbook which has been adopted for use in a union free school district, pursuant to chapter 413 of the Laws of 1877 can not be changed within live years, except by a three-fourths vote of the board of education. Writing books held to be textbooks, within the meaning of the statute. Decided December 29, 1888 Draper, Superintendent This appeal is taken by an author and publisher of a series of school writing books from the action of the board of education of the city of Dunkirk, in adopting a resolution to change the writing books in use, contrary, as it is claimed, to the provisions of chapter 413 of the Laws of 1877. The appellant shows that the board of education consists of six persons; that said board, in August 1886, adopted as a textbook, for use in the schools under its control, the Ellsworth reversible writing books, and that thereafter and until August 6th last the same were used in the schools under its charge; that on or about August 6, 1888, five of the members of the said board of education met, and, by an affirmative vote of three only, adopted a resolution to supersede the Ellsworth books with another system of writing books. The appellant claims that chapter 413 of the Laws of 1877 has been violated by this action of the board, taken August 6, 1888. No answer has been interposed by the board. The delay in bringing the appeal has been sufficiently excused. The allegations of the appellant being undisputed, I must accept the state- ment of facts made by him. A textbook which has been adopted for use in a union free school district can not be changed within five years, except by a three-fourths vote of the board of education. A question as to whether writing books should be considered textbooks, within the meaning of the statute, has addressed itself to my mind. I find upon investigation, however, that my predecessor in office considered that ques- tion, and held that they should, and I deem myself justified in following his determination. The vote by which the resolution of August 6, 1888, was adopted, was less than that required by the statute to eflfect the purpose of the resolution, and I must, therefore, hold that it was inoperative and of no efifect. The appeal is, therefore, sustained. TRANSPORTATION 5398 In the matter of the apphcation of Lucy Loomis for an order directing the trustees etc. of union free school district no. 6, town of Hartford, Washing- ton county, to provide conveyance for her children to school. Transportation of children; duty of parents. An order compelling school authorities to provide transportation for children remotely situated from the school will not be made unless a clear case of hardship is shown. If the petitioner has horses, wagons and sleighs, used by him in his business as a farmer the district will not be compelled to furnish conveyance for his children. The law providing for transportation was not intended to relieve parents of their moral and legal obHgations to provide their children with a suitable education. Decided December 8, 1908 J. B. McCormick, attorney for petitioner W. W. Norton, attorney for respondent Draper, C ommissioner The appellant, Lucy Loomis, complains of the refusal of the board of educa- tion of union free school district no. 6, town of Hartford, county of Washing- ton, to provide conveyance for her two children to and from the union free school in such district. It appears from the papers that the petitioner and her husband are farmers living on their own farm about two and three-tenths miles from the school in the village of Hartford. Their farm is not large and they both state in their affidavits that they are too poor to hire others to carry their children to and from the school. They have two horses and wagons and sleighs. But they assert that if their horses are used for conveying their children the business of their farm will be seriously inconvenienced and that a loss will be sustained which they can ill afford. It is the theory of the law that where children of school age reside such a distance from the schoolhouse in the district that they are unable to walk and their parents are so poor that they can not take them to and from school, the dis- trict may, at a meeting of the qualified electors thereof, vote to provide such conveyance, to the end that children so situated shall not be deprived of school advantages. There is no doubt but that in a proper case an order may be granted directing a trustee or board of education of a district to take measures to provide for such conveyance. Such an order should not, however, be directed against a trustee or board except in a clear case of hardship. It will be presumed that the school authorities have dealt fairly with an application for such assistance. I1233] Ijj4 THE UNIVERSITY OF THE STATE OF NEW YORK It has been held that transportation will not be ordered where the petitioner has horses, wagons and sleighs used by him in his business as a farmer. In such a case he should provide conveyance for his children, even if by so doing he suffers financial loss. A claim that he needs his horses for farm work and that he can not spare the time from his farm work will not be considered. Appeal of Turner, no. 5236, 1895. The law was not intended to relieve parents of their moral and legal obligation to provide their children with suitable education. This obligation is coexistent with the duty to provide support and maintenance. While public conveyance to children remotely situated from a school will be frequently afforded where relief would not be granted by poor officers yet it must be clearly shown that such children will be practically deprived of school advantages unless such conveyance be provided, before this Department will interfere. The peti- tioner herein has not made out such a case. She relies also upon the fact that the respondents are already providing conveyance for two children living a mile beyond her on the same road. She insists that the board shows malice against her in carrying these children without a similar provision for her own. It appears that the mother of the children carried is poor, supporting herself and family by days' labor, and that she lives over 3 miles from the school and has no means of conveyance of her own. This is a very reasonable exercise of discretion on the part of the board, and the petitioner may not be heard to complain thereof. The petition is dismissed. 5236 In the matter of the appeal of Augustus Turner from the action or proceeding taken by a special meeting held in district no. 1 1, town of Broome, county of Schoharie, on October 3, 1905. Subdivision 19, section 14, title 7 of the Consolidated School Law authorizing a district to provide £or the conveyance of pupils who reside so remote from the schoolhouse as to practically deprive them of school privileges was not enacted to relieve parents from any of the obligations which they owe their children in providing for their education A parent in providing for the education of his children as well as in providing for their other necessities must first discharge his parental duties and obligations before he can ask the community to aid him. Decided December 26, 1905 M. B. Mann, attorney for appellant W. H. Albro, attorney for respondent Draper, Commissioucr On July 30, 1902, the school commissioner of the first school commissioner district of Schoharie county made an order dissolving school district no. 4 town of Broome, and annexing the territory thereof to adjoining districts. An appeal JUDICIAL DECISIONS : TRANSPORTATION I235 from such order was taken to the State Superintendent of Public Instruction by Augustus Turner the appellant herein. Such appeal was dismissed on the 29th day of December 1902. The term of office of the school commissioner who made such order terminated on December 31, 1902. On January i, 1903, a new school commissioner, chosen at the preceding general election, assumed the duties of his office. On July 30, 1903, this school commissioner made an order reinstating the old district, no. 4, Broome. This order was made one year from the date on which the previous school commissioner dissolved the district and seven months after the State Superintendent had decided the Turner appeal, sustain- ing the order of dissolution of said district no. 4, Broome. Certain aggrieved parties under the order by which district no. 4 was reinstated brought an appeal to the State Superintendent of Public Instruction and on March 30, 1904, such appeal was sustained and the order of the school commissioner reinstating said district no. 4, Broome, was vacated. The appeal herein grows out of the controversy resulting in the two appeals above described. Appellant claims that he lives so far from the schoolhouse of the district in which he resides and that the roads are so hilly and in such poor condition, being even impassable during a portion of the winter, that it is impos- sible for his children to walk to and from school daily. He also claims that he is unable to convey his children to school and that they are therefore practi- cally deprived of school privileges. He therefore petitioned the trustee to call a special meeting of the district to make provision for the transportation of his children in accordance with the provisions of subdivision 19, section 14, title 7 of the Consolidated School Law. Such special meeting was held and by an almost unanimous vote decided that the children of appellant were not by reason of conditions alleged deprived of school privileges. No other action was taken by the meeting. Respondent's attorney raises several technical objections on which he requests that this appeal be dismissed. I do not consider these objections of sufficient force to warrant such action and deem it wiser to reach a determina- tion of the appeal upon its merits. One of the questions determined by the State Superintendent of Public Instruction in the appeal brought by Turner in 1902 was the school privileges which would be afforded Turner's children by annexing his property to the dis- trict in which it is now located. The State Superintendent in that appeal speci- fically held: "It does not appear from the proofs established herein that any of the appellants who have children of school age, are in any considerable degree inconvenienced by the orders made from which this appeal is taken, except the appellant, Augustus Turner. Although the children of Turner will be required to travel a greater distance to attend school than they were required to attend the school in district no. 4, it is not established that they can not, at nearly all times during the school year, and without serious inconvenience, attend the school in district no. i." One of the principal questions to be determined in this appeal was determined in the appeal of 1902 and should not be raised except under new conditions or supported by new evidence. IJjO THE UNIVERSITY OF THE STATE OF NEW YORK Subdivision 19, section 14, title 7 of the Consolidated School Law authorizes a district to provide for the conveyance of pupils to school who may reside so remote from the schoolhouse as to practically deprive them of school privileges. It can not be successfully contended that this provision of law was enacted for the purpose of relieving parents from any of the obligations which they owe their children in the matter of providing for their education. A parent in pro- viding for the education of his children as well as in providing for their other necessities must first discharge his parental duties and obligations before he can ask the community to aid him. It is just as much the duty of appellant to edu- cate his children as it is to feed, shelter or clothe them or to otherwise provide for their health and comfort. In appeal no. 5219, decided by me October 31, 1905, I held as follows : " The moral and legal obligation rests upon every parent to give his child the advantages of the school facilities afforded by our system of public education. He should do this even at great inconvenience and expense if necessary. He should not expect remuneration, nor should it be given, for such trouble as may reasonably be expected of a parent to enable his children to attend school." The pleadings herein show that during some portions of the year the children of appellant are unable to walk to and from school daily. At such times it is the duty of appellant to convey his children to school. Before he can invoke the aid of the district in providing transportation he must show that he is unable to provide it himself. The pleadings show him to be a successful farmer owning horses, wagons and sleighs and financially able to take his children to and from school when they are unable to walk. It is his duty to do this even if by so doing he suffers financial loss. To claim that he needs his horses to work on his farm and that he can not spare the time from his farm work is not sufficient reason to exempt him from performing this duty nor is it sufficient ground upon which to base a demand upon the district to do that which is clearly his parental duty to do. It is necessary to a sound administration of public school affairs to hold that parents shall first perform their full duty in getting their children to and from school before they are justified in asking the district to provide transporta- tion. Such transportation is to be provided only in cases where children are unable to walk and parents are not able to take them to and from school. The appeal herein is dismissed. TRUSTEES 5355 In the matter of the appeal of William H. Dempsey and Walter F. Jeffers from the proceedings of the annual meeting of union free school district no. i, town of Eastchester, Westchester county. The act of deciding to increase the number of trustees is a statutory proceeding and it is essential to the validity of the procedure in such case that each provision of the law shall be satisfied. This Department has uniformly ruled that where the vote upon this question is taken by ballot instead of by taking and recording the ayes and noes the statute is not complied with. The provision of the statute requiring that notice of the intention to vote upon a proposition to increase the number of trustees in a district shall be given in the notice of the annual meeting is a protection to the right of every voter in the district. Decided October 4, 1907 Frederick W. Clark, attorney for appellants Michael J. Tierney, attorney for respondents Draper, Commissioner School district no. i, Eastchester, is a union free school district whose boun- daries are not the same as the boundaries of an incorporated village. Previous to August 6, 1907, the date of the last annual meeting, the board of education of such district consisted of five members. The annual meeting of August 6th last passed a resolution to increase the number of members on such board from five to nine. Section 31, title 8 of the Consolidated School Law provided previous to 1903 that a union free school district of this class could change the number of its trustees at any annual meeting by a majority vote and that such vote should be by taking and recording the ayes and noes. In 1903 the Legislature amended this section of the Consolidated School Law by specifically providing that a district of this class could not change the number of its trustees unless the notice of the annual meeting given by the board of education contained a notice that the proposition to either increase or decrease the number of trustees or members of the board of education would be presented to the annual meeting for determination (see chapter 463, Laws of 1903). The notice of the annual meeting given by the board of education did not contain a reference of any kind to the effect that the question of increasing the number of members of the board of education would be presented to such annual meeting for determination. Without having given this notice as the statutes direct the annual meeting voted to increase the number of trustees from five to nine. The meeting, however, did [1237] 1238 THE UNIVERSITY OF THE STATE OF NEW YORK not proceed to the election of such additional members but adjourned for three weeks and immediately gave notice that at such adjourned meeting the additional members of the board would be elected. The regularity or the fairness of the election itself is not an issue in this proceeding. Great stress is laid upon these points by the attorney for respondents but the only question in this appeal is, did the action of the annual meeting conform to the statutes in deciding to increase the number of trustees? The act of deciding to increase the number of trustees is a statutory proceeding and it is essential to the validity of the procedure in such cases that each provision of the law shall be fully satisfied. Moreover, courts uniformly hold that in cases involving statutory proceedings the sfatutes must be strictly construed. This Department has uniformly ruled that even where the vote upon this question was taken by ballot instead of by taking and recording the ayes and noes, and proper notice had been given, such failure to comply with the statutes was fatal to the validity of the action taken. It has also ruled that notice of such intended action is always necessary. The number of members of which a board of education shall consist is an important question. The Legislature evidently believed that the voters of a dis- trict should have knowledge of the fact that the question of deciding to increase the number of members on a board of education would be presented to an annual meeting before such meeting could legally determine that question. It is quite as essential to the rights of the voters of a district that they shall have a right to express their wishes upon enlarging a board of education as it is that they shall have the right to express their wishes upon who the members of such board shall be. Failure to strictly observe the statutes governing this question is sufhcient ground for vacating the action of the annual meeting in respect to the matter herein complained of. It is claimed by respondents that appellants knew the district could not legally vote to increase the number of trustees without having given the required notice and knowing this fact and having joined in giving notice of the adjourned meeting and having participated in all the proceedings and the election they are now estopped from raising the question of regularity of procedure. It is also claimed that respondent JefTers knew that Mr Bellew had written this Depart- ment and received in reply a communication from the Chief of the Law Division, advising him of the illegal procedure at the annual meeting. Appellant Dempsey denies this claim and asserts that he believed the procedure was regular and had he received or possessed knowledge of its irregularity he would have protested against the action taken. The claim of appellant is strengthened by the state- ment that he consulted the edition of the Consolidated School Law printed in 1903. Through a clerical error the former Department of Public Instruction, in publishing the 1903 edition of the Consolidated School Law. failed to incorpo- rate therein the amendment in question made by the Legislature of 1903 to sec- tion 31 of the Consolidated School Law. The fact that there was a large attendance of the voters of the district at the election held at the adjourned meeting, or that such election was legally and JUDICIAL decisions: trustees 1239 honestly conducted, does not operate as an excuse of the default of the meeting for failing to observe the statutes in deciding to increase the number of trustees from five to nine. It may be that many voters opposed to having a board of education composed of such a large number, believing the action in increasing the number of trustees had been legally taken, attended and participated in the election. It may be that many of those who were at the election and voted for trustees and who were not at the annual meeting would have attended such annual meeting and opposed the action to increase the number of trustees had they known that such question would be considered. The provision of the statutes requiring such notice was a protection to this right of every voter in the district. The experience of this Department in the administration of school district afiFairs shows that much trouble and embarrassment will be avoided if school dis- trict officers and school meetings are held strictly to the provisions of the Con- solidated School Law which defines their powers. Since the action of the meeting in increasing the number of trustees was illegal an election legally conducted thereafter could not give validity to the former illegal acts. (See decisions of this Department, nos. 4465, 4481, 5017 and 5162.) The appeal herein is sustained. It is ordered, That the action of the annual meeting of union free school district no. i, town of Eastchester, held on the 6th day of August 1907, in voting to increase the number of members of the board of education from five to nine be and the same hereby is vacated. It is also ordered, That the action of an adjourned meeting of the annual meeting of said union free school district no. i, Eastchester. held on the 28th day of August 1907, in electing four additional members to the board of educa- tion of said district be and the same hereby is vacated. It is also ordered, That the action of an alleged meeting of the board of education of said union free school district no. i, town of Eastchester, in organ- izing said board of education by the election of a president thereof and by the appointment of a clerk and a treasurer be and the same hereby is vacated. 3934 In the matter of the appeal of Charles Palmer from certain proceedings of the annual meeting held August 5, 1890, in district no. 4, town of Bovina, county of Delaware. A resolution of an annual school meeting to change from one to three trustees, which requires a two-thirds vote, was taken by acclamation and declared adopted. Held, to be irregular and inoperative. The vote should have been taken either by ballot, call- ing the roll, or by a division of the house, in order that the result might have been accurately ascertained and recorded, and not left to mere conjecture. The person first elected trustee (three having been successively voted for and declared elected) ; held, to be sole trustee. Decided December 3, 1890 1240 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent This appeal is taken by a taxpayer and elector of school district no. 4, Bovina, Delaware county from certain proceedings of the annual school meeting of 1890, as follows, namely : 1 From the motion declared carried that the district elect three instead of one trustee, on the ground that the vote was taken by acclamation and without the call for ayes and noes, and no effort was made to ascertain -hether the resolution was adopted by a two-lhirds vote, as is required by statute, to legally make the change. 2 From the manner in which three trustees were chosen, they being succes- sively chosen without any designation of the term for which they were to serve. The following persons were elected trustees : John W. Bromley, Charles Palmer, Wilson Scott. The appellant asks that the meeting be declared illegal and that a new meet- ing be ordered. No answer has been interposed. The evidence presented would not justify me in declaring the meeting illegal, but some of the proceedings were clearly irregular and inoperative. The vote upon the resolution to change from one to three trustees can not be sustained. L pon a vote of this kind, where two-thirds must vote in favor of the proposi- tion to adopt it, the vote should be by ballot, calling the roll, or at least by such a division of the votes that the result could be accurately ascertained and recorded. It can not be left to mere conjectures, nor by calling for a vote upon one side only of the question. It follows, therefore, that the district could legally elect only one trustee to serve for the ensuing year. Three persons were, however, chosen, not simultane- ously nor on a single ballot, but by successive votes. John M. Bromley was the first person chosen trustee, and my conclusion is that he is the sole trustee of the district for the ensuing year. The action of the meeting in voting to elect subsequently two other persons as trustees was without authority of law and consequently void. To the extent above stated the appeal is sustained. 3845 In the matter of the appeal of Peter E. Davis from the proceedings of the annual meeting held August 6, 1889, in district no. 6, of the town of Colchester, county of Delaware. A resolution to change to the three-trustee system, adopted by less than a two-thirds vote at an annual meeting, is void. An election of three persons as trustees in a district entitled to but one. the one first chosen, if they were separately voted for, is the sole trustee. If all three were simultaneously voted for, the person chosen for the term of one year is the trustee. Decided December 9. 1889 JUDICIAL DECISIONS : TRUSTEES ' 124] Draper, Superintendent At the annual meeting held August 6, 1889, in district no. 6, town of Col- chester, Delaware county, the meeting, by a vote of four to three, decided to change from one to three trustees, and thereupon elected the appellant trustee for one year, Arthur S. Shafer for two years and A. S. Van Steenburg for three years. The trustees all concur in the above statement of facts. The resolution to change to three trustees not having been adopted by a two-thirds vote, as required by law, must be declared void and of no effect. If the trustees were elected separately, the person first chosen trustee (irre- spective of the term for which he was voted for) is the sole trustee of the dis- trict for one year; but if they were elected simultaneously on a single ballot, then the one designated for a single year is the sole trustee. The appeal is sustained. 4887 In the matter of the appeal of Charles D. Loucks and others from proceedings of annual meeting, held August 7, 1900, in school district no. i, Blenheim, Schoharie county. Tn a school district, having but one trustee, at any annual meeting therein, if such meeting desires to increase the number of trustees in the district to three, a resolution that the district have three trustees should be presented ; and the vote .taken thereon should be by ballot or ascertained by the clerk of the meeting recording the name of each person whose vote is received and setting opposite his name whether such person voted aye or no; if such resolution shall receive the affirmative vote of two-thirds of the qualified voters present and voting thereon, the meeting may proceed to elect by ballot three trustees, namely, one for one year, one for two years, and one for three years. The district has no legal authority to elect three trustees for the ensuing year. Decided September 29, 1900 E. F. Dyckman, attorney for appellants C. E. Nichols, attorney for respondents Skinner, Superintendent This is an appeal from the proceedings taken at the annual meeting held August 7, 1900, in school district i, Blenheim, Schoharie county. The appellants, upon information and belief, allege in substance that at the proper hour on August 7, 1900, the annual meeting of such school district was organized and a chairman and clerk of the meeting elected; a resolution was passed that three trustees be elected instead of one, and upon a vote being taken one Henry Hollenbeck was declared to be elected ; before further action was taken the meeting broke up by disorder, and nearly all the legal voters, including the clerk of the meeting, William H. Duncan, left, supposing no further action 1242 THE UNIVERSITY OF THE STATE OF NEW YORK would be taken; some of the voters returned to the niectin.e^ and Jackson Decker was elected clerk of the meeting and Frederick Mattice and Willard Hugabone were elected trustees, and Decker was elected district clerk. The appellants also allege that Messrs Ilollenbeck, Mattice and Decker arc not, nor is cither of thcni. eligible to hold any district office for the reason that each of them is unable to read and write ordinary English. They also allege that no term of time v^as designated that the persons claimed to have been elected trustees were to serve. Messrs Decker, Hollenbeck, Hugabone and Mattice have answered the appeal and deny each allegation of the appeal not expressly admitted or traversed. They allege that each of them can read and write the English language. They admit that the meeting was organized by the election of Duncan as clerk, the district clerk being absent. They allege that a resolution " that the said dis- trict elect three trustees for the ensuing year" was introduced and adopted by a unanimous vote ; that a vote was taken by ballot and Henry Hollenbeck was elected as trustee, receiving 20 votes out of 21 votes cast; that thereupon Duncan, the clerk of the meeting, with some others left the meeting, and that the persons remaining elected said Decker as clerk of the meeting, and ]\Iattice and Hugabone as trustees and Decker was elected district clerk. It does not appear that any person was elected as collector of the district. The proofs herein do not show^ who was elected as chairman of the meeting or whether such person continued to act as chairman until the final adjournment. It does not appear whether, in the alleged election of the three persons as trustees, and of Decker as district clerk, two inspectors of election were appointed who received the votes cast in each ballot and canvassed the same, and announced the result of such ballot to the chairman, and such results were announced by the chairman to the meeting. It does not appear that Duncan and Decker each while acting as clerk of such meeting kept a poll list containing the name of each person whose vote was received in each of the ballots for the three trustees, and for district clerk. It does not appear how the vote was taken upon the resolution that the district elect three trustees for the ensuing year. Section 26 of article 3, title 7 of the Consolidated School Law of 1894, enacts that in a school district which has determined to have but one trustee until the electors of such district shall determine at an annual meeting, by a two- thxrds vote of the legal voters present and voting thereat to have three trustees, but one trustee shall be elected. It api)ears that at the annual school meeting, held in August 1890. in such district, but one trustee was elected, namely, Charles D. Loucks. For the annual meeting held therein August 7, 1900, to legally elect three trustees, a resolution that the district have three trustees should have been adopted by the affirmative votes of two-thirds of the qualified voters present and voting thereon, and the vote upon such resolution should have been taken by ballot, or ascertained by the clerk recording the name of each person whose vote was received, and setting opposite each name whether such person voted aye or no. If such resolution had JUDICIAL DECISIONS : TRUSTEES 1 243 been legally adopted the meeting should have elected three trustees, one for one year, one for two years and one for three years. The meeting did not have the legal authority to adopt a resolution to elect three trustees for the ensuing year. I am of the opinion that the proceedings taken at such annual meeting in such school district were not in accordance with the provisions in that regard required by the Consolidated School Law of 1894. The appeal herein is sustained. It is ordered: That all proceedings had and taken at such meeting or meetings held August 7, 1900, at which William H. Duncan or Jackson Decker acted as clerk, be, and the same are, hereby vacated and set aside. It is further ordered : That Charles D. Loucks, without unnecessary delay, call a special meeting of the inhabitants of school district i, Blenheim, Schoharie county, qualified to vote at school meetings therein, for the purpose of electing a trustee, a clerk and collector of such district, and for considering and acting upon the question of appropriating money and the levy of a tax for school purposes for the present school year. That the notice of such special meeting be given in the manner required by sections 2 and 6 of article i, title 7 of the Consolidated School Law of 1894. That in the election of such district officers the proceedings taken shall conform to the provisions contained in, and the methods prescribed in, subdivi- sion 4 of section 14 of article i, title 7 of the Consolidated School Law of 1894 relating to the election of school district officers; that the vote appropriating money or authorizing the levy of a tax for school purposes, must be taken or ascertained in the manner required by subdivision 18 of section 14 of article i, title 7 of the Consolidated School Law of 1894. 3849 John Crofoot, Cornelius Sullivan and William Oakley v. I\Iichael B. O'Hara, sole trustee of school district no. 5, of the town of High Market, county of Lewis. The question of the ineligibility of a person holding a district office, can not be raised and passed upon collaterally. Legal acts of a de facto officer will be sustained. An item voted by a district meeting for expenses incurred in defending an action brought against the district, may be included by a trustee in a tax list. Decided December 31, 1889 Draper, Superintendent This is an appeal against the action of the trustee in issuing a certain tax list and warrant on or about the ist day of October 1889. Two grounds are alleged: first, that the respondent is not legally the trustee of the district, not being a 1244 THE UNIVERSITY OF THE STATE OF NEW YORK taxpayer therein, and not having children vvlio have attended the school ; second that there was no authority for collecting certain moneys included in the tax list. This is not the proper way to test the validity of the title of the respondent. That question is not to be tried collaterally. Being in the office, he is presumed to be rightfully in it until the contrary is shown. If he is not eligible to the office, that fact should have been raised earlier. Whether eligible or not, is not material in this connection, for it can not be denied that he is in the office and is exercising the functions thereof. He is certainly a de facto officer and his legal acts as such are to be upheld. As to the allegation that he has included certain items in his tax list improp- erly, it is shown in the answer that the items referred to are expenses incurred in defending a suit brought against the district. The respondent alleges that these items have been sunibitted to a special meeting of the district and approved and audited at such meeting. This allegation is not controverted. If it be true, as I am obliged to assume that it is, then the respondent was justified in including the same in his tax list. After the fullest consideration of the matter, I am obliged to reach the conclusion that it is not possible to sustain the appeal. The appeal is dismissed. 3576 Jn the matter of the appeal of Seward Baker and others v. the board of educa- tion of union free school district no. i, of the town of Westchester, Westches- ter county. Chapter 36, Laws of 1886, conferring additional powers upon the board of education of union free school district no. i, town of Westchester, Westchester county, does not abridge or take away the right of appeal to the State Superintendent. Where an act complained of is a continuing one an appeal may be taken at any time during such continuance. When a duty is imposed by law upon a board of trustees, the board has no authority to employ other persons to perform such duty at the expense of the district in the absence of special statutory provisions to that effect. Decided March 19, 1887 Draper, Superintendent Union free school district no. i, of the town of Westchester, is engaged in the erection of a new school building. The board of education of the district, in charge of the work, is proceeding under the general laws governing such boards as well as under the provisions of chapter 36 of the Laws of 1886, which has special reference thereto. While the work of erecting the new building was in progress, and on the 30th day of September 1886, the board adopted a resolution appomtmg one Thomas S. Ryan, with compensation at the rate of $4 per day, JUDICIAL decisions: trustees 1245 " to superintend the work that is being done on the new school building, and to look after the interests of the board in the matter." From this act of the board this appeal is taken. The appellants set forth that they are residents and taxpayers in the district. As the grounds of their appeal they set up that, prior to the employment of Ryan, the board employed one John E. Kirby, as supervising architect, adopted plans submitted by him, and agreed to pay him for his services the sum of 5 per cent on the contract price of the building. They set up the written contracts entered into between the board and the other parties for the erection of the building, in which it is provided that the work shall be performed " to the satisfaction and under the direction of said architect," and, also, that " should any dispute arise respecting the true con- struction or meaning of the drawings or specifications, the same shall be decided by the architect and his decision shall be final and conclusive." In view of this fact, the appellants say that the appointment of a superintendent of the work was unnecessary and unlawful, and could confer no authority upon the person appointed to inspect or pass upon the work of the contractors. The respondent answering, says: (a) that the Superintendent of Public Instruction has no power or jurisdiction over the matter, for the reason that chapter 36 of the Laws of 1886 provided that the erection and furnishing of the building and all matters connected therewith should be solely under the control of the respondent; (b) that the appeal was not taken within thirty days from the time of the passage of the resolution complained of, as provided by the rules of the Department; (c) that the appeal is not verified, as required by the rules of the Department. For either of these reasons the respondent insists that the appeal should be dismissed. If the appeal should not be dismissed for either of the reasons above set forth, then the respondent says that upon its merits, the act of the board was proper and that there was ample lawful authority for it. It is asserted that the contractor for the mason work had sublet his contract, and that the work was not being performed according to the plans and specifications ; that the architect could not visit the work very frequently because of other engagements ; and that the work was being so badly done that it was necessary for the board to have a representative who was an expert builder continually on the ground to protect its interests. The board insists that the continuance of the inspector is essential " as the only means of insuring safe and proper work upon said building, and the prevention of frauds upon said district." I will consider the preliminary objections raised by the respondent in the order stated in the answer. The respondent denies the jurisdiction of the superintendent to hear and determine this appeal. Title 12, section i, subdivision 7 of the Consolidated School Act of 1864 provides that any person conceiving himself aggrieved in consequence of " any other official act or decision concerning any other matter under this act or any other act pertaining to common schools" may appeal to the Superintendent of 1246 THE UNIVERSITY OF THE STATE OF NEW YORK Public Instruction. Chapter 36 of the Laws of 1886, which appHes only to the particular district here interested, certainly enlarges the powers of the board of education in said district for the purpose of enabling the board to issue bonds, raise money and erect a nqw school building, but it will not be contended that such chapter is not " an act pertaining to common schools." That chapter, in all of its provisions, gives evidence of having been enacted for the purpose of enabling the district to do something which it could not do under the general school law, and not for the purpose of otherwise taking the district out from under the operation of the statutes of general application. In the face of the explicit and comprehensive provisions of the general laws conferring the right upon any aggrieved party to appeal to this Department from any act of school officers, there must be something in the special act showing, with clearness and distinct- ness, the intention of the Legislature to cut off that right as to this particular dis- trict, in at least this particular matter, or the views of the respondent can not be adopted. I have examined the special act with much care. It expresses no such purpose and, in my judgment, it implies none. In the next place, the respondent sets up that the appeal should be barred because of the fact that it was not taken within thirty days of the occurrence of the act complained of. But the act complained of is a continuing one. If it is without lawful authority, any taxpayer is entitled to complain each day of the continuing expense involved in the retention of the inspector or superintendent. Again, the respondent says that the appeal is not verified as required. This objection must also fail. I tind in the appeal papers, a copy of which is proved to have been served on the respondent, an affidavit by Mr Seward Baker, the leading appellant, which meets all of the essential requirements of an affidavit of verification. He swears that he " has read the foregoing appeal and the allega- tions thereof, and that the material allegations of the appeal are true to the knowledge of the deponent." This must be held to be sufficient. I now come to the consideration of the real question in the case, namely, whether there was authority of law for the appointment of Ryan as an inspector or superintendent of the new building, and if so, whether the act of the board was a proper exercise of such authority. When a law imposes a duty upon school trustees, it does not follow that they can employ some one to perform it for them. They must perform it in person, unless some provision is either expressly made or necessarily implied for the employment of others to do it. There must either be express authority for the employment of agents or the work must be of such a nature as necessarily to imply that it is not to be done by the trustees, and then the money must be provided for paying others for their work. The act of the Legislatuie having special reference to the construction of a new school building in the district under consideration (chapter 36, Laws of 1886) charges the board with the supervision of the work, and gives numerous directions in the premises. It does not provide for the employment of an expert JUDICIAL decisions: trustees 1247 superintending builder. I have examined the act with care, and I can find no clause which reasonably implies the intention of the Legislature to give such a power to the board. There is no reason which I am able to discern for supposing that the Legislature intended to absolve this board from personal attention to the matter. Trustees, are, ordinarily, men of experience in such matters and entirely able to protect the district against fraud. This is a part of their general responsibility, and there is nothing in the special act changing the rule as to this particular case. But the board in this case had employed an architect previous to the appoint- ment of Ryan, and had adopted his plans and specifications, and had made the usual agreement with him for an architect's supervision of the erection of the building. No objection is raised by the appellants to the employment of the architect, and the size and cost of the new building would seem to make such action necessary and proper. It had also entered into contracts with different builders for the work to be done. The ground which the board advances as justification for the appointment of the inspector, is that it was necessary in order to secure the proper fulfilment of these builders' contracts. These contracts bind the contractors to "erect and finish the new building (describing it), agreeably to the plans and specifications made by John E. Kirby (the architect), signed by the said parties and hereto annexed, within the time aforesaid, in a good, work- manlike and substantial manner, to the satisfaction and under the direction of the said architect." They provide also that payments for the materials furnished and work performed, shall be made to the contractors only upon the certificates of the architect, and further provide that if " any dispute arises respecting the true construction or meaning of the drawings or specifications, the same shall be decided by the architect, and his decision shall be final and conclusive." In view of these agreements between the board and the builders, it is diffi- cult to see any practical necessity for the appointment of an inspector, or what advantage he can be to the board. The contractors are not obliged to submit to his dictation. They fulfil their contracts when they satisfy the architect. The architect makes an affidavit in the matter and says that the inspector has reported to him matters in which the terms of the contract have been violated, and upon such complaint he has caused the same to be remedied, and that by the inspector's assistance, he has been enabled to prevent frauds. But it is the duty of the archi- tect to know all about these frauds himself and to protect every interest of the district, and for this he is amply paid. If he requires assistance in the discharge of his agreement with the board, he should pay for it and not make it a charge upon the district. For these reasons, I think the appellants are justified in their complaint. As there was delay in bringing the appeal, I do not think that the effect of my conclusions should be retroactive, so as to invalidate payments made to Ryan prior to the issuance of the injunction order granted by me upon the 19th day of February 1887. But that order must be made perpetual, and it is so ordered. I24S THE UNIVERSITY OF THE STATE OF NEW YORK 3989 In the matter of the appeal of Ed. P. M. Lynch and others v. James Gibney, as trustee of school district no. 3, town of Minerva, county of Essex. Election of a scliool district trustee upheld where the proofs fail to establish the fact alleged that the unsuccessful candidate received a larger number of legal votes than his opponent. A person, a citizen of full age, resident of a district, is not a voter simply because he is the possessor of more than fifty dollars' worth of personal property, unless his name appears upon the town assessment roll, assessed for personal property of the value of over fifty dollars. A contract to purchase land does not constitute a person a voter. An unintentional omission to give notice to every elector, of a district meeting to be held, does not necessarily render the proceedings of such district meeting illegal. A trustee should be a person possessed of all faculties to properly discharge the duties of the office. Decided July 31, 1891 Draper, Superintendent At a special meeting held in district no. 3, town of Minerva, Essex county, October 4, 1890, for the purpose of choosing a trustee, the respondent was declared elected by a vote of 10 to 7, one Michael Lynch receiving the 7 votes. From such election this appeal was brought. It is alleged by the appellants that several persons who voted for respondent were aliens, two not of full age and not otherwise qualified if of age, and one other not a qualified voter. I have carefully considered the evidence in support of the above allegations, and also respondent's proof in answer thereto, and find that two persons — John and Michael Mallon — who voted for respondent, although of full age, citizens and residents of the district, were not otherwise qualified. They claimed the franchise upon the ground that each possessed more than fifty dollars worth of personal property, but not being assessed upon the town assessment roll therefor, this was insufificient. It also appears that James Mallon who claims to own real estate, has simply a contract for the purchase of land, which is not a qualifi- cation. The respondent's other supporters whose right to vote is questioned, I find to be duly qualified. This finding reduces the legal vote of respondent to seven, and therefore, not a majority. But it appears that the right of several of those who voted for Michael Lynch, the opposing candidate, is questioned by the respondent, and from the evidence before me, I am not satisfied that one of those, William Stewart, was a resident of the district, assuming him to have been a citizen, which is stoutly denied ; and another, Mary Gates, whose right to vote depends upon the ownership of real property, by her own admission is not the owner in fee, but simply holds a contract for the purchase of land. This finding so reduces the number of legal votes cast for Michael Lynch as to still leave the respondent a clear majority. The appellants, however, allege other grounds of appeal, namely — that legal notice of the meeting was not given, and that the respondent is physically JUDICIAL DECISIONS : TRUSTEES I249 incapacitated from properly discharging the duties pertaining to the ofifice of trustee. It appears that several electors were not personally notified of the meeting, but I do not find this to have been an intentional omission or that any voter was absent from the meeting for want of notice thereof, per contra, it seems that so much interest centered in the contest that the adherents of each side were active in canvassing the district, and that every voter who chose to participate in the meeting had ample opportunity to do so. I have serious doubt about the ability of the respondent to satisfactorily discharge the duties of trustee, with eyesight impaired as his is shown to be. In fact, his own communications with this Department prove that he may be imposed upon, and the district be involved in loss thereby. It is especially desirable that, in a district in which there is so much contention as there is in this, the trustee should be in the possession of all faculties. The electors of the district will, in a very few days, have an opportunity to choose a trustee for the ensuing year, and in view of all the circumstances pre- sented, I have concluded to overrule the appeal. 3715 In the matter of the appeal of Hand Taylor from the proceedings of the annual school meeting in district no. 3, town of Moriah, county of Essex. A district meeting proceeded by a viva voce vote to elect a trustee; the chair declared a person elected, but as there were two candidates the declaration of the chair was unsatisfactory and a ballot was called for and proceeded with without protest upon the part of the person first declared elected, who also participated in it. As a result of the ballot another person was chosen trustee by a vote of 12 to 6. Held, That the election by ballot will be sustained. Decided October 3, 1888 Draper, Superintendent This appeal is brought for the purpose of determining who was elected sole trustee at the annual school meeting, held upon the 28th day of August 1888, in district no. 3 of the town of Moriah, Essex county. There are two claimants to the office, the appellant and one Iliram F. Green. The appellant claims that after the annual meeting had organized and transacted some business it was moved and seconded that he be elected trustee, and that the chairman put the question to the meeting, and that a majority voted in favor of the adoption of the motion, and that the chair declared the motion adopted. He says that subsequently to this it was agreed in the meeting to proceed to take a ballot, and that such ballot resulted in favor of IMr Green. The appellant claims that he was elected upon a viva voce vote, and that the subsequent action was void. He admits that subsequent to the taking of the ballot the chair declared Mr Green elected trustee. 40 1250 THE UNIVERSITY OF THE STATE OF NEW YORK Mr Green, on the other hand, insists that there was no election of the appel- lant, and that it was not so understood by the meeting. He swears, as two other persons do also, that both candidates were named for the office of trustee; that the chairman put the question whether Mr Taylor, the appellant, should be trustee, and hurriedly declared the motion adopted ; that thereupon a question was raised as to whether or not it was in fact adopted ; and that as the result of this controversy it was agreed to take a ballot, which resulted in 18 votes being cast, of which 12 were for Mr Green and 6 for Mr Taylor. I can not see my way clear to sustain the appeal. A district meeting in a district having less than 300 children of school age can elect a trustee by a viva voce vote; but it is clear that in this case the meeting was not satisfied with the proceedings of the clKiir, and that without admitting that the election had occurred, it at once determined to take a ballot. It is undisputed that Mr Taylor not only made no protest against this pro- cedure at the time, but that he actually participated in it. I think that the meet- ing was regularly and properly held, and that the result finally attained must be upheld. The appeal is therefore dismissed. 3970 In the matter of the appeal of James Duffy v. Russell F. Hicks, as trustee of school district no. i, of the town of Ulster, Ulster county. A person chosen trustee of a school district rests his claim to eligibility upon these grounds : first, that being a citizen, 21 years of age, and a resident of the district, owning a house situated on land owned by his wife; second, that being a parent, his child has attended the district school for a period of eight weeks in a preceding year. Held, that he does not show qualifications as a voter, and is therefore not eligible to the office of trustee. Decided April 20, 1891 G. D. B. Hasbrouck, attorney for respondent Draper, Superintendent The above-named respondent was chosen a trustee of school district no. i, town of Ulster, Ulster county, at the annual school meeting held in said district August 5, 1890, for the term of three years. Appellant, an elector of said district, now brings this appeal and alleges that the respondent is, and was at the time of his said election as trustee ineligible, not possessing either of the qualifications required by statute to constitute a person a voter at school meetings. The respondent answers and alleges that he is and was August 5, 1890. a legal voter. JUDICIAL DECISIONS : TRUSTEES I251 First. That he is and was a citizen, 21 years of age, and a resident of the district and the owner or hirer of real estate. Second. That he is the parent of a child of school age, which in a preceding year attended the district school for a period of at least eight weeks. The proof shows that respondent's claim to own or hire real estate rests upon the fact that his wife has the title to certain lands in said district, upon which respondent has erected a building with his wife's permission, with the understanding that said building was to be and reinain respondent's property, and is respondent's property. That he resides with his wife and family in said building. That he is assessed for said property, has always paid the taxes thereon, and is recognized as the actual owner, he having paid therefor, and That he is in possession of the property, and is the tenant of the same. I am unable to find authority to sustain the position of the respondent. His wife is the owner in fee of the premises referred to. It was held by the Court of Appeals in Martin v. Rector (loi N. Y. yy), etc., that since the passage of the acts in relation to the property of married women, there is no presumption that the husband is in occupation of his wife's land. He may still be the head of his family without being in a legal sense the possessor or actual occupant of the house or lands in or upon which the family resides. A tenant for life may not remove permanent improvements annexed to the freehold, and it has been held that when the husband of a tenant in fee erected a dwelling house upon the wife's land, he could not remove it after her death, (i Wash, on Real Estate 134) There is no sufficient evidence given that respondent is a tenant. The fact that real property is assessed in his name does not qualify him a voter, nor does the fact that he pays taxes upon real estate. Upon the second ground, that of being a parent, etc., the respondent's pleading is, that the child has attended the school in a preceding year. This is not sufficient and does not overcome the appellant's positive aver- ment that the child did not attend school for eight weeks in the year preceding the annual meeting. Respondent's attorney does not complain that appellant's allegation is untrue, but seeks to overcome its effect by showing that for several preceding years, the child attended the district school and insists upon a liberal construction of the statute in behalf of the respondent. The respondent having been the decided choice of the district meeting, and being clearly identified with the success of the school, I have reached the con- clusion that he was not and is not a qualified elector and therefore ineligible to the office, with reluctance, but I am unable to find otherwise. The a,ppeal must be and is sustained, and the respondent accordingly removed from the office of trustee of the before mentioned district. 1252 THE UNIVERSITY OF THE STATE OF NEW YORK 5273 In the matter of the appeal of Theodore Xicman and Henry D. Wellard from the acliun of the trustee of school district no. ii, town of Ripley, Chautau- qua county, in hiring a teacher. While a trustee, as a general rule, should respect, so far as possible, the wishes of the inhabitants of a district in the employment of a teacher, he is not bound by any action which a district meeting may take in relation to the teacher to be employed. Decided September 11, 1906 Draper, Commissioner The annual meeting of school district no. ii, Ripley, Chautauqua county, adopted a motion directing the trustee not to hire Aliss Carrie Robinson as teacher in said district. Appellants do not allege that Miss Robinson is not a qualified teacher, nor do they allege that she is not a suitable person to be in charge of a public school. The only ground upon which they ask that the con- tract of the trustee with Miss Robinson be set aside is that the annual meeting directed the trustee not to hire her. The law gives a trustee discretionary power in emi)loying a teacher. The only restriction upon a trustee in employing a teacher is that he shall employ one who is legally certified and who is not related to him. While a trustee as a general rule should respect, so far as possible, the wishes of the inhabitants of a district in the employment of a teacher he is not bound by any action which a district meeting may take in rela- tion to the teacher to be employed. This appeal must therefore be dismissed on the moving papers. It is so ordered. 4894 In the matter of the appeal of P.arcnt T. Waldron from proceedings of annual meeting held August 7, 1900. in school district no. 4, Coeymans, Albany county, relative to a spring of water outside of schoolhouse site. The trustee or trustees of a school district, when duly authorized by a school district meeting, have the authority to cause a well to be dug on the schoolhouse site, or to provide for drinking water for the pupils and teachers of the school in the district, to be obtained upon premises other than upon such school site. Decided October 15, igoo C. M. Barlow, attorney for respondent .Skinner, Superintendent This is an appeal from the action of the annual meeting held August 7, 1900, in school district 4, Coeymans, Albany county, authorizing the trustee of the district to expend a sum not to exceed $15 for digging and stoning a spring located on land owned by one Crum, lying northeast of the schoolhouse, to provide water for the scholars attending such school. JUDICIAL DECISIONS : TRUSTEES I253 John C. Ten Eyck, the sole trustee of the district, has answered the appeal. The respondent asks that the appeal be dismissed upon the grounds that the appeal is not signed; that the verifications are not in accordance with the rules of practice regulating appeals to the State Superintendent ; that the appeal was not brought within the time required by said rules ; that the appeal was not served upon the respondent personally, but by mail ; also, that the appeal should be dismissed upon the merits. The appeal is irregular in form, and a copy thereof was served by mail. The appeal was not brought within the time required by the rules; but I have the power of extending the time in which an appeal may be taken to me. I have decided to receive the appeal and render a decision therein upon the facts established. The following facts are established by the pleadings herein : That the schoolhouse site in said district 4 comprises about one-fourth of an acre of land lying along the westerly boundary of what is commonly known as " the mountain road " leading from Ravena to South Bethlehem ; that lying along the westerly boundary of such site is a ledge or mountain of rocks about 175 feet high, and extending for miles in a northerly direction and forming a part of the Helderberg range; that the character of the soil comprising such site is exceedingly stony and rocky, and covered largely with growing trees, boulders and loose rocks of many tons' weight; that there is no well or spring upon such site; that one Crum resides about 80 rods southerly from such site; that upon the lands of Crum there is a spring about 40 rods northeasterly from the schoolhouse in such district; that the water from such spring has been used for twenty years and over by the pupils and teachers of such school, and is the only available place to obtain good drinking water for such school without going a long distance, and at much inconvenience ; that at the annual meeting held in such district on August 7, 1900, the trustee was empowered to expend not to exceed $15 for digging and stoning the spring located on the lot lying northeast of the schoolhouse, belonging to James J. Crum ; that on August 8, 1900, said Crum executed and acknowledged an instrument in writing whereby he granted, for the consideration of one dollar, to trustee Ten Eyck and his successors in office, for the term of five years, the right to construct and maintain a well of water for the use of said school, on his premises about 200 yards distant from such schoolhouse, with the privilege of going to and from said well in the path that was then used ; that pursuant to the aforesaid action of the annual meeting the respondent has caused repairs to be made to said spring, and the well prop- erly dug, etc., and that such work is nearly completed. The trustee of a school district, when duly authorized by a school district meeting, has the authority to have a well dug on a school site, or to provide for drinking water for pupils and teachers of the school in the district, to be obtained upon premises other than such site. From the proofs herein, it is clear that it was impossible to obtain drinking water for the pupils and teachers of the school in such district upon the school 1254 THE UNIVERSITY OF THE STATE OF NEW YORK site. The action of the annual school meeting, appealed from, and the acts of Trustee Ten Eyck in carrying into effect such acts are approved. The appeal herein is dismissed. 3897 In the matter of the appeal of Alonzo Knowles v. DeWitt A. Marion, trustee of school district no. 13, of the town of Van Etten, county of Chemung. It is not only against public policy, but it is a direct violation of law for a school district trustee to engage in district work for which he is to receive compensation. A claim for such service can not be allowed. Decided July 29, 1890 Draper, Superintendent The school commissioner of Chemung county made an order, as he was empowered to do by statute, directing the respondent, the trustee of school dis- trict no. 13, town of Van Etten, county of Chemung, to make certain repairs, specified therein, to the schoolhouse in said district. The trustee procured the materials necessary to comply with such order, employed mechanics and others to do the work and labor necessary, and caused the schoolhouse to be repaired. The appellant asks that the trustee be removed from the office he holds, upon the following grounds, namely : 1 That the work above mentioned was not properly done, that the floor was not properly laid, the siding put on in an unworkmanlike manner, an abutment was not laid up with proper material ; that the main door is so hung that it can not be closed ; and generally, that the repairs are not worth the sum charged — in fact, not worth the cost of the material used. 2 That the trustee has appropriated to his own use several pounds of nails purchased for the district, and several of the old sashes which were removed from the building. 3 He is charged with doing work himself upon the building for which he has made a charge against the district. 4 When work was completed, he neglected to call a district meeting when requested by a reasonable number of inhabitants. Numerous affidavits are presented of residents and others to substantiate the charges. The trustee, in answer to these charges, insists that the work has been properly and expeditiously done, and the material furnished and the work done was reasonably worth the sum charged therefor, namely, $125. The trustee is supported in his defense by affidavits of residents of the district and neighbor- hood, including the principal contractor. The respondent denies that he has appropriated any property of the district to his own use. He alleges that several pounds of nails, which were not used JUDICIAL decisions: trustees 1255 upon the work, were sold to another at the cost price and the district credited therefor by the person from whom they were purchased. The sashes, he states, were not of any particular value, having been in use in the schoolhouse thirty years, and that the commissioner valued all seven at one dollar; that he sold three of the seven to his mother for one dollar and five cents, who used them in a barn. He admits that he worked upon the building three days of ten hours each, at the request of the workman in charge, for which he charged at the rate of nine shillings per day, and was not then aware that he was committing any impro- priety, or violating any law by so doing, and is now ready and willing to make any restitution the Department may direct. The respondent admits that he did not call a special meeting of the district as requested, and in justification states that he consulted the school commissioner, and was advised by him that a meeting for the purpose requested was unneces- sary, as the liability of the district was already established. The value of the evidence of at least two of the appellant's witnesses is considerably shaken by affidavits presented by the respondent, and the allegation that the repairs made are not worth as much as the material used, actually cost is, to say the least, quite remarkable. The proof shows that the man who had charge of the work was an experienced carpenter, and had done similar work and given satisfaction. I am not able to find, from the conflicting evidence before me, that the work was not done in a substantial and skilful manner, I am convinced, from the proof before me, that the trustee has acted in good faith in carrying out the directions of the commissioner. The charge of appropriating nails and sashes is sufficiently answered and disproved. The trustee, however, is at fault for becoming interested in the work as an employee and making a charge therefor, however small. I do not consider his charge at all unreasonable, but he being the representative of the district, and the officer to pass upon the work done and its sufficiency, it is not only against public policy, but a direct violation of law, for such an officer to receive compensation from his district. This claim the trustee must waive, or. if he has been compensated, he must refund the same to the district, or he will be liable to prosecution therefor. The most serious charge, to my mind, is the refusal to call a special meet- ing, as requested by a reasonable number of the inhabitants, to consider the work done for the district. Although the order of the commissioner made it obligatory upon the trustee to make the repairs, and when made the district became liable for the expense thereof, still the legal voters of the district were entitled to a report from the trustee, both as to the nature of the repairs and cost thereof, and to a meeting to secure the same. However, the advice of the commissioner that a meeting was unnecessary was some justification of the trustee's refusal. The trustee is directed to make a complete and detailed report of the work done upon the schoolhouse, the cost 1256 THE UNIVERSITY OF THE STATE OF NEW YORK of material used and labor performed, at the annual meeting to be held on the 5th proximo. I do not deem the charges established sufficient upon which to grant the relief asked for, and the appeal is therefore overruled. 3783 In the matter of the appeal of William R. Kinne v. William Stetson, trustee of school district no. 9, of the town of Butternuts, Otsego county. Appeal by a former trustee from the refusal of the present trustee of a school district to levy a tax for the purpose of raising the money to pay a claim of the former for work done upon district property during the time he was trustee of the district, dis- missed upon the ground that it is a violation of law for a trustee to charge for work of this character. Decided April 1889 Draper, Superintendent This appeal is taken by a taxable inhabitant of school district no. 9, of the town of Butternuts, Otsego county, N. Y., from the refusal of the respondent, the trustee of said district, to pay or levy a tax for the purpose of raising money to pay a certain claim of the appellant for work done in erecting outhouses and privies for the use of said district, while the appellant was trustee thereof. It is alleged by the respondent, in his answer, that the work has not been done in accordance with the directions of the district meeting, and that the district meeting has refused to accept the same ; that the work has not been done in a workmanlike manner, nor in compliance with the provisions of chapter 538 of the Laws of 1887, known as the " health and decency " act. A trustee of a school district has no authority to do work of this kind for a district. He is the officer who is to represent the district and see that the work is properly done and the district protected. It is unnecessary for me to pass upon the question of the unsuitableness of the work done, but must dismiss the appeal upon the ground that it is a violation of the law for a trustee to charge for work of this character. 3846 In the matter of the appeal of Charles McCarthy v. I. N. Webb and Joseph W. Shipway. A trustee had no right to sell lumber to himself, nor to employ his own team upon school work, or otherwise to perform labor for the district, for which he expected to be paid while acting as trustee. Decided December 24, 1889 James Young, attorney for appellant Barnum Bros., attorneys for respondents JUDICIAL decisions: trustees 1257 Draper, Superintendent The parties hereto are residents and taxpayers in school district no. 11, towns of Middlefield and Cherry Valley, in the county of Otsego. Mr McCarthy was the trustee during the last year. Mr Webb is the present collector, and Mr Ship- way the present trustee of the district. While the appellant was trustee of the district, he was directed by the school commissioner to make certain repairs to the school building, and to make necessary additions to the furniture thereof, which he did. He presented his bill to the annual school meeting, held August 6th, last. Touching the action of the meeting upon the same, there is a dispute. The appellant alleges that the bill was approved by the meeting, and so declared by the chairman, although the clerk's record fails to show the fact. The respond- ents allege that the meeting determined to act upon each item of the bill separately. The bill, in the aggregate, amounted to the sum of $447.84. One of the items was in favor of the appellant himself for lumber furnished, labor performed and moneys otherwise paid out. The respondents allege that all of the items of the bill were allowed except that in favor of the appellant and that such item was rejected by a vote of 5 to 12. They insist that the bill of the appellant is excessive in some particulars, and that he either exceeded the authority conferred upon him by the order of the school commissioner, or the school commissioner assumed to exercise an authority in excess of that conferred upon him by statute. It is impossible for me to arrive at any confident conclusion as to the real facts in the case; but the burden of establishing his case is upon the appellant. There is presented no preponderance of evidence which sustains his claim, and I am forced to the conclusion that I can not sustain his appeal and direct the officers of the district to levy the tax which he insists upon. It seems more than likely that the district is fairly indebted to him, but in just what sum I can not say. He had no authority to sell lumber to himself as trustee, nor to employ his own team upon the work, or otherwise to perform labor for the district for which he expected to be paid while acting as trustee. I am not sure that this was done, and yet there are some things to indicate it. The appellant has his remedy against the district by an action at law, and while I am forced to the conclusion that I must dismiss his appeal, it is done without prejudice to his right to bring such action. The appeal is dismissed. 3753 In the matter of the appeal of Edwin W. Smith and others v. Harley Wood, as trustee of school district no. 13, of the town of \^irgil, county of Cortland. A school district trustee wlio becomes a subcontractor upon district work, and thereby places himself in a position which destroys his power to act as an official for the district independently and without bias or self-interest, removed from office. 1258 TUE UNIVERSITY OF THE STATE OF NEW YORK A tax list issued by a trustee for the purpose of raising money to pay for work done under these circumstances should be set aside. The contractor must enforce his remedy, if any, by an action at law against the district. Decided January 19, 1889 William D. Tuttle, attorney for appellants Henry M. Dickinson, attorney for respondent Draper, Superintendent This is an appeal from a tax list issued by the respondent on or about the 27th day of November 1888. for the collection of the sum of $308.06. The prin- cipal item of this sum is that of $285, for building a new schoolhouse. At an adjourned annual meeting held upon the i8th day of September 1888. it was voted that the schoolhouse should be erected pursuant to detailed specifications as to the quality and quantity of materials to be used. It was also voted that the meet- ing should adjourn to the 22d day of September 1888, to receive bids for build- ing, according to the specifications, the contract to be let to the lowest bidder. A meeting was held on the 22d day of September 1888, and bids were received, ranging from $400 down to $300. For some reason, about which there is some controversy, no contract was awarded at that meeting. The trustee claims that the meeting directed him to let the contract to the lowest bidder. He received several other bids subsequent to this meeting and finally let the contract to his brother, Farnham Wood, for the sum of $285. It is admitted that the trustee worked for his brother in the performance of the contract. It seems to be conclusively shown by the appellants that the contract has not been performed in a workmanlike manner. They allege that neither the contractor nor the trustee are builders or carpenters. They produce the affidavits of a large number of persons who first show their long experience as builders, and then impeach the character of the work done upon the building in question. This arraignment of the trustee and the contractor is so overwhelming in the evidence, as to leave no room for reasonable question as to the character of the work. I have not lost sight of the fact, however, that the contract price is apparently an exceedingly low one. There is small reason to expect much of a schoolhouse to be built for the sum of $285 ; but the contractor is bound to keep his agreement after he has made it. It is the business of a trustee to protect his district, and it is an impropriety for him to enter into any business relations which are not com- patible with his doing so thoroughly and effectually. I can not say that the trustee was guilty of fraud when he let the contract to his brother, although that fact is strongly charged by the appellants ; but I must say, that when he let the contract to his brother, and then worked for his brother in fulfilling the same, he thereby made it impossible for him to represent the district in passing upon the character of the work done, and in determining whether the whole contract was properly fulfilled or not. This fact taken in connection with another, that he refused to recognize any right on the part of a committee appointed by the district meeting to mquire into the matter and protect the interests of the district, and with the over- JUDICIAL decisions: trustees 1259 whelming proof that the work has been very defectively and unskilfully per- formed, makes a strong showing against him. It is true that the trustee was clothed with the official power to control the erection of the schoolhouse, but he was bound to do it in the manner directed by the district meeting, and in a way which would thoroughly and effectually protect the interests of the district. Instead of doing this, he has either wilfully or thoughtlessly entered into relations which are inconsistent with his official duty as trustee. The district is in some way entitled to protection. It is not spending a large amount of money for a schoolhouse, but it is entitled to get the worth of its money. At all events, it is entitled to have the contractor carry out his agree- ment. The officer, whose duty it has been to see that this was done, has volun- tarily entered into relations which have destroyed his power to do so independ- ently and without bias or self-interest. I can not uphold this proceeding, and therefore I can not sustain the tax list from which this appeal is taken. I have considered what the result of this conclusion may be. It may leave the district without a schoolhouse; it may leave the contractor without any pay for his work, when he may fairly be entitled to something. It is possible that the defects in the work might be remedied. It is apparent that there can be no adjustment of the matter so long as he remains trustee, and there is good reason for his retirement from the office of trustee. Indeed, both the interests of the district and his own personal interest, and that of the contractor would be best promoted by his retirement, as thereby an opportunity may be afforded for an adjustment of existing complications and difficulties. I have therefore concluded to sustain the appeal, set aside the tax list and remove the trustee from office. The district will hold a special meeting within fifteen days from this date and elect a trustee, whose duty it will be to pass upon the character of the work performed and determine what it may be necessary for the contractor to do in order to fulfil the terms of his agreement. If an adjust- ment can be effected in that way, a tax list to carry the same into effect will be upheld. If it can not be, the remedy of the contractor will be to bring an action at law against the district. The appeal is sustained, and the taK list appealed from set aside, and the trustee removed from office. The statute directing town superintendents (supervisors) to pay out public money only to qualified teachers, duly employed, upon the order of the trustees employing them, was enacted for the purpose of preventing embezzlement by trustees, and if they pay the public money to a trustee or other person than the teacher, without his order, they do it at their peril. Decided November 11, 1854 Rice, Superintendent The provision of the law which directs town superintendents (supervisors) to pay out public money only to qualified teachers duly employed, upon the order I26o THE UNIVERSITY OF THE STATE OF NEW YORK of the trustees employing them, was enacted for the express purpose of prevent- ing the opportunity of embezzlement by trustees. If in the face of this fact pub- lic money is paid to a trustee, in the name of a teacher or otherwise without a properly attested order from the person to whom it is due, the town superintend- ent (supervisor) does it upon his own responsibility. In the case in controversy, the trustee, Reed, is liable for the means by which he obtained the money, and the town superintendent of Otto is responsible to school district no. 9 for the amount paid by him to Reed, and he must make good the deficiency, looking to Reed for reimbursement. This appeal is accordingly sustained, and the town superintendent of Otto is hereby ordered by pay to said Hosea Edwards, teacher aforesaid, the sum of $15.86 claimed by him, and to preserve district no. 9 good in that amount, not charging said district for the amount paid illegally by him to said Isaac Reed. 3868 E. D. Curtis and another v. Charles G. Gillett, trustee of school district no. 2, towns of Barre and Elba, in the counties of Orleans and Genesee. Appeal will be dismissed when charges against a trustee are too general, and the matters which are the subject of the appeal are trivial. Decided April 10, 1890 Church & Kirby. attorneys for respondents Draper, Superintendent This appeal is by alleged taxpayers and voters of joint district no. 2, towns of Barre and Elba, from the action of the trustee in issuing a tax list for $35748, bearing date October 25, 1889, for the purpose of meeting the expense incurred in repairing the schoolhouse, furnishing the same, and constructing necessary outbuildings. The charges against the trustee are too general to be considered upon a proceeding of this nature. From the respondent's answer, which is more specific, it appears that the trustee has made necessary repairs by general author- ity of the annual meeting, and upon the specific order of the school commissioner, and that he has furnished the schoolhouse with suitable desks by direction of the commissioner. It is charged that the trustee personally furnished goods to the district, and sold other property without the authority of the district. It appears from the respondent's answer that the trustee did furnish two doors to the district at the i)rice of one dollar, and that he sold some material which had been left upon the ground after the repairs were made, for from two to three dollars, with which sum he credited the district. These items are too trivial to be made the subject of an appeal. I fail to discover any sufficient ground irom the appellant's pleading for sustaining the appeal, and an examination of the respondent's answer satisfies me that there is no merit in it, and that the appeal should be dismissed. The appeal is therefore dismissed. JUDICIAL DECISIONS : TRUSTEES 1 26 1 3580 In the matter of the appeal of Aaron L. Hill and Otis S. Lewis v. E. O. Dean, trustee of school district no. 15, town of Ridgway, Orleans county. It is one of the powers of a district meeting to advise and direct the trustee as to what the people desire him to do in regard to the erection of a school building. It is a duty of the trustee to carry out the directions of a district meeting, relative to a new school building. Decided April 18, 1887 Wheden & Ryan, attorneys for appellants John Cunneen, attorney for respondent Draper, Superintendent This is an appeal taken by legal electors of school district no. 15, town of Ridgeway, Orleans county, from the alleged refusal of the sole trustee of said district to call a special meeting of the qualified electors when requested by a sufficient number to do so, and from his alleged neglect to carry out the direc- tions of a district meeting, relative to the erection of a school building. It appears from the evidence presented that there is a dispute in the dis- trict as to the plan to be followed in building, and it clearly appears that a very large majority prefer a plan which the trustee does not approve of. Since this appeal was taken, a special meeting has been held, and the wishes of the district made sufficiently clear to fully advise the trustee just what the people desire him to do in regard to the building. The law does not confer upon a trustee the power to either approve or disapprove of the plan selected by the people. The duties of his office are to carry out their desires as legally expressed, subject only to the approval of the school commissioner so far as heating, light- ing and ventilation are concerned. When the district meeting has adopted this plan and approval is obtained, it is the duty of the trustee to proceed with the work in hand. In view of the facts presented, I have reached the conclusion that the appel- lants had grounds for this appeal. The trustee will forthwith present the plans decided upon to the school commissioner, and if he approves of the same as required by law, the said trustee will proceed at once to secure proposals for the construction of the schoolhouse, and enter into the necessary contracts to secure its erection. The stay, heretofore granted herein, is set aside. 3413 It is clearly the duty to make repairs in obedience to the order of the school commissioner. When such repairs have been made, the district becomes liable therefor, and the trustee must issue a tax list and warrant to raise the necessary amount to pay for the same. Instance where claim had been assigned. Decided April 2, 1885 1262 THE UNIVERSITY OF THE STATE OF NEW YORK Ruggles, Superintendent On the i6th day of June 1884, the school commissioner of the second dis- trict of Schoharie county, made an order directing the trustee of school district no. 2, Fulton, Schoharie county, to make certain repairs upon the schoolhouse of the district in the form of an addition thereto. This order was made under and in accordance with the provisions of subdivision 3, section 13, title 2 of the Con- solidated School Act of 1864. This appellant, Jacob Feek, at the date of said order, was the trustee of the district, and made or caused to be made the repairs or additions to the schoolhouse in obedience to such order. By so doing he con- tracted a liability on the part of the district of the sum of $188.58 for material and labor. The district, at the annual meeting, refused to order a tax for the payment of this amount or any part thereof. Two appeals have been brought to this Department, and decisions rendered sustaining the claims of two per- sons who furnished material and labor for the repairs upon its schoolhouse. The remaining claims for materials and labor, amounting to $165.47, since the expira- tion of said Jacob Feek's term of office as trustee of said district, have been a6signed to this appellant, who on the nth day of March, 1885, presented said claim to George L. Hancr, the trustee of said district, and requested him to pay the same to this appellant. Thereupon the trustee refused and still refuses to pay this claim, or to issue a tax list and warrant for the same. Assuming that the order of the school commissioner was regularly and legally made, and no appeal having been taken therefrom, it can not now be questioned ; it was clearly the duty of the trustee to make the repairs in obedience thereto. This done, the district became liable therefor, and must pay for the benefits which it has legally received, and is now enjoying. Trustee ordered to issue tax list and pay claim. 3927 In the matter of the appeal of Aaron A. Harder from the proceedings of a special school meeting, held in district no. 5, town of Herkimer, county of Herkimer. September 6, 1890. An annual meeting was held, but without electing district officers adjourned sine die. A special meeting to transact the business which should have been attended to at the annual meeting, was held and a trustee chosen. The trustee who held over after the time of the annual meeting claims to be entitled to the office until the election of a trustee at the next annual meeting. Held otherwise, the person chosen trustee at the special meeting succeeds to the office. Decided December i, 1890 Draper, Superintendent Appellant, who was chosen trustee at the annual school meeting of 1889, and who acted as such trustee thereafter, brings this appeal from the proceedings of a special meeting called by the district clerk, and held December 6, 1890, at which meeting it is alleged one Irving P. Harder was declared elected trustee of the district. It appears that on the fifth day of August last, an annual meeting JUDICIAL DECISIONS : TRUSTEES I263 was held, which was duly organized by the election of a chairman and secre- tary, and adjourned sine die without proceeding to the election of district officers. Subsequently, the district clerk called a special meeting as stated. The appellant claims that an annual district meeting having been held at the time fixed by law, and no election of district officers having been attempted thereat, he, as trustee elected at the previous annual meeting, would continue to hold over until the next annual meeting. No answer has been interposed, the respondent seemingly acquiesces in the appellant's statement of the facts. In determining this appeal, I am aware that a note of the editor in the last edition of the Code of Public Instruction, would lead to the conclusion that the appellant, upon the facts submitted, would be entitled to hold over as trustee until the next annual meeting but I am compelled to dissent therefrom. The appellant was entitled to hold over as trustee until a duly called special meeting of the electors of the district should choose his successor. This having been done at a meeting held September 6, 1890, I decide Irving P. Harder the person there elected as trustee to be the trustee of the district, succeeding the appellant in said office. The appeal is dismissed. 3870 Cornelius Slattery v. George Flack, trustee of school district no. 17, of the town of Hartland, county of Niagara. The removal of a trustee from office is sought by this appeal for general neglect of duty, failing to carry out directions of a commissioner's order, and to provide by tax for teachers' wages, etc. An appeal pending brought by the trustee from the order referred to, is assigned as the cause for the apparent neglect of the trustee. Held, that the former appeal having been dismissed, the trustee will now be given an opportunity to comply with the commissioner's order and the law. Decided April 14, 1890 Millar & Moyer, attorneys for respondent Draper, Superintendent The removal from office of the respondent, George Flack, trustee of school district no. 17, of the town of Hartland, county of Niagara, is sought by this appeal. The grounds upon which the application is based are that the respond- ent has neglected the duties of his office, having failed to carry out the provi- sions of an order of School Commissioner Robert G. Woods, condemning the school building in said district, and directing the erection of a new schoolhouse ; that he has neglected to raise sums necessary for teachers' wages long past due ; that he has not observed the requirements of the health and decency act, and, as a further ground, that not being a taxpayer in said district, and having no children of school age attending school therein, he is not eligible to hold a dis- trict office. 1204 THE UNIVERSITY OF THE STATE OF NEW YORK The respondent, in answer to the foregoing charges alleges, that before the order of condemnation was received by him, a district meeting had voted to repair the schoolhouse, and the trustee thereupon proceeded to prepare a tax list to raise the amount deemed necessary for repairs, and to pay teachers' wages, and place said tax list with the warrant attached, in the hands of the collector who did not enforce the same, having been advised that the tax to repair was illegal because of the issuance of the commissioner's order condemning the school- house. The respondent, in the meantime, had taken an appeal to this Department from the order of the commissioner, and states as an excuse for neglecting to raise the amount needed for teachers' wages, that he delayed, awaiting the decision of such appeal. He insists that he has complied with the requirements of the health and decency act, and has constructed suitable and separate out- houses and erected a division fence. The respondent admits that he is not now the owner of real estate. He alleges that he was an owner of real estate at the time of his election to the office of trustee, and had been for many years. Upon a careful examination of the proofs submitted, I do not feel warranted in sustaining this appeal. Upon the appeal referred to from the commissioner's order condemning the school building, I have sustained the commissioner's order, and I feel that the trustee should have an opportunity to carry out the directions of such order. There is not sufficient proof before me that the respondent is not eligible to the office of trustee. A person may be qualified to hold the office who is neither a taxpayer nor the parent of children. I therefore dismiss the appeal. 4008 In the matter of the application for the removal of Samuel Penfold and F, Finkbeiner from the office of trustees of school district no. 6, in the towns of Cheektowaga and West Seneca, county of Erie. Application for the removal of school district trustees from office for neglect to carry out the directions of a school district meeting. The proof submitted disclosed the fact that the people of the district were much agitated over the selection of a site and the construction of a school building; and also over a proposition to divide the district, steps for the accomplishment of which had been taken. Application denied. Decided September 22, 1891 Draper. Superintendent This is an application for the removal of the trustees of the above-named district, on the ground that they have wilfully refused to carry out the directions of a district meeting in relation to the selection of a new schoolhouse site. It is shown that the district, by a majority vote, determined to accept a certain new site donated to it by a corporation known as the " Bishop Land Company." The two trustees above named have been strongly opposed to the acceptance of JUDICIAL DECISIONS : TRUSTEES 1 265 this site. They allege that it was given for the purpose of enhancing other lands controlled by the land company, and that it was not advantageous to the district to accept it. One of the trustees swears that he was ofifered $50 by the land company if he would accept the site. The school district lies in two com- missioner districts. One of the school commissioners favors the proposition, and the other strongly opposes it. The school district is in the neighborhood of the city of Buffalo, and the territory is rapidly becoming more thickly populated. The boundaries of the school district have been altered recently, which fact led to the consideration of the necessity of a new site. The necessity for still fur- ther alterations in the district is becoming manifest, and steps have been taken to accomplish this. The papers submitted disclose the further fact that an agreement is demanded of the two trustees against whom charges have been preferred, the nature of which agreement has not been disclosed by the pleadings. If the land in question is to be donated by the Bishop Land Company, I can not understand why an agreement from the trustees should be required. All that would be necessary would be for the land company to execute the deed and tender it to the trustees. From a reading of the papers, I conclude that the trustees whose removal is sought, have failed to act upon the directions of the district meeting. They have thought that they had good reasons for this. If other changes are to be made in the territory of the school district, they should be effected before the location of the new site is finally determined. In any event, I do not feel justified in granting the application for the removal of the trustees at present, or until it shall be settled whether there is to be a further change in tlie bounda- ries of the district, at an early day. The school commissioners having jurisdiction are directed to advise together about the matter, and determine it so far as they have power to do so. It is possible that when such determination is reached the ground for controversy will have been removed. In the meantime, the application is denied, but without prejudice to the appellants to renew it at some future time, if in their judgment the circum- stances shall seem to justify such action. 4010 In the matter of John Clingan, trustee of school district no. i, of the town of New Paltz. in the county of Ulster. A school district trustee persistently and wilfully disobeyed and violated the orders and directions of the State Superintendent of Public Instruction, and the laws of the State, to which his attention had been repeatedly called; hdd^ sufficient cause for his removal from office. Decided October 27, 1891 Linson & Van Burcn, attorneys for appellant D. M. De\\'itt, attorney for respondent 1266 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent Two appeals have heretofore been taken by Abraham ]\I. Hasbrouck a tax- payer in the district above named, from the action of John CUngan as trustee of said district. The first was in December 1890, from the action of the trustee in expending the moneys of the district and levying a tax upon the same for the payment of teacher's wages and other alleged expenses of the district, in dis- regard of an agreement entered into between the district and the local board of managers of the State normal and training school at New Paltz. The second appeal was against the action of the trustee in calling a school meeting in the district on the 4th and 5lh days of August 1891, for the purpose of transacting district business and electing district officers, in disregard of chapter 54 of the Laws of 1891, and against his action in attempting to carry out the alleged action of the district meeting and otherwise in disregard of said act. In the consideration of these appeals it appeared to my satisfaction, from the evidence and papers submitted, that said John Clingan as said trustee had been guilty of a wilful violation and neglect of his duties as such trustee, and of the provisions of the Consolidated School Act, and of other acts pertaining to public schools, and that he had unreasonably delayed the collection of taxes necessary to pay the indebtedness of said district; that he had issued a tax list in which he had included sums which he had no right to collect or charge against said district; that he had even attempted to raise money to pay himself for services, and had refused and neglected to obey the directions and orders of the State Superintendent of Public Instruction in the premises. In the disposition of said appeals^ the trustee was restrained and forbidden from acting as trustee of said school district, except so far as it might be necessary for him to act for the purpose of paying the indebtedness of said district, as the same existed or had been incurred on March 10, 1891. The trustee was alsc. directed to proceed to determine the amount of the indebtedness of the district, due or incurred on the loth day of March 1891 ; to apply any moneys now standing to the credit of the district to the payment of such indebtedness, so far as the same may be legally applicable thereto ; and if there were not sufficient moneys on hand for that purpose, to forthwith issue his tax list and warrant for the collection of the deficiency, and as soon as collected to pay and discharge the indebtedness of the district. He was directed to withdraw the old tax list appealed from; restore any moneys collected thereunder to the persons from whom collected; cancel and destroy the same, and issue a new tax list and warrant for the sum neces- sary to liquidate the said indebtedness of the district. The said trustee was also ordered to show before me, at the Department of Pub he Instruction, on Tuesday, the 29th day of September 1891, at 10 o'clock in the forenoon of that day, what proceedings he had taken in fulfilment of the terms and directions of said orders and decisions in said appeals; and in the event of his failure to show that he had proceeded to comply with said orders and decisions, with intelligence and in good faith, he was ordered to show cause why he should not be removed from his said office of trustee. JUDICIAL decisions: trustees 1267 At the time and place named, the said trustee appeared by D. M. DeWitt, Esq., his attorney, and filed a return to said order. Said return failed to show what proceedings he had taken in fulfilment of the terms and directions of said orders and decisions, and admitted that he had not complied with said terms and directions. The return of the said trustee and the attorney appearing for him admitted that said trustee had, in violation of the terms of said orders and without any authority on the part of said district, commenced a litigation in the Supreme Court, in his official capacity as trustee of said district; and also that he had advised teachers, procured and employed by him during the last preceding school year, to commence suits against the district for their wages, instead of levying taxes for the payment of said wages, as he was directed to do in said order of the Superintendent; and that he had otherwise neglected and refused to comply with the terms of said orders. It therefore appearing before me, upon the papers submitted in the pro- ceedings above mentioned, that said John Clingan has been guilty of a wilful violation and neglect of duty, under chapter 555 of the Laws of 1864, and the acts amending the same, and the acts pertaining to common schools, and par- ticularly the act, chapter 54 of the Laws of 1891, and that he has wilfully dis- obeyed the orders and decisions of the Superintendent. Now, therefore, it is ordered and adjudged, that John Clingan be and he hereby is removed from the office of trustee of school district no. i, of the town of New Paltz, in the county of Ulster. 3956 In the matter of the appeal of James Gormly, Owen Mathews and John R. Mathews v. Howard T. Montgomery and John A. Biggs, trustees of union free school district no. 2, town of Flatbush, county of Kings. The practice of trustees of reporting a less balaace of moneys on hand at the annual meetings, than they really had or should have had, in continuance of a custom of the trustees, which was to deduct from amount of funds on hand an amount equal to tlie outstanding indebtedness of the district. Held, to be a reprehensible and pernicious custom, and inexcusable. Duty of school officers relative to the care and management of school moneys pointed out. Decided January 26, 1891 F. L. Backus, attorney for respondents Draper, Superintendent This is an application for the removal of the respondents from the office of trustee in the district above named. The charges alleged against the respondents are, that they have not only been derelict in managing the business of the district, but that they have misappropriated moneys. The papers are exceedingly voluminous. The allegations are serious and are met by flat denials. Being unable to come to any satisfactory conclusion 1268 THE UNIVERSITY OF THE STATE OF NEW YORK upon the pleadings, I directed an investigation to be made by the school com- missioner, and he has taken a vast amount of testimony which has been returned. Upon the oral argmnents before me, the counsel for the appellants substantially witiidrew the allegation of personal dishonesty on the part of the respondents. Since the argument, I have come to know that the respondents have removed from the district and vacated their ofhces. These facts simplify matters some- what. The main fact still remaining is that the trustees have for several years been accustomed to report to the annual school meeting a balance of moneys on hand, which was much less than what they really had or should have had. This fact is not disputed. It is attempted to explain it by saying that it was the custom of the trustees to take out of the funds to the credit of the district an amount equal to the outstanding indebtedness of the district. Without claiming that this was proper, they attempt to excuse themselves on the ground that it was a custom which had been practised for many years. It is very clear to me that it was a reprehensible and vicious custom, and that there is nothing to excuse it. It is the business of school ofiicers to keep school funds separate and by themselves, and not to mingle such moneys with any other moneys, as it is also their business to report to the district meeting each year the precise amount of money coming into their hands, the precise amount of money paid out by them, and to show for what purpose such moneys were paid out, and to indicate with precision and exactness the amount of money remaining in their hands. It would be well for them to also report the outstanding liabilities of the district, but it is a grave error to fail to report moneys on hand which have not already been actually and properly paid in the discharge of a liability of the district. I am relieved of the duty of determining whether I should remove the respondents from office, by reason of the fact that they have voluntarily abdi- cated their positions, but I have deemed it proper to make the foregoing charac- terization of the methods shown to have been practised in this district, for the benefit of others. 3755 In the matter of the appeal of James R. Warner v. Ezra C. Clemence. A school district trustee will not be removed from office upon the ground of his ineligiblity, unless the charge is clearly established. Decided January 19, 1889 Draper, Superintendent The respondent was elected a trustee in district no. 23, town of Brookhaven, m the county of Suffolk, at the last annual school meeting. The appellant claims that he is not eligible to the office, by reason of the fact, as he alleges, that the respondent neither holds nor hires real estate in the district liable to taxation for school purposes; that he is not the parent of a child or children of school age JUDICIAL decisions: trustees 1269 who has attended school; that he has residing with him no child of school age who has attended school, and that he has not been assessed for personal property. No proofs of the allegations of the appellant are submitted. The respondent, in his answer, swears that he owns certain real estate lying in district no. 23 of the town of Brookhaven. The nature of the title which the respondent claims in the real estate described is not disclosed, but there certainly is no proof submitted by the appellant which will justify me in holding that the respondent is not eligible to the office. The appeal is dismissed. 3701 In the matter of the appeal of Isaiah AI. Merrill, for reinstatement as trustee of school district no. 8, town of Northtield, Richmond county. The office of trustee does not become vacant by reason of the neglect or malfeasance of the officer, until charges have been preferred and an opportunity afforded the accused person to be heard in answer to them, and he is removed from office b> competent authority. Decided July 26, 1888 T. W. Fitzgerald, attorney for the petitioners Lot C. Alston, attorney for the respondent Draper, Superintendent The petitioner has heretofore been a trustee of school district no. 8 of the town of Northfield. Richmond county. It is alleged that he has been guilty of neglect and malfeasance in office. Other trustees and interested persons have taken the view that, under section 58 of title 7 of the Consolidated School Act, the office held by Merrill had become vacant. Acting upon that supposition, they procured from Edward P. Doyle, supervisor of the town of Northfield, in June last, an order appointing one Decker as trustee in the place of the petitioner. This is an application on the part of the petitioner to be reinstated. The case may be very easily disposed of. I am clearly of the opinion that no vacancy existed. Whether or not the petitioner had forfeited the office by reason of the things complained of, no vacancy would arise until charges were made against him, and he could be aflforded an opportunity to be heard in answer to them, and should be removed by competent authority. It may be added also, though not material, that the supervisor had no power to appoint a trustee even if a vacancy had existed, for the power of appointment had been vested in the school commissioner, by operation of chapter 331 of the Laws of 1888. It is therefore held that the petitioner is still the trustee and entitled to exercise the powers of his office as such. 1270 THE UNIVERSITY OF THE STATE OF NEW YORK 3894 In the matter of the appeal of H. B. Harrison, school commissioner of the second commissioner district of Steuben county, v. DeVoy Bailey, trustee of school district no. 2, of the town of Troupsburg, Steuben county. A trustee who pcrsistuiuly neglects to make repairs to the school building, which are neces- sary, and whicli have been directed by the commissioner's order; hcldj a sufficient cause for his removal from office. Decided July 24, i8yo Draper, Superintendent The connnissioner, the above-named appellant, on or about August 6, 1889, made and issued an order directing certain repairs to be made to the school- house in school district no. i, Troupsburg, Steuben county. The order was duly delivered to the respondent, the trustee of said district. The order has not been obeyed and its requirements complied with. The Department has been very lenient with the trustee. No answer to the appeal having been received, an order to show cause why the order had not been obeyed was issued and caused to be served upon the trustee. No sufficient answer has been made thereto. The respondent states that a district meeting will not authorize the repairs directed by the order. The trustee has been repeatedly advised that no such authorization was necessary ; that the commissioner was acting within the scope of his authority, and that the statute makes it the duty of the trustee to obey his order. The repairs are necessary for the comfort of the pupils of the school and the teacher employed to instruct them. The appeal is sustained. The respondent, DeVoy Bailey, is hereby removed from the office of trustee. If the district and the person who may be chosen trustee continue to ignore the commissioner's order public money will be with- held from the district. The order of the commissioner must be obeyed. 3960 In the matter of the appeal of Eldorado and Ruth Frasier v. George W. Houghton, as trustee of school district no. 7, town of Day, county of Saratoga. A school trustee charged with being ineligible to the office, not being a voter at school meetmgs answers the charge by swearing to the qualifications of a voter. Charge dismissed. A school trustee included in a tax list a charge for personal services rendered the district; held, illegal, and the item directed to be eliminated from the tax list Upon an appeal appellant obtained leave to serve and file a reply, and in such reply filed Zul '" ^';;"^'^.,"^" t"^ ^''^''■'"' "'"^^ °^ complaint; held, not permissible, and such new matter will not be considered. Decided February 9, 1891 S. M. Richards, attorney for respondent JUDICIAL DECISIONS : TRUSTEES 12/1 Draper, Superintendent This appeal is brought by electors of school district no. 7, town of Day, county of Saratoga. Appellants allege that, although the respondent was chosen trustee at the annual district meeting of 1890, he was not and is not eligible to the office, not being a qualified voter at school meetings in the district; that that fact was unknown to the appellants until a few days prior to the bringing of this appeal, and that such respondent has included in a tax list recently placed in the collector's hands an item for personal services rendered, the charge for which is exorbitant. An order to enjoin the enforcement of the tax warrant issued by the respondent as trustee was applied for and a temporary stay granted. The appellants further allege that respondent neglected to render any report to the last annual meeting, but nowhere allege that he was trustee prior to August 6, 1890. The respondent answers and alleges that he is a qualified voter, being a citizen over 21 years of age, a resident of the district, the lessee of land, and in fact a taxpayer. He admits that he has charged the district $1.50 for four- teen hours' work. The appellants obtained leave to serve and file a reply and now come in with an entirely new charge — that of permitting the teacher to punish pupils with severity, and to an unnecessary and inhuman degree. To this new cause of complaint the trustee has not answered, and I have not required him to do so. The appellants should have made this a ground of appeal in their initiatory pleading if they wished to raise this issue at this time. The charge that the respondent is ineligible is clearly not established by the evidence. The cliarge for personal services by the trustee is an illegal item in the tax list, and the trustee is hereby directed to withdraw and correct the tax list by eliminating that item therefrom. If this order be complied with the order staying the enforcement of the warrant will be revoked and this appeal overruled. 3834 In the matter of the appeal of Thomas T. Powell v. Thomas E. Butler, as trustee of school district no. 13, of the town of Coeymans, county of Albany. A qualified elector duly chosen a school officer was, by a misrepresentation of the law, induced to state to the meeting at which he was chosen, " that he wanted no fuss about the matter, and did not care for the office;" held, not to be a refusal to serve. The subsequent election of another person to the same office at the same meeting; held, void. Decided December 2, 1889 ■ O'Brien & Addington, attorneys for appellant Barlow & Greene, attorneys for respondent 1272 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent Thomas T. Powell, a resident elector of school district no. 13, town of Coeymans, Albany county, who claims that he was duly chosen sole trustee of said district at the last annual meeting, asks that he be declared trustee and that the respondent be removed from the oftice of trustee for neglect of duty and upon other grounds. A singular state of facts is presented. The proofs show that the annual meeting was attended by thirteen electors, and that appellant was chosen trustee without dissent, and so declared by the chairman. Subsequently the respondent stated to the meeting that the appellant was not eligible to the office, not being a taxpayer. Whereupon appellant stated " that he wanted no fuss about it, and did not care for the office." Some one thereupon nominated respondent for trustee, and two or three voted for the proposition, and respondent was declared elected; not, however, without objection by one of the electors, who stated that no vacancy existed. There is no question about the election of the appellant as trustee, and it appears he is and was eligible to the office. The only point in the case is this: Did the appellant at the annual meeting or since, refuse to serve as trustee? Acting upon the erroneous information given to the meeting by the respondent, appellant stated he " did not care for the office and wanted no fuss about it." It appears he does want the office, and docs not refuse to serve therein. I do not consider the language used at the annual meeting by the appellant, based upon the unwarranted remark of respondent, a refusal to serve, and I therefore declare Thomas T. Powell to have been duly chosen sole trustee of district no. 13, town of Coeymans, Albany county, at the annual meeting last held, to be entitled to perform the duties of said office, and, until his term expires, or he vacates the office, it is incumbent upon him to discharge the duties of trustee. There was no warrant for the second election of trustee at the annual meet- ing. The respondent clearly had no title to the office, there existing at the time of the election no vacancy in the office of trustee ; consequently, the assumed election of respondent was void. In accordance with the above findings of facts, the appeal is sustained. 3725 In the matter of the application for the removal of Marquis Lewis, sole trustee of school district no. i, town of Kortright, county of Delaware. A trustee, incapal)le of transacting business by reason of advanced age, and who is wholly irresponsible and living on charity, and who has refused or neglected to carry out the directions of the district meeting for a long time, is unfit to hold the responsible office of trustee. Decided November 14, 1888 JUDICIAL decisions: trustees 12/3 Draper, Superintendent It seems that, at a special meeting held in the above-named district on the 14th day of September 1886, a resolution was adopted in the manner provided bj' statute, to change the schoolhouse site and purchase a certain plot of land owned by one Hiram Every. The vote was very close, standing 23 in the affirmative and 22 in the negative. By the action referred to, the trustee of the district was directed to purchase the said plot of ground for the sum of $175. It is alleged, and not controverted in the papers before me, that Mr Lewis, the trustee, has neglected to carry out this determination of the district meeting. In subsequent meetings held in the district he has been called upon to state what, if anything, he had done to comply with the action of the district meeting; and stated that he had done nothing. Beyond this, it is alleged that the trustee is advanced in age, wholly irresponsible, incapable of transacting business and living upon char- ity. There seems to be a very grave question about his eligibility to the office of trustee. It is shown that he is occupying a certain tenement house on prem- ises belonging to one Emeline Foreman, who swears that he does not pay any rent, and that she expects none from him, and that she permits him to remain there only at sufferance and as a deed of charity. If this is so, then he is not eligible to the office of trustee. But whether it is or not, it seems to be well established by the papers that he is a man entirely unfit for the responsible duties of school trustee, and particularly so in a district about to engage in the erection of a new school building upon a new site. I find nothing involving the personal integrity of the trustee. No such charge is made against him. But it seems clear to me that a man of advanced age, without any visible means of support, and who has, for a long time, wholly refused or neglected to comply with the direc- tions of the district meeting at which a matter of so much importance as the erection of a new schoolhouse was ordered (even after the old one had been con- demned bv the school commissioner), should not continue to hold the office of school trustee, I have, therefore, reluctantly come to the conclusion that it is my duty to remove him and direct a new election. It is therefore ordered that Marquis Lewis be, and he is hereby removed from the office of trustee in school district no. i of the town of Kortright, Dela- ware county, and the district clerk is hereby ordered to call a special meeting of the district for the purpose of filling the vacancy hereby created. 3939 In the matter of the appeal of R. B. Luckcnbach v. John W. Hill, as trustee of school district no. 5, Perry, Wyoming county. A person chosen trustee of a school district was subsequently chosen district collector, which latter office he accepted; held, to have vacated the office of trustee. Decided December 3, 1890 1274 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent The appellant, a taxable elector of school district no. 5, Perry, county of Wyoming, states the following as the grounds for his appeal : That, at the annual school meeting, held August 5, 1890, the respondent acted as chairman and the appellant as secretary pro tem. and one Charles H. Damon was appointed teller; that an informal ballot for trustee was had, and 7 votes cast, resulting in no choice ; that a formal ballot was then taken, with this result : for appellant 4 votes, and for respondent 3 ; that thereupon, some one announced that a two-thirds vote was necessary to elect, and successive ballots were taken until the respondent Hill received 5 votes and the appellant 2, and the chairman thereupon declared himself elected trustee. The respondent answers and avers that upon the first formal ballot, there was no choice, appellant and respondent herein each receiving three votes, and one ballot cast contained the name or word " Vial," which latter ballot respondent asserts he voted himself; that upon a subsequent ballot, he was elected trustee by a vote of 5 to 2 for appellant; that appellant was subsequently elected district collector. The first question which presents itself, and upon which there is a direct con- flict of testimony, is the result of the first formal ballot. The appellant submits the joint affidavit of four electors of the district that they voted upon that ballot for the appellant, and that the result of the ballot was 4 for appellant and 3 for respondent. The person who acted as teller also swears to the same result, and it does not appear that he voted. He also states that no other vote was cast upon this ballot, and that he did not declare the vote was a tie. The respondent is supported in his statement as to the result of the first for- mal ballot by two electors. The respondent alleges that he has endeavored to discover the ballots which were left in the schoolhouse, but has been unable upon a search, to find them, and asserts that he believes some one has destroyed them. It is admitted by the respondent that he received from the former trustee the key to the schoolhouse, and the district property. I am brought squarely, then, to the issue. Does the appellant affirmatively show, by a preponderance of proof, that he received a majority of the votes upon the first formal ballot for the election of trustee? For the appellant, we have the affidavits of himself, Patrick Sullivan, Martin Mclntyre and William Morgan, all voters, supported by Charles H. Damon, teller. Opposed thereto, we have the evidence of the respondent himself, who swears he voted a ballot marked " \'ial," and Davton P. Stowell and A. Wilbur Watson, the two latter corroborating the respondent's statement of the vote. Here we have seven per- sons who voted, four who swear that they voted for the appellant, one who swears that he voted " Vial," and two others who do not declare how they voted, but presumably for the respondent. The teller, in addition, swears that the vote was 4 to 3 in favor of appellant, and as alleged by him, thus corroborating the appellant and his witnesses. JUDICIAL DECISIONS : TRUSTEES 12/5 Respondent insists that the vote was 3 for appellant, 3 for him, and his own vote for " Vial." Who then cast the third vote for respondent? The proof fails to disclose the voter. The case thus far is clearly with the appellant. His evi- dence preponderates. His proof is clear, and his witnesses unimpeached. I am satisfied that appellant was chosen trustee on the first formal ballot, and should have been so declared. It is admitted that some one at the close of this ballot stated that a two-thirds vote was necessary to elect, and that balloting was con- tinued until a two-thirds vote was cast for respondent for trustee. This state- ment was without warrant. A trustee having been chosen, there was no vacancy, and the subsequent vote for a trustee was a nullity. This brings me to the second proposition which is disclosed by respondent's proof and not denied by appellant, that subsequently appellant was elected dis- trict collector. This occurred while appellant was yet present. He did not decline the office, nor did he refuse to serve therein, and must, therefore, be presumed to have accepted the office of collector. Further, it appears that appellant entered the record of his election as district collector upon the minutes of the meeting which he kept as its secretary. The appellant could not hold both the office of trustee and collector at the same time. Section 23 of title 8 of the Consolidated School Act prohibits this. I am, therefore, compelled to hold that the appellant, by accepting the office of district collector, vacated that of trustee, and a vacancy was created which was not filled. The district is. therefore, without a trustee, and the district clerk is hereby ordered and directed to forthwith give notice of a special meeting to choose a trustee to fill the vacancy. The appeal is sustained. 4028 In the matter of the appeal of James Bucroft, David Myers and others v. Thomas H. Betts, school commissioner of the first district of Rensselaer county. Where a trustee of a school district resigns, no notice of such resignation being given to the district clerk and the district having no notice of such vacancy, an order of the school commissioner, made upon the supposition that the district had knowledge of such vacancy and that it did not intend to elect a trustee, after such vacancy had existed for thirty days, vacated and a special meeting directed to be held to till such vacancy. Decided December 15, 1891 Draper, Superintendent The object of this appeal is to test the legality of the appointment of Fred- erick Wiley as a trustee in school district no. i of the town of Schaghticoke. It appears that William C. Cromby held the office of trustee in said district. He sent his resignation as such to the school commissioner, under date of October 3, 1891. On the i6th day of October 1891, the school commissioner appointed Mr Wiley as his successor. Proof is offered that the district had 12/6 THE UNIVERSITY OF THE STATE OF NEW YORK no knowledge of the vacancy. The district clerk swears that Mr Cromby, the former trustee, is a landowner in the district and still a resident there, and that nothing had occurred to lead him or others in the district to suppose that he intended to vacate the office. No notice of his resignation was given the district clerk. The school commissioner acted in the supposition that the vacancy was known to exist, and that the district was inactive about the matter. He appears to have appointed a worthy man as trustee. Nevertheless, there seems to be now a general desire in the district to proceed to an election, and there is some complaint because the opportunity was not afforded. The school commissioner is apparently anxious to have the district settle the matter, but feels that he has no authority to vacate his own order, which would have the effect of removing his appointee. In this he is perhaps correct. It was unquestionably the intention of the statute that districts should have the oppor- tunity to fill a vacancy in the office of trustee. Authority was given the school commissioner to appoint only after a vacancy had existed for thirty days and when there would be reason to suppose that the district did not intend to elect. In a case where no notice of the vacancy was given to the district, the reason disappears. I have therefore concluded to vacate the order of the school commissioner appointing Mr Wiley, and of directing that a special meeting be held for the purpose of an election to fill the vacancy. The appeal is sustained and it is so ordered. 3921 In the matter of the appeal of Chauncey M. Soule and Elmer E. Mogg v. school district no. 4, town of Clay, county of Onondaga. A trustee announced to his associate members that he would resign his position as trustee, and then left a meeting of the board. He also publicly announced his abandonment of the office; held, that a vacancy in the office of trustee was created which a district meeting could fill. Action of a special meeting at which a trustee was chosen to fill a vacancy, when a very close vote was had between rival candidates, where it appears that many voters failed to receive notice of the meeting, and at which meeting illegal votes were cast, set aside and special meeting directed to be called. Decided October 31, 1890 Lewis & Wilson, attorneys for appellant Draper, Superintendent It seems that, on the 6th day of September 1890, Chauncey M. Soule, Elmer E. Mogg and Arthur Hall were the trustees in the district above named. At a meeting of said trustees held upon said date, Mr Soule announced that he would resign his position as trustee, and left the meeting. Subsequently Mr JUDICIAL decisions: trustees 1277 Smith Soule visited the remaining trustees, they still being in session, and notified them that Mr Chauncey M. Soule had resigned his position, and that there was a vacancy in the board. The two remaining trustees then decided to call a special meeting of the district on the 13th day of September for the purpose of filling such vacancy. Subsequent to this, and up to the time of the special meeting, Mr Soule announced in conversation, that he had resigned. When the special meeting convened it witnessed a strenuous contest between the contend- ing elements in the district. A protest was presented to this meeting against any action on its part, on the ground that Mr Soule had not resigned, inasmuch as he had not filed a written resignation with the school commissioner. The meet- ing, however, proceeded to hold an election. Upon a ballot being taken, 47 votes were found to be cast for Charles DeLong, and 48 votes for Eugene DeLong, and the latter was declared to be elected. The appellants now ask the determination of the Department that Mr Soule has not resigned his office, and that accordingly there was no vacancy. In the event that it shall be determined that a vacancy did exist, then the appellants seek to avoid the result of the special meeting, on the ground that it was not duly called, that all qualified electors were not notified, and that five or six persons who voted for Eugene DeLong were not qualified electors. The respondents seek to uphold the action of the district meeting, claiming that all who voted for Eugene DeLong were entitled to vote, and naming several persons who voted for Charles DeLong without being entitled to do so. I think it must be said that there was a vacancy in the office of trustee. Mr Soule had announced to his associates that he would resign, and thereupon left the meeting, and he had caused it to be stated to the other trustees while still in session, that he had resigned, and that there was a vacancy in their board. They had taken immediate steps to call a meeting to fill such vacancy. In the meantime, he had publicly announced his abandonment of the office. While the statute does provide that a trustee may vacate his position by filing his resignation with the school commissioner, it by no means forbids or prevents a trustee from abandoning such position in any other way. It has been repeatedly held that a public announcement and determination not to act in such a capacity, might be deemed a resignation or abandonment of the same. I think Mr Soule did all that was necessary to do in this case to justify the district in proceeding to elect some one in his stead. I have carefully considered the question as to whether the action of the district meeting should be upheld. In view of the fact, which is undeniable, that some of the qualified electors in the district failed to receive notice of the meeting, and that the vote in the election of a trustee was so exceedingly close, and of the farther fact that allegations are raised on each side against the right of persons on the other side to vote, I have come to the conclusion that the result of the meeting must be set aside. It is very clear to me that the best interests of the district will be promoted by ordering a special election. 12/8 THE UNIVERSITY OF THE STATE OF NEW YORK It is therefore determined that there is a vacancy in the office of trustee in said district, and that the proceedings of the special district meeting held September 13th must be set aside and held to be of no effect. The remaining trustees will give notice of a special meeting to be held not more than fifteen days distant, and will exercise care to give such notice in the way provided by the statute, to the end that all electors in the district may participate therein, if they desire to, and that the right of all persons to vote may be inquired into. 4286 In the matter of the appeal of John Bliven, as trustee of joint school district no. 3, towns of Bridgewater and Sangerfield, Oneida county, and Brook- field, Madison county, v. Oscar W. Helmer. A person elected to the office of trustee of a school district who publicly expresses his doubts of his eligibility to hold the office and that he would not serve as trustee and who cir- culates a petition to the school commissioner to appoint a person as trustee and afterward calls a special meeting of the district for the election of a trustee will be deemed to have vacated the office to which he was elected, and the person elected as trustee at such meeting to fill such vacancy will be held to be the legally elected trustee of such district. Decided October 23, 1894 J. D. Senn, attorney for appellant N. A. Crumb, attorney for respondent Crooker, Superintendent On August 7, 1894, the annual school meeting in joint school district no. 3, towns of Bridgewater and Sangerfield, Oneida county, and Brookfield, Madison county, was duly held, and at said meeting Oscar W. Helmer was legally elected trustee and R. Sherman Langworthy was legally elected collector of said district ; that one A. C. Sisson was elected district clerk, but not by ballot; that soon after said annual school meeting the question as to the eligibility of the said Helmer to hold the said office of trustee was discussed by the qualified voters of said district, it being claimed that he was a single man and not a taxpayer in said district and did not own or hire, nor was he in the possession, under a contract of purchase, of real property in said school district liable to taxation for school purposes and was not the parent of a child or children of school age who had attended the school in said district for at least eight weeks in the year preceding said school meeting, and not being such parent did not have residing with him a child or children of school age who had attended the school in said district for at least eight weeks during the year preceding said meeting, and was not assessed for any personal property on the last preceding roll of the town in which he resides. That the said Helmer publicly expressed to various qualified voters of said district his doubts as to his eligibility to hold the said office of trustee and also expressed fears that said district might JUDICIAL decisions: trustees 1279 lose the public money if he should hold such office, and also publicly stated that he would not serve as trustee of said district. That a special meeting was held in said district on August 28, 1894, but no action relative to the office of trustee was taken thereat; but the question of the eligibility of said Helmer to said office was discussed, and the statement was there made that School Commis- sioner Francis had stated that after thirty days from the annual meeting a vacancy occurring as alleged, he (Francis) would appoint a trustee. That said Helmer circulated a petition asking that the said commissioner appoint one Charles Drumgoole as trustee of said district. That Irving Cook, the trustee of said district at said annual meeting, believing from the action and state- ments of said Helmer, that the office of trustee was vacant and that he (Cook) had authority, called a special meeting of said district to be held on September 4, 1894, for the purpose of electing a trustee for said district. That said meet- ing assembled on September 4th, at which said Helmer was present and did publicly announce that the meeting was not legally called, but that on September II, 1894, there would be a special meeting at the schoolhouse for the purpose of electing a trustee, at which meeting he (Helmer) would give his reasons for resigning. That at said meeting of September 4, 1894, said Helmer served notice upon all the qualified voters then present that a special meeting of the qualified voters of said district would be held at the schoolhouse in said district on Septem- ber II, 1894, at 7 o'clock, p. m., for the purpose of electing officers, as follows: a chairman, clerk, trustee and collector. That on September 11, 1894, pursuant to the aforesaid notice of said Helmer, a special meeting of said district was held. The meeting was called to order by Helmer, and Albert Beebe was nom- inated as chairman and elected, said Helmer seconding said nomination. That Charles Drumgoole was elected by ballot as district clerk. That the chairman then announced that a ballot for trustee was in order, when Helmer stated to the meeting that he (Helmer) was trustee and decided to hold the office, and said " The meeting is adjourned." That the chairman declared said Helmer out of order. Whereupon said Helmer and Drumgoole, the clerk, took the books of the district and left the meeting. That the meeting then proceeded to ballot for trustee, and John Bliven received a majority of the votes cast for said office. That immediately after said meeting said Bliven demanded of said Helmer the key of the schoolhouse, and the possession of the books and property of the district; but said Helmer refused to deliver said property or the possession thereof to said Bliven or to recognize said Bliven as the trustee of said district. The said Bliven is a qualified voter of said district and eligible to hold the office of trustee of said district. The appellant, John Bliven, thereupon brought an appeal from the action and decision of said Helmer, and asks that said Helmer, be ordered and directed to deliver to the appellant, as trustee of said district, the property of the district and the possession of the schoolhouse and appurtenances of said district. The respondent, Helmer, in his answer to the appeal herein states that he is 35 years of age, a native-born citizen of the United States, a resident of I280 THE UNIVERSITY OF THE STATE OF NEW YORK the town of Brookfield, Madison county, and for the past twenty years a resident of joint school district no. 3 of the towns of Bridgewater and Sanger- field, Oneida county, and Brookfield, Madison county, and that he can read and write. That he is one of the ten heirs of Philip Helnier, deceased, who died intestate on or about November 27, 1891, who at his decease was the owner in fee simple by deed duly recorded, of about 200 acres of land in said town of Brookfield, subject only to a certain mortgage thereon; that the wife of the said Philip Helnier was appointed the sole administratrix of the estate of said deceased, and has discharged all known obligations against the estate of said deceased except said mortgage; that said respondent and his brothers and sisters are the joint owners and tenants in common of the lands, real property and estate formerly owned by their father, now deceased, subject only to right of dower therein of their mother, Angeline Helmer, which has never been admeasured ; that the respondent and his brothers and sisters are now in posses- sion of said real property, as aforesaid, which real property is situated in said joint school district no. 3. The appellant does not controvert said statements, as aforesaid, of said Helmer, and I hold that the respondent, Helmer, owns real property in said school district subject to taxation for school purposes, and is eligible to hold any district school office in said district. The respondent having been legally elected trustee of said school district at said annual school meeting, and being eligible to hold said office the only question for my consideration appears to be whether said . respondent has, by his acts and declarations, created a vacancy in the office of trustee of said district, that the special meeting of said district, held on September 11, 1894, had the legal right to supply. By section 30, article 3, title 7 of the Consolidated School Law of 1894, it is enacted that a trustee who publicly declares that he will not accept or serve in the office of trustee . . . vacates his office by a refusal to serve. It appears from the proofs presented that the respondent had doubts of his eligibility to hold the office of trustee in said district; that he publicly expressed said doubts and his fears that if he acted as trustee the district would lose the public moneys; and he might be liable pecuniarily for such loss; that he publicly declared he would not serve as trustee ; that he circulated a petition to the school commissioner to appoint one Drumgoole as trustee; that he publicly announced to the voters assembled at the meeting of September 4th and then and there gave notice of a special meeting to be held on September 11, 1894, for the purpose of electing, among other district officers, a trustee, and that he would at said meeting announce his reasons for resigning. It clearly appears that the voters of the district believed the respondent was ineligible to hold the office, and understood, from the public declarations and acts of the re- spondent, up to the time of the special meeting of September nth were about to ballot for a trustee, that the respondent so believed and had refused to serve as trustee. JUDICIAL DECISIONS : TRUSTEES I281 The respondent admits in his affidavit filed herein that up to September 4th, nearly a month after the annual meeting, and at the time he served notice of the special meeting for September nth, he had not taken counsel as to his eligibility to hold said office. It was the duty of the respondent as soon as doubts as to his eligibility to hold the office of trustee were raised to have submitted the facts to competent counsel, and have promptly notified the voters of the district his decision therein after taking such counsel. I find and decide, That a vacancy occurred in the office of trustee of said joint school district no. 3, towns of Bridgewater and Sangerficld, Cncida county, and Brookfield, Madison county, by the public declarations and acts of said Oscar W. Helmer, who was elected such trustee at said annual meeting of said district. That John Blivcn, the appellant herein, was legally elected trustee of said district to supply such vacancy. The appeal herein is sustained. It is ordered, That Oscar W. Helmer, late trustee of said joint school dis- trict no. 3, do forthwith deliver to said John Bliven, the present trustee of said district, the books, records and property of said district in the possession of said Helmer, and that said Helmer forthwith deliver to said Bliven the possession of the schoolhouse of said district and the appurtenances thereof. 3957 In the matter of the appeal of Adelbert F. Bronson v. school district no. 9, town of Vernon, county of Oneida. A trustee advised the school commissioner that he would resign his office. The commis- sioner in turn advised the district clerk of the trustee's action, and directed the calling of a special meeting for the purpose of filling the vacancy. In the meantime the first mentioned trustee concluded he did not care to resign and virould continue to serve, which he attempted to do; held, that the action of the trustee was a resignation and a vacancy was created. The special meeting not having been properly noticed, in consequence of which but few electors attended; held, that the election of the succeeding trustee was irregular, and is set aside, and a new election ordered. Decided February 3, 1891 Draper, Superintendent The appellant was elected trustee in the district above named at the last annual school meeting. Afterwards he was absent from the district for some weeks upon private business. In the meantime he had caused a special meeting of the district to be held for the purpose of having such meeting consent to the employment of his daughter as a teacher in the district school. The special meeting was held and refused to consent to such employment. It seems that 41 1282 THE UNIVERSITY OF THE STATE OF NEW YORK he made some efforts to employ another teacher. In the meantime complica- tions accumulated which led him to contemplate resigning as trustee. On the 13th of October appellant wrote to Fred E. Payne, school commissioner, saying that he would resign his office, and the school commissioner advised the district clerk that the appellant had resigned, and directed the calling of a special meet- ing for the purpose of electing his successor. Such meeting was held and elected one A. T. Blair as trustee to fill the alleged vacancy. In the meantime the appel- lant had concluded that he did not want to resign, and it has since been claimed that his letter did not amount to a resignation. He has insisted upon his right to exercise the functions of trustee, and consequently there have been rival claimants to the office. The papers relating to the matter are exceedingly voluminous. The state- ments and counterstatements are highly contradictory, and it is almost impossible to eliminate the mass of irrelevant matter which has been injected into the case, sufficiently to get at the facts and determine the truth. I am of the opinion that the appellant must be held to have resigned his position. The school com- missioner certainly thought so when he wrote the district clerk to call a special meeting to elect a successor. That such a meeting was held and was allowed to elect a successor without such action being contested, or without being served with legal notice that there was no vacancy, is of itself very suggestive of the fact that the trustee who had been elected at the annual meeting desired to vacate the position. On the other hand, I am of the opinion that the special meeting which assumed to elect a trustee, was held inconsiderately and without proper notice throughout the district. I am confident that the best interests of the district will be promoted by holding that there is a vacancy in the office of trustee, and directing that a special meeting be held to elect a person to fill such office. The majority of qualified electors in the district ought to have their way as to the person who shall fill the office of trustee. The fact that only a small portion of the children in the district are attending school under the present management, which seems to be revealed in the papers, of itself, indicates that a majority of the district are opposed to the action of the special meeting. I have no difficulty in concluding that there is a vacancy in the office, and that the best interests of the district will be promoted by ordering a special election to fill it. The school commissioner having jurisdiction will therefore see that notices of a special meeting for the purpose of filling the office of trustee, which meeting shall be held not more than fifteen days from date, be at once issued by the district clerk or by some qualified elector in the district. The appeal is dismissed. JUDICIAL DECISIONS : TRUSTEES 1283 3871 T. G. Knights, trustee of school district no. 8, towns of Burns and Ahnond, Allegany county, from the proceedings of special district meeting of said district, held February 12, 1890. A trustee's public announcement of his intention to remove from the district, his public refusal to longer serve in the office, and his notice to such effect to the district clerk, accompanied by his resignation ; held, sufficient to create a vacancy in office of trustee, and a special meeting could fill the vacancy. Decided April 17, 1890 W. C. Windsor, attorney for appellant Draper, Superintendent Appeal by a resident elector of school district no. 8, towns of Burns and Almond, county of Allegany, from the proceedings of district meeting held February 12, 1890, at which one E. S. Gilbert was elected as trustee of said district. It appears from the evidence presented, that at the annual meeting held August 6, 1889, one Clark Crawford was duly elected trustee, and there- upon entered upon the discharge of the duties of the office; that on or about November 22, 1889, said Crawford who was about to remove from the district to an adjoining State, publicly stated that he could not longer act as trustee, refused to serve any longer and went to the district clerk of said district, to whom he declared that he resigned the office and refused longer to serve, and delivered the books and papers pertaining to his office; that on the 3d day of December 18S9, at a special meeting regularly called by the district clerk for the purpose of electing a trustee to fill the vacancy, the appellant was elected as trustee, and thereupon he accepted the office, and the district clerk delivered to him the books and papers pertaining to the office. Subsequently, the former trustee returned to the district, and on the 30th day of January 1890, by an instrument in writing, addressed to the commissioner, resigned the office of trustee; that, on the 12th day of February 1890, at a meeting called by the dis- trict clerk, the above-named E. S. Gilbert, against the public protest of the appel- lant, who was present at the meeting, was chosen such trustee. No appeal from the proceedings of the meeting held December 3d, for the election of the appellant thereat, has been taken. On behalf of the appellant, the affidavit of the former trustee is furnished, showing that he did in fact give up the office of trustee for the purpose of going to an adjoining State, and on or about November 22, 1889, publicly announced that he would no longer serve as trustee, and that he filed his resignation with the district clerk, and that subsequently, upon his return to the district because of ill health, to avoid any question as to his intention, formally tendered his resignation in writing to the school commissioner. Upon the part of the respondent, it is claimed that there was no vacancy in the office of trustee at the time the appellant was elected, and that the 1-^4 THE UNIVERSITY OF THE STATE OF NEW YORK vacancy was only created when the former trustee tendered his resignation to the school commissioner, and consequently that E. S. Gilbert is the duly elected trustee of the district. Other matters are alleged by the respondent which may possibly form grounds of appeal from the action of the appellant as trustee, bur do not raise an issue to be determined upon this appeal. It is clear to me that the trustee of the district chosen at the annual meeting, by his announcement of his intention to remove from the district, his public refusal to serve in the office, and his communication of those facts to the district clerk, together with his resignation, created a vacancy in the office, as provided by sections 30 and 31 of title 7 of the general school laws, and that the district meeting regularly called and held on the 3d day of December 1889, possessed the power to elect a trustee to fill the vacancy. The appeal is therefore sustained, and the appellant, T. G. Knights, is declared to be the trustee of school district no. 8, towns of Burns and Almond, county of Allegany, for the unexpired term caused by the refusal to serve and resignation of Clark Crawford, who was duly elected trustee at the last annual meeting. 3630 Application of Charles Chase and others for the removal of Martin V. Brown from the office of trustee of district no. 5, of the town of Cameron, county of Steuben. It is alleged, as grounds for the removal of a trustee from office, that unnecessary repairs have been made, outhouses built when the district meeting voted down the proposition to do so, and that he has involved the district in needless litigation and expense; held, not sufficient. The allegations are too general. A trustee can repair to a certain limit. It is not shown he has exceeded it. He is required to build outhouses, and in litigations the district is not bound to pay unless the district meeting, or a county judge, upon an appeal, authorizes it. Decided August 16, 1887 Draper, Superintendent This is an application for the removal of the respondent from office. No answer has been interposed. The allegations are that the trustee has made unnecessary repairs upon the school building and that he has built two new outhouses after the district meeting voted dovvu a proposition so to do. It is also said that he has involved the district in needless litigation and subjected the taxpayers to unnecessary expense. The law confers upon the trustee the power to make certain repairs and to include the expense thereof in his tax lists without the vote, or even against the vote, of the district meeting. The law also requires two outhouses in con- nection with each schoolhouse. It is not shown that the repairs complained of were beyond those which the law authorizes the trustee to make. If the tax lists included improper items the remedy was to appeal from the tax lists rather JUDICIAL DECISIONS : TRUSTEES I285 than to demand the removal of the trustee. If the trustee has involved the dis- trict in litigation it need not pay the bills incurred until after settlement before the county judge, as the statute provides. Again, the respondent is a sole trustee, whose term expires in two weeks. The whole matter can come before the annual meeting, soon to occur, and be disposed of there. The application is, therefore, denied. 4338 In the matter of the appeal of E. W. Watkins from proceedings of annual school meeting held in school district no. 8, towns of Portville and Olean, Cattarau- gus county, in August 1894, in election of district officers. The supervisors of towns have no authority to accept the resignation of a trustee of a school district. The acceptance of a resignation of a trustee being void, there is no vacancy in the office of trustee and a special meeting held in said district and the election of a trustee to fill such assumed vacancy is null and void. Decided March 13, 1895 Crooker, Superintendent The appellant in the above-entitled matter appeals from the election of the trustees, district clerk and collector of school district no. 8, towns of Portville and Olean, Cattaraugus county, at a meeting of said district, held August 14, 1894, and from the official acts of John Mohan as trustee and William Baxter as collector of said district. In the appeal, eight grounds upon which the appeal is taken, are stated. An answer to the appeal by John Mohan has been made. The appellant appeals from a tax list and assessment made by Mohan as trustee, but he has failed to show by proofs in what respect it is irregular or void and no copy of said tax list is annexed to his appeal, and therefore I am unable to decide as to its legality or validity. There appear to be only two questions presented to me by this appeal for decision, namely, first, was the annual school meeting held in said district on the first Tuesday of August 1894, and. second, was Mary Patterson on September i, 1894, at the time of her employment as teacher in said school district by said Mohan as trustee, related by blood or marriage in any degree to said Mohan. It is alleged by the appellant that the annual school meeting in said district was not held on the first Tuesday of August 1894 (that is, August 7th), but that a school meeting in said district was held on August 14, 1894. In support of this allegation he produces a sworn copy of an extract from the records of the clerk of the district giving the proceedings of an annual school meeting held in said district, on the second Tuesday of August 1894, and also the affidavits of himself and eight others, that the said meeting was held on August 14, 1894. The respond- 1286 THE UNIVERSITY OF THE STATE OF NEW YORK ent, Mohan, produces his own affidavit and the affidavits of five others tliat the said meeting was held on August 7, 1894 (that is, the first Tuesday of August), and also the affidavit of one E. Jerolds that said meeting was held on the same night in August 1894, that the school meetings in the adjoining school districts were held, but he can not remember the day of the month. The respondent, Mohan, also annexed to his answer a sworn copy of the records of the annual meeting upon the book of the clerk of the district, stating that the annual meeting in said district was held on the second Tuesday of August 1894. It is established that at the school meeting held in said district on either August 7 or 14, 1894, that John Mohan was elected trustee, William Baxter, collector, and D. Dunning, clerk. The appellant contends that the records of the district clerk, that said meeting was held on August 14, 1894, are conclusive as to the date such meeting was held. In this he is in error. Superintendent Ruggles, in a decision in appeal no. 3415, decided April 13, 1885, held that he was not bound by the clerk's minutes; that were such record conclusive, a careless or ignorant clerk could easily undo or annul the proceedings of any meeting; that he could go behind such records and inquire as to the actual facts. I concur with Superintendent Ruggles, and hold that the records of the district clerk that said meeting in said school district was held on August 14, 1894, is not conclusive, and that I will go behind the records and inquire into the actual facts. It is not alleged nor proven that said ]\Iohan, prior to the school meeting held either August 7 or 14, 1894, was a trustee of said district, and the claim to be such trustee was by virtue of an election had at the meeting held in said district either on said 7th or 14th of August 1894. It is proved that on August 10, 1894, said Mohan went to W. B. Mersereau, supervisor of the town of Portville, and resigned said office of trustee of said district, and then and there signed a written resignation of said office of trustee, and said Alersereau mailed said resignation to D. Dunning as clerk of said district. That on said August 10, 1894, said Mer- sereau wrote to School Commissioner Chapin, informing him of such resignation and inquiring whether another school meeting had better be called or whether said Chapin would appoint a trustee to fill the vacancy. That on August ii, 1894, School Commissioner Chapin wrote to said ]\Iersereau, acknowledging the receipt of his letter of the loth, and advised a special meeting of the district. That on August 28, 1894, a special meeting of said district was held at which the respondent Alohan was elected trustee of the district. The resignation of Mohan as trustee to said Supervisor Mersereau, and his acceptance thereof, were without the authority of the school law, and the special meeting of said district to elect a trustee in place of ]\rohan was invalid and void ; but the fact that on August 10, 1894, said Mohan resigned the office of trustee, is controlling with me upon the question as to whether a school meeting in said district was held on August 7th or 14th. It is clear to me that the annual school meeting in said district was held on the first Tuesday of August 1894, to wit, August 7, 1894, and not on August 14, 1894, as Mohan could not on August loth resign an office to which he had not been elected, or to which he was not elected until August 14, 1894. JUDICIAL DECISIONS : TRUSTEES 1287 On September i, 1894, the respondent Mohan as trustee of said district con- tracted with one Mary Patterson to teach the school in said district for thirty-two weeks, commencing September 3, 1894, at $7 per week. The appellant alleges that said ]\Iary Patterson was a sister of the wife of Mohan. Miss Patterson and said Alohan each swear that at the time of said employment Miss Patterson was not related to said ^lohan in any manner. The burden is upon the appellant to establish his appeal by a preponderance of proof, and in that he has failed. I find and decide that the annual school meeting in school district no. 8, towns of Portville and Olean, Cattaraugus county, was duly held on the first Tuesday of August 1894, and that at said annual school meeting John Mohan was duly elected as trustee of said district; that D. Dunning was duly elected as district clerk and that William Baxter was duly elected as collector. That the attempted resignation of said Mohan to Supervisor Mersereau of said office of trustee, and the acceptance there by the supervisor, Mersereau, was without authority of law, and null and void. That the special meeting held in said dis- trict on August 28, 1894, in the election of a trustee to fill an assumed vacancy in said office was null and void. That at the time of the contract of employment of Mary Patterson as a teacher in said school district by said Trustee Mohan, appellant has failed to show she was related to said Mohan by blood or marriage in any degree whatever. It is ordered, That so much of the action and proceedings of the special meeting in said district held on August 28, 1894, as relates to the election of a trustee of said district in place of John Mohan be, and the sanie is, hereby vacated and set aside as illegal and void. The appeal herein is dismissed. 3873 John Near, trustee of school district no. 9, towns of ElUcott and Ellery, Chautau- qua county V. Myron Clark and G. Vetter. Supervisor has no authority to appoint to fill a vacancy in the office of trustee. An appeal will not be considered unless seasonably taken. Decided April 17, 1890 Draper, Superintendent This appeal was brought by the service of the appellant's petition upon the respondents on the 31st day of January 1890, and the ist day of February 1890, respectively. The appellant was duly elected trustee of the district at the last annual school meeting. It appears that there were three trustees in this district. Soine time after the annual meeting, the time not being given, one, Richard Lee, then a trustee of said district, moved from the district, and a vacancy was created. Subsequently, one G. Vetter was appointed by the supervisor to fill such vacancy. Thereupon Myron Clark who was then a trustee, together with said G. Vetter, 1288 THE UNIVERSITY OF THE STATE OF NEW YORK employed a teacher against the protest of the appellant, and school was com- menced on the 1 6th of September last. A tax list was prepared by Myron Qark and G. Vetter, and delivered to the collector, and it appears, the money was collected and the teacher paid by the collector. On the 9th of November, the above-named Myron Clark moved from the district to an adjoining state, and on the i6th of December last, the school commissioner appointed G. Vetter trustee, and one Ambrose Rhodes trustee, to fill the vacancy caused by the removal of Myron Clark from the district. No answer has been interposed, and if this appeal had been taken promptly and at the time the act complained of took place, I should sustain the appeal. The appointment of G. Vetter by the supervisor, was without authority of law. The action of Myron Clark and G. Vetter in employing a teacher without con- sulting the appellant, was illegal. The preparation of a tax list by Messrs Clark and Vetter was also illegal, but the appellant having delayed his appeal for months after the acts complained of took place, and after the teacher had been employed, a tax collected and the teacher paid, it is too late for me to apply a remedy. I therefore dismiss the appeal. 3581 and 3582 In the matter of the appeal of Alice D. LaFarge v. the board of education of union free school district no. 2, of the town of Mount Pleasant, West- chester county. When a member of a board of trustees is chosen clerk of the board, he can not be re- moved from membership in the board because of neglect of duty as its clerk. A supervisor of a town has no authority to appoint to fill a vacancy existing in a board of trustees in a union free school district. Employment of a person to teach, not sustained, when no regular meeting of the board is held at which such action is taken, and the board at no time recognized the employment. Decided March 26, 1887 E. T. Lovatt, attorney for appellant George S. Rice, attorney for respondents Draper, Superintendent These two appeals arising in the same family, at nearly the same time, and against the same respondent, may be considered together. Martin LaFarge appeals from the action of the respondent in removing him as a member of the board, and his daughter, Alice D. LaFarge, appeals from the action of the respondent in refusing to permit her to teach the school in the district after an alleged engagement with her, and in refusing to pay her wages for the first month of the term of such alleged employment. JUDICIAL DECISIONS : TRUSTEES 1 289 From the voluminous papers in the case, I gather that the facts, so far as the appeal of Martin LaFarge is concerned, are as follows: He was elected a member of the board in August 1884, for the term of three years. On the 28th or 29th of September 1886, a paper signed by George S. Rice, William L. Carle, John A. Minnerly and Gilbert DeRevere, the other members of the board, making charges against LaFarge for alleged official misconduct, was left at the house of appellant during his absence from home. The charges were (a) that he had refused to permit one of the other members of the board to take the book containing" the records of the board; (b) that he had refused to bring or send the book of records to a trustees" meeting held at the schoolhouse on the 20th day of September 1886; (c) for refusing to bring or send the book of records to a special meeting of the inhabitants of the district on the 27th day of September 1886. This paper required LaFarge to answer these charges before the board at a meeting to be held October 9, 1886. At that time LaFarge appeared and pre- sented his answer to the charges, and, claiming that he had only reached home two or three days before, asked for a week's delay in the determination of the matter. He then withdrew, and the board took action removing him from mem- bership. I do not think that this action can be sustained. The charges against LaFarge were not of a serious character. At the most, they only affected his acts as clerk and not as a member of the board. He had been elected as a trustee by the people. He could not be removed except for causes affecting his character or his administration of the office of trustee. The retention of a book of records which had come into his hands as clerk, was not such a cause. Then, too, his answer to the charges seems to me very reasonable and effectual. Beyond this there are some evident irregularities in the proceedings of the board which could not be overlooked if they were to become material to the determination of the appeal. Taking all these things into consideration, I am obliged to sustain the appeal of Martin LaFarge. Alice D. LaFarge claims that she was appointed a teacher by the board of education on the 30th day of August 1886, the board at the time of such appoint- ment consisting, as she says, of four members, namely : George S. Rice, ]\Iartin LaFarge, Thomas Birdsall and William L. Carle, there being one vacancy caused by the death of James S. See. On the 30th day of August 1886, she received a letter signed by George S. Rice, Martin LaFarge and Thomas Birdsall, notifying her of her employment for a term of ten months, commencing September 6, 1886, at $45 per month. When she undertook to commence the school, she was forcibly prevented from doing so, and when her first month's pay was due, she demanded the same and was refused. Of the three men who signed the letter to the appellant, Mr. Rice claims that he did not sign it, but placed his name upon the margin, and that he was induced to do this by the misrepresentation of Birdsall and LaFarge. It is also insisted by the respondent that Birdsall was not a member of the board. It 1290 THE UNIVERSITY OF THE STATE OF NEW YORK seems that a member of the board by the name of Babcock removed from the district and created a vacancy ; that LaFarge, as clerk, addressed a communica- tion to jMoses W. Taylor, supervisor of the town, asking him to appoint a person to fill the vacancy, and that Taylor assumed to appoint Birdsall. It is conceded that Taylor had no power to appoint a member of the board. That could be aone only by the board itself. It is claimed, however, on behalf of the appellant, that the board approved of the appointment of Birdsall and recog- nized him as a trustee, and that the people of the district so recognized him, and that, consequently, he was such so far as Miss LaFarge is concerned. There arc many troublesome and suspicious circumstances surrounding the claims of the appellant. 1 The appointment of Birdsall by the supervisor was void. 2 It is disputed that there was any pretense of a meeting of the board held at the time when it is claimed that the board approved of the appointment, except that a record of a meeting appears in the record book, which record was made by the father of the appellant. 3 Even if the record is true, the only members of the board present at the time were LaFarge and Carle. This did not make a quorum. The alleged meeting is claimed to have been held at Carle's house, but Carle says there was no meeting. He says LaFarge and Birdsall came to his house, but that there was no pretense of a meeting of the board there. Birdsall could not have made one of a quorum to approve of his own appointment. 4 Formal action of the board at a meeting regularly convened was necessary to the employment of a teacher, and it seems lacking in this case. 5 The girl's father was one of three who signed the letter upon which she relies, as the basis of her employment. He had a personal interest not identical with the interest of the board. Birdsall was another of the three, and it seems very doubtful if he was a member at all. The third swears he was induced to put his name on the margin of the paper by misrepresentation. 6 The letter bears date the day before the two new members were elected to the board. Taking all these circumstances in connection with the fact that the board has from the first repudiated the communication and denied any obligation because of it, and has refused to permit Miss LaFarge to teach the school, it must be concluded that her appeal can not be sustained. It is therefore, ordered: 1 That the appeal of Martin LaFarge be sustained and that the action of the respondents in removing him as a trustee be set aside and held to be of no effect. 2 That the appeal of Alice D. LaFarge be dismissed. JUDICIAL DECISIONS : TRUSTEES I29I 3805 In the matter of the appeal of Charles Robbins v. Hiram P. Moore, trustee of school district no. i6, town of Orleans, Jefferson county. In a school district having two schools, it rests with the trustees to determine primarily which of the schools children of the district shall attend. Their decision may be reversed upon appeal. Decided August 2, 1889 George E. Morse, attorney for appellant W. T. Ford, attorney for respondent Draper, Superintendent This appeal is by a resident taxpayer and parent of children of school age of school district no. i6, town of Orleans, Jefferson county, from the refusal of the trustee of said district to permit two children of appellant, aged respectively II and 8 years, to attend a branch school established in said district. The facts of the case, which are substantially agreed upon by the parties to the appeal, are that the district possesses one main schoolhouse, and that a branch school has been established which the appellant claims is nearer to his residence than the main schoolhouse. It is admitted that the children of appellant who have heretofore attended the main school, have been denied admission to the branch school. The connecting circumstances, as alleged by the respondent, are that the branch school was established temporarily in a section of the district known as Thousand Island Park, and that it was established for the accommodation of children resident at the park. A teacher was employed and is teaching, upon the condition that only the children at the park would be received as pupils. The branch school is held in a building which is also used for post office purposes. It is true that the appellant resides something more than one-third of a mile nearer the branch school than the main house, but the distance to the main house is less than one mile and one-third by actual measurement. The determination as to which of two schools in a district the children shall attend rests with the trustee. From an unreasonable decision an appeal to this Department is proper, but I do not find this element in the case before me, and believe it my duty to sustain the trustee. The appeal is overruled. 4005 In the matter of the appeal of Ira Austin and others v. Lewis G. Humphrey, as sole trustee of school district no. i, Lowville, Lewis county. The wisdom of the action of a trustee in establishing two departments in a school, in which the school attendance is not large, questioned, but an appeal from his action in employing an additional teacher overruled. The district having become liable under the contract with the teacher, a decision by the State Superintendent sustaining the appeal would not affect vested rights thereunder. Decided September 16, 1891 W. B. Breen, attorney for appellants 1292 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent Appellants are electors of school district no. i, town of Lowville, county of Lewis. It is charged that the respondent as trustee of said district, has employed two teachers for a term of forty weeks, at a weekly compensation of $8 and $7 respectively, and that the number of children in attendance at the school the past year — but fifty-five with a daily average of but thirty-four and one-half — does not warrant the employment of but one teacher. The respondent] alleges that the schoolhouse has been prepared for two departments; that there are 119 children of school age in the district, and that by grading the school and the establishment of a second department, the attend- ance will increase and better results will be secured. While it is a serious question to me, whether the trustee has acted wisely or not in anticipating a large increase in pupils' attendance, yet I am not prepared to assert that he did not soundly exercise his discretion. It is also alleged by appellants that the schoolhouse is difficult of approach and badly located, and for these reasons, children will not attend school in the district. If this is a fact, which I have no reason to question, this difficulty can be remedied by the electors through a change of site. It is conceded by both appellants and respondent, that two teachers have been hired by the trustee who had the legal authority to enter into the contracts. The district by the action of the trustee, has become liable for the wages agreed upon to the persons employed. Any conclusion upon the facts presented that I might reach, would not affect their vested rights. For .wilful misconduct in office, the trustee could be removed from office, but this is not charged. Whether or not the anticipations of the trustee as to the growth of the school are to be realized, will soon be determined. If his judgment is shown to have been erroneous, a future annual meeting will have authority and power to choose a successor who will reflect its views. As relief can not be afforded the appellants, I dismiss the appeal. 4044 In the matter of the appeal of John T. Bradshaw v. John H. Albright, of school district no. 3 of the town of Ontario, county of Wayne. The respondent, assuming to be trustee, issued a district tax list. At the annual meeting, on a ballot for trustee, 15 votes were cast, no person voted for receiving a majority. Upon a second ballot one J. H. Riker received a majority. Eight of the voters declined to vote on the second ballot because of the unauthorized announcement by the chair- man that the vote must be confined to two of the persons who were candidates upon the first ballot. No appeal was taken and the electors have acquiesced in the election of said Riker as trustee. The respondent, not having the color of an election, and being neither a de facto nor a de jure ofEcer, the tax list issued by him is void. Decided December 30, 1891 JUDICIAL decisions: trustees 1293 Draper, Superintendent This is an appeal from the action of the respondent, who, assuming to be trustee of school district no. 3 of the town of Ontario, Wayne county, has issued a district tax list. The appellant alleges that the respondent is not the trustee of the district. It is shown that at the annual meeting 15 voters participated in the first ballot for a trustee. From the vote, as announced, no person voted for received a majority and, in consequence, no election occurred. The chairman directed another ballot, when but 7 votes were cast, and one J. H. Riker received a majority. Eight of the voters present declined to vote upon the second ballot because of the unauthorized announcement by the chairman that the vote must be confined to two of the persons who were candidates upon the first ballot. Had an appeal from the proceedings of the meeting been promptly taken, its action would have been set aside and a new election ordered, in order that the majority might have had an opportunity to express its choice. But the electors have acquiesced in the decision that John H. Riker was chosen trustee, as he was on the second ballot, receiving a majority of all the votes cast. In any event, the respondent had not the color of an election and he is neither a de facto nor a de jure officer. The tax list issued by the respondent is void. Appeal sustained. 3575 Trustee can not be custodian of the public money. Teachers can not be compelled to board with trustee. A contract to that effect is illegal and void. Decided May 25, 1887 Draper, Superintendent The first ground of appeal is that the trustee took from the collector all the district funds and retained them himself. This the trustee admits, but attempts to justify his action on the ground that the collector had never given a bond and was not responsible, while he, the trustee, was responsible for the safe-keeping of the same. The second ground of appeal is from the refusal of the trustee to pay the teacher the amount of wages claimed to be due her. It seems to have been stipulated in the contract of hiring that the teacher should board with the trustee and pay for such board $2.50 per week. During Christmas week the appellant ceased to board with the trustee and a bitter feeling sprang up between the parties. Held, That the trustee has been guilty of gross neglect of duty in delivering a tax list and warrant to a collector before a satisfactory bond had 1294 THE UNIVERSITY OF THE STATE OF NEW YORK been executed and delivered to him as required by law, and a person who has held the office of trustee for three successive years, can have no reasonable excuse for such neglect. The collector rendered himself personally liable when he voluntarily paid over the district moneys to the trustee, as the trustee was blamable when he received them. Held, also, that the teacher has a perfect right to change her boarding place at any time. An agreement with the trustee to the contrary is illegal and void. While a teacher may board with a trustee it can not be made obligatory upon the teacher so to do. Order, The trustee is hereby directed to pay over all the district moneys in his hands to the collector, first requiring such collector to give a sufficient bond to protect the district from loss, and take his receipt therefor. Also, to deliver to the appellant an order upon the collector for the full amount due her for teacher's wages. 2979 Advanced studies in the common schools. Decided May 27, 1880 Gilmour, Superintendent The appeal is brought from the action of the trustees excluding from the district school certain advanced studies. This Department will neither insist upon, nor prohibit, the introduction and the teaching of branches not usually taught in the common schools of the State, unless it is clearly shown that there is a great abuse of discretion in such matter, believing that the teaching of such studies constitutes a matter that should be left to the discretion of the district, and one which the district, through the election of trustees, can effectually regulate. Trustees can not impose, by contract, a duty upon a teacher which the law makes it the duty of the trustees to perform. Decided January 20, 1836 Dix, Superintendent Trustees of school districts can not transfer to teachers the right of prose- cuting individuals for their tuition bills. The trustees are responsible for the payment of their wages, and the teachers should look to them alone. If the teacher agrees to collect his own dues, it is right that he should do so to the extent of his ability ; but I have always held that, in case of a refusal on the part of the individuals indebted to him to pay their dues, the trustees should issue a rate bill, and direct the amount so due to be collected, notwithstanding JUDICIAL DECISIONS : TRUSTEES 1295 any agreement with the teacher to the contrary. The justice of such a decision is manifest. The teacher contracts with the trustees to teach the district school, and he is entitled to the aid of the authority which the law has deposited with them, for the purpose of enforcing the payment of his dues from the inhabitants of the district. They will not be allowed to make a contract with a view to transfer this responsibility to the teacher, and deprive the latter of the legal remedies which the law has provided for him. If those who are indebted to the teacher do not pay him voluntarily, the sums due him must be collected in the mode prescribed by law. TUITION Where children whose home has been broken up are brought to the residence of a grand- father to find care and protection, for an indefinite period, they become residents of the district in which such grandparent lives. Decided September 28, 1857 Van Dyck, Superintendent An appeal is taken from the decision of the trustees of a district refusing to admit certain children into the district school, or to share in the public moneys thereof. The children whose admission is thus refused are within the age prescribed to entitle them to the privileges of the school, and are residing with their grand- father, an inhabitant of the district. It also appears that the home of the parents of these children has been entirely broken up, and that they are brought to the residence of their grandfather to find the care, protection and privileges of a home. The ground of objection to their admission is, that they are not residents of the district. Held, that they are residents of the district in the fullest sense, as implied by the statute, and, as such, entitled to a share in the public moneys apportioned to the district in which they reside. Where a child goes into a district to get employment, and not for the purpose expressly of attending the school, he is a resident of such district, and entitled to a portion of the public money, apportioned to district, as also to share in the privileges of the school. Decided December 14, 1865 Earr, Deputy Superintendent What constitutes a child a resident of a district depend? upon circumstances. If the child removes to a district for the sole purpose of attending school in such district, the parents or guardian meanwhile residing elsewhere, such child does not become a resident of the district, so as to be entitled to share in the distribu- tion of the public money. But where the child goes into a district for the pur- pose of obtaining employment, and of remaining in such district, the employ- ment, and not the school, drawing him to such district, in such case, he would be entitled to the privilege of the school, and to share in the public money appor- tioned to the district. General guardian may constitute his own district the residence of his ward by removing him thereto. Decided July 8, 1871 [1296] JUDICIAL decisions: tuition 1297 Weaver, Superintendent Appeal by a general guardian under appointment of surrogate, from the refusal of the trustees of the district in which appellant resides, to permit his ward to attend the school in said district, except upon payment tor tuition therein. The residence of the deceased father of the ward was, at the time of his decease, in a county adjoining that of the guardian and appellant. The trustees seem to base their refusal upon the ground that the residence of the ward is that of the deceased father. The Superintendent holds as toUows; "While it is true as a general rule, that the last domicile of a deceased father continues to be that of his minor child, yet this rule, in my judgment, has an exception in case such child becomes the ward of a guardian, who takes him to live in the district of his own residence ; at least, to the extent of entitling the ward to attend gratui- tously the public school of the district in which he may thus be placed. If this were not so, a minor of lawful school age, if under the charge of a general guardian, who may, if he chooses, remove him from the last place of residence of his deceased father, might be wholly deprived of the right to gratuitous instruction which it is the object of the common school system of the State to afford to all residents of the prescribed age." Trustees directed to admit the said ward to the privileges of the school in common with other pupils of the district. Children residing with their grandmother as part of her family and for her convenience and support, entitled to attend school in the district as resident pupils. Decided July 4, 1875 Gilmour, Superintendent Two minor children of M., who resides in district no. 9, town of W., were, by the desire of their grandmother, Mrs D., permitted to live with her at her home in district no. 29 of the same town. The trustees of the latter district refused to allow these children to attend the school in district no. 29, except upon con- dition of paying a tuition fee, claiming that their residence is in no. 9 where their father resides. In support of the claim on behalf of the children, it is shown that ^Irs. D. is aged and infirm in health, and needs the companionship and the aid to some exte^nt of her said grandchildren in her household affairs. That the said chil- dren are a part of her family, that they have been placed with her to assist her and make companionship for her, and that they have not gone to reside in no. 29 for the purpose of attending its school. It was decided by my immediate prede- cessor that where a person of school age had left the residence of his father, and gone into another school district for the purpose of earning his own support, he was entitled to attend the school of the latter district free of charge. I con- cur in the correctness of this decision, and deem the principle upon which it is ba'^ed well founded, and that it is sufficient to meet the present case. The right of the children in question to attend the school in no. 29 upon the same tenns as other pupils of the district, upheld. 1298 THE UNIVERSITY OF THE STATE OF NEW YORK 3386 Decided November 28, 1884 Ruggles, Superintendent The appeal is brought from the refusal of the board of education of union free school district no. 3, Sinclairville, Chautauqua county, to allow the grand- niece of appellant to attend the public school without paying tuition therefor. The appellant is a resident and taxpayer in said district, and Katie is the grandniece of the appellant. The mother of the child is dead and the father, who has married again, resides in Dakota. Previous to her death, Katie's mother requested that Katie might live with the appellant and his wife. The appellant says: "We gladly responded to the request of her now dead mother, and, on or about March 12, 1884, we received Katie, aged 14 years, into our family with the intention of not only furnishing a home for Katie but of caring for her as our own child." The facts in this case fully establish such a substantial adoption of the pupil as to make her a resident of the district and entitled to the privileges of the school. It has been the uniform ruling of this Department that where children, whose home has been broken up, are brought to the residence of one who stands in the place of the parent, to find care and protection for an indefinite period, they become residents of the district in which said person lives. Board ordered to admit the child to the free privileges of the school. 3877 Mary Moore v. the board of education of union free school district no. 6, town of Manlius, Onondaga county. A minor child, whose parents reside in one district, and who have permitted her to live in another district with a grandparent, for the purpose of securing better school accom- modations than the district in which the parents reside affords; held to be a nonresident, and if permitted to attend the school, liable for tuition. Decided May 12, 1890 Draper, Superintendent Appellant is the grandmother of Helen Moore, a pupil in attendance at the public school in union free school district no. 6, of Manlius. Assuming that the pupil is a nonresident of the district, the board has treated her as a foreign pupil, and made a charge for her tuition. From the evidence submitted, it appears that the pupil has parents who are residents of an adjoining district, but that they deem the school facilities of said district no. 6 greater than those of their own district. They have consented to her living with her grandmother in said dis- trict no. 6, for the purpose of deriving the benefit of such school facilities. The girl commenced school in this district at the beginning of the last fall tenn. It JUDICIAL DECISIONS : TUITION I299 is alleged by the appellant that she has cared for several sisters of the pupil in the past, and given them an opportunity to secure an education. It is alleged by the respondent that the child has come into the district solely for the purpose of securing the advantages afforded by the school of this district, and that her parents, who reside in an adjoining district, are able to furnish her with an education. It is often difficult to determine the question of one's residence. In the case of a minor, the residence of the parents will be presumed to be its place of residence, unless the contrary is clearly established. It seems clear to me that however meritorious the desire of the appellant may be, the case is one where a foreign pupil is temporarily sojourning in the district solely for school purposes, and that the evidence presented on the part of the appellant does not satisfy me that any change of residence was intended, or did in fact occur by the act of the pupil in coming into the district. I must dismiss the appeal, and hold that the board was justified in making a charge for tuition. 3878 In the matter of the appeal of S. F. Snow v. the board of education of union free school district no. 10, town of Skaneateles, county of Onondaga. A boy 14 years of age residing in the district with a brother by whom he is supported and cared for, his parents living without the district and separate, neither furnishing the other support, and neither possessed of means to support the boy; held, that the boy is entitled to free tuition, and entitled to be enumerated as a resident of the district. Decided May 12, 1890 Draper, Superintendent Appeal from the decision of the respondent, the board of education of union free school district no. 10, town of Skaneateles, in determining that Corry L. Snow was not a resident of the district, and therefore not entitled to free tuition in the district. The appellant alleges that he is a resident householder and elector in the above-mentioned district; that he has residing with him a brother of the age of 14 years ; that the parents of the boy, although living, do not live together, and neither furnishes the other means of support; that neither of said parents has means to support said boy, and that since the separation of the father from the mother, which occurred in 1886. he has been supported largely by deponent or by his own work in several districts, where he has since resided; that prior to 1889 the appellant sent said Corry to the Dundee Academy, at Dundee. N. Y.. paid his expenses and supported him there ; that during the past year the appel- lant married and commenced housekeeping in this district, and soon after brought sdid boy to his home to live with him. and that he has since resided in said dis- trict, wholly cared for and supported by llie appellant as a part of his familv. 1300 THE UNIVERSITY OF THE STATE OF NEW YORK Appellant alleges that he believes he will have to care for and support said Corry in the future, and that said Corry has no other place of residence than with him. The respondents allege that the appellant is not a taxpayer of the district and that if he is a voter, it is solely by reason of his being a householder. They allege that the said Corry is in the employ of appellant in caring for his horse or horses and otherwise rendering services, the value of which is equal to the value of the support, care and schooling of said boy. It is further alleged that appellant's parents and the parents of Corry, pay no taxes in the district and that neither of them are residents thereof, but that the appellant is able to pay for the boy's tuition. There is but one question involved in this case, that of residence, and it is often a difficult one to decide. The facts alleged by the respondent, that neither the boy's parents nor his brother, with whom he is residing, are taxpayers in the district or that the appellant is able to pay for the tuition of the boy, can have no bearing. If he is a non-resident, tuition must be paid, if required by the board. If a resident, he is entitled to tuition free of charge. In a case of this nature, while the boy whose place of residence is in ques- tion, has been deprived of a home with his parents for several years, through no fault of his own, and where in fact there is no home because of the separation of the parents, the law should be as liberally construed as possible in favor of the boy. It is clear to me that, after going from one district to another, he has become, through the favor of the appellant, his brother, a member of his family and a resident of the district to which this appeal relates, and I so hold. The appeal is sustained, and the board of education of union free school dis- trict no. 10, of the town of Skaneateles, is hereby directed to admit Corry L. Snow to the privileges of the school in said district, as a resident thereof. 3876 Arthur C. Watkins v. the board of education of Sandy Creek High School, Oswego county. Residence of a ward not necessarily the same as that of his guardian. A minor born in a district and living there, whose parents resided there until their decease, who owns real and personal property in the district, and whose intention it is to make the district his home, held to be a resident thereof. Decided May 12, 1890 Draper, Superintendent This appeal comes before the Department by a statement of the facts agreed to and signed by the respective parties. The respondents claim that the appellant is a nonresident of the district, and therefore, liable to a charge for tuition. The facts appear from the statement to be as follows: That the appellant is now 16 years of age; that he was born in the district, and resided there with his father JUDICIAL DECISIONS : TUITION I3OI until August 1888, when his father died. Soon thereafter his stepmother was appointed his guardian, and in December 1888, the appellant removed with said guardian to the state of Ohio, having in his own mind no fixed determination as to his future place of residence. The appellant owns real estate in the district which is in charge of an admin- istrator who represents his guardian. He is also the owner of personal property which is in the possession of the guardian. About three months after removing from the State, he returned to the district, with the intent of making said district his home, and entered the school for the purpose of completing his education. Considering the appellant a nonresident of the district, the board of educa- tion exacted from him payment for tuition. Giving the above statement of facts full consideration, I am satisfied that the appellant is a resident of the district and entitled to the rights which pertain thereto. The residence of a ward does not follow that of a guardian as does that of a child its parents. If the appellant had lost his residence in the district when he removed from the State with his guardian, he again acquired residence in the district when he returned to the same, with the intent of making it his home. The appeal is sustained, and the board of education of the Sandy Creek High School is hereby directed to admit the appellant to the privileges of the school as a resident of the district. 3843 In the matter of the appeal of Lena Marzolf v. C. Hyman, jr, trustee of school district no. 10, of the town of Sheldon, county of Wyoming. A minor residing with a sister, who is a resident of a school district, by whom she is supported; held, entitled to the privileges of the school, although parents are non- residents. Decided December 9, 1889 Draper, Superintendent . ,. . . , ^, The appellant has a minor sister living with her m district no. lo, of the town of Sheldon, Wvoming county. The parents reside in another district. The girl assists the appellant in the millinery business carried on in said district, and is cared for by appellant. Appellant asks that her sister Anme be admitted to the district school of district no. 10. , . , No answer has been interposed by the trustee. From the nncontroverted evidence before me, I find that Annie has a residence in the district, and is there- fore entitled to the privileges of the school. The appeal is sustained. 1302 THE UNIVERSITY OF THE STATE OF NEW YORK 3704 In the matter of the appeal of Frank E. Losee and Sarah D. Losee v. school district no. 2, town of Alexander, Genesee county. A residence of a minor child is held to be with its parents unless the contrary is clearly established. The burden is upon the parents to establish the fact to be otherwise. Decided August 22, 1S88 Draper, Superintendent The appellants reside in district no. 5 of the town of Darien, Genesee county. They have a child of school age who has for a considerable portion of the time been staying with her grandmother, who resides in district no. 2 of the town of Alexander. It is desired that such child shall attend the district school in the district where her grandmother resides. The trustees exact pay for tuition, which is resisted on the part of the parents. The question involved is one of residence. This is always a difficult question to determine, inasmuch as it ordinarily depends upon many facts. If the home of this child is with her grandmother by the concurrence of her parents, then she would be entitled to school privileges in the district where the grandmother resides. If she is sent to the grandmother's only for the purpose of getting the benefit of superior school facilities, then the parents should pay for tuition. The facts upon which to determine the question in this case are very meager. Inasmuch, however, as the residence of a minor child must be held to be with the parents, unless the contrary is clearly established, and as the burden is upon the parents to establish the fact to be otherwise, if that be the case, and inas- much as they fail to show it to be so in this instance, I am obliged to dismiss the appeal, and held that the trustees are justified in collecting pay for tuition. 3769 In the matter of the appeal of Alfred C. Thayer v. the board of education of union free school district no. i, of the town of Chateaugay, county of Franklin. A minor child having parents living outside of a school district, who, in good faith, came into the district to reside permanently with a family who are residents thereof, for the purpose of having a home with them, and who has been included in the enumer- ation of a preceding year as one of the resident children of the district; held, entitled to the privileges of the school. Upon questions of this nature, the decisions of the Department have always inclined to the side of liberality. It is to be observed, however, that a child of school age who moves into a district for the sole purpose of securing the benefits of the school, and intends to remain there only temporarily, is to be deemed a nonresident. The resi- dence of a minor child is presumed to be with its parents, but this presumption may be overcome by proof. In a union free school district, the rule concerning residence is the same as in a common school district. Decided March 23, 18S9 JUDICIAL DECISIONS : TUITION I303 Draper, Superintendent This is an appeal from the action of the trustees of union free school dis- trict no. I, of the town of Chateaugay, Franklin .county, in refusing the privi- leges of the school under their charge to one Bertie ]\Iitchell, a minor 16 years of age, living with the appellant, on the ground that she is not a resident of the district. The girl swears that she came to live in the family of the appellant on the 25th day of March 1888, under an agreement that she should live with him and his wife; that she has ever since continued to reside with appellant, and that she in good faith, intends to continue to reside with him permanently; that the principal reason or inducement which led her to come and live with him was that she might have a home. She admits that she has parents living, but says that they are unable to support her, and that consequently, she accepted a home with the appellant. The appellant swears to the same state of facts substantially, and says that he verily believes that it is the purpose and intent of the girl to per- manently remain a member of his family, and that it is his purpose and intent to keep her and make a home for her. He also swears that he is an actual resident of the district and intends to remain such resident. He says also that Bertie Mitchell was included in the enumeration of 1888 of the children of school age in said district, as a resident member of the appellant's family, and that an examination of the enumeration shows that fact. The respondents allege that the child is not in good faith a resident of the district, and, therefore, not entitled to the privileges of the school, and justified themselves in excluding her therefrom. I think the facts as sworn to by the appellant and the girl, and which are not successfully controverted, bring the case within numerous decisions of the Department and entitle her to the privileges of the school. The decisions have always inclined to the side of liberality. If a child of school age moves into a district for the sole purpose of securing the benefits of the school in the district, and intends to remain there only temporarily, it is to be deemed a nonresident and required to pay tuition fees. But when it comes into the district to take up its abode permanently therein, even though its parents may be living, it is entitled to the school accommodations of the district. The residence of a minor child is presumed to be with its parents, but it may be elsewhere by their consent. It is shown that, in the present case, the child is living with the appellant by and with the consent of her parents, and the proof is strong that it is not a mere tem- porary arrangement in order to secure the advantages of the school ; but, on the other hand, is intended to be permanant. This clearly brings the case within a long line of decisions which would give her the right to attend the school. The respondents claim that the decisions referred to apply only to common school districts, while the district now under consideration is a union free school district. I know of no distinction in the law. The discretion on the part of a board of education in a union free school district, upon such a matter as this, is no greater than that vested in a trustee in an ordinary common school district, and the rule concerning residence would be the same in both cases. The appeal is sustained and the respondents directed to admit the said Bertie Mitchell to the privileges of the school under their charge. 1304 THE UNIVERSITY OF THE STATE OF NEW YORK 4344 In the matter of the appeal of Elizabeth Ostrander and IMargaret E. Campbell v. board of education of union free school district no. 4, Johnstown, Fulton county. A lad}', residing in a union free school district, of the age of ^2 years, in feeble condition and in need of a companion, receives into her family her granddaughter who continues to reside with her at her request and with the consent of the parents of the grand- daughter and is under the care of and supported by her grandmother, the parents of the grandchild not exercising any control or contributing to the support or maintenance of their said daughter; held, that said grandchild was adopted into the family of her grandmother and for school purposes said granddaughter became a resident of the union free school district in which said grandmother resided and entitled to attend the schools therein free. Decided March 20, 1895 Philip Keck, attorney for appellants Harwood Dudley, attorney for respondent Crooker, Superintendent This appeal is taken from the action and decision of the respondent, made on April 9, 1894, that the appellant, Elizabeth Ostrander, is not entitled to tuition in the school under its charge except upon payment therefor, and excluding her from said school until tuition is paid, or until my decision reversing said decision of the respondent. An answer to the appeal has been received, and also a reply to the answer. The question presented by this appeal is as to the residence of the appellant, Elizabeth Ostrander. It appears that the appellant. Elizabeth Ostrander, is a minor and of the age of 13 years on April 24, 1894; that the parents of said appellant are living and reside in school district no. 3, town of Johnstown, Fulton county, about two miles from the village of Johnstown, and have so resided therein for many years, and are able to educate and support their said daughter Elizabeth; that the appellant Margaret E. Campbell is the grandmother of said Elizabeth Ostrander, and resides in and is a qualified voter and taxable inhabitant of union free school district no. 4, Johnstown ; that her husband died in the year 1891 ; that she was 72 years of age on March 11, 1895; that she is and has been for many years afflicted with heart trouble, and is enfeebled and in infirm health, and it is not now, and has not been for many years, safe for her to live alone and without the care and watchfulness of some suitable companion; that said Elizabeth Ostrander has since the years 1884 resided with and been a part of the family of her said grandmother, and her said grandmother has furnished the said Eliza- beth with all her necessary wearing apparel and has boarded, kept and maintained the said Elizabeth Ostrander at her own cost and expense and has had the care, control and custody over her, the same as if she were her own daughter; that the parents of the said Elizabeth have not had or exercised any control over or JUDICIAL decisions: tuition 1305 contributed to the support or maintenance of the said EHzabeth during all said years ; that said Elizabeth Ostrander attended the school in union free school dis- trict no. 4 without payment of tuition, and with the acquiescence of the board of education of said district, until the fall term in 1893 ; that in November 1893, the appellant, Margaret E. Campbell, paid, under protest, to the treasurer of said union free school district no. 4, the sum of $9, being for tuition of said Elizabeth Ostrander for the fall term of said school of twenty weeks, the claim of the appellants Ostrander and Campbell being that said Elizabeth Ostrander was a resident of said school district no. 4; that on April 9, 1894, the respondent herein adopted a resolution, in substance, that said Elizabeth Ostrander was not entitled to tuition free of charge in said school district no. 4, and that she be excluded from the schools of the district until tuition is paid, or until I shall decide against the said decision of the respondent; that from said decision of said respondent of April 9, 1894, this appeal is brought. Under the decisions of the courts of the State the residence of a minor is usually that of the parents until said minor has been emancipated from parental control or adopted into a new family, and the residence of a minor may be else- where than that of the parents with their consent. The question involved in this appeal is one of residence, and it is usually a difficult question to determine. In the decision of such questions this Depart- ment has always inclined to the side of liberality. The proofs herein show that Mrs Campbell is a qualified voter of, and an inhabitant in, said union free school district; that she is 72 years of age and has heart disease, in feeble condition and in need of a companion ; that in 1884 her granddaughter, Elizabeth Ostrander, came to reside with her at her request and with the consent of the parents of the said Elizabeth Ostrander, and has had the care and control of, and supported, the said Elizabeth with the consent of her parents, said parents not having exercised any control of or contributed to the support or maintenance of their said daughter. I find and decide that said Elizabeth Ostrander has been adopted by the said Margaret E. Campbell into her family, and that for school purposes the said Elizabeth Ostrander is a resident of union free school district no. 4, Johnstown, Fulton county, and as such resident is entitled to attend the schools in said district free. The appeal herein is sustained. 4264 In the matter of the appeal of William L. Fowler v. board of education of union free school district no. 2, town of Trenton, Oneida county. Where a board of education of a union free school district establishes a department in the schools therein, to teach stenography, typewriting etc., and requires as a condition for admission of a resident pupil of the district into such class or department, that he or ■ she should pay tuition at the rale of $8 for a term for instruction* in stenography etc., such action of said board is without authority of law and void. Decided September 21, 1894 1306 THE UNIVERSITY OF THE STATE OF NEW YORK Crooker, Superintendent The appeal in the above-entitled matter is taken by the appellant from the action and proceedings of the respondent in requiring from the appellant the payment of a sum of money for the admission of his daughter E. Mae Fowler, a resident of said school district, of school age, into a class or depart- ment in the schools conducted by the respondents, in which was taught stenog- raphy, typewriting etc. From the papers presented upon this appeal the following facts are estab- lished : That union free school district no. 2, town of Trenton, Oneida county, was organized under the school laws of the State, and the respondent is the board of education of said district ; that the appellant is a resident in and quali- fied voter of said district, and that he is the father of E. Mae Fowler, a girl of school age residing with her father in said district, and said daughter of the appellant attended the said school during the school year, commencing on August I, 1893; that prior to December 24, 1893, the respondent, pursuant to vote to that effect, passed at annual school meeting in said district in August 1893, established a class or department in the school under their charge, in which stenography, typewriting etc., were to be taught, and passed two resolutions relative to said class or the admission therein, to wit : first, that no resident pupil should be allowed to enter said class except those who had passed the preliminary course of said school; and second, that resident pupils not eligible by reason of qualifications, but of suitable age, should be allowed to enter said class by paying the sum of $8 per term; that under and pursuant to the said second resolution, the said daughter of appellant entered said class, and on or about December 20, 1893, the appellant, by his said daughter, paid to one John C. Chase, the prin- cipal of the school of said district, the sum of $8 for instruction in stenography, typewriting etc., in said class for the winter term ending March 16, 1894, and received from said Chase a receipt, as follows : " December 20, 1893. Received of William L. Fowler $8, as tuition fees for Mae Fowler for the present term of school. John C. Chase, Prin." That said daughter of the appellant continued in said class during the spring term of school, and graduated therefrom on or about June 22, 1894; that on or about May 15, 1894, the respondent demanded of appellant the sum of $8 for permitting his said daughter to continue in said class for the term of school commencing March 26th, and ending June 22, 1894, which sum the appellant refused to pay. It further appears that the appellant, in conversation with three members of said board of education, had at different times in December 1893, informed said members respectively that they had no right to charge or receive tuition from a resident pupil of said school district. Under the school laws of the State, the common schools in the several school districts therein are free to all persons over 5 and under 21 years of age residing in the school district. The boards of education of union free schools have power to receive into said union free school any pupils residing out of said districts, and to regulate and establish the tuition fees of such nonresident pupils JUDICIAL decisions: tuition 1307 in the several departments of said schools. The board of education of every union free school district severally have power, and it shall be their duty " to prescribe the course of study by which the pupils of the school or schools shall be graded and classified, and to regulate the admission of pupils and their trans- fer from one class or department to another, as their scholarship shall warrant." See subdivision 4, section 15, article 4, title 8 of the Consolidated School Law of 1894. The school in union free school district no. 2, of Trenton, during the year 1893-94, was free to the said daughter of the appellant herein, and the several classes and departments thereof open to her admission therein as her scholarship should warrant, without the payment, by her or the appellant, of any sum of money as a condition for her admission into any class or department. The respondent has the legal right to establish a class or department in the school under their control in which stenography, typewriting, etc., should be taught, and adopt regulations for the admission of pupils therein who had passed the preliminary course of said school, or possessed the necessary mental qualifica- tions; but said respondent had no legal authority to adopt as a resolution, rule or regulation, that resident pupils, not eligible by reason of qualification, but of suitable age, should be allowed to enter said class or department by paying the sum of $8 per term. The respondent, in answering the appeal herein, claims that the special agreement or concession (that is, admitting resident pupils not eligible by reason of qualifications, but of suitable age) into said class or depart- ment was not intended to be in the nature of a tax or tuition; but in the reply of respondent to the answer of the appellant, it is admitted that in the conversa- tions between appellant and Messrs Nolton, Park and Pride it was stated to appellant that the payment of $8 per term was a condition which the parent must agree to, or the pupil would not be allowed to attend the special course. I am of the opinion that the condition made by respondent that the appellant or his daughter should pay the sum of $8 per term for the admission of the daughter into the class or department of a school under the control of respondent, in which stenography etc., was taught, was the exacting of tuition fees for instruc- tion given to a resident pupil in a public school of the State, and was without authority of law. The appeal herein is sustained. I find and decide, that the resolution, rule or regulation of the board of education of union free school district no. 2, town of Trenton, Oneida county, that resident pupils not eligible by reason of qualifications but of suitable age should be allowed to enter the class or department in the school in said district in which stenography, typewriting etc., are taught by paying the sum of $8 per term, was and is without authority of law, and the same is hereby vacated and set aside. That the board of education of said school district can not lawfully exact or receive any sum of m.oncy whatever as a condition for the admission of a resident pupil into any class or department of the school in said district. I30<^ THE UNIVERSITY OF THE STATE OF NEW YORK That the exaction by, and payment to, the said board of education from and by the appellant herein of the sum of $8 as a condition for the admission of the said daughter of appellant into the class, and her instruction in stenogra- phy etc., for the term of school in said district, commencing on December 20, 1S93, and ending on March 16, 1894, was without authority of law on the part of said board of education. It is ordered, That said board of education of union free school district r-o. 2, town of Trenton, Oneida county, without unnecessary delay, pay and refund to William L. Fowler, the appellant herein, the sum of $8 paid by said Fowler to said board on December 20, 1893, as a condition of the admission of the daughter of said Fowler into the class or department of the school in said district in which stenography etc., was taught, and the instruction of said daughter of appellant in stenography, typewriting etc. 4226 In the matter of the appeal of Maria L. Ellis v. board of education of union free school district no. 8, Clayton, Jefferson county. Where a minor whose parents reside in the state of Arizona comes to live with a resident of a school district within this State, but such residence is not in any respect per- manent, but may be terminated at the option of the minor or her parents, or the person with whom she is so residing in this State, and the parents and brother of the minor contribute to her support; held, that such minor is not a resident in the school district in this State in which she is so temporarily residing, within the school laws of this State. Decided March 22, 1894 H. E. & E. Morse, attorneys for appellant Crooker, Superintendent The above-named appellant appeals from the action and decision of the respondent in excluding one Mary R, Moore, a pupil of school age, from the schools of union free school district no. 8, Clayton, Jefferson county, without payment of tuition for such pupil. The appellant alleges, as ground of appeal, that such pupil is a resident of said school district. The respondents deny that such pupil is a resident of such district. From the proofs presented upon this appeal it appears: That the appellant is a single woman, residing with her sister in Clayton, Jefferson county, and is a qualified voter residing in union free school district no. 8, in Clayton ; that on or about March 1888, the appellant went to the state of Arizona for the benefit of her health, returning to her residence in Clayton in August 1891 ; that the appel- lant was accompanied on her return from Arizona by a cousin, one Mary R. Moore, a young girl then about the age of 12 years, whose parents then resided, JUDICIAL DECISIONS : TUITION I30g and ever since have resided, and still do reside, in the state of Arizona; that while in Arizona the appellant offered to the parents of said Mary R. Moore to take her (said Mary) into her care, charge and keeping, and give her mora! instruction and training in the matters of household duties, and such school advantages as she would be entitled to as a resident of the district, in considera- tion of the society, companionship and service of said Mary, and that thereupon the parents of said Mary confided her to the care and keeping of the appellant for an indefinite period; that said Mary commenced in the month of September 1891, to attend school in said school district no. 8, and continued to attend school until the end of the school year of 1892, and was registered by the respondent as a resident pupil of said school district; that the said Mary continued to attend said school down to about January i, 1894, and was continued upon the register as a resident pupil until, by investigation by respondents, it was decided that she was a nonresident, but at what time said decision was arrived at does not appear; that in I\Iay 1893, two bills for tuition of said Alary, from September 7, 1891, to March 3, 1893, were received by appellant from respondents, and in June 1893, the appellant and the president of the board of education had a con- versation in relation to said bills for tuition ; that said Alary heard the said conver- sation between appellant and the president of the board relative to the claim for tuition, and believing she would have to pay such tuition wrote to her parents for money for that purpose, and thereafter in September 1893, when she resumed her attendance in school, informed Mr Johnson, the president of the board, that she had written to her parents for money to pay her tuition, and that when she received the money she would pay such tuition ; that at a meeting of respondents on January 2, 1894, it was resolved that the said Alary R. Moore be expelled from the public school, in view of the fact that the fee charged for tuition had not been paid, and on January 3, 1894, the said Mary received a letter from the clerk of respondents that she had been excluded from the public school for nonpayment of tuition; that no tuition of the said Mary had been paid to respondents by her nor by the appellant, nor by any one on behalf of the said Mary or the appellant; that the appeal herein was brought on January 5, 1894. It also appears from the proofs that the parents of the said Alary R. Aloore are willing to contribute as far as they are able toward clothing, school books and such incidental expenses as are necessary for her, and sent to her prior to January i, 1893, an aggregate of $97; and that the brother of said Alary, during the year 1893, has contributed money to assist his sister in supporting her; that during the summer of 1893, while the sister of appellant was absent from Clay- ton, the appellant took her meals out, and that the said Alary also took her meals out and paid toward the same the sum of $36 out of money sent to her by her said brother. No proof has been presented herein that the parents of the said Alary have emancipated her from their parental control, nor that the appellant herein has adopted the said Alary into her family, nor that the appellant occupies the rela- tions of a parent to the said Alary. It clearly appears that the domicile of the I3IO THE UNIVERSITY OF THE STATE OF NEW YORK said Mary with the appellant is not in any respect permanent, but temporary, to be terminated at the option of the said Mary or her parents or the appellant. The residence of a minor is presumed to be that of the parents of such minor. A minor is generally deemed incapable of changing his or her domicile, but if the parents change their domicile that of the minor follows it. This rule is subject to qualification if the minor has been emancipated from parental con- trol or adopted into a new family. It is conceded that the residence of the parents of Mary R. Moore is in the state of Arizona. That being so, the residence of their minor daughter, said Mary R. Moore, is in the state of Arizonia unless it is proved that the parents of said Mary have emancipated her from their parental control, or that she has been legally adopted into a new family. No such proof has been given in the appeal herein. The burden is upon the appellant to establish by a preponderance of proof that said Mary R. Moore is a resident of union free school district no. 8, Clayton, Jefferson county. In that she has failed. It appears that upon said Mary R. Moore applying for admission into the school in said district in September 1891, said board of education neglected to investigate as to whether or not she was a resident of the district and permitted her to attend the school free and carried her name upon the school register and their reports as a resident pupil, and the school district has received public moneys pursuant to such registration and reports. It does not appear that prior to May or June 1893, it was brought to the personal knowledge of the appellant or the said Mary R, Moore that it was claimed by such board of education that said Mary was not a resident of such district and that payment of tuition fees for her attendance at school was demanded. I am of the opinion that owing to the said neglect of board of education to properly investigate such question of residence of the said Mary, said board is not entitled to demand or receive any tuition fees for the attendance of said Mary in the schools of their district prior to the commencement of the school year for 1893, to wit, August i, 1893. I find and decide that the said ]\Iary R. Moore is not, nor has she been, since she came with the appellant from the state of Arizona to Clayton, Jeffer- son county, a resident of union free school district no. 8, Clayton, Jefferson county, within the meaning and intent of the school laws of this State; and that she is not entitled to be received into the school in said district free, but only upon the payment of such tuition fees as the board of education of such school district has regulated or may regulate and establish for nonresident pupils; but the board of education of said union free school district shall not demand or receive any sum or sums whatever for tuition for such Mary R. Moore for any period of time in which she attended the school in said district prior to the commencement of the school year for 1893, to wit, August i, 1893. The appeal herein is dismissed. JUDICIAL decisions: tuition 131 1 4167 In the matter of the appeal of C. A. Patterson v. board of education of the union free school of Honeoye, Ontario county. Where a statute prescribes " residence " as a qualification for the enjoyment of a privilege or the exercise of a franchise the word is equivalent to the place of domicile of the person who clanns the benefit. To acquire a domicile two things are necessary — the fact of residence in a place and the intent to make it a home. To retain a domicile once acquired, actual resistance, however, is not indispensable, but it is retained by the mere intention not to change it or adopt another, or rather, by the absence of any present intention of removing therefrom. Held, that the appellant was a resident of Honeoye, Ontario county, and his children were entitled to attend the union free school therein without payment of tuition. Decided March 3, 1893 Crooker, Superintendent This is an appeal from the action of the board of education of union free school of Honeoye, Ontario county, in refusing to permit two daughters of the appellant to attend said school, without payment of tuition, on the ground that their father, the appellant, was not a resident of said school district. The main question to be considered upon this appeal is, as to the residence of the appellant at the time of the action and decision of the board of education of the union free school of Honeoye, from which action and decision this appeal is brought. A large number of affidavits on behalf of the appellant and respondent have been filed, in many of which the matters stated are not material or relevant to the question of the residence of the appellant. After a careful examination and consideration of the papers presented, it appears : That in the year 1866, the appellant became a resident of Honeoye, Ontario county, and continued to reside there until the year 1883, when he purchased a farm in the town of Conesus, Livingston county, and removed to, and became a resident of, said town of Conesus ; that he continued to reside in said town of Conesus, until the fall of the year 1890, when he removed to Honeoye, and ever since has been, and still is, a resident of Honeoye. That his wife and two minor daughters reside with him in Honeoye, and that he and his said family occupy a house or part of a house therein rented by him for such residence. That the appellant has voted in Honeoye at the general election of this State held in the years 1891 and 1892, and that his vote thereat has never been challenged. That the appellant has, during his residence in Honeoye, frequently been to his farm in Conesus on business connected with said farm, and spent considerable portions of time at said farm, and that his wife and daughters have frequently accom- panied him to said farm and remained with him during his stay thereat. That when not engaged in any business upon his said farm the appellant has worked in different employments in Honeoye. It is not affirmatively shown that since the removal of the appellant to Honeoye in the fall of 1890, he has attempted to exercise or has exercised any rio-hts and duties of a citizen in the said town of Conesus. I312 THE UNIVERSITY OF THE STATE OF NEW YORK Under the laws, the words residence, domicile and inhabitancy mean gen- erally the same thing. " Inhabitancy and residence mean a fixed and permanent abode or dwelling place for the time being, as distinguished from a mere tem- porary locality of existence." (8 Wendell 140.) To acquire a domicile two things are necessary, the fact of residence in a place, and the intent to make it a home. To retain a domicile once acquired, actual residence, however, is not indispensable, but it is retained by the mere intention not to change it or adopt another, or rather, by the absence of any present intention of removing therefrom. The appellant, in the fall of 1S90, removed from Conesus to' Honeoye, intending to make Honeoye his residence, and he acquired a residence or domicile in Honeoye, by the fact of such residence therein, and intent to make it his residence. Having acquired such domicile, actual residence all the time in Honeoye was not indispensable to retain such residence, and his frequent visits to his farm in Conesus without the intent on his part to remove from Honeoye to Conesus, retained his residence in Honeoye. A domicile once acquired remains until a new one is acquired. In legal contemplation every person must have a domicile somewhere, and he can have only one domicile at one and the same time. Alere intention to remove, without the fact of removing, will not change the domicile, nor will the fact of removal without intention to change the residence, ciiange such residence. Where a statute prescribes " residence" as a qualification for the enjoyment of a privilege or the exercise of a franchise, the word is equivalent to the place of domicile of the person who claims the benefit. The People, etc., v. Thomas C. Piatt, 117 N. Y. 159. Upon the facts established herein, I am of the opinion that the appellant, in the fall of 1890, became a resident of, and domiciled in, Honeoye, and in the union free school district of Honeoye, and was, at the time of the action and decision of the board of education of such union free school appealed from, a resident of such district, and still is a resident of said district. That the chil- dren of said appellant between the ages of 5 and 21 years of age, residing with him at Honeoye, in said district, are entitled, under the school laws, to admission free in said union free school in said district, and the said board of education of said union free school had no legal right or authority to refuse to admit the two daughters of the appellant to said school without the payment of tuition therefor. The appeal herein is sustained. It is ordered, That the board of education of the union free school of Honeoye, Ontario county, are hereby directed to forthwith admit to said school the said two daughters of the appellant, C. A. Patterson, as resident pupils in said school district, and without demanding or receiving any tuition therefor; and said board of education are hereby enjoined and restrained from demanding or receiving any tuition by reason of the attendance of said pupils in said school since the fall of the year 1890. JUDICIAL decisions: tuition 1313 3596 In the matter of the appeal of John H. Clark and Harriet M. Clark v. the board of education of Lyons union free school district no. 6. The residence of a minor, naturally, is identical with that of his parents; but it may be elsewhere by their consent. Trustees have the right to suspend pupils from the privileges of the school where their conduct is so wilfully insubordinate as to be destructive of the discipline and efficiency of the school, and to continue to deprive pupils of such privilege until they unequivocally submit to the discipline. Decided May 5, 1887 Draper, Superintendent The appellants are husband and wife. The appellant, John H. Clark, is the principal of the Lyons union school. Henry Merrill is a brother of Mrs Clark, and has resided with the appellants in the village of Lyons since August 1886. He is 17 years of age. His parents, who formerly resided in the city of Roches- ter, removed to Colorado in the summer of 1886. Merrill had been a pupil in the Lyons Union School from the 30th day of August 1886, up to the latter part of January 1887, when he was suspended from the privileges of the school by the board of education, by the adoption of the following resolution, namely: Resolved, That the board deems the conduct for the past few days of Henry Merrill, a nonresident pupil, highly disorganizing and injurious to the govern- m.ent of the school, and feel it their duty to sever his connection with the school until the further pleasure of the board. The cause of this action of the board was the misconduct of Merrill towards John H. Patterson, who, from the 12th day of January had been temporarily act- ing as principal of the school during the illness of Principal Clark. The facts in relation to such misconduct are stated somewhat differently by different per- sons. It certainly amounted to an assault on the 25th of January, in the presence of the school upon the acting principal, when he was engaged in disciplining other pupils. Upon the next day Merrill used grossly insulting and abusive language to the acting principal in the school building, and while the school was in session, charging him with lying, and offering to fight him. Merrill admitted all this in the presence of the board, and aggravated his conduct by justifying it. His statements before the board were reduced to writing and read over to him, and pronounced by him correct. He said: " I first laid hands on Mr Patterson on the morning of the 25th; I was tak- ing the part of the smaller boys ; I did not think he had any right to act as princi- pal ; I did not know what he was ; I think I did right in taking hold of him ; if Mr. Gardner had not interfered I do not know who would have come out ahead, he or me; this was in the morning during school hours. " I met Mr Patterson in the hall; I asked him if he wrote the jiiece in the Democratic Press of the 26th ; he said, " No " ; I said it looked like his work and as if he had a hand in it ; I said if he told about town that he blackened my 42 I314 THE UNIVERSITY OF THE STATE OF NEW YORK eye, he lied; I told him I could whip him and if he wished to try it I was ready, he could come on ; I offered to fight him several times there in the hall ; this was during school, January 26, 1887.'" After hearing these statements the board then passed the resolution of sus- pension. Upon subsequent application, it refused to rescind the same, and from this action this appeal is taken. The board of education in their answer say: 1 That Merrill was a nonresident pupil, and in consequence was in the school only at the suft'erance of the board, regardless of the matters here under discussion. 2 That the appeal was not taken within the thirty days required by the rules of this Department 3 That the board in this matter exercised the discretion which the law gives it, properly and wisely. The question of residence is always one difficult of determination. It depends upon the intent of the party whose place of residence is disputed. The residence of a minor undoubtedly follows that of his parents, but it may be elsewhere by tlieir consent. In the present case, the appellant, John H. Clark, swears that " after consultations upon the subject with them (Merrill's parents), and deponent and deponent's wife, it was agreed upon by all of said parties that Henry should not continue to reside with his parents and that he should make his home in Lyons with deponent. This is his home, and he is here for the purpose of mak- ing it his home and not for the sole purpose of attending school, and he is wholly supported by this deponent, and deponent and deponent's wife control him in the place and stead of his parents and as their own son." I think we must accept this testimony of an unimpeachable witness, occupying the relations which he does to tlie pupil and to the school, as determining the question of Henry Mer- rill's residence, and must hold that he is a resident pupil of the village of Lyons. The papers on appeal were served on one of the respondents on March 30th, and on another on March 31st. The action appealed from was taken March ist. I think service upon one member of the board would have been sufficient and have no hesitancy in holding that the appeal was taken in time. We come now to the real question in the case, namely, Had the board of education the power to deprive Henry Merrill of the privileges of the school, and if so, was the power wisely and properly exercised? There can be no doubt of the power of local school authorities to suspend pupils from school privileges when their conduct is so wilfully insubordinate as to be destructive of the good order and efficiency of the schools. There are undoubtedly some cases which would justify an entire and perpetual taking away of school privileges. There are many more cases which call for a temporary taking away of such privileges, to continue until such time as the pupil gives satisfactory evidence of his willingness to submit himself to the discipline of the school. The suspension of the privileges of the school should not be imposed for slight cause. The privilege is a sacred one. The common schools belong to JUDICIAL decisions: tuition 1315 all alike and are for the benefit of all. All have rights in them. But one can not be allowed to so conduct himself as to trample upon the rights of others by destroying the schools. If he does, he is liable to have his right taken away in deference to the general and common good. The conduct of the boy Merrill, in the present case, was very bad and inex- cusable. He is 17 years of age, almost at man's estate, and is shown to be large for his age. His relations to the permanent principal of the school placed a special responsibility upon him. Notwithstanding this, he deliberately undertook to overthrow the government of the school. It may be that the temporary or acting principal lacked experience in managing a school; perhaps he dropped an indiscreet expression or acted unwisely. Even in that case, the proper course v/as to bring the matter to the attention of the board. It was not the business of this pupil to take the matter in hand. If it was possible to overlook or mitigate the attack of the pupil upon the teacher which occurred on the 25th of January, on the ground that he had acted impulsively, it would not be so as to the language of the boy to the teacher on the succeeding day, nor of his subsequent justification of his conduct in the presence of the board. It was necessar)' that the board should reduce the school to a state of dis- cipline and control, promptly and thoroughly, and I have had no difficulty in reaching the conclusion that the board had ample justification for its action in reference to Merrill. I do not see how it could have done less. I have not lost sight of the evidence in relation to an apologj' from the pupil to the teacher. From Mr Patterson's statement, it does not, however, seem to have given much evidence of regret or contrition. Going through the form of an apology is of small consequence. The board of education is the best judge of the circumstances of the school, the disposition of the pupil and the necessities of the case. This Department will not be inclined to overrule the action of the board in this case, at least before it is shown that it refuses to readmit Merrill to the privileges of the school after he has given abundant proof of regret for his misconduct and of readiness to submit unreservedly to the discipline of the school. When such evidence shall be adduced, it is assumed that the board will rescind its own action. For these considerations 1 feel compelled to dismiss the appeal. 3984 In the matter of the appeal of Earnest C. Nichols v. the board of education of the city of Elmira. The school laws provide that public schools shall he free to all resident pupils between the ages of 5 and 21 years; held, that a rule of a local board intended to modify the law is of no effect. Decided July 2, 1891 13 16 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent This appeal is brought by a resident of the city of Elniira, from the action of the board of education of said city in refusing to admit to the privileges of the school as a pupil, the daughter of the appellant. It is shown that the child was more than 5 years of age (having been born November 22, 1885), when its admission to the school under the control of the respondent, was demanded. No answer has been interposed by the board, but from correspondence which has been carried on with the Department, the ground upon which the board would seek to justify its refusal to admit the child, is apparent, and I shall, therefore, refer to it. The present system of common schools in the city of Elmira is controlled by a special act of the Legislature. The act provides for a board of education, and by subdivision 9 of section 20 of the act, this board is authorized to establish rules and regulations for the reception of pupils in the schools. Under this pro- vision a rule has been adopted prohibiting the admission of pupils to school priv- ileges except at the commencement of the term in September of each year. It is insisted by the board that the rule referred to is not an unreasonable one, and that in proper cases the rule is relaxed. The arginnent of the board in support of the justice of the rule is that the entrance of pupils at other periods of the school year would materially interfere with the success of the class work and the advancement of pupils. In considering the question presented, I am free to admit that the reception of pupils at irregular times during the school year may cause some embarrass- ment, but I am confronted by the provision of the general act which provides that common schools shall be free to all pupils between the ages of 5 and 21 A^ears, who are actual residents of the district. A like provision was incorporated in the special act relating to the schools of Elmira. I am of the opinion that the board of education has exceeded its power in the adoption of the rule objected to by the appellant. The statute authorizes the board to establish rules for the reception of pupils, but not to prohibit the admis- sion of resident pupils within the prescribed ages. The rigid enforcement of this rule would, in some cases, deprive eligible per- sons of school privileges for nearly an entire year. If the board possessed the power in the respect claimed, it might enforce a rule to admit pupils otherwise eligible, biennially. The evil effects resultant from the enforcement of this rule would, without doubt, largely exceed any disadvantages the rule is intended to prevent. But the appeal must be sustained upon the broad ground that the common schools are free to resident pupils between the ages of 5 and 21 years and that the act referred to does not empower the board to adopt a rule to modify this provision of the law. The board of education of the city of Elmira is hereby ordered to admit the daughter of the appellant to the school as a pupil. JUDICIAL decisions: tuition 13 1 7 37915^ In the matter of the appeal of Lowen E. Ginn v. union free school district no. i, of the town of Chateaugay, county of Franklin. A child 16 years of age left Potsdam, where she had attended the Potsdam Normal School, and where her parents reside, with the consent of her parents, to accept a home with a married brother residing in another district. The brother offered the girl a home with him, and the girl accepted the same. Tuition fee for her attendance at the public school has been demanded; held, under the ruling in the case of Thayer recently decided, the girl has become a resident of the district in which her brother resides, and is entitled to the privileges of the school in that district free of tuition. Decided April 27, 1889 Draper, Superintendent This is an appeal from the action of the respondent in refusing to permit a sister of the appellant to attend school in said district without the payment of tuition fees. The appellant is a taxpayer in the district, and a married man with an infant child. The sister alluded to is 16 years of age. Their parents reside at Potsdam, in the county of St Lawrence. The girl has, until recently, been an attendant upon the Potsdam Normal vSchool. With the consent and approval of her parents, she has gone to reside with her brother at Chateaugay. The brother swears that he has offered her a home. The sister swears that she has accepted the same. Their mother swears that the arrangement is by the consent and approval of their parents. Nothing is offered on th.e part of the respondent to disprove these facts. Moreover, it is not likely that the girl left Potsdam to live in Chateaugay for the purpose of getting the advantage of improved school facilities. I think the circumstances bring this case within the rule laid down in the case of Thayer, recently decided in the same district, and must, therefore, sustain the appeal and direct the board of education to extend to the girl the advantages of the public school in the district. 4850 In the matter of the appeal of George L. Abbott v. board of education of school district no. 9 city of Coming. Steuben county. This Department holds that where a child resides in a city of school district other than that in which his parents reside, for the purpose of finding a home with relatives, or for any other sufficient cause, and the school in the city or district is but an incident of such residence, such child is entitled to attend the school in such city or district without payment of tuition; but when such residence is for the main purpose of enabling the child to enjoy the advantages of the school in that locality, them the right of such child to attend such school is a matter within the discretion of the school officers, and under section 36 of title 7 of the Consolidated School Law of 1894, is subject to the payment of such tuition as such school officers may impose. Decided April 9, 1900 ■ Sebring & Cheney, attorneys for appellant Page, TuUy & Ferris, attorneys for respondent 'd 1 8 THE UNIVERSITY OF THE STATE OF NEW YORK Draper, Superintendent This is an appeal from the decision of the board of education of school dis- trict 9, city of Corning, Steuben county, in excluding one Nellie M. Clayton from the schools of such district unless tuition for her attendance therein shall be paid. The usual pleadings have been filed in this case by both parties. It is contended by the appellant that said Nellie M. Clayton is entitled to attend the public school of such district without the payment of tuition on the ground that she is, and since September 1899, has been a member of his family residing with him in said district, while on the part of the respondent it is con- tended that said Nellie M. Clayton is not a resident of the school district and is therefore not entitled to attend the public school therein without payment of tuition. The proofs in this case show that the said Nellie M. Clayton is 15 years of age, is the child of a deceased sister of the appellant, who died about ten years ago ; that the father of said child now resides in the city of Denver, Colorado ; that in the month of September 1899, the said Nellie took up her residence with the appellant herein in the city of Corning and has since resided with him and is treated in all respects as his daughter, and that the appellant receives no compen- sation for furnishing her a home in his family, but that the same is provided solely because of his affection for the daughter of his deceased sister. It would seem, from the proofs, that at some time since the said Nellie has resided in the family of the appellant he was required to pay tuition for her attendance at the schools in the city of Corning, and that under protest and still insisting that she had a right so to attend without payment of tuition, he did pay a small sum to the board of education of that district, but I am of the opinion that such payment does not stop the appellant from insisting that this child is entitled to attend such schools free. This Department has held that where a child resides in a city or district other than that in which its parents reside for the purpose of finding a home with rela- tives, or for any other sufficient cause, and the school is but an incident of such residence, then such child is entitled to attend the school in that city or district without payment of tuition ; but where such residence is for the main purpose of enabling such child to enjoy the advantages of the school in that locality, then the right of such child to attend such schools is a matter within the discretion of the board of education, and under section 36 of title 7 of the Consolidated School Law is subject to the payment of such tuition as the board of education may impose. I am clearly of the opinion, from the proofs presented in this case, that this child is entitled to attend the public schools in the district where she now resides without payment of tuition. The appeal herein is sustained. It is ordered : That the board of education of school district 9, city of Corning, be, and it hereby is, directed to admit the said Nellie M. Clayton to the privileges of the school under its charge without the payment of tuition. JUDICIAL decisions: tuition 1319 It is further ordered : That said board of education, without unnecessary delay, refund to the appel- lant herein the sum of $7, which the proofs herein establish was paid by him as tuition for the said Nellie M. Clayton on or about February 10, 1900. 3977 In the matter of the appeal of Rosamond L. Houser v. the board of education of union free school district no. 6, town of Manlius, county of Onondaga. Appeal from the action of local school authorities requiring tuition to be paid for a minor for the privilege of attending a public school. It appears that the child had for eight years resided with persons other than its parents, in the district. Held, a legal resident of the district, and entitled to free school privileges. Decided April 21, iSgi Emmons H. San ford, attorney for appellant Draper, Superintendent This appeal is brought from the action of the board of education of union free school district no. 6, town of Manlius, county of Onondaga, in refusing to admit Clarence Hale, a minor living with appellant, to the privileges of the school under its charge, without payment for tuition. The evidence shows that the boy is now 10 years of age, and for the past eight years has resided with appellant in district no. 6. He has been cared for by appellant and her husband, and they have had exclusive control of him. The boy's parents were, until about one year ago, residents of this district, but for the past eight years have exercised no authority or control over him. About one year ago, the boy's parents removed to another district, in consequence of which the board now claims that the boy has become a nonresident of the district and, therefore, properly chargeable for tuition. Tt appears that the appellant expects to retain the custody of the boy until his majority, and the boy's natural parents so understand the fact to be. Xo answer has been interposed. It seems clear to my mind that the boy has been a resident of the district for the past eight years, and continues to be. His residence has not been, and can not now be determined by that of his parents, but rather by the fact that he has actually become a member of the appellant's family by adoption, and subsequent maintenance and place of abode. This is clearly not a case where the child has been brought into the district solely for the purpose of securing school advantages. The appeal is sustained. The board of education of union free school district no. 6, town of Manlius. county of Onondaga, is hereby directed to admit Clarence Hale to the privileges of the public school, free of charge for tuition. 1320 THE UNIVERSITY OF THE STATE OF NEW YORK 3945 In the matter of the appeal of James Brooks and Melvina B. Brooks v. the board of education of union free school district no. 2, town of Ellington, county of Chautauqua. Where the local school authorities determine that a child is a nonresident of the district, their decision will be sustained upon an appeal, unless, by a preponderance of evidence, the contrary is shown to be true. Decided December 30, 1S90 Draper, Superintendent This is an appeal from the action of the respondent in depriving Kate M. Brooks, a grandchild of the appellants, of the privileges of the school in said dis- trict, on the ground that she was not a resident thereof, and because the appel- lants refused to pay tuition. The appellants allege that the parents of the child reside out of the State and are not keeping house, and that she is living with them for an indefinite period with the consent of the parents, and that they have undertaken to provide her with board, clothing and medical attendance. The respondent insists on the other hand, that the parents of the child are abundantly able to provide for her, and that she is only staying at her grand- father's temporarily and for the purpose of attending the school. The papers in the case are voluminous, and the statements of the parties are very conflicting. I have read all that has been said on each side, with- care. No question is more difficult to determine than that of residence, for it turns upon the intent and purposes of interested parties. The determination of the trustees to the effect that the child is a nonresident, must be upheld unless it is shown by a preponderance of evidence that the contrary is true. After considering all that the appellants say in this case, I find myself unable to believe that this child has come to live with her grandparents permanently. There are numerous indications that that is not the fact. At all events the appel- lants fail to make out a case which would justify me in overruling the action of the trustees. The appeal is, therefore, dismissed. 4536 in the matter of the appeal of Joseph S. Tiernan v. board of education of union ■free school district no. i of the town and village of Camden, Oneida county. The consent by parents that their minor son may be employed for an indefinite term of time by a person is not an emancipation of such minor son from their parental control but only a consent revocable at their pleasure that such minor may perform services JUDICIAL DECISIONS : TUITION I32I for such person. The residence of such minor with such person in a school district other than that in which his parents reside docs not entitle him to attend school in the district in which his employer resides free. Decided March 9, 1897 George J. Skinner, attorney for appellant A. C. Woodruff, attorney for respondent Skinner, Superintendent This is an appeal by the appellant in the above-entitled matter from the decision of the respondent therein, refusing to permit one Thomas Rourke to attend the school in union free school district no. i of the town and village of Camden, Oneida county without the payment of tuition. The main ground of this appeal, on the part of the appellant, is that said Kourke resides in such district and is entitled to attend the school therein free. The respondent has answered the appeal and alleges that said Rourke is not a resident of said district and, under its rules, is required to pay tuition. The respondent alleges that the appellant is not the real party in interest, and is not injured by its decision in refusing to permit Rourke to attend the school without payment of tuition, and the appeal herein should be dismissed. It also contends that the appeal herein should be dismissed upon tb.e ground that the appeal herein was not brought within thirty days after the rendering of the decision complained of, and that appellant has failed to state in his appeal any excuse for such delay, as required by the rules of practice relating to appeals taken to the State Superintendent of Public Instruction. It appears from the papers filed in this appeal, that the appellant is the pastor of St John's church in the village of Camden; that Thomas Rourke is a minor who was 18 years of age in June 1896; that the parents of said Rourke are living and reside in the town of Amboy, Oswego county, upon a farm; that said Rourke was somewhat delicate in health and did not desire to work on the farm, and on or about February 4, 1896, an arrangement was entered into between the appellant and Rourke, with the consent of the parents of Rourke, by which Rourke was to w^ork for the appellant in Camden and receive for such work his board, lodging, clothing and v/ashing from appellant, and a salary for services performed by Rourke as sexton. It does not appear that anything was stated by any of the parties to the arrangement in relation to Rourke's attending school, and it is not alleged by the appellant that he ever agreed to send Rourke to school or to permit him to attend school, or to furnish Rourke his schooling, or to educate Rourke. The appellant not having agreed to send Rourke to school or to educate him, I fail to see how he is injured by the respondent refusing to permit Rourke to attend the school free, on the ground that ho was not residing in the district, and in demanding payment of tuition. Under the rulings of this Department no person can sustain an appeal unless he is aggrieved, that is, injured in his rights by the act or decision of which he 1322 THE UNIVERSITY OF THE STATE OF NEW YORK complains. There should be some real grievance, some positive and serious injury sustained, to justify a resort to this Department for redress. Appeals will be dismissed when the real party in interest is not represented. It appears that the appellant is not the real party in interest. Admitting, for the purpose of argument only, that the appellant has sustained some positive and serious injury, the contention of the respondent that the appeal herein was not brought within the time required by the rules and practice relating to appeals to the State Superintendent of Public Instruction, is well taken. It appears that the said Rourke commenced to attend the school in Camden on February 4, 1896; that on that day he filled a registration card in which he stated his name, and his age as 17 years; that he was a nonresident; that his parent or guardian was James Rourke, whose post office address was Williamstown, N. Y., and delivered the card to the acting principal ; that a short time after such delivery of the card he requested the acting principal for permission to correct the statements on the card, and was informed by such principal that he could not let Rourke have the card, and that he would have to report it to the school board; that Rourke was registered as a nonresident pupil and continued to attend the school until the close of the school year 1896-97; that during such term the question of whether Rourke was or was not residing in said district was discussed by, and a corre- spondence had upon the subject between, the appellant herein and the principal and members of the board, and bills for the tuition of Rourke were sent to him, and to his father and to the appellant, but none of said bills were paid ; that when the school opened for the school year of 1896-97 Rourke again attended and continued to do so until on or about September 25, 1896, when the board of education determined and directed, in substance, that he should no longer be per- mitted to attend the school until he had paid tuition therefor to that date, namely : for all prior attendance at the school, and for the first half of the then term of the school, and such determination was communicated to said appellant and to Rourke; that at a meeting of the board of education held on October 5, 1896, one Fitzgerald, a counselor at law, appeared on behalf of said Rourke and another pupil, and upon an affidavit of Rourke, asked the board to admit Rourke to the school as residing in the district and without payment of tuition ; that after dis- cussing the matter such board decided that Rourke should not be admitted to the school except on payment of all tuition in arrears and for the then present term, and not otherwise ; that such decision of such board was promptly cominunicated to said Fitzgerald ; that after such decision of such board Rourke did not attend at the school until the commencement of the winter term, but during such attend- ance he was not received as a pupil but as a visitor, and on about December 11, 1896, was removed from said school by a constable for disturbing the school; that a copy of the appeal herein was served upon such board of education on January 7, 1897, and such appeal, with proof of such service was filed in this Department on January 9, 1897 ; that no satisfactory excuse is rendered in the appeal for the delay in taking such appeal. Admitting, for the purpose of argument only, that the appellant herein is the real party in interest, and that his appeal herein was JUDICIAL decisions: tuition 1323 taken in time, I am of the opinion, upon the facts estabhshcd by the proofs filed herein, that said appeal should be dismissed upon the merits. The burden is upon the appellant to sustain his appeal by a preponderance of proof, and in this he has failed. I rule and decide that said Thomas Rourke was not, on February 4, 1896, nor at any time between February 4, 1896, and January 7, 1897, residing in union free school district no. i, town and village of Camden, Oneida county, within the meaning of the provisions of the Consolidated School Law. The said Rourke was, on February 3, 1896, and on January 7, 1897, and still is, a minor, and his parents are living and residing in the town of Amboy, Oswego county, and for anything that appears in the proofs herein, are able and willing to support, care for and educate their son. Under the laws of this State and the decisions of its courts, parents are under obligation to support their children and are entitled to their services during their minority. They may relinquish this right and authorize those who employ their children to pay them, and such payment will be a bar to a recovery by the parents ; but they may revoke such license and receive the earnings themselves. Residence, domicile and inhabitancy, though not in all respects and for all pur- poses convertible terms, mean generally the same thing. The domicile of a minor follows that of his father, and remains until he has acquired another, which he can not do until he becomes of age. This rule, however, is subject to qualifica- tions if the minor has been emancipated from parental control or adopted into a new family. The law will sometimes imply an emancipation from parental con- trol, as when the father compels his minor child to go abroad to earn his own livelihood, or neglects to support him, or consents that such child may go abroad and earn his own livelihood. The affidavits presented on the part of appellant allege that said Rourke " is a resident " of union free school district no. i of Camden ; that his parents have " emancipated " him from their parental control, etc. These statements are merely the conclusions of the respective affiants and they do not state facts that authorize such conclusions. The understanding or agreement alleged by the appellant was made between the appellant and said Rourke only, and is one of hiring for an indefinite term of time, and revocable at any time by the parties thereto or any one of them. The consent of the parents thereto was simply a bar to recovery by them for the services performed by their minor son for the appellant, unless their consent to such employment should be revoked by them. The proofs herein fail to show that the parents of Rourke have emancipated him from their parental control, that is, consented that he may go abroad generally, and earn his own livelihood, or in the common phrase, " given him his time " ; but their consent was that he might be employed by the appellant. The proofs herein do not establish an adoption of said Rourke by the appel- lant, nor that the appellant stands in the relation of either a parent or guardian to Rourke; on the contrary their relations are that of master and servant. 1324 THE UNIVERSITY OF THE STATE OF NEW YORK It appears from the affidavit of Mrs. D. D. Van Allen, the preceptress in said union free school, that in the month of January 1896, said Rourke came to such school to try the Regents examination; that in conversations had between the appellant and principal, D. D. \ an Allen, in January 1896, which Mrs Van Allen overheard and in which she took part, the appellant stated that Rourke was com- ing to Camden to attend the school and get an education, and asked both Mr and Mrs Van Allen to look after him. The appellant does not deny such allegations of Mrs Van Allen. It further appears that Rourke came to Camden on February 3, 1896, and on February 4, 1896, entered such school and continued to attend the school until the close of the school year 1895-96 notwithstanding his agreement to perform labor and services for the appellant ; that a bill for the tuition of Rourke was sent to his father, and his mother, as stated by her in an affidavit filed herein, without the knowledge of her husband, not wishing to be made any trouble and fearing that there would be trouble if the bill was not settled, handed $7 to the appel- lant herein with the request that appellant pay said bill of tuition, and she was informed by appellant that it was not necessary to pay tuition on account of Thomas, as he was a resident pupil, and thereupon with her consent, the $7 was applied by appellant upon pew rent; that at several times in the fall and winter of 1895 the father of said Rourke, in conversation with one Flenry S. Owens, stated that " he was going to send his son Thomas away and give him an education as that was about all he could do for him." It does not appear that the father of Thomas Rourke was iniable pecuniarily to educate his son, and it does appear that he was willing to give him an education. It appears that notwithstanding the services to be performed for appellant, said Rourke was able to attend the school in Camden, substantially as regularly as though he was but a boarder in the home of the appellant. I am of the opinion that the purpose for which said Rourke came to Camden in February 1896, was to attend the school in union free school district no. I of the town and village of Camden, and not for the purpose of procuring employment by which to support himself. The appeal herein is dismissed. 4855 In the matter of the appeal of Fred D. Carr v. board of education of school district no. 9, city of Corning, Steuben county. Where a minor has been emancipated by his parent or parents from parental control or with the consent of his parent or parents has been adopted into a new family such minor may elect in what school district he may reside and thereby becomes entitled to attend the school in such district without payment of tuition. Decided April 13, 1900 E. C. English, attorney for appellant Page, Tully & Ferris, attorneys for respondent JUDICIAL decisions: tuition 1325 Skinner, Superintendent This is an appeal from the decision of the board of education of school district 9, city of Corning, Steuben county, in refusing to permit the appellant to attend the schools of such district without the payment of tuition. The pleadings herein consist of the appeal, answer of the board of educa- tion, and reply of the appellant. The contention of the appellant is that since September i, 1898, he has resided in said school district, and is entitled to attend the schools therein without payment of tuition. The contention of the respondent is that the appel- lant, since September i, 1898, has not resided in said school district and, there- fore, is not entitled to attend the schools therein without payment of tuition. The proofs filed herein show that the appellant is between 17 and 18 years of age and his father is now residing in the town of Southport, Chemung county; that in the year 1898 the father of the appellant resided in the town of Caton, Steuben county; that in the summer of 1898 the father of the appellant emancipated the appellant from his parental control, and thereupon the appellant took up his residence with his uncle, Charles A. Carr, in the city of Corning, and in school district 9 of said city; that in the fall of 1898 the said Charles A. Carr was appointed by the surrogate of Steuben county, the general guardian of the appellant; that in the fall of 1899. by reason of the sickness of his said uncle and aunt, the appellant commenced boarding at the house of ^^Irs H. H. BVazee, 15 East First street in said city and school district; that the appellant commenced to attend the school in such district on or about December 6, 1896, and on December 5, 1899, he was informed by the superintendent of schools of said district that the board of education wished him to say to appellant that it will treat the appellant as a nonresident, and payment of tuition must be made; that E. C. English, the attorney of the appellant herein, on December II, 1899, paid the sum of U-S^, and on February 5, 1900, the further sum of $4.50 for tuition of appellant, both of said sums being paid under protest. The courts of this state hold that the residence of a minor is that of his parents or parent, if Hving, unless such minor has been abandoned by his or her parents and compelled to support himself or herself, or unless such minor has been emancipated from parental control, or, with the consent of the parents, the minor has been adopted into a new family. I am clearly of the opinion, from the proofs established in this appeal, that the appellant was, in the summer of 1898. emancipated by his parents from their parental control; that the appellant had thereupon the legal right to elect where he should reside, and in the fall of 1898 became a resident within school district 9. of the citv of Corning, and is still a resident therein. I am also of the opinion that the payment, under protest, to the respondent of the aggregate sum of $9, on demand of the respondent for tuition, does not estop the\ppellant from insisting that he is entitled to attend such school free. The appeal herein is sustained. 1326 THE UNIVERSITY OF THE STATE OF NEW YORK It is ordered : That the board of education of school district 9, city of Corning, be, and hereby is, directed to admit the appellant, Fred D. Carr to the privileges of the schools under its charge without the payment of tuition. It is further ordered : That said board of education, without unnecessary delay, refund to the appellant herein, or to his attorney, E. C. English, the sum of $9 which the proofs herein establish was paid to it as tuition for the appellant in December 1899 and February 1900. 4460 In the matter of the appeal of Franklin D. Morgan and another v. board of education of union free school district no. 4, town of Winfield, Herkimer county. Where a minor, with the consent of her father, resides with a family in a school district such residence with such family, being in accordance with the request and wish of her deceased mother, held that it is not a temporary arrangement in order to secure the advantages of the school in the district, but on the contrary is intended to be per- manent, and, under a long line of decisions of this Department, such minor is a resident of the school district and entitled to attend the school therein without the payment of tuition. Decided June 24, 1896 J. D. Beckwith, attorney for appellants Smith & Thomas, attorneys for respondents Skinner, Superintendent The appellants in the above-entitled matter appeal from the action and decision of the respondents in refusing to admit one Mary L. Lane, a child of school age residing with the appellants, into the school of imion free school dis- trict no. 4, town of Winfield, Herkimer county, without the payment of tuition. From the papers filed herein the following facts are established: That the appellant, Franklin D. Morgan, is a resident of union free school district no. 4, town of Winfield, Herkimer county, and a freeholder and taxpayer therein, and the appellant, Rose R. Morgan, is his wife ; that prior to August 28, 1895, there resided in South Framingham, state of Massachusetts, one Charles D. Lane and his wife Hulda Lane and a daughter Mary L. Lane, then about ii years of age, and another daughter older than said Alary ; that prior to said August 28, 1895, said wife of Charles D. Lane was ill, and informed the appel- lants that if anything happened to her, and her little girls became motherless, the appellants were to have said Mary as their own ; that said Hulda Lane there- after died, and on August 29, 1895, said Mary came to the residence of the appel- lants in said school district to reside with them, and still is residing with them; that on August 28, 1895, said Charles D. Lane, the father of Mary L. Lane, JUDICIAL decisions: tuition 1327 executed and delivered to the appellants herein a paper of which the following is a copy, namely : " South Framingham, Mass., August 28, i8i;5. This is to certify that I, Charles D. Lane, father of Mary L. Lane, do give to F. D. Morgan and wife said ]\Iary L. Lane, for the sole purpose of making a home for said child so long as it may be satisfactory to all parties concerned; said F. D. Morgan and wife to maintain, support and care for her as their own child, and her relatives not to interfere at all in regard to the same. Charles D. Lane." That since said August 29, 1895, the said Mary L. Lane has resided with the appel- lants, and has made her home with them, and has been maintained, supported and cared for by them as their own child, and they intend in good faith to main- tain, support and care for her in the future as their own child ; that the said Mary did not come into said district for the purpose of attending the public schools therein, and that appellants are abundantly able to properly maintain, support and care for her; that during the most of the time the said Mary has so resided with the appellants, and until about May i, 1896, she has attended the school in said district free; that on or about the last Saturday of April 1896, the respondent herein, at a meeting, passed a resolution to the effect that said Mary L. Lane be refused admission to the public schools in said district gratuitously, and thereafter, and on or about Wednesday of the following week the president of the respondent notified the appellant of said action of respondent, and that the said Mary would be sent home from school the next morning unless her tuition was paid, and thereupon the appellants kept her at home and brought the appeal herein. Annexed to the answer of the respondent are the affidavits of Z. L Downing and Ann Thomas. The said Downing alleges that in or about the month of December 1895, or January 1896, he had a conversation with the appellant. Rose R. Morgan, in which she said to him that she and her husband had not adopted the said Mar>' L. Lane and did not know as they would keep her, and expected and intended to return her to her father ; that the said Ann Thomas alleges that on or about the month of February 1896, she had a conversation with the said Rose R. Morgan at and in which she said that she and her husband did not intend to keep said Mary much longer ; did not know how much longer she would stay, and did not know whether she would stay a day, week or month, and they expected and intended to return her to her father. The appellants in their reply to said answer denv that they do not intend to keep said Mary with them or make her residence there permanent, and deny, that they contemplate, and have for some time contemplated, returning her to her father, and alleged that they intend in good faith to maintain, support and care for the said Mary in future as their own child, and make a home for her. all of which they are better able to do than is her father; that the appellant. Rose R. Morgan, denies that she said to said Downing that she and her husband did not know as they would keep said ALary and expected and intended to return her to her father, and she denies that in or about the month of Febniary 1896, she stated to Ann Thomas that she and her husband did not intend to keep said Mar>' much longer, but expected and intended to return her to her father. 13-^3 THE UNIVERSITY OF THE STATE OF NEW YORK Annexed to said reply is an affidavit of the said Mary L. Lane, in w^hich she alleges, in substance, that she is 12 years of age, and since August 29, 1895, has lived and made her home with the appellants herein; that during all that time they have cared and provided for her a good, comfortable home and treated her as their own child, and that she came to them with the intention of making her home with them and not for the purpose of attending the public school in West Winfield; that neither of the appellants ever, in any manner, stated to her that they had any thought or intention of sending her back to her father or away from them ; but she has always understood from both of the appellants that she was to make her permanent home with them, and that they regarded her as one of their family and considered her as though she was their own child. In the appeal of Alfred C. Thayer v. board of education of union free school district no. i, Chateaugay, Franklin county, no. 3769, decided by Super- intendent Draper Alarch 23, 1889, he said : " I think the facts as sworn to by the appellant and the girl, and which are not successfully controverted, bring the case within numerous decisions of the Department and entitle her to the privileges of the school. The decisions have always inclined to the side of liberality. If a child of school age moves into a district for the sole purpose of securing the benefits of the school in the district, and intends to remain there temporarily, it is to be deemed a nonresident and required to pay tuition fees. But when it comes into the district to take up its abode permanently therein, even though its parents may be living, it is entitled to the school accommodations of the dis- trict. The residence of a minor child is presumed to be with its parents, but it may be elsewhere with their consent. It is shown that in the present case the child is living with the appellant by and with the consent of her parents, and the proof is strong that it is not a mere temporary arrangement in order to secure the advantages of the school; but, on the other hand, is intended to be permanent. This clearly brings the case within a long line of decisions which would give her the right to attend the school." In the case at bar it is shown that the said Mary L. Lane, a minor, took up her residence permanently on August 29, 1895, in union free school district no. 4, town of Winfield, with the appellants, upon the consent of her father, in writing, and in accordance with the wish and request of her mother, now deceased ; that it is not a temporary arrangement in order to secure the advan- tages of the school, but, on the contrary, is intended to be permanent ; that under that state of facts, which are not successfully controverted by the respondent, she is a resident of said school district, and gives her, under a long line of decisions of this Department, the right to attend the school in said district. The appeal herein is sustained. It is ordered, That the board of education of union free school district no. 4, town of Winfield, Herkimer county, be and it is hereby directed to receive into the school of said district the said Mary L. Lane, a resident of said district, and to the privileges of the schools under the charge of said board free, as other scholars of school age, residing in said district, are received therein under the school law. JUDICIAL decisions: tuition 1329 4526 In the matter of the appeal of Asa L. Orcutt v. board of education of union free school district no. i, town of Bath, Steuben county. Where a minor, for the purpose of attending school in a school district other than that in which his or her parents reside, engages to perform services for his or her board while attending such school, such minor does not become a resident of such school district within the provisions of the school law, so as to entitle him or her to attend the school in such district free. Decided December 31, 1896 Francis E. Wood, attorney for appellant Skinner, Superintendent During the summer of 1896 one John Bulkley, a resident of a school district adjoining union free school district no. i, town of Bath, Steuben county, asked the appellant herein, Asa L. Orcutt, a resident of said union free school district no. I, if he (the appellant) wanted the services of a girl in his family to work for her board and to go to school; that his (Bulkley) daughter, Lizzie Bulkley, desired to go to school, but that he had a large family and could not afford to board her and permit her to attend school, and did not require her services in his family, and wished to find some place where she could enter some family that did need her services, and thus be able to further educate herself as she desired; that he had not been able to find a place within the school district in which he resided where they needed a girl, and would like to have the appellant take her; that the appellant did need the services of a girl in his family, and agreed with Bulkley that his daughter should become a member of his family and render such services as she could; and was to receive support and be per- mitted to attend school in the district; that on or about September i, 1S96, said Lizzie Bulkley came to the family of the appellant under the aforesaid arrange- ment; that on or about October i, 1896, the principal of the school in district no. I informed the respondent herein that Lizzie Bulkley. a nonresident of such district, was living in the family of the appellant, and the appellant claimed that she was a member of his family, and that the respondent had no authority to charge for her tuition; that on November 14, 1896. a committee consisting of two members of the board of education was appointed to inquire into the facts 01 the residence of said Lizzie; that said committee had interviews with tlie appellant, and John Bulkley, the father, and Lizzie Bulkley ; that it was agreed by the three persons that there was no time specified in which Lizzie was to stay with appellant, but only so long as the parties were suited ; that the father stated he could take his daughter away from the family of appellant at any time, and that his daughter could leave such family if she became dissatisfied; that the appellant stated that his wife did not like to stay alone evenings, and that he had to keep some one to stay with her; that upon a report of such facts being made by the committee a motion was adopted by the board of education, the respondent, that Lizzie Bulkley be charged tuition as a nonresi- 1330 THE UNIVERSITY OF THE STATE OF NEW YORK dent pupil of district no. i ; that the sum of $2 was fixed for tuition of said Lizzie for the full term of 1896, and she was notified that on default of the payment of such tuition she would be excluded from the school of the district ; that the appellant paid said sum, protesting against the authority of the respondents to require such payment of tuition. From such action and decision of the respondents the appellant has appealed to me. The respondents have answered the appeal. It is conceded that Lizzie Bvilkley is a minor of the age of 17 years. Under the laws of this State the residence of a minor is that of his or her parents, if living, unless such minor has been emancipated from parental control or adopted into a new family. It is not claimed that John Bulkley has emancipated his daughter Lizzie from his parental control, nor that the appellant has adopted her into his family. Cases have occurred and are likely to occur, in which, from the facts established, a minor may, for school purposes, become a resident in a school district other than that in which his or her parents reside, without any legal emancipation from parental control, or adoption into a new family, but this, under the facts established, is not one of such cases. Under the school law the trustees of school districts must admit into schools of their district all persons over 5 and under 21 years of age residing in their districts respectively, free, and that they may admit pupils residing out of their districts upon such terms as they may prescribe. I decide that Lizzie Bulkley was not, in September, October and November 1896, residing, within the provisions of the school law, in union free school district no. i, town of Bath, Steuben county. The appeal herein is dismissed. 3764 In the matter of the appeal of Charles S. Baker v. the board of education of the city of Jamestown. Public schools should be free to all children of the district to receive any branch of instruction therein for which they are qualified. A practice of allowing a teacher in the school building to furnish instruction to certain children upon the payment of tuition, either to the board of education or to the teacher individually, disapproved. Decided February 16, 1889 Draper, Superintendent The appellant alleges that, for many years heretofore, the board of educa- tion of Jamestown has charged tuition fees to resident pupils in the academic department of the public schools; that, at the beginning of the present year, this practice was discontinued except as to the commercial department, and music, drawing and painting; that, since the beginning of the winter term of JUDICIAL decisions: tuition 1331 1888-89, the board has furnished instruction in bookkeeping free to resident pupils who learn their lessons and do their writing outside of the commercial rooms, going to said rooms for recitation only ; but that to pupils who have the use of the rooms, the supervision of the teacher and all the facilities of the commercial department, a tuition fee of $5 per term is charged. He then alleges that his son, Henry S. Baker, a boy 14 years of age, applied for admis- sion to the commercial department on or about the 4th day of December 1888, and was denied admission unless the tuition fee for the previous term was first paid. He thereupon appeals from this refusal and asks that the board be directed to admit his son to the privileges of the commercial department free of cost. The appellant submits a pamphlet containing the annual report of the board for the year 1887-88, together with its announcement for 1888-89 which, upon page 65, announces that a charge for tuition will be made against resident pupils for certain branches, including the commercial department. The board of education, in answer, admit that the appellant is a resident of Jamestown and sends children to school, and that tuition fees have been charged to residents in the academic department previous to the present year, since the beginning of which the practice has been discontinued. They deny that they have charged any fees against resident pupils for instruction in the commercial department or in music, drawing or painting during the present school year. They allege broadly that no charge is now made against resident pupils for instruction in any of the departments of the schools. They specifically deny that Henry T. Baker has been refused admission in the commercial depart- ment, and allege that during the present school term he has at all times been free to avail himself of all the privileges of said department without charge for tuition, and without any condition imposing the payment of tuition for any previous term. The board in their answer furthermore say that, since 1865, it has been customary to charge tuition fees against all pupils in the academic department; that they supposed they had a legal right to do so ; that the practice was never questioned until the last summer; that they have since investigated the matter and have been advised that they have no such right, and that accordingly the practice has been discontinued ; and that the announcements for the year 1888-89 were made before that conclusion and determination was arrived at. The board also say that they have allowed the teacher in bookkeeping to receive and instruct private pupils in bookkeeping, and other studies pursued in the commercial department, and that this has been done in the school building, and that they have allowed said teacher to collect pay for such special services. I have been particular to state the claims of the parties fully. There is really no conflict among them, if we assume that Mr Baker believes that what the board says is private, and sj^ecial instruction in bookkeeping is a part of the regular instruction of the school. T have no doubt of the bad policy of thus permitting the use of schoolrooms for private work, and have but hltle 1332 TITF. tTNIVERSITY OF THE STATE OF NEW YORK doubt of it being an exercise of power by the board in excess of their legal right. Any such proceeding must inevitably lead to misunderstandings and complications, of which the one now presented is but an illustration. The board is correctly advised and has acted wisely in discontinuing the old practice of charging tuition fees against resident pupils in certain departments or branches of study. The law does not intend that public school officers shall maintain any branches of study not free to all resident pupils qualified for receiving instruction therein. It will be well to remove the last vestige of the system which has heretofore obtained in Jamestown by discontinuing even the present practice, to which allusion is made. The allegations of the board fully and completely deny those of the appellant. He has been misled. To succeed in his appeal upon the state of facts which he now presents, it would be necessary for him to show that the special instruc- tion to ^^■hich reference is made, and which is denied to his son, was maintained at public expense. This he does not, and probably can not, do. The appeal is dismissed. UNION FREE SCHOOL DISTRICTS DIVISION, DISSOLUTION 5193 In the matter of the appeal of Paul King a resident taxpayer of union free school district no. i of the towns of Hadley and Luzerne, Saratoga and Warren counties, from the decision of the board of education of said district in refusing to call a special meeting. The principle that a majority shall rule applies to school district affairs. When a majority of the voters of a school district have fairly and legally determined the course to be pursued in the management of its affairs it is the duty of the minority to gracefully acquiesce in such determination and to render such assistance as shall promote the educational interests of the entire district. The state is directly interested in every school within its borders. It can not consent to the destruction of a strong efficient school, meeting fully the needs of a community for the purpose of establishing two of inferior grade neither of which does meet such needs. Decided July 17, 1905 William T. Moore, attorney for appellant Frank Gick, attorney for respondents Draper, Commissioner On June 13, 1905, the appellant herein and fifteen other resident taxpayers of this district petitioned the board of education to call a. special meeting of the district to determine whether application shall be made as provided by law for the dissolution of said union free school district. The board of education, at a meeting held June 25, 1905, refused to call the special meeting prayed for in such petition. Section 32 of title 8 of the Consolidated School Law provides that it shall be the duty of a board of education to call such special meeting when application therefor, signed by fifteen resident taxpayers of the district, is presented. At such meeting the proposition to dissolve must receive a two- thirds vote of those present and voting. If such proposition received the required two-thirds vote a certified copy of all the proceedings must be filed with the school commissioner having jurisdiction. The school connnissioner possesses discretionary power in apprr)ving such proceedings. If he refuses to approve the proceedings the district can not be dissolved and another meeting of the district can not be called for such purpose within a period of three years. If the commissioner ap])roves such proceedings and the district is dissolved the v.hole matter, on api)cal. may be reviewed by the Commissioner of Education who mav affirm the action taken or set such action aside and restore the union free school district. [1333I 1334 THE UNIVERSITY OF THE STATE OF NEW YORK A union free school district has decided advantages over a common school district. A union free school district may establish an academic department. A common school district can not establish such department. A union free school district of sufficient school population and sufficient taxable property to maintain an academic department should not be permitted to dissolve unless some sub- stantial reason exists for taking such action. This district has 246 children of school age according to its report for the year ending July 31, 1904. During the same year it had an enrollment in its schools of 237 pupils. Its assessed valuation is $267,350. The district, therefore, has sufficient strength numerically and financially to maintain a good school of academic grade. During the past year the district has authorized an expenditure of $23,300 for the purchase of a nev^ site and the erection of a new schoolhouse. A district liability has been incurred in the purchase of a site which would create an embarassing condition to say the least if the district should be dissolved. The truth is that the desire to dissolve this district is of recent origin. No thought of such action, no necessity for it, could have existed until recently or the district within the current school year would not have appropriated $23,300 for a new site and a new building. This union free school district was organized a few years ago by the consoli- dation of two common school districts. The Hudson river was the dividing line between these two districts and therefore divides the present union free school district into two parts. The union free school district also contains two villages. On one side of the river is the village of Hadley and on the other side of the river is the village of Luzerne. The board of trustees consists of seven members. Four of these reside in Luzerne and three in Hadley. The Luzerne portion of the district has the greatest population. Each of these two villages wanted th« schoolhouse site located within its boundaries. A site was designated by a special meeting on the Luzerne side of the river. The Hadley portion of the district was dissatisfied with this action. A long and bitter con- troversy, detrimental to the social and educational interests of the community, has been the result. Owing to this controversy five appeals have been brought to this Department within the last year. The principle that a majority shall rule applies to school district affairs. When a majority of the voters of a school district have fairly and legally deter- mined the course to be pursued in the management of its affairs it is the duty of the minority to gracefully acquiesce in such determination and to render such assistance as shall promote the educational interests of the entire district. So many appeals have been before me from*this district during the past year that all phases of the school troubles therein are thoroughly understood. It is my desire to settle all these questions without delay and in the hope that the people of this community shall work harmoniously to build up a strong school instead of trying to destroy the efficiency of the one they now have. In view of the information which this Department possesses we may reason- ably conclude that it is impossible to obtain a two-thirds vote in favor of the JUDICIAL decisions: union free school districts 1335 dissolution of this district. It is quite improbable that even a majority vote can be obtained in favor of such proposition. If a two-thirds vote should be obtained' in favor of dissolution it would be in direct opposition to the best educational interests of the district and should not be permitted. In the man- agement of their local affairs school districts should be accorded the greatest independence possible and consistent with sound educational policies. The State is directly interested in every school within its borders and it encourages every locality to maintain a school of the highest grade possible. It can not consent to the destruction of a strong efficient school, meeting fully the needs of a community, for the purpose of establishing two of inferior grade, neither of which does meet such needs. The contention of the respondents that the petition for a special meeting was not presented in good faith but for the purpose of delaying action in the erection of a new building and for complicating the situation as much as possible appears to be sustained. Taking all the conditions prevailing in this district into consideration I think the board of education acted entirely within their legal rights and in accordance with the best educational interests of the district and of the state, in refusing to call the special meeting for which petition was filed. The board should be, and is, sustained. The appeal herein is dismissed. 3526 Joseph C. Parks, Edgar Brown, Amasa Bates, Richard J. Robinson and William J. Cooper, as trustees and members of the board of education of union free school district no. 6, of the town of North Greenbush v. an order of Lewis N. S. Miller, school commissioner, dated January n, 1886. and from an order of said school commissioner, together with Thomas J. Neville, supervisor, and John J. Sullivan, town clerk of the town of Greenbush, dated January 30, 1886, dividing the territory and altering the boundaries of said district. A school commissioner possesses the power to alter or change the boundaries of a union free school district. In the absence of proof to the contrary, the presumption is that the commissioner acted with sound discretion and for the educational interests of the territory affected, by an alteration of school district boundaries. Decided September 2, 1886 Draper, Superintendent This is an appeal from an order of Txwis N. S. Miller, school commissioner of the second district of Rensselaer county, made upon the nth day of January 1886, whereby a portion of union free school district no. 6. of the town of Xorth Greenbush, was set off from said district no. 6, and attached to district no. 2 (which is a common school district) of the town of Greenbush, and also from an 1336 THE UNIVERSITY OF THE STATE OF NEW YORK order of the said school commissioner and the supcnasor and town clerk of the town of Greenbush, made upon the 30lh day of Januar}^ 1886, to the same effect as the first mentioned order. There are two distinct questions in this case : 1 Whether a school commissioner has the power to alter or change the boundaries of a union f re^ school district ; and 2 If he has the power, whether it was properly and judiciously exercised in this case, so as to promote the best interests of education in the locality affected The power of a school commissioner to alter a union free school district is earnestly contested by the appellants. It was ably urged upon the argument that by enacting the legislation providing for the formation and organization of union free schools, and for the government thereof, and particularly in the enactment of chapter 210 of the Laws of 1880, providing for the dissolution of union free school districts, the Legislature showed its intention to leave it altogether to the residents of the district, to determine whether or not they would have a union free school district, and also to deprive school commissioners from exercising over these districts the powers which they possess in relation to common school districts. The question is an important one. Altliough I find cases where the Department has sustained commissioners in making orders affecting the bound- aries of union free school districts, and one case, at least, where the Department has overruled a commissioner in refusing to make such an order and directed him to make it, I do not find that the power of commissioners to make the order has been raised before the Department, or that it has ever assumed to determine that question. It has been the policy of the State from its earliest history to confer upon the school authorities the power to divide the territory of the State into districts of such convenient size as would enable the inhabitants of each district to manage tJieir affairs in their own way, subject to the general oversight and supervision of the State Department, and also to alter and modify districts at pleasure accord- ing to the development of the territory or changes in population. By section i of title 6 of chapter 555 of the Laws of 1-864, the duty of making such divisions and alterations is imposed upon the school commissioners in their respective commis- sioner districts. The statutes, providing for the changing of common school districts into union free school districts, leave it to the inhabitants of any district so laid out, or of adjoining districts cooperating together, to determine whether or not they will establish a union free school, and become a union free school district, and, upon their determining to do so, they are invested with certain enlarged powers and privileges. The purpose of this is obvious. The union free school system contemplates and provides for a school of high grade with an academic department. The management of such a school requires a system more complex than that of a common school district. The people who desire, and set up such a school, are ordinarily the people to be safely intrusted with the complex machinery requisite to the management thereof. It evidently was the intention of the Legislature to enable the inhabitants of any locality to establish JUDICIAL decisions: union free school districts 1337 schools of a grade and character suited to their circumstances and wants, and to invest such inhabitants with the powers necessary to the government of such schools, but the statutes which do this contain no suggestion of an intention to modify the general and long settled regulations for the division of all the terri- tory of the State into districts of such size and form as the authorities charged with the general supervision of education should deem best adapted to promote the interests of the same. The act providing for the dissolution of union free school districts is urged by the appellants as a legislative construction of the statutes providing for the formation of such districts. It is said that if school commissioners possess the power to change the boundaries of union free school districts, then there was no legislative act necessary to enable them to dissolve such districts. I do not think so. The power to regulate the shape and size of a district is distinct from the power to determine the grade of the schools, and the system of government within the district. The first power is with the commissioner, the last with the inhabit- ants of the district. Of course, both must act pursuant to law. The act for the dissolution of union free school districts is only to enable them to change back from a union free school, and its system of government to a common school district, and its way of doing business. It does not touch the subject of bound- aries. It was an essential element in the general plan to enable any district to have the kind of school government it wants. Without it the people who had voluntarily determined to organize a union free school would be enabled to get rid of such system, even after they had demonstrated, by experiment, that they could not successfully maintain it. To obviate this difficulty, and to make the plan complete, chapter 210 of the Laws of 1880 was enacted. To hold that school commissioners have not the power to divide or add to a union free school district would be to change the entire policy of the State from its earliest history, in reference to the school district system. It is not conceivable that the Legislature would have expressed its intention to do this by the use of any equivocal language, or that it would have left the authority for so important and far-reaching a step to rest only upon inference or implications; I am, there- fore, constrained to hold that the commissioner making the order appealed from iai this case had the power to make it. This precise question has been before the courts in this State. In the case of The People, etc., ex rel. the board of education of union free school district no. 2, town of Onondaga v. James W. Hooper, school commissioner, etc., one of the ablest of our general terms in a well-considered opinion delivered by the pre- siding judge, held that the school commissioner possessed the power to alter or divide a union free school district. Having arrived at the conclusion that the commissioner had the power to make the order which he did. and knowing of no objection being raised as to the regularity of the proceedings, the only (luestion remaining is as to whether the commissioner acted with sound discretion and for the educational interests of the territorv affected. It is to be presumed that he did so act, in the absence of proof 1338 THE UNIVERSITY OF THE STATE OF NEW YORK clherwise. There is no such proof. On the contrary, a careful examination of the papers and exhibits submitted, makes me of the opinion that the educational interests of the district affected will be best subserved by upholding the order of the commissioner for the following considerations : 1 The district affected lies wholly in the town of Greenbush. Heretofore it has been connected with a district, the balance of which lies wholly in the town of North Greenbush. The order of the commissioner attaches this portion to a district lying wholly in the town of Greenbush. The best results have not been attained in districts lying in different towns, and it has always been the policy of the State to encourage the formation of districts so far as may be, within the limits of a single town. A marked illustration of the unwisdom and indeed fre- quent injustice of disregarding town lines in the formation of school districts is found in the present case. The assessed valuation of real estate in the town of Greenbush is shown to be at full value, while in North Greenbush such valuation is only 48 per cent of the real value. The result of this is that the people in the territory now set off have been taxed for the support of the schools more than twice as much as their neighbors in the same school district. 2 The schoolhouse in the district to which the territory in cjuestion has been annexed is nearer and more conveniently located to the inhabitants of the dis- trict than is the schoolhouse in the district from which it is set off. 3 The evidence shows that the people in the district affected desire to be set off as ordered, and it is the duty of the school authorities to respect such desire so far as reasonably practicable. In view of these considerations, the appeal must be dismissed, the stay of proceedings granted by me upon the 29th day of April 1886, must be revoked, and the orders respectively appealed from affirmed. 5460 In the matter of the appeal of David C. Warner and another from the acts and decisions of the board of trustees of the village of Endicott and Erwin B. Whitney, school commissioner for the second district of Broome county. Division of union free school district. It is only where the entire territory of a village is within a union free school district that the board of trustees of such village is authorized by subdivision i of section 130 of the Education Law of 1909 to call a special meeting of the electors of such village to determine whether such village shall be separated from another village and established as a union free school district. Such section does not apply to the village of Endicott. Decided June 23, 1910 Thomas A. McClary, attorney for appellants Frank M. Hays, attorney for respondents Draper, Commissioner The appellants are members of the board of education of union free school district no. i, town of Union. Such district comprises nearly the entire portion of the territory of the incorporated villages of Union and Endicott. The trustees of JUDICIAL decisions: union free school districts 1339 the village of Endicott called a special meeting of the voters of such village to determine whether that portion of such union free school district comprising such village should not be separated from such district and form a separate union free school district with limits corresponding with the limits of such village. Such meeting was duly held and a proposition in favor of such separation was adopted. The school commissioner of the second commissioner district of the county of Broome thereupon called a special meeting of the new district to elect members of a board of education for such district. The appellants appealed from the action of the trustees in calling such special meeting and also from the action of the school commissioner in calling a special meeting for the election of members of the board of education of the new district. The only question involved in this appeal is as to the interpretation of sub- division I of section 130 of the Education Law as amended by chapter 140 of the Laws of 1910. It is agreed by both the appellants and respondents that the entire territory of the village of Endicott is not within the union free school district no. I. A small portion of the territory of the village is within school district no. 2 of the town of Union. The respondents contend that the portion without the district is so small that it would be unjust to compel a strict com- pliance with the terms of the statute. The statute provides that "' the board of trustees of any village whose entire territory is within such district may call a special meeting of the voters " to determine as to whether such village shall be separated. It is only where the entire territory of the village is within a school district that the board of trustees of such village may call such a special meeting. In the absence of a compliance with these requirements the board of trustees has no jurisdiction. It is not sufficient to show that there has been a substantial com- pliance with these requirements. It must be held that the section referred to does not apply to the village of Endicott and that therefore the action taken by the trustees of such village, and the subsequent action by the school commissioner, were illegal. The appeal is therefore sustained. It is hereby ordered, That all the acts of the board of trustees of the village of Endicott in calling a meeting of the electors of such village to determine whether such village shall withdraw from union free school district no. i, town of Union, and form a separate union free school district and the acts of the special meeting held for that purpose on the 7th day of May 1910 in voting upon a proposition to separate from such union free school district and form a new union free school district, are hereby set aside and declared of no effect. It is hereby further ordered, That all the acts of Erwin B. Whitney as school commissioner of the second commissioner district of Broome county, in designating such village of Endicott as a union free school district no. 19 of the town of Union, and in calling for a special meeting of the inhabitants of such union free school district no. 19, town of Union, for the purpose of electing a board of education for such district, and the acts of the meeting of the electors of such district held on the 2d day of June 1910, in electing members of a board of 'education of such district and in transacting other business at such meeting, are hereby set aside and declared of no effect. 1340 THE UNIVERSITY OF THE STATE OF NEW YORK 4381 In the matter of the appeal of Charles H. Brown v. Walter S. AUerton, school commissioner, first commissioner district Westchester county. In an appeal taken from the action of a school commissioner vacating a preliminary order made by him for the alteration of two union free school districts by setting off certain territory from one of the districts and annexing it to the other, it appearing that one of said districts had an outstanding bonded indeljtedness ; held, that the commissioner properly vacated his preliminary order, the school law prohiljiting him from altering or dividing any school district that had a bonded indebtedness outstanding. Decided October 2, 1895 William P. Fiero, attorney for appellant Jared Sand ford, attorney for respondent Skinner, Superintendent On April 27, 1895, Walter S. Allerton as school commissioner of the first commissioner district of Westchester county, made upon application by petition, a preliminary order, setting off certain lands and territory therein described, from union free school district no. 3, town of East Chester, Westchester county, annexing the same to union free school district no. 2, town of East Chester, Westchester county ; that the trustees or board of education of said district no. 3, refused to consent to said alteration; that said order was not to take effect as to said district no. 3, until the 31st day of July 1895; that on May 20, 1895, after a hearing had been had, said commissioner vacated said preliminary order made by him on said April 27, 1895. The main ground on which said commissioner set aside said order of April ~7> i895> was that as said district no. 2 has a bonded indebtedness outstanding, amounting to several thousand dollars, under the school law such district could not be altered or divided. The appellant, Brown, appealed from said order of May 20, 1895. John Fisher and others, members of the board of education of union free school district no. 3 have answered said appeal. The fact is established by the papers presented in this appeal that said union free school district no. 2 had on April 27, and May 20, 1895, a bonded indebtedness outstanding amounting to $4000. By section 30, article 5, title 8, of the Consolidated School Law of 1894, chapter 556 of the Laws of 1894, it is enacted that school commissioners, having jurisdiction, may alter any union free school district whose limits do not corre- spond to those of any incorporated village or city, in the manner provided by title 6 of said act; but no such district shall be altered or divided upon which there is an outstanding bonded indebtedness. Title 6 of said Consolidated School Law of 1894, relates to school districts; the formation, alteration and dissolution thereof. Section 6, of said title 6, enacts that a school commissioner, having juris- diction, may alter the boundaries of any union free school district whose limits JUDICIAL decisions: union free school districts 1341 do I'.-t correspond to those of any city or incorporated village; in like manner as alteration of common school districts may be made as therein provided; but no school district shall be altered or divided which has any bonded indebtedness outstanding. This Department has uniformly decided that the slightest change of the boundaries of a school district is an alteration of said district. Under the preliminary order of April 27th certain territory was set off from said union free school district no. 3, and annexed to union free school district no. 2. Said order, or any order confirmatory thereof, would alter the boundaries of said district no. 3, and would as surely alter the boundaries of said district no. 2. The alteration of the boundaries of said district no. 2 by said school commis- sioner, is prohibited by the provisions of the Consolidated School Law of 1894, above cited, so long as said district has any bonded indebtedness outstanding. Commissioner Allerton very properly vacated his preliminary order of April 2'], 1895. The appeal herein is dismissed, and the order of said commissioner of May 20, 1895, vacating his said preliminary order of April 27, 1895, appealed from, is confirmed. 4253 In the matter of the appeal of Andrew J. French and others, board of educa- tion of union free school district no. 25, Lenox, Madison county v. Lincoln A. Parkhurst, school commissioner, second commissioner district of ]\Iadison county, and others. Where a school commissioner or school commissioners make a preliminary order altering the boundaries of certain school districts without the consent of the trustees of some one or more of the districts, and a local board is held and a hearing had by the parties interested and such local board by a tie vote fails to confirm the preliminary order, said order will be void and of no effect, and the whole proceedings will fall. A pre- liminary order is inchoate and of no effect whatever until confirmed by the local board. The remedy of the parties aggrieved l)y the failure of the local board to confirm the preliminary order, is not by appeal to this Department but by commencing the pro- ceedings anew. Decided June 27, 1894 R. J. Fish, attorney for appellants Crooker, Superintendent On r.nd prior to December 26, 1893, there was a school district known as union free school district no. 25, situated in the town of Lenox, county of Madi- son, and within the second commissioner district of Madison county, of which Daniel Keating was then the school commissioner. There was also a school district known as joint union school district no. 8, situated in the town of \'ernon, Oneida county, and town of Lenox, Madison county, and within said second 1342 THE UNIVERSITY OF THE STATE OF NEW YORK commissioner district of Madison county and the second commissioner district of Oneida county ; that Fred. E. Payne was then the school commissioner in said second commissioner district of Oneida county. That on said December 26, 1893, the said school commissioners, Keating and Payne, made a first or preliminary order upon the consent in writing of the trustees or members of the board of education of said union free school district no. 25, town of Lenox, Madison county, the trustees of said joint union school district no. 8, of Vernon, Oneida county, and Lenox, Madison county, having refused to consent, altering the boundaries of said school district by setting off certain lands described in said order from said joint union school district no. 8, and annexing the same to said union free school district no. 25, said order to take effect on March 27, 1894. That said school commissioners, by a paper signed by them and dated December 28, 1893, addressed to the trustees of said school districts, gave notice to such trustees of said order made by them on December 26, 1893, altering said districts, and of the filing of said order in the offices of the town clerks of the towns of Vernon and Lenox, respectively, and a copy of which order was annexed to said notice; and also notified said trustees that on January 10, 1894, at ten o'clock in the forenoon of that day, at the office of R. J. Fish, in Oneida, in said town of Lenox, they (said commissioners) or their successors, would attend and hear objections to said order and said alterations; said trustees were also notified that they might request the supervisor and town clerk of the town or towns within which their school district did wholly or partly lie, to be associated with said commissioners or their successors at such time and place for the purpose of confirming or vacating said order. That on January 10, 1894, Lincoln A. Parkhurst, school commissioner for the second commissioner district of Madison county, the successor in office of said Keating, one of the commissioners who made said first or preliminary order, and Frederick P. Peirce, school commissioner for the second commissioner dis- trict of Oneida county, the successor in office of said Payne, the other one of the commissioners who made said first or preliminary order, met at the office of said R. J. Fish, in the village of Oneida, and at said time and place also appeared Francis Stafford, supervisor, and R. R. Niles, town clerk of the town of Lenox, Madison county, and James Brown, supervisor, and Ora Judson, town clerk of the town of Vernon, Oneida county, who were associated with said Commis- sioners Parkhurst and Peirce, and together formed a local board to hear objec- tions to the said alterations of said school district, and to decide upon the matter. That said local board heard the statements, proofs and arguments presented upon both sides of the matter, and proceeded to vote upon a motion duly made and seconded, that said first or preliminary order made on December 26, 1893, by said Commissioners Keating and Payne be confirmed, with the following result, namely, Messrs Parkhurst, Stafford and Niles voted to confirm said order and Messrs Peirce, Brown and Judson voted against confirmation. JUDICIAL decisions: union free school districts 1343 The appeal herein is taken by the board of education of union free school district no. 25, Lenox, Madison county, from said action and decision of said local board, and the appellants ask that said first or preliminary order of Decem- ber 26, 1893, be confirmed by me and that the alterations of said school districts as described in said order be made. By title 6 of the Consolidated School Act of 1864 and the amendments thereof the power and authority to form, alter and dissolve school districts are given to school commissioners. The jurisdiction of a school commissioner to form, alter or dissolve school districts extended only over his own commis- sioner district. When it becomes necessary for him to act in this matter over territory extending^ beyond the limits of his conmiissioner district he must act jointly whh the other commissioner or commissioners. Section 2 of title 6 provides that " with the written consent of the trustees of all the districts to be afifected thereby he may, by order, alter any school district within his jurisdiction and fix by said order a day when the alteration shall take efl:'cct." Under this section a school commissioner who has received the written consent of the trustees of all the districts to be afifected may proceed to alter any school district or districts within his jurisdiction by drawing, signing and filing his order, making such alteration or alterations and reciting in such order that such consents have been given, and such written consents should be attached to and made a part of such order. The order made under this section (2) must be filed in the oftice of the clerk of the town or towns in which the school district or districts afifected by such order is or are situated, and said order when so made may take eflfect immediately, or at some future day, as the school commissioner making such order may, in his judgment, consider the best time for all interested. When such an order is made, signed and filed under the provisions of said section 2 the alteration of the school district or districts, as stated therein, becomes operative, fixed and completed on and from the date or period named in said order when it should take eflfect, and said district or districts are in fact and in law altered and changed pursuant to the terms of said order with- out any further order, action or proceeding in said matter by said school com- missioners or any other. A joint district can be altered under said section 2 by the joint action or order of the school commissioners, or a majority of them, in whose districts the school district or districts to be altered lie. Any person conceiving himself aggrieved in consequence of any decision made by any school commissioner by such order as aforesaid, altering any school district or districts, or school commissioners altering any joint school district or districts, under the pro- visions of said section 2, may appeal to the Superintendent of Public Instruc- tion from said order ; and said Superintendent may dismiss the appeal and confirm the order or sustain the appeal and vacate the order. 1344 THE UNIVERSITY OF THE STATE OF NEW YORK If the trustees of any district to be effected refuse to consent to an order by any school commissioner, or of the school commissioners, or a majority of them, in the alteration of a joint district, the course of procedure is different from that under said section 2. (See sections 3 and 4 of title 6, school laws.) Under said sections 3 and 4 the school commissioner or commissioners or a majority of them, may, although the trustees of any such district refuse to consent, make and file with the town clerk or town clerks, his or their order making the alteration, but reciting such refusal, and directing that the order shall not take effect, as to the dissenting districts or district, until a day therein to be named, and not less than three months. As it is impossible, in a great majority of cases, to make the same order take eft'ect at different times, this Department has uniformly held that the commissioner or commissioners should fix a date when the whole order will take effect, which date shall not be less than three months from the date of said order. It will be seen that the object of filing such order is not to put on record a completed act, but to enable interested persons to ascertain the character of the proposed alterations in time to be heard concerning them. After such order is made and filed, it is the duty of the commissioner or commissioners, making such order, to give at least a week's notice in writing to the trustees of all the districts affected by the pro- posed alteration, and such notice must state that he has, or they have, made an order of alteration and reciting such order, and that at a stated time and place within the town in which either of the districts to be affected lies, he or they will hear the objections to the alteration. Section 4 also provides that the trustees of any district to be affected by such order may request the supervisor and town clerk of the town or towns within which such district or districts shall wholly or partly lie, to be associated with the said commissioner or commissioners. Such notice of the time and place of hearing should also inform such trustees that they may request such supervisor and town clerk to be asso- ciated with such commissioner or commissioners. The trustees, having received such notice, may request the supervisor and town clerk of the town or towns in which their respective districts lie to be associated with the commissioner or commissioners at the time and place mentioned in said notice for the hearing of objections, and such request should be in writing and each supervisor and town clerk should present such request with proof of service to the commis- sioner or commissioners, so as to estabHsh their jurisdiction to act. Such commissioner or commissioners and town officers attending form what is com- monly known as the " local board." The absence of the town officers from the board will not prevent the commissioner or commissioners from acting, or invalidate the proceedings taken by him or them at the time fixed for the hear- ing of objections, otherwise regular; but if the commissioner or commissioners do not attend, the town officers are not authorized by law to make any order in the premises, and the preliminary order must fall. If the commissioner or commissioners fails or fail to attend at the time appointed he or they may give notice, specifying another day and place of meeting not later than three months JUDICIAL DECISIONS: UNION FREE SCHOOL DISTRICTS 1 345 aftT the final notice. The proofs and arguments for and against the proposed alteration are to be made before the board, each member of which has a vote upon the question of confirming or vacating the preliminary order of the com- missioner or commissioners, and if they decide by a majority vote to vacate such order the whole matter terminates with such decision, the whole proceed- mgs fall and such preliminary order is void and of no effect. If said board, however, decides by a majority vote to confirm said preliminary order it becomes necessary for the commissioner or commissioners to make and file the final or confirmatory order, or the order of alteration. The hoard does not make the alteration; this the commissioner or commissioners must do, the board uniting with them in the order, such order reciting the first or preliminary order and all proceedings taken thereafter, including the actions of the local board and concluding with the final order or alteration made by the commissioner or commissioners. A record of the action of the local board must be filed with and recorded by the town clerk of the town or towns in which the district or districts to be aft'ected shall lie. It clearly appears that in the alteration of school districts, under sections 3 and 4 of title 6 of the school law (that is, where all the trustees of the districts affected do not consent) that the first or preliminary order made by the com- missioner or commissioners is inchoate and of no effect whatever until the same has been duly confirmed by the local board, and that the alteration of the district or districts is made ^v the confiruiatory order only; that when the local board fails by a majority vote to confirm the first order, the first order will be void and of no effect, and the whole proceedings fall. Superintendent Draper said, in appeal no. 3512, decided July 24, 1886, upon the presentation of the question as to when or by which order the altera- tion takes eft'ect (in proceedings under sections 3 and 4, title 7), "A long line of decisions upon this point, in which the effect of the two orders, provided for in cases similar to the one here, are ably discussed, strengthens me in the con- clusion that the preliminary order provided for' in section 3 is inchoate and of no effect whatever until the same has been duly confirmed as provided for in sec- tion 4. . . . The confirmatory order is the one by which the alteration of the districts is affected, and the first order, merely preliminary, being in fact but one step in the procedure for the alteration, and if not followed by the subsequent statutory rec|uirements, it is void." I concur with the views of Superintendent Draper. In the appeal herein there is no dispute as to the fact relative to the pro- ceedings taken by Commissioners Keating and Payne, nor is there any claim but that their proceedings and that of the local board were regular and in con- formity to the provisions of the school law. The vote of the members consti- tuting such local board upon a motion that the first or preliminar}' order of said Commissioner Keating and Commissioner Payne be confirmed, was a tie, three members voting for and three against the motion, and hence the motion was lost, and the local board failed to confirm said first or preliminary order; no con- 43 1346 THE UNIVERSITY OF THE STATE OF NEW YORK firmatory order, or any order making said alterations was or could be made, and said first or preliminary order became void and of no effect, and the entire pro- ceedings relative to the alteration of said school districts went down. The tie vote was as effective in defeating the motion to confirm the first order as though a clear majority of the members of said local board had voted against the motion. The contention on the part of the appellants herein is, that by the action of the local board it was practically a decision refusing to confirm the order of Commissioners Keating and Payne, and that under section i of title 12 of the school law, an appeal would lie to me from such action, and that otherwise there would be no remedy in such a case. This contention is not well taken. Had the local board made a confirmatory order, that is, an order altering said districts in the manner stated in the preliminary order of Commissioner Keat- ing and Commissioner Payne, an appeal would lie to me under section i of title 12 of the school law. The failure to adopt the motion to confirm such prelimi- nary order was practically the adoption of a motion not to confirm, or to vacate such preliminary order, and such preliminary order thereby became void and of no effect, the whole proceedings for the alteration of such districts went down and no appeal therefrom to me would lie. The parties favoring such altera- tion have a remedy, to wit, by the commencement anew of proceedings to alter. Assuming, however, for the purpose of argument, that the local board did decide not to make an order altering said district and that an appeal would lie to me from such decision, I am of the opinion, upon the facts presented in this appeal, that there was no undue exercise of discretion and power on the part of said board, which authorizes the interposition of this Department. It appears that joint district no. 8, towns of Vernon, Oneida county, and Lenox, Aladison county, has an aggregate assessed valuation of about $412,000 with 220 children of school age; that it has two schoolhouses and that although there is no academic department in the school conducted in said district, such schools are of a fair grade; that said district is abundantly able financially, to furnish ample school facilities for all scholars within its limits; that under the school law the voters of the district and its trustees have full authority to fur- nish such facilities, and it does not affirmatively appear that there is any want of disposition on their part to do so ; that there is in said district a tract of land known as the " Jenkins farm " containing about eighty acres, of the aggregate assessed valuation of about $51,000, and upon which there are residing about twenty-four children of school age; that it was proposed by the order of Com- missioners Keating and Payne to set off from said district and annex to district no. 23, of Lenox, Madison county; that said children, if said territory was set off, would have substantially the like distance to travel in attending school that they now travel ; that if such transfer should be made it would reduce the ^ggi'egate assessed value of the property in joint district no. 8, by one-eighth, and leave the district about twenty children for which to provide school facilities ; that aside from the persons residing on said Jenkins farm, no other residents of the district are in favor of such transfer. It appears that union free school JUDICIAL decisions: union free school districts 1347 district no. 25, of Lenox, has an aggregate assessed valuation of about $1,400,000, with about 900 children of school age; that it has two large school buildings, with an academic department; that it is abundantly able, fniancially, to furnish ample school facilities for all scholars within its limits, as well as such nonresi- dent pupils as may desire to attend the schools therein. It appears that the pro- ceedings to acquire additional territory by the addition of the Jenkins farm were instituted by the board of education of said district no. 26. It is apparent that said district would be financially benefited by the proposed alteration of the district, and that said joint district no. 8 be financially injured, but it is not apparent that the educational interests of cither district would be promoted thereby, or of any considerable number of pupils of school age residing in either district. It may be that some alteration of the boundaries of said districts may be made that would be advantageous to the educational interests of both dis- tricts; but I am convinced that the alterations as proposed in the preliminary order of Commissioners Keating and Payne would not produce such a result. The appeal here should be dismissed. Appeal dismissed. 4170 In the matter of the appeal of Charles Kneale, trustee, school district no. 2, Horse- heads, Chemung county, v. John T. Smith, school commissioner, Chemung county. While it is the settled policy of this Department to favor the consolidation of weak and inefficient districts it is not its policy to dissolve a strong district against the almost unanimous wish of the district, such district hcing able to maintain, and which has maintained and is ready to maintain a good school, and consolidate the territory with that of another strong district requiring the taxable property of the dissolved district to bear tlie burden of three-tenths of a bonded indebtedness of $17,000 of the district to which the territory of the dissolved district is annexed and in the creation of which indebtedness the dissolved district had no voice and in addition to paying three-tenths of the increased annual expense incident to conducting the school; held, that an appeal from an order of a school commissioner, dissolving and annulling school district no. 2 of the town of Horscheads and directing that the territory comprising said annulled and dissolved district be annexed to union free school district no. 10 of the town of Horseheads, be sustained and the order of the commissioner vacated. Decided April 21, 1893 Reynold, Stanchfield & Collin, attorneys for appclhint W. L. Daily, attorney for respondent Crooker, Superintendent This is an appeal from the order of John T. Smith, school commissioner of the only school commissioner district of Chemung county, dissolving and annulling school district no. 2 of the town of Horseheads; and also from an 1348 THE UNIVERSITY OF THE STATE OF NEW YORK order of said Smith dissolving and annulling said school district no. 2, and direct- ing that the territory comprising said annulled and dissolved district be annexed to, consolidated with and made a part of union free school district no. 10, of the town of Horseheads ; and that said union free school district be composed of the territory described in said order, and also from the order of the said Smith and the supervisor and town clerk of the town of Horseheads, confirming said former orders of said Smith. From the proofs presented it appears : That in January 1892, there existed in the town of Horseheads, Chemung county, a common school district known as district no. 2, of which district the appellant herein was the sole trustee. That said district was organized many 3'ears since and comprises within its boundaries territory within and without the corporate limits of the village of Horseheads, in the town of Horseheads. That said district owns a schoolhouse site of about an acre and one-half in extent, well fenced, the surface of the ground well cleaned and cared for, and which site is situated substantially in the center of said district. That upon said site is a wooden schoolhouse, erected in 1863, and built over and repaired in 1883, at an expense of about $1800; said schoolhouse is well constructed, in good repair, and properly painted, and of sufficient capacity to seat seventy scholars. That there are 70 children of school age residing in said district, and the average attendance at the school therein is about 50, said attendance increasing in numbers annually. That the teachers employed in said school are normal school graduates, and that a school has been maintained in said district each year, for at least the period prescribed by the school laws, for many years. That the total assessed valuation of property lialile to taxation in said district for the year 1891, was the sum of $184,298.94, and the tax levied in said district for school purposes was the sum of $1 per thousand, the amount of tax being $186.37. That said district is free from debt. That in January 1892, there existed in said town of Horseheads, a union free school district known as district no. 10. That said district was constituted many years since and comprised within its boundaries territory within and with- out the corporate limits of the village of Horseheads, in the town of Horseheads. That in 1890, said district purchased a lot of land known as the Sayer lot for a school site, said lot being situated on the westerly boundary line of said dis- trict, and in 1891, erected a schoolhouse thereon and furnished the same. That said new schoolhouse was occupied for school purposes on January i, 1892. That the sum of $20,000 was voted for the construction and furnishing of said school- house to be paid in ten equal annual instalments, with interest payable annually. That said schoolhouse contained ample accommodation for the different depart- ments of said school, including an academic department, and the pupils attending the same, and said school building was sufficient to accommodate pupils of the district for years to come. That in January 1892, the bonded indebtedness of said district was about the sum of $17,000. That the total assessed valuation of property liable to taxation in said district for the year 1891, was the sum of JUDICIAL decisions: union free school districts 1349 $444'7'58> and the rate of taxation for scliool purposes was the sum of $14.70 per thousand, the amount of tax being $653(S.74. That in 1891, the number of children of school age residing in the district was about 470, and the average attendance at said school was about 338 of resident, and 27 of nonresident pupils. I'hat the decrease in attendance of pupils between 1873 and i8yo was 109. That on January 29, 1892, John T. Smith, school commissioner of the only school commissioner district of Chemung county, made his order dissolving said district no. 2 of the town of Horseheads, in said county, and declaring the same dis- solved and annulled, said order to take effect on May 20, 1S92, and which order was made without the consent of said school district; and which order was filed with the town clerk of the town of Horseheads. That on said January 29, 1892, the said School Commissioner Smith made another order dissolving and annulling said school district no. 2. and ordering and directing that the territory comprising said annulled and dissolved district be annexed to, and consolidated with, and made a part of, union free school district no. 10, of said town of Horseheads; and that said union free school district be composed of the territory described in said order ; and that said consolidated and altered district be known as union free school district no. 2 of the town of Horseheads, said order to take efifect on May 20, 1892; and which order was filed in the office of the town clerk of the town of Horseheads. That on said January 29, 1892, said Commissioner Smith gave notice, in writing, to the trustees of di.'^trict no. 2, and union free school dis- trict no. 10, that on February 11, 1892, at 10 o'clock a. m., at the town hall, in the town of Horseheads he would attend and hear the objections to the said pro- posed dissolution, alteration and consolidation; and that said trustees were at liberty to request the supervisor and town clerk to be associated with him on such hearing. That on February 10, 1892, the said school commissioner, the supervisor and town clerk of the town of Horseheads met, pursuant to notice, the trustee of district no. 2, and the trustees of district no. 10 being present, and said hearing was adjourned to March 29, 1892, and on that day further adjourned to April 6, 1892. That hearings were had before said local board on April 6th and 8th. and concluded on April 25, 1892. That at said hearing the trustees of said districts were present and represented by counsel and a large number of witnesses were examined. That on April 26, 1892, said local board made its order confirming said orders of said Commissioner Smith and said order was filed with the town clerk of the town of Horseheads. That on May 7, 1892, a special meeting of said district no. 2 was held and said meeting authorized and directed its trustee to appeal from said orders of Commissioner Smith and said confirmatory order, and that on or about May 12, 1892, the appeal herein was brought. That from the testimony taken in the said hearing before the local board it vras established : That the schoolhouse in district no. 2 is one mile and thirty-three-one- hundredths from the schoolhouse in district no. 10 and that the scholars residing ill the western portion of the district no. 2 would be required to travel from two 1350 THE UNIVERSITY OF THE STATE OF NEW YORK to two and one-half and three miles to reach the schoolhousc in district no. lo. That the roads scholars would be required to travel are, in the spring and fall, wet and muddy, and in the winter are badly drifted with snow; that there is an absence of sidewalk thereby rendering it necessary to use the roadway. That such scholars, to attend said schoolhouse in district no. lo, would be required to cross three railroads, namely, the New York, Lake Erie and Western twice, in one place there being three tracks, and in the other two; the Northern Central with four tracks at the place where the highway crosses it; and the Delaware, Lackawanna and Western with two tracks. That said roads are trunk lines, doing a large business, with numerous trains passing and repassing daily. That with one exception, the overhead crossing of the Delaware, Lackawanna and Western, all said railroads intersect the highway at grade, but such overhead crossing is where the road crosses the tracks of the Northern Central. That the three roads leading from various portions of district no. 2 to the schoolhouse in district no. 10 at one point or another crosses said railroad tracks. That for the younger and smaller scholars of district no. 2 the distance to reach the school in district no. 10 is too great for them to walk ; that it would be to a great degree dangerous to send them alone across the railroad tracks, and it is not feasible to arrange conveyances for their transportation. That the inhabitants and taxpayers of school district no. 2 are practically a unit in opposition to the dissolution of said district and its consolidation with district no. 10 and are desirous of mantaining their district organization and the school therein as they have done for a great many years. That no meeting of the inhabitants of said district no. 2 was called or held to take into considera- tion the question of the consolidation of said district with said district no. 10, nor does it appear that any proposition was made by district no. 10 to district no. 2 for such consolidation, at least, none prior to January 1892, and before said district no. 10 had purchased its new school site, constructed a new schoolhousc and incurred an indebtedness, of which some $17,000 is outstanding. The question presented upon the appeal is whether it was advisable for the respondent to make the orders appealed from, and in making such orders he exercised a wise discretion. While it is the settled policy of the Department of Public Instruction to favor the consolidation of weak and inefficient districts, it is not its policy to dissolve strong districts abundantly able to maintain, and which have maintained and are ready to maintain, good schools, and consolidate the territory with" that of other strong districts. Fifty years ago Superintendent Young held: "The Superintendent of Public Instruction will reverse an order of a town superin- tendent annexing one district to another, where the inhabitants of either are opposed to the union, and have sufficient means for the support of a school, it being an abuse of discretion." He states in his decision : " It appears that sufficient importance has not been given to the facts that the inhabitants of dis- trict no. 2 almost unanimously remonstrated against the proposed union ; that they have every necessary facility within themselves, as at present organized, to JUDICIAL decisions: union free school districts 1351 sustain a good school ; that for several years past they have done so, and that they do not need any accession of territory, taxable property or inhabitants; that school district no. 19, so far as wealth and children of the proper age to attend school are concerned, is far more able to keep up an efficient organization than district no. 2 ; but, in the absence of such consent, and especially in the face of a determined and unanimous opposition to such arrangement on the part of one of the districts proposed to be united, a consolidation could, in the judgment of the Department, only prove detrimental to the cause of education, and sub- versive of the best interests of all concerned." In appeal no. 3904, decided August 29, 1890, by Superintendent Draper, he states in his decision : " The principal reason alleged by the appellants in sup- port of their appeal is that their children will have to go much farther to school. It is admitted on all sides that they would certainly have to go a half mile farther than at present, and that, in some instances, children would have to go two miles and a half to reach the school in district no. 2. Both districts are reasonably strong, both in the number of residents and in the value of property. No. 2 is much the stronger. The number of children attending school in this district last year was 122, and the assessable valuation vvas $342,500. The number of pupils registered in no. 3 last year was 29, and the assessable valuation $78,900. Thus, at present, no. 2 stands in no need of the annexation of no. 3, and it seems to me that no. 3 is sufficiently strong to maintain proper school accommodations. This being so, I think it follows that the question upon the desire of the majority of the residents of district no. 3, so far as there has been any expression of the desire of such majority, has been opposed to the consolidation or annexation. It seems to me advisable, therefore, that the order of the commissioner should not be upheld." The counsel for the respondent cites the decision of Superintendent Draper in appeal no. 3847, in support of the orders appealed from. The facts in that appeal are different from those presented in this appeal. In no. 3847 the incor- porate village of Cambridge was entirely within the limits of the two districts; the trustees of both districts consented to the consolidation ; there was no claim that any patron of the school would be seriously inconvenienced in consequence of distance from school building ; that, on a vote of the inhabitants of both dis- tricts, 270 were in favor and no opposed to consolidation; that the buildings used for school purposes in both districts were old, and without any of the modem improvements for heating and ventilating, and ill adapted for school purposes. From the papers presented in this appeal I am unable to see how the educa- tional interests in district no. 2 will be promoted by a confirmation of the orders appealed from. If such orders are confirmed the inhabitants of district no. 2 will be forced, against their unanimous wish, into a union with district no. 10, thereby compelling their children to travel a much longer distance to attend school, many of them over roads in bad condition and across railroad tracks, and requir- ing the taxable property to bear the burden of three-tenths of a bonded indebted- 1352 THE UNIVERSITY OF THE STATE OF NEW YORK ness of $17,000 of district no. 10, in the creation of which they had no voice, in addition to paying three-tenths of the increased annual expense incident to con- ducting the school. While their educational interest will not be promoted, it is apparent that financially their burden will be increased. Nor do I see how the educational interests of district no. 10 are to be promoted by the confirmation of said orders ; but it is apparent that, financially, it will be benefited by the addition of $184,298 to the taxable property of the district, without any substantial increase in the annual budget of the district. The counsel for the respondent state in their brief that " the board of educa- tion (of district no. 10) has been diligent and persistent in establishing a good union free school in the village." Upon such brief is set out a letter from Super- intendent Draper, under date of March 27, 1891, in reply to a letter from the clerk of said board, of March 18, 1891. The letter set out upon the brief is an opinion to the effect that if inhabitants are brought into a district by annexation, and enjoy the benefits of the new school building, there is no valid reason why they should not bear their share of taxation which will fall upon the district for the purpose of paying bonds which have been issued for the purpose of con- structing the new building. The letter to Superintendent Draper, to which his is a reply, is not set out ; but by a reference to such letter on file, it appears that the board of education was, in March 1891, contemplating enlarging the limits of district no. 10. The let- ter states : " What we propose to do is to enlarge our district so as to take in at least that portion of the adjoining district which is within the corporate limits of the village. . . . This plan, to the board of education, and a large number of the residents of the adjoining district, seems practicable, and what ought to be done "if there is no legal objection to this course." The letter then submits the ques- tion as to whether the residents of the territory annexed would be liable to be taxed for the bonds issued. To the latter question Superintendent Draper replied, but his letter is silent as to the question propounded relative to the annexation of territory. It would seem, from the letter of March 18. 1891, that the board of education, not satisfied with having established a union free school in district no. 10, was contemplating action by which district no. 2 would be forced to receive the benefits of such a school, when the school law leaves the formation of a union free school district entirely to the qualified voters of the territory proposed to be included in such district. Upon the papers presented in the appeal, I am of the opinion, and it seems to me advisable, that the appeal herein should be sustained and the orders appealed from vacated. The appeal is sustained. It is ordered. That the order made herein by John T. Smith, school commis- sioner of the only school commissioner district of Chemung county, on January 29, 1892, dissolving school district no. 2, of the town of Horseheads, Chemung county, to take effect on May 20, 1892 ; and the order made by said Commissioner Smith on January 29, 1892, dissolving and annulling said school district no. 2 JUDICIAL decisions: union free school districts 1353 and ordering and directing that the territor>- comprising said annulled and dis- solved district be annexed to, consolidated with and made a part of union free school district no. 10, of said town of Horseheads ; and that said union free school district be composed of the territory described in said order; and that said con- solidated and altered district be known as union free school district no. 2 of the tov,'n of Horseheads, said order to take effect on May 20, 1892; and said order made on April 26, 1892, by said Commissioner Smith, and the supervisor and town clerk of said town of Horseheads, composing the local board, confirming said two orders of said Commissioner Smith, each of which orders was filed in the office of the town clerk of the town of Horseheads, Chemung county, are, and each of said orders is, hereby vacated and set aside. 4451 In the matter of the appeal of Alexander H. De Clercq and Charles O. Niles, as trustees of school district no. 7, town of Cazenovia, Madison county, from decision of local board in the matter of the alteration of school district no. 7, and union free school district no. 10, town of Cazenovia, Madison county. Where it clearly appears that the essential, if not the only, ground of an order taking territory from one school district and annexing it to another is for the purpose of the equalization of the valuation; held, that to confirm such order would be contrary to public policy and the rulii:gs of this Department. While the equalization of valuations may properly be an element for consideration in the alteration of school districts it should not be the controlling one. If a wealthy school district desires to obtain a part of the territory of a comparatively weaker district for the sole purpose of benefiting such wealthy district financially and such desire is sanctioned by this Department, the result will be a constant struggle for the annexation of such territory and the people and the school system would be endlessly involved in controversies in con- sequence thereof. Decided May 18, 1896 E. N. Wilson, attorney for appellants M. H. Kiley, attorney for respondents Skinner, Superintendent On or about December 24, 1895, Lincoln A. Parkhurst, school commissioner of the second commissioner district of Madison county, on the consent in writing of the trustees, constituting the board of education of union free school district no. 10 of the town of Cazenovia, Madison county, the trustees of school district no. 7 of the town of Cazenovia, Madison county, having refused to consent, made a preliminary order altering the boundaries of said school district no. 7, and con- sequently altering the boundaries of said union free school district no. 10, by setting oft certain territory in said order described from said district no. 7 to said district no. 10, and which order was to take effect on April 15, 1896. That on said December 24, 1895, said School Commissioner Parkhurst gave notice in writing to the trustees of said districts nos. 7 and lO of said order, and that on January 7, 1896, at 10 o'clock in the forenoon, at the office of H. J. Rouse in 1354 THE UNIVERSITY OF THE STATE OF NEW YORK Cazenovia, he or his successor will attend and hear objections to said order and proposed alterations, and that said trustees might request the supervisor and town clerk of the town in which said school districts were situated to be asso- ciated with him or his successor in hearing such objections and confirming or vacating said order. That the trustees of union free school district no. lO requested the supervisor and town clerk of the town of Cazenovia to be present at such hearing and to be associated with the school commissioner of the second commissioner district of Madison county in hearing objections and in deciding to confirm or vacate said order. That on January 7, 1896, at the time and place mentioned in said notice there were present Commissioner Parkhurst, Supervisor Cook and Town Clerk Rouse, comprising the local board and Trustees De Clercq and Niles, representing district no. 7, and Trustees Irish and Loyster, represent- ing district no. 10, when said hearing was adjourned to January 15, 1896, and on that day further adjourned to January 30, 1896. That on January 30, 1896, witnesses were sworn and examined before said local board, and subsequently, said testimony having been duly considered, said local board, by the affirmative vote of each member thereof, confirmed said preliminary order of said School Commissioner Parkhurst. From said preliminary order and the action of the said local board confirm- ing the same. Trustees De Clercq and Niles of said district no. 7 have appealed, and annexed to said appeal is a copy of the testimony taken before said local board. The respondents herein. School Commissioner Parkhurst, Supervisor Cook and Town Clerk Rouse, have filed a statement in which they concur in the facts, maps and exhibits served upon them by the appellants herein. it appears from the papers filed herein that prior to December 24, 1895, the territory comprising school district no. 7, of Cazenovia, consisted of farming lands, excepting a portion thereof containing about 150 acres of land, described in said preliminary order of Commissioner Parkhurst, adjoining Cazenovia lake, upon which territory there have been erected summer residences, owned by ten or twelve persons; that the aggregate assessed valuation of said district was $222,675, ^nd there were thirty-six persons therein who are taxed, eight of whom reside upon the 150 acres proposed to be taken from said district, and none of them have children ; that of the twenty-eight taxpayers not residing upon the said 150 acres, there are only five or six having children attending school; that the aggregate assessment of ten of said twenty-eight taxpayers, having the lowest assessment, is $2500, leaving the remaining eighteen to pay the bulk of the taxes, and of these but three have children attending the school ; that the tax assessed in the district for school purposes is .1055 on $100; that the schoolhouse of the district is conveniently located for all parts of the district, and in good condition and well furnished, and containing an organ, chart, maps, globes, a library of 245 volumes, etc., etc. ; that three terms of school of twelve weeks each have been maintained in the school year; that there were forty-one children of school age in the district, with a registration of twenty-six, and an average daily attendance of about twenty-one. JUDICIAL decisions: union free school districts 1355 That union free school district no. 10 of the town of Cazenovia embraced within its boundaries a large portion of the village of Cazenovia, which village has a population of about 1800, and had an aggregate assessed valuation of $846,061 ; that the number of children of school age residing therein was 397, of which 327 were registered, and eight teachers were employed in the schools therein. It also appears that there were but two children of school age residing upon the 150 acres of land proposed to be set off from district no. 7 to district no. 10, namely, the children of one Dean, a tenant upon the property of L. M. Ledyard, which children attend school in district no. 10. It is conceded that the aggregate assessed valuation of the parcel of 150 acres, proposed to be set off from district no. 7 to district no. 10 is $133,700, which would leave in district no. 7 an aggregate assessed valuation of $88,975, and increase that of district no. 10 to the sum of $977,761. It is clear that if the action of the local board and the order of Commissioner Parkhurst be affirmed, the tax rate for school purposes in district no. 7 would be increased from .1055 on $100 to about 30 cents on $100, or about three times as much, while that in district no. 10 would be diminished. No proof is made herein that any qualified voter or taxpayer in said district no. 7 has requested that said parcel of 150 acres, or any part of said district be set off into said district no. 10, not even Dean, the tenant, who sends his two children to the school in district no. 10. On the contrary it appears that said voters and taxpayers, including the owners of the parcel of the 150 acres pro- posed to be set off, are opposed to the alteration of district no. 7 as set out in the order of Commissioner Parkhurst. Of the witnesses produced and examined before the local board all but one, H. F. Ludlow, a member of the board of edu- cation of district no. to, were opposed to the proposed alteration, and each testi- fied that he knew of no one in district no. 7 who was in favor of said alteration. The witnesses opposed to said alteration of district no. 7 stated as the grounds of their opposition that it would not be for the best interests of the school in the district and would result in shortening the term of the school in the school year, and greatly increase the rate of taxation for school purposes in the district. H. F. Ludlow, the sole witness examined on behalf of the said alteration, was asked, " If the proposed alteration is made, what effect would it have on school district no. 7, in your judgment, as an educator?" and answered. •' It would make it cost more ; it would depend on the character of the people." To the question, "What effect would it have on no. 10?" he answered, "It would help, financially." It is not shown that the said order has been made for the convenience or benefit of residents of district no. 7, or of the residents of the terri- tory affected, nor will it enlarge their school privileges. The residents of district no. 7 and of the territory therein to be affected protest against it. The only party who desires the alteration is the board of education of union free school district no. 10, which district will be benefited, financially, by having added to it property of the aggregate assessed valuation of $133,700. While in comparison with a great number of school districts in the State, 1356 THE UNIVERSITY OF THE STATE OF NEW YORK and of twelve of the districts in the town of Cazenovia, district no. 7 is financially strong, it is, as compared with union free school district no. 10, a weak district. Said district no. 7 is largely a farming community and was so when said district was formed. The parcel of 150 acres proposed to be annexed to district no. 10 has increased in value by reason of the summer residences erected thereon and the decoration of the grounds connected with such residences. District no. 10 embraces within its boundaries a large portion of the village of Cazenovia, a vil- lage increasing yearly in business and wealth. It is against the settled policy of this Department to allow property to be transferred from a comparatively weak district to a stronger one when it is not clearly shown that it will give better school facilities and increased convenience to the persons occupying the transferred territory. The only children of school age residing upon the territory sought to be transferred are the two children of the tenant Dean, and he sends, by choice or preference, said children to the school in district no. 10. This Department has held that the mere choice or pref- erence of a resident to send his children to a school out of the district in which he resides, rather than to one in his district, is not sufficient reason for transfer- ring him or his lands. In the hearing before the local board the witness, Ludlow, put in evidence a statement of the aggregate assessed valuation of the twelve other school districts in the town of Cazenovia as proof that, if the proposed order of Commissioner Parkhurst became effective, the aggregate assessed valuation of district no. 7 would then be in excess of eleven of the other districts in said town. It seems clear that the essential, if not the only ground of the said proposed order of Commissioner Parkhurst, for annexing said territory to district no. 10 was for the purpose of the equalization of valuations. This Department has held that while the equalization of valuations may properly be an element for consideration in the alteration of school districts it should not be the controlling one. Superintendent Draper, in a decision rendered by him on November 13, 1886, said: " In any event I am not prepared to give sanction to the proposition that school districts should be changed only for the purpose of equalization of valuations." I concur in such decision of Superintendent Draper. In my opinion, if a wealthy school district desires to obtain a part of the territory of a comparatively weaker district for the sole purpose of benefiting such wealthy district financially, and said desire is sanctioned by this Department, the result will be a constant struggle for the annexation of such territory, and the people and the school system would be endlessly involved in controversy in consequence thereof. To confirm said preliminary order and the action of the local board herein would be contrary to public policy and the rulings of this Department. The appeal herein should be sustained, and the said preliminary order and the action of said local board confirmatory thereof, vacated and set aside. The papers filed herein do not show that any confirmatory order was made, signed and filed. After the action of said local board the school commissioner JUDICIAL decisions: union free school districts 1357 should have made and filed a final order, or the order of alteration. The action of the local board did not make the alteration ; the preliminary order was inchoate, and of no elfect whatever until it was duly confirmed by the local board; the confirmatory order makes the alteration, and the school commissioner should have made such order reciting therein the preliminary order, and all the proceed- ings taken thereafter, including the action of the local board, and concluding with the final order of alteration made by the school commissioner, the said local board uniting with him and signing such confirmatory or final order. The appeal herein is sustained. It is ordered, That the said preliminary order made by said School Commis- sioner Parkhurst, dated on or about December 24, 1895, and the action or decision of the said local board, on or about January 30, 1896, confirming said preliminary order, be, and the same are, and each of them is, hereby vacated and set aside. In the matter of the appeal of Winfield S. Gardner v. Charles F. McXair as school commissioner second commissioner district of Livingston county. School commissioners have the power, under the provisions of the Consolidated School Law of 1894, and the rulings of this Department, to alter the boundaries of union school districts ; but no school district can be divided that has any bonded indebtedness outstanding. Union school districts when duly established, under the provisions of title 8 of the Consolidated School Law of 1894, and the acts amendatory thereof, can not be dissolved by school commissioners, but only in the manner prescribed iu sections 32 to 41 of article 5, title 8 of the Consolidated School Law of 1894. Decided October 27, 1900 Skinner, Superintendent This is an appeal from the refusal of Charles F. McNair, as school commis- sioner of the second commissioner district of Livingston county, to divide or alter the boundaries of union school district 4 (joint") Groveland and Sparta, Liv- ingston county. The appellant alleges as the grounds for bringing his appeal that such refusal will deprive the inhabitants of a large part of such district of school privileges in said district; also, on the ground of the expediency of such proposed altera- tion. The respondent, McNair, has answered the appeal, and to such answer the appellant has made a reply, and to such reply the respondent has made a rejoinder. It appears that on April 15, 1899, at a meeting duly called and held, of the qualified voters of joint school district 6, Groveland and Sparta, and of school district 4, Groveland, Livingston county, under the provisions of article i, title 8 of the Consolidated School Law of 1894, and the acts amendatory thereof, by the affirmative vote of a majority of the voters present and voting, it was deter- mined that said school district be consolidated by the establishment of a union sciiool therefor and therein ; that said meeting duly elected three trustees of such union school district; that subsequently Scott L. McNinch, the then school com- 1358 THE UNIVERSITY OF THE STATE OF NEW YORK missioner of the first commissioner district of Livingston county and Samuel L, Whitlock, the then school commissioner of the second commissioner district of Livingston count}', by an order made by them designated the union school so established as " union free school district 4, joint Groveland and Sparta " ; that September 21, 1899, a certified copy of the proceedings taken relative to the establishment of said district was filed in the Department of Public Instruction at the Capitol in the city of Albany; that October 21, 1899, an appeal was taken to the State Superintendent of PubHc Instruction by A. B. Mann and others from the proceedings of said meeting held x^pril 15, 1899, relative to the estab- lishment of said union school, and February 9, 1900, said Superintendent, by his decision 4842, dismissed such appeal. It further appears that May 26, 1900, the trustees of said union school dis- trict met for the purpose of considering certain proposed alterations of said dis- trict and signed a consent that said district be altered or divided, and thereafter it should be bounded and described as set forth in a writing signed by them ; that such paper was afterwards delivered to Commissioner jNlcNinch of the first dis- trict, and Commissioner McNair of the second district; that Commissioner McNinch, June 5, 1900, upon his part, consented that an order be entered alter- ing or dividing such district as asked for by such trustees ; that Commissioner McNair, June 5, 1900, refused in writing, to indorse such application for an alteration or division of such district. It further appears that on said June 5, 1900, said union school district 4 (joint) Groveland and Sparta, had an outstanding bonded indebtedness. From the proofs herein I am satisfied that the proposed alteration or division of such union school would be in effect, a dissolution of said district, and if it could be legally made, would in effect establish two districts with nearly the like boundaries of the two districts existing prior to the consolidation of such dis- tricts by the establishment of a union school therein at the meeting held April 15, 1899. School commissioners have the power, under the rulings of this Department and the provisions of the school law, to alter the boundaries of union school districts. Section 6 of title 6 and section 30 of article 5, title 8 of the Consolidated School Law of 1894, and the acts amendatory thereof, expressly give such power. But no school district shall be divided which has any bonded indebted- ness outstanding. It is in proof that when Commissioners McNinch and McNair were requested to divide said union school district, the district had an outstanding bonded indebt- edness, and hence, such commissioners could not divide the district. I am satisfied that the alteration or division of said district, as asked for by the trustees, was not an ordinary alteration by taking a parcel or parcels of land from the district and uniting such parcel or parcels to some other district or dis- tricts, but was in fact a scheme to reinstate the two districts as they severally existed prior to their consolidation April 15, 1899, that is, dissolving such union school district. JUDICIAL decisions: union free school districts 1359 The union school districts when duly established under the provisions of title 8 of the Consolidated School Law of 1894, and the acts amendatory thereof, can not be dissolved by the action of school commissioners, but only in the manner prescribed by sections 32 to 41 of article 5, title 8 of the Consolidated School Law of 1894. The appeal herein is dismissed. 5036 In the matter of the appeal of Herman Cole v. Loyal L. Davis as school commis- sioner, first commissioner district of Warren county. Under the provisions contained in section 9 of title 6 of the Consolidated School Law of 1894, as amended by chapter 264 of the Laws of 1896, a school commissioner has power to dissolve a common school district within his commissioner district, and to unite a portion of the territory, theretofore forming the district dissolved, to an adjoining union free school district; and from the residue of the territory of the district dissolved to form new districts, without applying for or obtaining the consent of the trustees of the district dissolved, or of the union free school district. Decided November 7, 1902 Charles F. King, attorney for appellant Loyal L. Davis, attorney in person Skinner, Superintendent This is an appeal from the following named orders made by Loyal L. Davis as school commissioner of the first commissioner district of Warren county, namely, order dated September 2, 1902, to take effect immediately, dissolving school district 14, Queensbury, Warren county, and annexing all the territory theretofore forming said district 14, lying within the village of Glens Falls, to union free school district i, Queensbury, forming school districts 21 and 22, Queensbury; from the territory theretofore forming district 14. lying outside of the village of Glens Falls; directing the records etc.. of said former district 14 to be filed with the clerk of the town of Queensbury ; ordering the first meeting of new district 21 to be held at the schoolhouse therein September 13, 1902, and the first meeting in new district 22 to be held at the residence therein of James H. Storey, September 13th; amending the boundaries of union free school dis- trict I ; describing the boundaries of each of said districts 21 and 22. An order dated September 5, 1902. correcting the boimdaries of district 22, and a further order dated September 13. 1902, correcting the boundaries of dis- trict 22, were made. The main grounds alleged by the appellant for bringing his appeal are. that no consent or consents of the trustees of former school district 14, and of union free school district i, were made or obtained by Commissioner Davis prior to making the orders appealed from ; that the action of Commissioner Davis in mak- ing the orders appealed from were illegal and contrary to the provisions of the Consolidated School Law. 1360 THE UNIVERSITY OF THE STATE OF NEW YORK The pleadings herein are quite voluminous, consisting of the appeal, tha answer of Commissioner Davis, the reply of the appellant, and the rejoinder of Commissioner Davis. A large portion of the pleadings herein relates to the condition of the school- house in former district 14; the action of the qualified voters therein, relative to improving its condition ; the order of Commissioner Davis condemning it, and the failure of the district to take measures for the construction of a new schoolhouse. In my opinion the questions presented by the pleadings for my decision and consideration are, first, had Commissioner Davis authority, under the provisions of the Consolidated School Law, to make the orders appealed from ; and, second, did Commissioner Davis wisely exercise such authority in making said orders. Under title 6 of the Consolidated School Law of 1894, and the acts amenda- tory thereof, the school commissioners of the State have power to form, alter and dissolve school districts, except to dissolve a union free school district. (See sections 32-41, article 5, title 6 of said Consolidated Law.) Sections 2, 3 and 4, as amended by section 4, chapter 264 of the Laws of 1896, provide for the alteration of common school districts. Section 6, as amended by section 5, chapter 512 of the Laws of 1897, provides for the altera- tion of union free school districts whose limits do not correspond to those of any city or incorporated village, in like manner as alterations of common school dis- tricts may be made as therein provided (that is, under sections 2, 3 and 4 of title 6), and also provides, with the written consent of all the districts to be affected, for the dissolution of one or more common school districts adjoining any union free school district other than one whose limits correspond to those of any city or incorporated village, and annex the territory of said districts so dissolved to such union free school district. The amendment made to section 6 by chapter 512 of the Laws of 1897, consisted in striking out the words " altered or " before the word " divided." Section 50, article 5, title 8 of the Consolidated School Law of 1894, con- tained the like provisions as in section 6 of title 6, and the amendment of section 30 by chapter 540 of the Laws of 1897 was in striking out the words " altered or " before the word " divided " as section 6, title 6, was amended by chapter 512 of the Laws of 1897. Section 9. as amended by section 4, chapter 264 of the Laws of 1896, provides "Any school commissioner may dissolve one or more districts, and may from such territory form a new district; he may also unite a portion of such territory to any existing adjoining districts." This Department has held, under the provisions of said section 9, as amended by chapter 264 of the Laws of 1896, that any school commissioner has the author- ity to dissolve one or more school districts, other than union free school dis- tricts, within his commissioner district, without obtaining the consent of the trustee or trustees of such district or districts, and from the territory of the dis- trict or districts so dissolved to form a new district or districts, or unite a por- tion of such district or districts so dissolved to' any existing adjoining district or JUDICIAL decisions: union free school districts 1 361 districts, whether such district or districts are common or union free school dis- tricts, and without the consent of the trustee or trustees of the district to which such portion is so united. This Department has held that in the dissolution of a school district under such section 9, of title 6, the commissioner can not unite all the territory thereto- fore comprising such dissolved district to any adjoining union free school district, without first obtaining the consent in writing of the trustees of such union free school district. I am of the opinion that Commissioner Davis, under the provisions of section 9 of title 6, as amended by chapter 264 of the Laws of 1896, had full power and , authority to dissolve school district 14, Queensbury, Warren county, and unite a portion of the territory theretofore forming said district to union free school district i, Queensbury, and from the residue of the territory of the dissolved district to form new districts 21 and 22, without applying for or obtaining the consent of the trustees of former district 14, or the trustees of union free school district i. From the facts established herein, as to the condition of school aflfairs, and especially the condition of the schoolhouse in former district 14, and the neglect of the qualified voters therein to take affirmative action to improve such condi- tions, Commissioner Davis wisely exercised the power and authority given him in making the orders appealed from. Under the uniform rulings of this Department, and the instructions issued by me to school commissioners in the formation, alteration and dissolution of school districts, when a school district is dissolved the commissioner should describe in an order dissolving a district, the boundaries of such district, giving an accurate description. In an order made adding territory to a school district such order should contain an accurate description of such territory. In the order of Commissioner Davis, dated September 2, 1902, dissolving school district 14. he omitted to give an accurate description of the territory comprising such district ; and in such order annexing a portion of former district 14 to union free school district i, Queensbury, he omitted to give an accurate description of the terri- tory so annexed. School Commissioner Davis is hereby directed to amend said order of Sep- tember 2, 1902, by inserting therein an accurate description of the territory there- tofore forming said district 14; and by inserting therein an accurate description of the territory annexed to union free school district i. Queensbury. The appeal herein is dismissed. It is ordered that the order made by me herein, on September 30. 1902, upon the petition of the appellant herein, staying all proceedings of Commissioner Davis, and of the trustee or trustees of school districts 21 and 22, Queensbury, and of each of them, under and pursuant to the orders of such conmiissioner, appealed from, be stayed, and which order was filed with the clerk of the town of Queensbury, be and the same is hereby vacated and set aside. UNION FREE SCHOOL DISTRICTS ORGANIZATION 4046 In the matter of the appeal of James E. McCane and others v. a special school meeting in districts nos. i and 3 of the town of Indian Lake, held for the purpose of forming a union free school district. The estal)lishment of a union free school district will be vacated on the following grounds: first, that a majority of voters in one district is opposed; second, that the number of children in the united district is not sufficient to make a graded school; third, that some of the children will be required to travel too great a distance to attend school. Decided January 9, 1892 Robert Imrie, attorney for appellant L. C. Aldrich. attorney for respondent Draper, Sitpcrinlciidcut This is an appeal from a meeting held September 15, 1891, in districts nos. I and 3 of the town of Indian Lake, in the county of Hamilton, at which it was determined to form a union free school district. The vote was very close, being 42 in favor of the project to 39 against. Of the persons who voted from district no. i, t,2, were in favor of the project and 24 against. Of the voters from no. 3, 9 were in favor and 15 against. The assessable valuation of district no. i is about $47,000, and of district no. 3 about $21,000. There are 49 children of school age in district no. i, and 28 children of school age in no. 3. The districts are very large in extent of territory, and they are very unfortu- nately situated as to shape, the territory of district no. 3 extending halfway around that of no. i. I have concluded to sustain the appeal for the following reasons : 1 The decided majority of voters in one district is opposed to the union. This district will feel that it has been imposed upon and badly treated if it is forced into the alliance. The result would be endless controversy and ill feeling in the new district. 2 The number of children in the united district who will attend the school is hardly sufficient to make a graded school. If that be so. then there would be no compensation for the union. 3 Some children would have to go a much longer distance to school. The distances are greater than they should be now. If the people of the united district could be substantially harmonious in favor of the proposition, I should be glad of it, but under all the circumstances of the case, with opinions so nearly divided and with one district strongly opposed, it seems to be inadvisable. The appeal is therefore sustained and the action of the meeting of Septem- ber 15th is held to be of no effect. [1362] JUDICIAL decisions: union free school districts 1363 3980 In the matter of the appeal of A. H. Penny and Wesley H. Squires v. school districts nos. 5 and 19, town of Southampton, county of Suffolk. The electors of two school districts in meeting assembled voted to consolidate the districts by establishing a union free school therein. The chairman who presided ruled in an arbitrary and unparliamentary manner. A majority for consolidation was secured without due deliberation and public discussion. The extent of the territory consolidated is nearly five miles wide and of about the same length, and many pupils of the schools would be greatly inconvenienced in consequence of the distances required to be traveled to reach the school. Proceedings set aside. Decided May 20, 1891 Nathan D. Petty, attorney for appellant Draper, Superintendent This is an appeal from the action of meetings held upon the 2d day of April 1891, and the loth day of April 1891, for the purpose of voting upon the for- mation of a union free school district in the two districts above named. After carefully reading the voluminous papers in the case, and hearing the parties orally, I have come to the conclusion that the best educational interests of the territory afifected will be promoted by sustaining the appeal and setting aside the action appealed from. While there was something of a majority apparently in favor of the consolidation of the districts, I think there is good evidence that such majority was obtained without any deliberation or public dis- cussion of the question involved. Evidence is not wanting that the chairman of the meeting resorted to arbitrary and unparliamentary practice for the pur- pose of preventing a free expression of the opinions of persons present. It is also apparent that some persons voted without the right to do so. Neither of the districts afifected is very strong either in population or in assessable prop- erty. Both are quite large in extent of territory. Proof is submitted that, if the districts were to be united, the consolidated school district would be more than five miles in extent from north to south, and nearly that distance from east to west. The result would be that some children would have to go much farther to school than children ought to be compelled to go, while the strength of the districts is not such as to raise the presumption that a union graded school would be maintained which would be sufificient compensation for the disadvantages suffered. Moreover, there is a state of unrelenting bitterness and animosity prevalent in the districts affected, such as I have scarcely seen exceeded in any previous case. This would be carried into the organization of the new district if such an organization were to be effected, and would operate to the disadvantage of the enterprise for a considerable length of time. In view of these facts* I think the appeal should be sustained, and the action appealed from overruled and declared to be of no effect. IS^H THE UNIVERSITY OF THE STATE OF NEW VORK 3947 In the matter of the appeal of E. C. Birdseye and others v. school districts nos. 5 and 9, town of Paris, county of Oneida. Proceedings of a meeting of electors, held to determine whether a union free school sliould be established, set aside when it is conclusively shown that a sufficient numljer of illegal votes was cast with the majority, which was small, to have produced a result which would have been otherwise had only qualilied voters participated. Decided December 30, 1890 Praper, Superintendent The appellants, legal voters of school districts nos. 5 and 9, town of Paris, Oneida county, allege that at a meeting of the electors of said districts held pursuant to notice, to determine if a union free school should be established, a large number of the inhabitants attended and participated in the vote upon the question of the establishment of a union free school, resulted as follows : for, 126, against, 131 ; that a large number of votes was cast against the proposition by persons who were not qualified to vote — a sufficient number to defeat the proposition which otherwise would have been carried. No answer has been interposed, and the evidence presented by the appel- lants stands uncontradicted. I conclude, therefore, that there was not a fair and clear expression of the legal electors given at the meeting appealed from, and therefore set aside and declare the proceedings of the meeting of no effect. The trustees of districts nos. 5 and 9, Paris, Oneida county, are hereby ordered and directed to give notice within twenty days from this date, of a meet- ing of the legal voters of the districts to determine the question whether a union free school shall be established or not. The appeal is sustained. 3982 In the matter of the appeal of Barbara Moore and others, from the proceed- ings of a joint meeting in school district no. 7, in the town of Pembroke, and school district no. 9, in the town of Batavia, county of Genesee, held for the purpose of forming a union free school district. Appeal from the proceedings of a meeting which decided by a very close vote to consolidate districts by the establishment of a union free school therein, sustained where the opposi- tion thereto is strong and much bitterness of feeling concerning the action is prevalent, and the evidence of irregularities too numerous to be excused in view of the slender majority secured for consolidation. Decided June 22, 1891 H. B. Cone, attorney for appellants James A. LeSeur, attorney for respondents t JUDICIAL decisions: union free school districts 1365 Draper. Superintendent This is an appeal from the action of a meeting held in the above-named districts, on the 14th day of February 1891, for the purpose of forming a union free school district. There were 179 votes cast at said meeting. The proposi- tion to form a union free school district was declared carried by a majority of but 3. It is claimed that some persons voted in favor of the proposition who were not entitled to vote. It is shown that a considerable number of persons in the district received no notice whatever of the meeting. It is also claimed that there were some irregularities in the proceedings and some arbi- trary action on the part of the presiding officer. It is made to appear that each of the districts affected is abundantly able to support a separate school. A majority in value of the property assessed is opposed to the coalition. A new schoolhouse was built in district no. 7 in 1881, and a new one was also built in district no. 9 in 1886, the former cost $1100 and the latter $1300. District no. 7 is in tlie town of Pembroke, and no. 9 is in the town of Batavia. A union of the districts would, therefore, form a union district lying partly in two towns. The new district is shown by the map to be an oddly shaped one, having something of the shape of an hour glass, small in the middle and large at the ends. It is also made to appear that, if the meeting is to be upheld, many children would have to go from a mile and a half to two miles to school, and upon roads that are at times impassable. It is shown that, at a meeting held subsequently to the one referred to, a clear majority was developed in opposition to the pro- posed union. In view of these considerations, I think the appeal ought to be sustained. There are grave doubts as to whether the action appealed from was reached with such legal regularity as to permit of its being upheld. But aside from that question, it is clearly manifest to me that there is so strong opposition to the union, and so much bitterness of feeling concerning it prevalent in the terri- tory affected, that it would be impossible to secure that cooperation of effort which is essential to the success of educational work in the district. The majority by which the action appealed from was secured, is too slender, the irregularities too numerous, and the opposition too strong to justify it. From all that I can gather, after a careful examination of the papers, and after hearing counsel, I am forced to the conclusion that a decided majority of the voters of the terri- tory affected are opposed to the project. If this is so, it ought not to be upheld. If it is not so, that fact may be ascertained by a renewal of the proceedings and through another meeting at some future time. The appeal is sustained and the action of the meeting of February 14, 1 891, is declared to be of no eft'ect. I3v of 1864. This article i is entitled " of school districts and neighborhood meetings, the voters and their powers gen- erally," and section 12 of said article, as amended in 1881, was made to read as follows : " Every person of full age residing in any neighborhood or school district and entitled to hold lands in this State, who owns or hires real property in such- neighborhood, or school district liable to taxation for school purposes, and every resident of such neighborhood or district who is a citizen of the United States, above the age of 21 years, and who has permanently residing ivith him or her a child or children of school age, some one or more of whom shall have .".tter.dcil the district school for a period of at least eight weeks within one year preceding, and every such resident and citizen as aforesaid, who owns any personal property assessed on the last preceding assessment roll of the town, exceeding htty dol- lars in value, exclusive of such as is exempt from execution, and no other, shall be entitled to vote at any school meeting held in such neighborhood or school district." ^ , ^- ^i. The material changes thus made consist in dropping out from the section the word " male " which before preceded the word " person." and also omitting a clause requiring the voter to be entitled to vote at town meetings of the town in v.'hich the district is situated. With tlie exception of these changes and the substitution, some years ago. of the clause relating to the attendance at the district school of a child or children for eight weeks in place of a clause requiring the payment of a rate bill, the above statutory provisions, as to qualifications of voters at school meetings, have been in operation ever since the adoption of the Constitution of 184O. And the con- stitutional provisions, cited above, have been substantially as they are now. dur- ng the sanie period, except that in the year 1874 the words and upon al ques- tions which may be submitted to the vote of the people were inserted by '"'ft"w"n be observed by comparing the statutory requirements as to qualifica- tions of voters at school meetings with the constitutional definition of the quahfi- 1452 THE UNIVERSITY OF THE STATE OF NEW YORK cations of electors, that they differ materially in several important; particulars, aside from the matter of sex. For instance, the Constitution requires of the electors citizenship for ten days, inhabitancy in the State one year, residence in the county four months and in the election district thirty days. None of these conditions are essential under the statute. Under its provisions, in one of the contingencies specified, a person may be a voter at school meetings without citizenship, and without inhabitancy or residence other than at the time of voting. In certain contingencies named the statute imposes a property qualification which the Constitution does not. In another it formerly required payment of a rate bill, and now certain attendance at school, as to which the Constitution is silent. If the statute is unconstitutional for the reason that it conflicts with that instrument in respect to the qualifications as to sex, by the same argument it has been unconstitutional for the last thirty-seven years, by reason of the conflict with the Constitution in the several other particulars above referred to. And, in fact, there has been no time since the adoption of the first Constitution, in the year 1777, when the statutory provision prescribing the qualifications of voters at school meetings did not differ materially from the provisions of the existing Constitution prescribing the qualifications of voters at elections. Of course this line of argument is by no means conclusive, but it is a cir- cumstance of some weight, in the consideration of the question in hand, that while for more than half a century, at least, the State has been divided into school districts numbering from seven to twelve thousand, with usually one annual and several school meetings in each district each year, at which the voting for school officers and upon measures involving local taxation as well as upon a great variety of other measures of interest to the district inhabitants, has been proceeding under the regulation as to qualifications of voters prescribed by those school statutes, and while the multitude of school district dissensions arising out of the proceedings of such meetings have resulted in numerous litigations in which the courts have often been called upon to interpret these statutes, yet no case appears upon the records of the courts upon which the question of the unconstitutionality of these statutory provisions by reason of these divergences from the constitutional provisions has been distinctly raised and judicially decided. It is regarded as appropriate and as a matter entitled to careful considera- tion, in construing the words of the Constitution, to look back at the situation of the country and its existing institutions and systems at the time and anterior to the time of its adoption. (Potter's Dwarris, 657.) At the time of the adoption of the Constitution of 1846, and for years anterior thereto, there had been in existence in the State, a general common school system, under which the State was divided into thousands of school dis- tricts, each of which had various well-defined powers exercised through the medium of district school meetings, and needful for the proper care and mainte- nance of the local schools and for the harmonious working of the system. The qualifications of voters prescribed by the statute were such as were JUDICIAL decisions: voters 1453 considered best adapted for the peculiar character and needs of the system, and as before stated, varied essentially from the qualifications prescribed by the ex- isting Constitution, for electors at ordinary elections. At the same time, another system was and long had been in existence — the system of popular elections. Under this system and as an essential part of its machinery, the State had been divided into many thousands of election dis- tricts, at which the popular will was exercised, through the elective franchise, in the maintenance of civil government. The qualifications of electors were here also such as were deemed best adapted to the character, necessities and success- ful operation of the particular system. These two systems with their dissimilar provisions as to the qualifications of voters, had for years been moving along together, pari passu, without jar or discord. Referring again to the section of the Constitution in question, we find that the male citizen, having the other specified qualifications, and having been " for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere." The foregoing considerations induce me to the conclusion that the framers of the Constitution in the use here made of the words " election district," intended to refer solely to the election districts which had long been established throughout the State, under that designation, as an integral part of the machinery of popular elections, and that it has no reference or application to the estab- lished method of choosing school district officers or of voting upon other matters at school district meetings. The objection to the constitutionality of the statutes, under the provisions of which women voted at the school meeting in question, must, therefore, be overruled. 3513 If the uniform ballot act does apply to school districts, and if the law had required that the vote in the present case should have been taken by ballot, and if said law as to uniformity of ballots had not been observed, the result would not, on that account, have been rendered void. Any person who knowingly or wilfully violates, or attempts to violate, the statute relating to the uniformity of ballots, would be subject to a fine or imprisonment, but there is nothing in the law which would have set aside the results of an election held in violation of its provisions. Decided August 4, 1886 Draper, Superintendent This district, no. 3, town of Flushing, is operated under a special act. A special district meeting was called and held, at which it was voted to appropriate the sum of $7500 for the enlargement of the school building. One of the appellants' objections to the regularity of this meeting or its 1454 THE UNIVERSITY OF THE STATE OF NEW YORK proceedings, is to the ballot, on the ground that the provisions of chapter 367 of the Laws of 1880, commonly known as the " uniform ballot act," were not observed. The first section of this act is as follows: Section i At all elections hereafter held within the limits of this State, for the purpose of enabling electors to choose by ballot any officer or officers under the laws of this State, or of the United States, or to pass upon any amendments, law or public act or proposition submitted to the electors to vote by ballot under any law, each and all ballots used at any such election shall be upon plain, white printing paper, and without any impression, device, mark or other peculiarity whatsoever upon or about them to distinguish one ballot from another in appear- ance, except the names of the several candidates, and they shall be printed in plain black ink. It is conceded by the respondents that the ballots used were not in com- pliance with the provisions of this act. They varied in color, in size; they were without the prescribed captions and they were not printed in the prescribed size of type. Whether or not it was the intention of the Legislature that the provisions of the uniform ballot act should apply at elections 'held at school meetings, is a question which is by no means free from doubt, it is not necessary to determine that question, however, in order to dispose of the present case. Section i of the uniform ballot act, above set forth, limits the operation of that act to cases where an officer is to be elected or an act or a proposition to be determined is ■ " submitted to the electors to vote by ballot under any lazv." There is nothing in the provisions of the statutes governing this meeting which requires that the question at issue should be determined by ballot. It was only required by the board of education that they " shall submit the same to the electors of said district at an annual or at a special meeting to be called for that purpose." It is true that section 3 of the special act, as amended, does provide that " all elec- tions shall be by ballot," but this unquestionably refers to elections for members of the board of education, and I can see no requirement of the statute which necessitated the taking of the vote in this instance by ballot, however proper and perhaps desirable that it should be done in that way. Furthermore, if the uniform ballot act does apply to school districts, and if the law had required that the vote in the present case should have been taken by ballot, and if said law as to uniformity of ballots had not been observed the result would not on that account have been rendered void. Any person who knowingly or wilfully violates, or attempts to violate, the statute relating to the uniformity of ballots would be subject to a fine or imprisonment, but there is nothing in the law which would have set aside the results of an election held in violation of its provisions. The objection that the result of the balloting was not announced by the inspectors, but rather by the president of the board of education, has no force. They canvassed the vote and made and signed a certificate of the result and JUDICIAL DIXISIONS: VOTERS 1455 passed it to the president of the board, who announced the result in their presence and at the proper time, and the act must be deemed to have been their own act. The fifth objection, that the question is not within the jurisdiction of the Superintendent of Public Instruction, can not be sustained. It was undoubtedly the intention of the Legislature to permit this district to operate its schools upon a system peculiarly its own ; but to concede that it was thereby removed from the supervision of the State jiuthorities would be destructive of the educational system of the State. The action appealed from affirmed. INDEX Appeals page A leading case in which the jurisdiction in general of the Commissioner of Education is determined 7 The jurisdiction of the Superintendent is statewide covering all controversies touching any oftkial act under the general law or under special statutes (3583) 10 The Commissioner of Education has jurisdiction to hear and determine an appeal from the action of the board of education of a city of the second class operating under uniform charters for cities of such class (5384) 12 An appeal will not be entertained when the point at issue has been settled in a court of competent jurisdiction 13 An appeal will not be entertained when the courts have acquired jurisdiction through an action brought thereunder (3875) 14 An appeal will not be sustained when the papers are so defectively prepared and so poorly arranged that an intelligent understanding of the case can not be obtained (3754) '5 To be successful an appellant must show that he is aggrieved or injured by the act or decision complained of. When the proof fails to show that some proper person has sustained damage or injury, or that the educational interests of the district have sustained damage, the appeal will be dismissed (4169) 15 The Superintendent is without jurisdiction over the person charged with wrong- fully retaining money of the district. The redress in such case would be obtained only through the courts (361 1) '7 Appeals will not be entertained where the allegations are vague and indefinite, and legal and comprehensive proof is not furnished (3995) • • • '^ An appeal will be dismissed when it is not taken until four months after the per- formance of the act complained of, and sufficient excuse for the delay is not given (3601 ) '9 An aggrieved party over the issuance of a tax list should bring an appeal imme- diately after such list has been issued. A delay until the collection of such tax is enforced is fatal (5008) •• '9 An appeal involving the right of a teacher under a contract who has been dis- missed, not having been taken within a reasonable time and sufficient reason not having been given for such delay, will be dismissed (3628) 21 An appeal not brought within thirty days will not be entertained unless the delay is excused for satisfactory reasons (3963) ^- An appeal involving claims for damages under a contractual right, when the extent of the damages is indefinite and uncertain, will be dismissed (3963) 22 The power of the Commissioner of Education to grant rehearings on appeals generally considered (3So8) ^ When an appeal has been decided it will not be reopened except upon the ground of newly discovered evidence, and when testimony not contained in the original appeal is offered, it must be shown that such testimony was not known, or could not have been procured, by the appellants at the time the appeal was brought (3508) ................ 2 A district meeting may allow a claim for legal services by a district officer in defending an appeal (3940 *■' [I4.^7l 1458 THE UNIVERSITY OF THE STATE OF NEW YORK Appeals — continued page The costs and expenses incurred in an appeal can not be allowed by a district meeting unless the appeal was instituted by a school officer in his official capacity (3983) 28 When a district meeting appoints a committee to represent the district upon a proceeding before the county judge, the charges for services of counsel, if exorbitant, will not be allowed and a committee is not entitled to compensation for its services (3558) 29 The expenses of a member of a board of education in defending an action brought against him in his official capacity are chargeable against the district, if reasonable (3399) 31 In an appeal showing that a district officer defended an appeal from his official acts, and he was charged with improper and illegal action, a reasonable expense in defending such appeal may be allowed by the State Superintendent (4652) 33 An appeal showing the distinction between the provisions of the Consolidated School Law of 1894, relating to the expenses of district officers in defending suits or appeals, and the provisions relating to the prosecution or defense of school officers in actions or proceedings in the courts of the State (4507) 36 The qualified voters of a district meeting may authorize a tax levy to pay the expenses incurred by district officers in defending suits or appeals brought against them for their official conduct (4890) 40 An appeal will not lie from the failure of a board of education to conform to the order of supervisors in equalizing the tax in a district comprising a portion of two or more towns, unless the appellant is injuriously affected by the action of the board (5433) 43 The Commissioner of Education will not make an allowance for costs in appeal cases as the law does not authorize it (5245). School districts, Boundaries of. 692 The Department will not interfere in a matter in which the courts have acquired jurisdiction (3974) . Sites 967 When an appeal from a tax list is not promptly taken and not until after a col- lector's bond has been filed and the tax collected, the appeal will be dismissed (3950) . Tax lists gr,8 Where an act complained of is a continuing one, an appeal may be taken any time during such continuance (3576) . Trustees 1244 Where the issue in an appeal is the regularity of the annual meeting and the trustee elected resigns, such action does not affect the status of the appeal (5429) . Voters 1439 An appellant is estopped from complaining of action taken at a district meeting at his request (3787). Tax lists 991 Assessments Personal property under the management of executors or administrators must be assessed in the district where such executors or administrators reside 46 When a special meeting votes a tax for building a new schoolhouse, adjourns for four weeks to consider proposals for building, and at the adjourned meeting the district votes to rescind the vote authorizing such tax, such vote to rescind is legal and valid even though the tax list has been made out and a part of the tax paid 46 District trustees do not have the power to review in their discretion assessments made by the town assessors. The power of trustees to assess property is only incidental to their general functions and is restricted to cases of emergency or to correct undisputed errors (5240) 47 INDEX TO JUDICIAL DECISIONS I459 Assessments — continued page Property which is held by the courts to be exempt from ascsssment for State, county and town purposes is also exempt from taxation for school district purposes (5381 ) 52 The Education Department can not afford equitable relief from erroneous assess- ments paid long before the appeal was instituted. Relief in such cases must come through the courts (3967) 53 The rule determined as to the assessment of land lying in one body (5166, 3935, 3931) 54,56,57 An application of the provisions of the Education Law relative to the assessment of lands owned by the United Society of Shakers which lie in one body but in different school districts (3680, 3700, 3762) 58, 61, 63 When several tracts of land lying in one body and occupied by one owner, but located in different school districts, should be assessed in one school district (4330, 4356) 65, 67 When different parcels of land are owned by one person and located in two districts, they are assessable in each of the school districts (3730) 70 Trustees are required to follow the town assessment rolls, if such rolls are correct in making school district assessments (3703) 71 The general rule laid down as to the assessment of land lying in one body and occupied by one person (4209, 381 1) 7-, 74 The general rule as to the assessment of land which lies in one body but is located in different districts, and is separated by railroad property (4351) 75 When property is transferred from one district to another by proper order, but such order does not take effect until three months hence, the property to be transferred is subject to taxation in the district from which it is transferred prior to the date on which the order becomes operative 79 A person whose place of residence is divided by a town line may elect in which of the two towns he will pay his tax for school purposes (3723) 80 In the assessment of railroad property, trustees are required to take the valuation fixed thereon by town assessors (3538) 80 The action of trustees in raising the valuation of a piece of property from $2500 to $5000, without giving notice to the party against whom such property was assessed, is illegal (3946) 81 The law provides for an exemption of ministers of the gospel to the amount claimed from the value of the property, real and personal, or either, if the valuation thereof exceeds $1500. In an appeal by a minister, involving this proposition, he must show in his papers the property of which he is pos- sessed in the district and elsewhere (4006) 81 A tax upon personal property will be set aside when it appears that a trustee made an original assessment and did not give to the party assessed twenty days' notice of such assessment before delivering the tax list to the collector • (3551) :•••:• ^- The exemption of certain property of ministers of the gospel from taxation is intended only for persons who are acting as such and who derive their support from such employment (3857) ^ Wlien the town assessors have settled the question of valuation it must not be reopened by trustees because such officers are of the opinion that it is wrongly determined (4163^^). Tax lists 1006 Board of education A board of education is not authorized by law to borrow money to meet the general expenses of maintaining school, except as specinlly provided by law. A board of education is not authorized to incur a lialiility in excess of the appropriations voted by the district or authorized by law (5202) 86 1460 THE UNIVERSITY OF THE STATE OF NEW YORK Board of education — continued face A board of education will not be permitted to delay the execution of directions from a district meeting or to thwart the expressed wishes of a majority of the legal voters of the district by calling special meetings to pass upon questions which the district has already decided three times (5187) 87 The Commissioner of Education will not interfere with the action of a board of education whose business transactions have not conformed strictly to the statutes through lack of knowledge, when it is shown that the board acted honestly and in good faith and gives full publicity to the voters of the district of its transactions, and takes prompt action to correct its errors as soon as such board understands the law (5289) 91 The authorities of a school district are legally obligated to exercise control of the expressions and the business management of a publication which is held out to represent the school (5142) 94 The members of a board of education will not be removed upon petition unless it is shown that the conduct complained of has been wilful and intentional. A board of education may issue certificates of indebtedness in anticipation of taxes levied but uncollected (5161) 95 An appeal in which the method of procedure of increasing the number of mem- bers of a board of education at an annual meeting is determined (5420) 99 Where the action of an annual meeting in increasing the number of members of a board of education is held to be null and void (4276) 102 The method of voting to increase or diminish the number of members of a board of education must be by taking and recording the ayes and noes of the voters present and voting (5018) 105 The number of members of a board of education of a union free school district can not be less than three or more than nine. The clerk of a board of educa- tion of a union free school district is appointed by the board and also acts as clerk of the district (4896) 107 An appeal in which the method of filling vacancies in a board of education is generally discussed and determined (4404) 108 A member of a board of education temporarily absent from the district, but not having removed therefrom, did not cease to be a resident or inhabitant of the district, and the action of the board in declaring the office vacated was illegal and void (4128) iii A general interpretation of the Education Law as to the right of a board of education, and the method by which such board may fill vacancies (4749) 114 An application of the law regulating the power of boards of education to fill vacancies thereof (4343) 117 The power of a board of education to appoint members thereof fully discussed and determined (3314) 119 The duty of a board of education of a city in relation to opening and maintaining the schools is fully determined (4584) .'. 121 A board of education can not limit the class of persons who have reached the required standard of learning and ability to teach, from which the teachers of the school may be selected (3493). Teachers contracts 1210 A board of education should give greater weight to the opinion of physicians officially charged with responsibility concerning public health than to the opinions of other physicians not charged with such official responsibility (5363)- (See Pupils, expulsion of) 506 An appeal which considers generally the law relative to methods of voting in union free school districts, increasing and decreasing the members of the board, etc. It is also held that, where a board consists of three members INDEX TO JUDICIAL DECISIONS I461 Board of education — continued page and the increase in the number thereof was illegally made, the election of such trustee is void. (4487) 126 An appeal which fully discusses and determines the method of procedure in increasing the number of members of a board of education (4465). Meetings 368 A minority number of a board of education may transact the business of the board when vacancies exist in the majority of the members of such board (3793) • Officers 435 It is the duty of a member of a board of education upon hearing that a disturb- ance of a serious nature is threatened in the school not only to notify the teacher and advise him to send for a constable, but to remain at the school and see that the peace is kept and the order of the school and community maintained (3504). Teachers contracts 11 18 A board of education has not the authority to give direction to teachers as to the method of instruction which shall be pursued, or to give orders to a teacher or otherwise interfere with recitations in the schoolroom (4294). Teachers contracts 1201 An appeal which interprets generally the right of a board of education to modify rules which it has prescribed (3631)- Textbooks 1227 Boards of education or trustees have not the right to make a contract with the teacher to furnish instruction to certain children upon the condition that such children shall pay tuition (3764) • Tuition I330 Branch schools Whenever a sufficient number of children are debarred from attending school by reason of the distance which they are required to travel, the establishment of a branch school will be authorized (4164 ^^2 ) I35 When a trustee exercises an unwise discretion in relation to the establishment of a branch school, his action will be overruled on an appeal 136 It is the duty of the trustees to establish a branch school when the facts show that it is necessary for the due accommodation of the children living in a remote part of the district (4340 ^^^ When the district has maintained a branch school for two years and at the close of that period the conditions are the same as when the said school was authorized, it is proper and legal for the retiring trustee to make the same provision for continuing the branch school that he may, under the law, make for the continuance of the regular school district (5178) • • • '39 A trustee may establish a branch school without regard to the previous action of a district meeting, but a branch school should not be established unless a considerable number of children are to be accommodated thereby. A branch school should not be established to accommodate three children of a single taxpayer (5402) j :" ^'^^ When a branch school is established, the trustees of the district may determine what pupils of the district shall attend such school (5405) '45 Building committee The law does not authorize the appointment of a building committee. Such committee can act only in an advisory capacity (3621 ) • • • '47 There is no legal objection to trustees employing members of the building com- mittee to work for the district (3621) •••• ^^^ A building committee has not the authority to interfere with the trustee of the district in the construction of a school building • '48 An annual meeting may accept repairs made by a building committee if such repairs were authorized and if the cost of the same is not exorbitant (5227) . • I49 1462 THE UNIVERSITY OF THE STATE OF NEW YORK Building committee — continued pagi A district meeting can not delegate to a building committee the power to appoint a member of such committee to carry out the wishes of the district in case the committee can not agree (3301 ) 150 A building committee may advise trustees or make suggestions as to the procedure in erecting a building but can act in an advisory capacity only (5179). Schoolhouses 810 An appeal in which the powers generally of a building committee and the status of such committee are determined (3648) . Schoolhouses 830 Compulsory education This is an appeal in which the duties of the trustee in relation to the enforcement of the Compulsory Educaton Law are discussed and determined (5286). Officers, removal of 443 When a pupil is expelled from school and is within the compulsory school age, it is the duty of the trustee to proceed against such pupil and see that he is committed to a proper institution where suitable and lawful instruction will be provided (5253). Pupils, expulsion of 499 Contract system A leading case discussing the general provisions of the contract system and the obligation of parents to provide school facilities for their children (5219)... 151 It is the settled policy that districts which contract must provide suitable trans- portation for the children who live so far from the schoolhouse which they must attend as to be unable to walk to and from school daily (5241) 155 The Commissioner of Education will not interfere with the action of a district in voting to determine whether or not a contract shall be made for the education of their children. It has been the settled policy of the Department for years to encourage the maintenance of home schools (5427) 156 The law requires the vote authorizing a contract for the education of the children of a district to be taken by recording the ayes and noes of the qualified voters present and voting (4499) 158 The vote authorizing a contract for the education of the children of a district must be a majority of those present and voting. Money raised by a tax for school expenses for the ensuing year may legally be used to meet the expenses incurred by a district when such district has adopted the contract system (5220) 160 When a district authorizes the education of its children in another district under the contract system, a written contract must be executed. The money which a district receives from the State may be used in the payment of tuition of pupils and any surplus for the transportation of children to and from schools where they are taught (4926) 162 It is the duty of a trustee to execute a contract which is authorized by a district meeting for the education of its children in another district (4505) 165 Trustees must provide safe, comfortable and proper transportation for children and they are justified in resisting unreasonable demands based upon personal appeals (5388) 167 Schools may operate part of the time under the contract system and part of the time by maintaining a home school. The period of time covered under the contract, combined with the time a home school is maintained, must equal at least 160 days. When a district operates under the contract system it must provide transportation for the children of tender years who are required to travel long distances to attend school (536S) 170 INDEX TO JUDICIAL DECISIONS I4b3 Contract system — continued page When better facilities can be afforded by contract with two or more districts instead of a contract with one district, such policy should be pursued. The law encourages such policy by specifically authorizing it (5375) 17-2 When the district is operating under the contract system, the trustee may expend any surplus of moneys received from the State, after paying the necessary tuition, for the purpose of providing transportation for the children (4924) . Meetings 363 Elections A leading case setting forth the general principles which are controlling in school district elections (5218) 175 Irregularities in calling or holding an election not proceeding from a wilful or wrongful intent and not affecting the results are not sufficient grounds for setting aside an election (5293) 184 The rules which are to govern in cases where an excess of ballots has been cast for school district officers. Rules as to the destruction of excess ballots at general elections should apply to school elections (5426) 188 When two ballots are folded together and it is found that the number of ballots cast exceeds the poll list by one, the presumption is that the vote is fraudulent and both ballots should be rejected (3564) ^90 An appeal in which the method of procedure is determined in cases where several ballots are folded together in the ballot box (3831) I93 When a ballot is being taken for the election of a trustee and votes are found cast for a person for the office of collector, such votes should not be counted but, if all the other votes were for person named for trustee, he should be declared elected (5401) ^97 When three trustees are to be elected for a full term and one for the balance of an unexpired term, the ballots must designate the terms for which the can- didates are to be elected. A person who can positively identify a ballot cast by him for a school officer will be permitted to explain on appeal ambiguities and uncertainties contained therein to the end that his intent may be ascer- tained and his vote counted in favor of the candidate of his choice (5396) . . 19S When it is shown on appeal that all who desire to vote at an election were not accorded that privilege, the election will be set aside (5299. 3822) ^ 201, 203 The arbitrary course of the chairman of a district meeting in declaring himself elected trustee will not be sustained (3814) -°-* The result of a district meeting will not be set aside on the mere charge of illegal voting. It must be shown that the illegal votes cast would have changed the result of the election (3656, 3652) 205, 206 Any voter may freely challenge the right of another offering to vote (3652).... 206 Where the proceedings of a district meeting are characterized by such disorder and confusion as to make it clear that a fair expression of opinion was not obtainable, the election will be set aside and a new one ordered (3820) 207 The official record of an election will be held as true unless impeached by clear evidence (3752) '''"V • V V ' Ille-al voting at school district meetings is to be prevented by the exercise of the °ri-ht of challenge and the exaction of the voter's oath as to his qualifications and by prosecution of a person who makes a false affirmation and casts an illegal ballot (3752) •. ■,■■■■;"■:," ^^ In filling a vacancy in the office of trustee, a district meeting can elect for the unexpired term only and it can not elect for a shorter period than the unexpected term (3708) 1464 THE UNIVERSITY OF THE STATE OF NEW YORK Elections — coiitiuncd page When a ticket voted at an election for trustee contains a name printed and another name written, the presumption is that the voter intended to vote for the latter and neglected to erase the name of the former (3568) 211 When the ballots cast for trustee run two short of the poll list and two trustee ballots are found deposited in another box, they should be counted for the person whose name appeared thereon (3568) 211 An election will be set aside where it does not appear that a candidate receives a clear majority of the legal votes cast (3533) 213 Where it appears that an election was determined by illegal votes, such election will be set aside and a new election ordered (3937) 214 Method of authorizing the clerk to cast the ballot of the district meeting where it appears that there is but one candidate for an office is not legal nor is it approved. In such cases the polls should be open for the reception of ballots but, if it is apparent that all present desire the election of the one candidate and no objection is offered and the chairman asks if all present have voted who desire to, the balloting may be closed by unanimous consent and the votes counted (4395) • 214 The chairman of a district meeting has no legal authority to declare officers elected at such meeting. The duty of a chairman is to declare to the meeting the result of each ballot as such ballot is announced to him by the inspectors of election and the person or persons having the majority of votes respectively for the offices voted for are thereby elected (4687) 218 A school district meeting has not the authority to determine that a ballot taken for the office of trustee was illegal and order a new ballot (4302) 221 A person elected as trustee of a school district by the color or form of an election is a de facto officer of the district and, as such, is authorized to and required to perform the duties of his office until his election is vacated by a proper proceeding before the Superintendent of Public Instruction (4302) 221 The school law does not authorize an informal ballot and, where such ballot is ordered, it m.ust be regarded to be for the purpose of obtaining the views of the meeting. In such case, the chairman of the meeting has no authority to declare the result of an informal ballot to be an election (4375) 224 An election is illegal and void when a person was elected to fill an alleged vacancy and no such vacancy existed (4200) 226 An election will be set aside when the successful candidate h^ only one majority and defective ballots have been counted for him (4183) 231 An election will be set aside and a new election ordered where it appears that, at an election of a trustee at a school meeting, there were rival candidates and sufficient opportunity was not afforded to get the expression of the voters present (3844) 233 An appellant will be estopped from setting up his claim to an election under the following circumstances : he was chosen trustee and, because but few persons voted, he asked that another election be had in order, as he said, to deter- mine the sense of all voters present. This was done and another person was elected (3647) 233 An appeal in which the general method of procedure as to the counting of ballots after an election has been closed is fully discussed and determined (4261, 3662) 235, 237 Irregularities, mistakes or omissions on the part of election officers will not vitiate the election or defeat the will of the electors as shown by their votes (4410) 238 INDEX TO JUDICIAL DECISIONS I46; PAGE Elections — continued School officers should ascertain the intent of electors and give expression to their ballot as they intended. One Joseph B. Johnson was named as one of two trustees and it is not alleged that any other person by the name of Johnson was a candidate and votes were cast for Mr Johnson and Johnson, such votes should be counted for Joseph B. Johnson (4053) 241 An election will be held to be void where a suitable ballot box is not provided, where inspectors of election are not appointed, where a poll list is not kept by the clerk of the meeting and the election was not by ballot but by a viva voce vote (4265) 243 Where a ballot has been taken for a district officer and such vote canvassed by the inspectors and the result of the canvass announced and it appears that a candidate has a majority of the votes cast, it is not within the power of the meeting to order a new ballot (4379) 245 The mere circumstance that improper votes are reveived at an election will not vitiate it. The fact must be shown affirmatively that a sufficient number of im- proper votes were received by the successful ticket to reduce it to a minority if such votes had been rejected or the election must stand. (4392, 4315) . .247. 250 A person knowing a person to be unqualified and permitting him to vote without challenge will not be allowed on appeal to object to the proceedings of the meeting because said unqualified person participated therein (4392) 247 Where an election has been held at a school district meeting, the trustees chosen thereat have not the power to determine that they were illegally elected and call a new election for the election of other trustees. Officers elected under the form and color of an election are entitled to perform their duties until an order of the State Superintendent declares such election illegal and void. (4397) ; • • • • • • • *54 The law requires a majority vote as necessary to an election at a district meeting. Where officers are declared elected by a majority vote, the trustee has not the power after the meeting has adjourned to call a special meeting for the election of officers on the ground that the first election was illegal. The only authority to declare an election illegal is the State Superintendent. (4414) 256 Where a motion prevails at a district meeting to the effect that the clerk shall cast the vote of the meeting for officers nominated and the clerk casts such vote and an appeal is brought within the prescribed time, the election will be vacated (4101 ) ^59 All school district officers must be elected by ballot in the manner prescribed by the Education Law and the persons having the majority of votes respectively for offices shall be elected (4281 ) _ _■ • • 262 The general procedure under which an election at a school district meeting should be conducted (4881) 265 Where a person is elected to the office of collector and is ineligible, but sucli ineligibility is not known at the time of the election, the opposing candidate can not afterward be declared elected. A new election must be ordered (3448) ■ 268 Upon evidence tending to show that illegal ballots were cast at an election for officers of a school district, it will not be assumed that the illegal votes were cast for the successful candidates • • • 269 The fact that the votes of persons not qualified were received at a school meeting and in a ballot taken thereat, will not vitiate such ballot but. to warrant the setting aside of such ballot, it must appear confirmatively that the resolution and ballot have received a sufficient number of improper votes to reduce such vote to a minority if the improper votes had been rejected (4407) -7, 1254, 1256 (3897, 3783) y :: A trustee has no right to sell lumber to himself or to employ his own team upon school work or to perform other labor for the district for which he expects to be paid (3846) ^^=^ 1502 THE UNIVERSITY OF THE STATE OF NEW YORK Trustees — continued page A trustee can not legally take a subcontract upon district work (3753) 1257 The law directing town superintendents or supervisors to pay out public money only to qualified teachers upon the order of trustees was enacted to prevent embezzlement by trustees, and if they pay public money otherwise than thus provided, they do so at their peril 1259 A trustee will not be removed from office upon charges which are too general or trivial (3868) 1260 It is within the power of a district meeting to advise and direct the action which a trustee should take in relation to the erection of a new school building and it is the duty of the trustee to carry out such directions (3580) 1261 It is the duty of a trustee to make repairs in obedience to the order of the school commissioner (3413) I-261 A trustee elected at a special meeting called after a district failed to hold its annual meeting is entitled to hold the office (3927) 1262 It is the duty of a trustee to carry out the directions of a commissioner's order and to provide by tax for the payment of the salary of the teacher, and general neglect in performing this duty is sufficient ground for his removal (3870, 4008) 1263, 1264 A trustee will be removed from office for persistently and wilfully disobeying and violating the orders and directions of the State Superintendent (4010) 1265 The practice of trustees in reporting a less balance on hand at the annual meeting than they really possess is a reprehensible and pernicious custom and inexcus- able (3956) 1267 To remove a trustee from office on the ground of ineligibility, the charge must be clearly established (3755) 1268 The office of trustee does not become vacant by reason of neglect or malfeasance until charges have been preferred and the trustee is properly removed (3701). 1269 A trustee who persistently neglects to make repairs to the school building which are necessarj' and which have been ordered by the commissioner, is subject to removal from office (3894) 1270 Where a trustee is charged with ineligibility to office and files an answer in which he states fully his qualifications and swears to the same, such affidavit will be conclusive, unless disproved (3960) 1270 A trustee who is duly elected at a district meeting is entitled to the office even if he did say he did not care for the office and the district then proceeded to elect another trustee (3834) 1271 A person incapable of transacting business on account of advanced age and who is wholly irresponsible and living on charity and who has refused or neg- lected to carry out the directions of the district for a long time is unfit to hold the office (3725) 1272 If a person who is chosen trustee subsequently accepts the office of collector, he thereby vacates the office of trustee (3939) 1273 When a trustee resigns but fails to give notice to the district clerk as required by law, the school commissioner can not legally fill such vacancy by appoint- ment (4028) 127s Where a trustee announces to his associate members that he resigns his position, and leaves the meeting of the board and then publicly announces that he has abandoned the office he will be regarded as having vacated the office (3921) . . 1276 Where a person chosen to the office of trustee publicly expresses doubts as to his eligibility and declares that he will not serve, who circulates a petition to a school commissioner to fill a vacancy in the office and who afterwards calls a special meeting to fill such office, he will be deemed to have vacated the office (4286) 1278 INDEX TO JUDICIAL DKClSiUAS I503 Trustees — continued PAGE Where a trustee advises the school commissioner that he will resign and the com- missioner also advises the district clerk and a special meeting is called and the vacancy filled, the action will be sustained (3957) 1281 Where a trustee announces his intention to remove from the district, his refusal to serve longer in the office, and files notice with the district clerk, together with his resignation, he will be regarded as having vacated the office (3871).. 1283 A trustee will not be removed from office upon allegations which are too general in character (3630) 1284 A supervisor of a town has not authority to accept a resignation of a trustee 1285 Where the resignation of a trustee is void, no vacancy exists and an attempt to fill such vacancy will not be sustained (4338) 1285 A supervisor has not authority to fill a vacancy in the office of trustee (3873) 1287 Where a member of a board of trustees is chosen clerk of the board, he can not be removed from membership in the board because of neglect of duty as clerk (3581) 1288 The trustees of a district which maintains two schools have the authority to determine in which of the schools the several children of the district shall attend (3805) 1291 The wisdom of the action of the trustee in establishing two departments in a school in which the attendance is not large will not be sustained (4005).... 1291 A person assuming to be trustee without the color of an election is neither a de facto nor a de jure officer and a tax list issued by him is void (4044) . . 1292 A trustee can not be the custodian of public money nor can a trustee insist upon including in the contract with a teacher a provision to the effect that such teacher shall board with him (3575) 1293 Trustees have the right to specify the subjects which shall be taught in common schools and the action will not be interfered with unless it is an abuse of discretion (2979) 1293 Trustees can not impose by contract a duty upon a teacher which the law makes it the duty of the trustees to perform 1293 The expenses incurred by a trustee in his wilful determination to evade the directions of a district meeting will not be allowed, and a meeting of the district can not legally authorize the payment of the bills therefor (SisO- Meetings 296 The acts of trustees de facto, holding office under color of an election sub- sequently declared void and set aside, are valid and binding upon tlicir successors. Officers 4^3 Trustees are barred by law from being interested in any contract made by the district (4380) . Officers, removal of 478 The law requires a trustee to maintain a school and it is the duty of a trustee to employ a teacher for this purpose (4325). Officers, removal of 481 A trustee has no right to charge for his personal services upon district work (3772) . School furniture 793 Trustees are not always required to let the contract for the construction of the schoolhouse to the lowest bidder. Schoolhouses 803 A district meeting can not restrict the power of the trustee to determine the number of teachers which shall be employed in the district (5179)- School- houses : 8^° Where the trustee violates no instruction from the district but exercises his best judgment on the course to pursue even if that judgment is faulty, his action does not constitute sufficient cause for his removal from office (5i79)- Schoolhouses 1504 THE UNIVERSITY OF THE STATE OF NEW YORK Trustees — continued page The trustees of school districts have no legal authority to receive or to retain in their custody school moneys (4441). School moneys 868 A trustee of a school district can not legally receive pay for the services done and performed by him as trustee and required to be performed by him under the law (4408) . Tax lists loog Trustees are not authorized to prescribe qualifications for teachers other than and in addition to those prescribed by the general law (5011). Teachers certificates 1075 A trustee de facto may make a contract with a teacher which is binding upon the district (3586). Teachers contracts 1146 A person who is not a citizen of the United States is not a legal voter and is therefore not eligible to the office of trustee (4498). Voters 1435 Boards of education or trustees have not the right to make a contract with the teacher to furnish instruction to certain children upon the condition that such children shall pay tuition (3764). Tuition 1330 Tuition Where children whose homes have been broken up are brought to the residence of a grandfather to find care and protection for an indefinite period, they become residents of the district in which such grandparent lives 1296 Where a child goes into a district to get employment and not for the purpose expressly of attending school, he is a resident of the district and is entitled to a portion of the public money apportioned to the district and also to share in the privileges of the school 1296 A general guardian may constitute his own district the residence of his ward by removing him thereto. Children residing with their grandmother as part of her family and for her convenience and support are entitled to attend school in the district as resident pupils 1296 Where the facts in a case establish such a substantial adoption of a child as to make her a resident of a district, such child is entitled to the privileges of the school (3386) 1298 A minor child, whose parents reside in one district and who permitted her to live in another district with her grandparents for the purpose of securing better school accommodations than in the district in which the parents reside, should be held to be a nonresident pupil and liable for the payment of tuition (3877) 1298 Where a child 14 years of age, resides in a district with a brother by whom he is supported and cared for, his parents living without the district and as a separate family and not supplying the other necessary support for such child, it will be held that the boy is entitled to attend school in the district in which his brother resides. (3878) 1299 The residence of a ward is not necessarily the same as that of his guardian. A minor born in a district and living there, whose parents resided there until their decease, who owns real and personal property in the district, whose intention it is to make the district his home, will be held to be a legal resident of such district. (3876) 1300 A minor residing with a sister who is a resident of a school district, and by whom she is supported, is entitled to attend school although parents be nonresidents (3843) 1301 A residence of a minor child is held to be with its parents unless the contrary is clearly established (3704) 1302 On questions affecting the right of a child to attend school, the decision of the Department will be liberally construed in favor of sucli child. Where it is INDEX TO JUDICIAL DECISIONS I505 Tuition — continued clearly established, however, that a child of scliool age moves into a particular district for the sole purpose of securing the benefits of the school and intends to remain there only temporarily, such child should be deemed to be a non- resident pupil. (3769) 1302 A case in which it was held that a child, who went into a district to live with her grandmother who was in a feeble condition, was entitled to attend the school in such district without the payment of tuition (4344) 1304 Where a board of education establishes a department of stenography, typewriting etc. in the school, the board has not authority to charge resident pupils tuition for pursuing such courses (4264) 1305 An appeal in which it is held that a minor wlio came from another state to this State is not a resident of the district and therefore not entitled to free tuition (4226) 1308 An appeal in which the conditions necessary to acquire a residence are fully determined (4167) 1311 The residence of a minor is generally identical with that of his parents but it may be elsewhere by their consent (3596) 13 13 The law provides that the public school shall be free to all resident pupils between the ages of 5 and 21 years. Boards of education can not enforce a rule which abridges this right in any way (3984) 1315 Where a child 16 years of age goes from one district to another to live with her brother and this brother offers lier a home which she accepts, she is entitled to attend school in the district without the payment of tuition (3791^, 4850) 1317 Where it appears that a child has no regular home and goes into a district to reside with persons other than her parents, she will be entitled to free school privileges (3977) 13^9 Where the local authorities determine that a child is a nonresident of the district, their decision will be sustained upon appeal unless a preponderance of evi- dence shows the contrary to be true (3945) i3-0 An appeal which determines the action which is necessary in order for a parent legally to emancipate a minor son (4536) i3-0 Where it appears that a parent has emancipated a minor son. such son is entitled to adoption in a new family and to school privileges in the district in which such family resides (4855) 13-4 ^^'here a minor, with the consent of her father, resides with a family in a school district, such residence with such family being in accordance with the request and wish of the child's deceased mother, it will be held that the arrangement is not temporary in order to secure school privileges (4460) 13-6 ^\■llere a minor for the purpose of attending school in a school district other than that in which his parents reside, agrees to perform services for his board while attending school, such minor does not become a resident of the district and is not entitled to attend school without the payment of tuition (4526) ......... 13^ A practice of allowing a teacher the privilege of teaching a subject and charging pupils tuition is illegal (3764) .■■■."■■. '." ^^^'^ All instruction given in a public school to the residents of the district in which such school is maintained must be free (3764)- Tuition '330 Union free school districts — division, dissolution of The State is directly interested in every school within its borders and will not consent to the destruction of a strong, efficient school, meeting fully the needs 48 1506 THE UNIVERSITY OF THE STATE OF NEW YORK Union free school districts — division, dissolution of — continued page of a community, for the purpose of establishing^ two of inferior grade, neither of which does meet such needs (5193) 133J A school commissioner possesses the power to alter or change the boundaries of a union free school district (3526) 1335 An interpretation of the law which authorizes the trustees of a village to call a special meeting of the electors of such village to determine upon the division of the district into two union free school districts (5460) 1338 A school commissioner will be sustained in vacating an order which he has made transferring a portion of the territory of one union free school district to another when the district from which the territory was transferred has an outstanding bonded indebtedness (4381 ) 134c When a local board by a tie vote declines to confirm the preliminary order made by a school commissioner in altering the boundaries of a union free school district, the procedure is to institute a new proceeding (4253) 1341 An appeal in which the school commissioner was reversed in his action in dis- solving a school district against the almost unanimous consent of the voters of such district and annexing the territory of such district to a union free school district (4170, 4451 ) 1347. 1353 An appeal which interprets the law giving school commissioners power to alter the boundaries of union free school districts 1357 A school commissioner possesses the authority to dissolve a district and annex a portion thereof to an adjoining union free school district and form a new district out of the remaining territory of the district dissolved without appl}'- ing for and obtaining the consent of the trustees of the dissolved district or the union free school district (5036) 1359 Union free school districts — organization of An appeal which enumerates some of the conditions on which the establishment of a union free school district may be overruled (4046) 1363 An appeal in which the action of the voters of two school districts in voting to consolidate to establish a union free school district is vacated (3980, 3947) 1363, 1364 An appeal in which the Department refused to overrule the action of a meeting which decided to organize a district into a union free school district (3982, 3988) 1364. 1306 An appeal which interprets the law generally relative to the procedure in voting to organize a union free school district (3766) 1367 Where the action of a meeting in voting to organize a union free school district is irregular and disorderly and the meeting is disorderly and it appears upon appeal that a large majority of the voters are opposed to such action, the action of the meeting will be vacated (3899) 1368 An appeal which describes fully the method of calling a meeting of the electors of two or more adjoining districts for the purpose of determining the con- solidation of such districts into a union free school district (4267) 1370 An appeal which determines the method of calling a meeting in a single district for the purpose of organizing a union free school district (4306, 4305), .1377, 1381 When a joint meeting of two or more districts is held for the purpose of determining on the consolidation of such districts into a union free school district, it is sufficient if fifteen of the voters of each district are present and a majority of the qualified voters present and voting are in favor of such consolidation (4178) 1384 The action of a meeting in the establishment of a union free school district in a common school district or the consolidation of two or more school districts INDEX TO JUDICIAL DECISIONS I507 Union free school districts — organization of — coutinued . , 1 1 J- • • PACK into a union school district is a statutory proceeding and the provisions of law must be strictly followed (4350) 1333 When a union free school district is organized and a board of education is elected as the law provides, this board becomes the governing body of the district and supersedes the trustees of the common school district or districts from which the union free school district is formed (4750) 1390 Where the notice given of a meeting to determine whether or not a union free school district shall be organized is defective and had not been given the required period of time, the action of the meeting in voting to organize into .a union free school district will be vacated (3985, 4365) 1394, 13,^5 Union free school districts — clerk, collector, treasurer Clerk The clerk of a board of education can not legally hold the office of treasurer or collector (4510) 140J Collector The collector of a uni«n free school district must be a taxable inhabitant uf the district and can not legally hold the office of treasurer (4510) 1403 A board of education can not legally appoint one of its members collector (4984) . . 1417 1 rcasurer An appeal which determines fully the moral and legal obligations of the treasurer of a union free school district (5371 ) I3'^ The treasurer of a union free school district must be a taxable inhabitant of the district. The treasurer can not hold the of»ce of collector (4510) 1403 Tlie law provides that the treasurer of a union free school district shall hold the appointment during the pleasure of the board but, where the board at the time of the appointment of the treasurer fixes the term of the appointment for the ensuing year, it will be held to have exercised its pleasure and the appointee shall hold for that period of time. In such a case, the board is estopped from removing the treasurer except for some other cause (4418) 1409 The office of treasurer can not be filled at district meetings until a resolution has been duly adopted creating such office. A treasurer must be a voter and taxable inhabitant of the district and can not hold the office of collector (4271) -•• '-^'^ A board of education can not legally elect one of its members treasurer. The board may appoint any taxable inhabitant of the district treasurer and lix his compensation (4984) ^■*'' Voters Colored persons may vote at school district meetings, provided they possess tlie requisite qualifications ; '"^''^ An alien, though he has taken the incipient measures to be naturalized, is not qualified to vote at a school district meeting in the district in which he resides, unless an affidavit of that fact is deposited and recorded in the office of the Secretary of State • '•♦^'^ \ leading case in which the qualifications of voters are fully discussed and determined (539-^ '. i'-"i" '1" The fact that a woman is the wife of a man owning real estate in which she has a dower right is not sufficient to qualify her to vote at school district , ■. 14JO meetings (37") • . Ownership of a revisionary interest in real estate which is subject to an unexpired life estate, is not such a present ownership of land as qualities an elector at school meetings. The mere fact that two women swear that tiiey own 1508 THE UNIVERSITY OF THE STATE OF NEW YORK \'oTERS — continued page real estate without disclosing the location or show that land has been cov- enanted to them is not sufficient to establish their claim to be eligible voters. {2,7^2) 1426 When a person leases a farm from the owner thereof, the agreement in relation thereto must establish the relation of landlord and tenant if the party leasing such farm is thereby entitled to vote at school district meetings. Where the relation is simply that of master and servant, the right to vote does not follow (4693) 1428 Where the arrangement between father and son relative to the occupancy of real estate owned by the father can not be regarded as constituting a technical lease, but the relation created thereby is that of master and servant instead of landlord and tenant, the son is not a qualified voter (S334) 1432 Ownership of personal property which does not appear on the assessment roll is not sufficient ground to qualify a voter at school district meetings (3781).. 1433 An appeal in which the qualifications to vote at school district meetings are fully determined (4373) I434 To be a qualified voter at a school district meeting, a person must be a citizen of the United States (4498) 1435 An appeal which determines in a general way the qualifications of voters, method of challenging, etc. and penalty for illegal voting (3664) 1436 Upon the challenge of a person offering a vote, it is the duty of the chairman of the meeting to administer the oath prescribed by statute and, if the oath is taken by the person, the vote must be received. The chairman of the meeting has not the power to determine who are or Avho are not voters (4007) 1438 Where an assessment roll is not completed prior to the holding of the annual meeting, it can not be used to determine the property qualifications of voters at such meeting (5429) 1439 In the absence of allegations of material facts tending to show the disqualifications of an alleged illegal voter, it must be held that such voter was qualified (5418) 1442 An appeal in which it is held that a clergyman who is the pastor of a church, residing in a dwelling owned by such church, is not a legal voter of the district (4257) 1444. An appeal in which it is held that the Constitution does not prohibit the right of women to vote at school district meetings (3300) 1450 An appeal in which it is held that the uniform ballot act docs not apply to school districts (3513). Meetings 3S2 A person who merely occupies land for which he pays no rent and which he does not own or hire and upon which he is an occupant upon mere sufferance, is not a qualified voter at a school district meeting (3752). Elections 207 An appeal in which the qualifications of voters are fully set forth and determined (4930) . Elections 274 An appeal in which an application of the law as to qualifications of voters and procedure in challenging, etc. at district meetings is made (4406). Meetings. 350 An appeal which determines generally the qualifications of voters in school dis- tricts (3989). Trustees 1248 A tax can not be authorized at a district meeting by viva voce vote or by acclamation (4391). Tax lists 1021 i UC SOUTHER! r.R-^MYF.'.LlLlTV D 000 807 385