PUBLIC SCHOOLS A LAW TREATISE RIGHTS, POWERS, DUTIES AND LIABILITIES OF SCHOOL BOARDS, OFFICERS AND TEACHERS. WITH APPENDIX CONTAINING SYNOPSES OF PRINCIPAL STATUTES OF EACH STATE. BY IRWIN TAYLOR, AUTHOR OF PLEADING AND PRACTICE, COLORADO DIGEST, ANNOTATED CODE, GENERAL STATUTES OF KANSAS, TAX LAWS, KANSAS DIGESTS, ETC., ETC. ^> 0? TH*: [UHIVBI. CHICAGO: IRWIN TAYLOR, PUBLISHER, 13 SOUTH ASHLAND AVENUE. 1893. COPYRIGHT, 1893, BY IRWIN TAYLOR, CHICAGO, ILLINOIS, 7 TABLE OF CONTENTS. Preface p. 3. Appeals p. 5, 1-4. Bonds p. 10, 5-9. Buildings Contract, Control, Repair, Use p. 16, 10 to 28. Colored Schools p. 36, 29-33. Contracts Attorney, Notes, Officer Interested, Officer Lia- bility, Power, Ratification p. 44, 34-42. Corporation p. 53, 43. Crime p. 54, 44. Districts Alteration, Boundary, Dissolution, Library, Or- ganization, Union p. 54, 45-73. Election p. 91, 74. Funds Apportionment, Appropriation Bonds, Constitution, Fines, Interest, Investing, Liquor, Loan, Officer, Use p. 92, 75-96. Grammar and High Schools p. 113, 97. Judgment p. 114, 98. Legislature p. 116, 99. Mandamus p. 116, 100. Mechanic's Lien p. 116, 101. Meeting Notice p. 117, 102^110. Normal p. 127, 111. Officer Compensation, Contract, District Election, Liabil- ity, Power, Qualification, Tax, Term, Treasurer, Vacan- cies p. 128, 112-137. Parochial School Bible, Sectarian^ Religion p. 157, 138-148. Pupil Admission, Chinese, Discharge, Dismissal, Expulsion, Punishment, Residence, Tuition p. 171, 149-163. TABLE OF CONTENTS. Record p. 195, 164-166. Rules p. 197, 167. Site Addition, Condemnation, Contract, Conveyance, Elec- tion, Injunction, Notice, Officers, Place, Sale, Tax Title, Trust p. 200, 168-180. Statute p. 208, 181. Suits District Party p. 209, 182-186. Superintendent Public Instruction, County, Schools p. 214, 187-191. Supplies p. 222, 192-195. Surety p. 226, 196-198. Tax p. 228, 199-237. Teacher Certificate, Compensation, Contract, Dismissal, Discharge, Institutes, Liability p. 262, 238-265. Term p. 296, 266. Text-Books Adoption, Change, Free, German, Studies, Pupil p. 296, 267-279. Title p. 312, 280. Town p. 313, 281-282. Treasurer p. 313, 283. Trespass p. 313, 284. Truant p. 314, 285 286. Trust p. 316, 287. . Universities Colleges p. 317, 288-291. Vaccination p. 323, 292. Voters p. 323, 293. Warrants p. 324, 294 - 297. Women Officers, Voters p. 328, 298-299. Appendix Synopses, School Laws of the Different States pp. 331-399. Teachers' Certificates Effect in other States pp. 400- 404. Index pp. 405-411. PREFACE. In presenting a law book on the subject of Public Schools, I claim that this is one of the most important subjects that come under the supervision of courts, and is farther reaching than any other covering in its scope, social, business, religious and official rela- tions. I have quoted largely on prominent subjects from the leading cases, and it has been a task of pleasure to prepare the volume for publication, knowing that while many decisions may appear conflicting, yet they are presented in such a manner that those who use this book can readily distinguish and apprehend the law applicable to the system in their State. I trust that Teachers, School Officers and the Bar will appre- ciate the effort to unravel and present in a tangible form the law of the land, taken from nearly 5,000 cases in the courts. IRWIN TAYLOR. CHICAGO, ILLINOIS. 1893- PUBLIC SCHOOL LAW. 1. Appeals. Ordinarily an appeal does not lie, the sole purpose of which is to determine the validity of a claim against the district, and the right of appeal is confined to the party affected by the decision. It is generally an adequate remedy from the exercise of discretionary powers imposed on an officer, but often where the obligation on the officer is mandatory the courts of law give speedier relief by the writ of mandamus. " Where the right of appeal is given, and the record shows that this right was attempted to be exercised, that the appellate tri- bunal took jurisdiction of the matter, that the parties interested appeared before such tribunal, that no objection was made to its jurisdiction of the appeal, the regularity of the steps taken to perfect such appeal will, in any collateral inquiry, be pre- sumed." 1 Under Ind. Law of 1855 an appeal would lie to the state superintendent from action of trustees on location of school-house ; 2 and under law of 1861, if trustee refused to locate, appeal would be to examiner, and trustee would be compelled to locate site by mandamus. 3 In R. I. the school commissioner cannot reverse decision of school committee of town on location of site, but appeal is confined to redress of grievances violating rights,* and there is no appeal in a dispute between tax officers as to payments of moneys. 5 The decision of the supreme court judge on appeal from school commission- 1 Bd. Ed. v. Campbell, 17 Kas. 541. S'ate v. Custer, 11 Ind. 210. * Trager v. State, 21 Ind. 317. * Gardner's Appeal, 4 R. I. 602. 6 Appeal of James, 5 R. I. 602. PUBLIC SCHOOL LAW. ers is final, 1 and the jurisdiction on appeal is comprehensive* in its character, and settles many controversies and disputes. In Md. the question decided on appeal is considered as res adjvdi- cata* The remedy by appeal is one more suited to settle the questions there involved, and often gives more satisfactory, cheaper and speedier relief. 3 Under N. J. L. 28, all appeals must be to the county superintendent/ In Wis. the state superin- tendent has appellate power over the decision of town boards on division of districts, and he may make his own rules, requir- ing evidence to be in form of affidavits, and briefs to be filed without oral argument ; 5 and when not required by statute, it is not always necessary that the board or officer hearing matters in dispute should require the witness to be sworn ; 6 and in the delicate questions of teachers' fitness, it seems best sometimes that it is advisable not to pursue the same strictness required in court as to evidence. 7 The county superintendent in Ind. can- not compel the building of a school-house on a site when the land does not belong to a township, 8 and no appeal will lie to the superintendent from action of trustee making contracts or dismissing teacher in a city or town, 9 but appeals should ex- clusively relate to school matters, and in certain cases the deci- sion of the superintendent is final ; 10 and when the school law is doubtful, the opinions of the officials having power to pass on school questions is of great weight, 11 and the decisions of the state superintendent are entitled to great weight. 12 In fact, the decision by the tribunals having jurisdiction are always prima facie proper, and must be overthrown by the appellant. i Smith's Appeal, 4 R. I. 590. 8 Wiley v. Sch. Comm'rs, 51 Md. 401. 'Wiley v. Comm'rs, 51 Md. 406; Appeal of Cottrell, 10 R. I. 618. * State v. Gloucester City, 45 N. J. L. 100. estate v. Whitford, 54 Wis. 150. People v. Bd. Ed., 3 Hun (N. Y. ), 177. People v. Bd. Ed., 3 Hun (N. Y. ), 177. 8 Koontz v. State, 44 Ind. 323 : State v. Me- whinney, 67 Ind. 397. "Crawfordsville v. Hayes, 48 Ind. 206. 10 Fogle v. Gregg, 26 Ind. 345. 11 Appeal of Cottrell, 10 R. I. 615. 12 State t . Burton, 45 Wis. 150. APPEAL. 2. Appeal. In N. Y. the county judge under the act of 1864 can only review cases arising under 8, and cannot review ^efusal of a district to vote a tax to reimburse trustee for costs in endeavoring to recover a penalty imposed under 14 of that act, 1 and the power of the board of education to hear appeals in removal of teacher by trustees is discretionary, and the supreme court cannot reinstate. 2 When teacher's certificate is annulled and he appeals to the state superintendent, his decision is final, 3 and under act of 1864 the manner of investigating the appeal is left to the discretion of the board of education.* In Mich, an appeal from the action of inspector to the town board on ar- rangement of districts, is a waiver of the questions requiring judicial review. 5 In Cal. certiorari was refused to review the action of board of education in adopting text-books, it being held that the adoption was legislative and not judicial. 6 On reviewing the decision of state superintendent on appeal, the proceedings by certiorari only go to the extent of ascertaining whether the officer having jurisdiction has acted according to the law ; errors and irregularities will be corrected, 7 but the writ will not warrant reviewing questions of fact, where there is conflict of evidence or judgment on the merits. 8 3. Appeal. It was held that where appeal was given, that precluded the right to apply for mandamus, 9 and an appeal re- specting location of school-house does not give the president of a district power to employ counsel at the expense of the dis- trict ; such an appeal is not a suit. 10 Where pupil is expelled, the party is not relegated to his right of appeal to county super- i People v. Hatch, 60 Barb. (N. Y. ), 228. a People v. Bd. Ed., 3 Hun (N. Y. ), 178. a People v. Collins, 34 How. (N. Y. ), 336; 11 Wend. 90. * People v. Bd. Ed., 3 Hun (N. Y.),177. fifirody v. Tp. Bd., 32 Mich. 272. People v. Oakland Bd., 54 Cal. 375. 7 Milwaukee Iron Co. v. Schubee, Clerk, 23 Wis. 444; Brody v. Tp. Bd., 32 Mich. 272. State v. Whitford, 54 Wis. 154. 9 Marshall v. Sloan, 35 Iowa, 445. ^Templin v. Dist. Tp., 46 Iowa, 411. PUBLIC SCHOOL LAW. intendent, but he may maintain action of mandamus, 1 and no pupil can be suspended except as a punishment for breach of discipline or an offense against good morals. 2 Where a teacher was wrongfully discharged for incompetency, it was held the remedy was appeal, and that he could not maintain an action on his contract. 3 The refusal of an annual meeting to act on a proposed change of boundary cannot stop an appeal,* and on appeal from change of boundary-line the commissioner must confine himself to the question whether the change proposed at said election shall be made. 6 In Mich, the approval of the ap- peal bond is essential to the appeal, 6 and the township board there will entertain appeal on apportionment of debts on di- vision of a district. 7 On selection of site by trustees, one-third of the electors may appeal in Ky. to county superintendent, whose decision is final, 8 and his decision cannot be disturbed unless it is shown he acted on improper motives. 9 The removal of an assessor by the township board is re viewable on certiorari, 10 but its proceedings can only be reviewed in courts of law on questions of law, 11 and its action in removing a director is final unless speedily brought up for review. 12 4. Appeal. It was held in Knight v. Woods (Ind. Sup.), 28 N. E. 306: "Under Eev. St. Ind. 1881, 4537, providing that appeals shall be allowed from the decisions of the township trustees relative to school matters to the county superintendents, and their decision of all local questions relating to the establish- ment of schools and the location of school-houses, etc., shall be final, the decision of the county superintendent prohibiting the 1 Clark v. Bd. Dir., 24 Iowa, 266 ; Smith v. Ind. Diet., 40 Iowa, 518; Dove v. Same, 41 Iowa. 689; Perkins v. Dirs., 56 Towa, 476. 2 Perkins v. Dirs., 56 Iowa, 476. SKirkpatrick v. Iiid. Diet., 53 Iowa, 585. <^5Mo. 156. 85 Mo. 156; 89 Mo. 23; 94 Mo. 612. 6 Clement v. Everest, 29 Mich. 19. 7 Sch. Dist. v. Wilcox, 48 Mich. 404 8 Stiles v. Beall, 11 Ky. L. R. 486. 9 Brinsmore v. Cottingham, 12 Ky L R 720 WMerrick v. Tp. Bd., 41 Mich. 630 11 Tp. Bd. v. Holiham, 46 Mich. 127. 12 Geddes v. Tp., 46 Mich. 316. APPEAL. 9 -erection of a school-house on a location selected by the trustee is within his jurisdiction, and is final and binding on the trustee ; .and it is immaterial whether the selection has been made by the trustee on his own motion, or by proceedings instituted by the voters. . . . It is immaterial at what time the superintend- ent's decision in such case is entered on his record." "By 4537, Rev. St. Ind. 1881, appeals lie in matters of this character from the decision of the township trustee to the county superintendent, and the decision of the superintendent is made final. In so far as the decision of the county superintendent related to the condemning and prohibiting the erection of the school-house on the site designated by the trustee, it was within his jurisdiction, and was valid and binding upon the trustee, and took from the trustee all authority to build a school-house on that site. The finding of facts shows that this decision was made upon the 29th day of October, 1889, and that the trustee had full knowledge of the decision when he let the contract to Williams ; though it appears that such portion of the decision was not entered on the superintendent's record until after Nov. 5th. The decision was binding, though not entered until after- wards. (Tufts v. State, 119 Ind. 232.) "It is contended by counsel for appellant that the duty of building and providing proper school-houses is enjoined on the trustee by 4444, Kev. St. 1881; that it is exclusively within the discretion of the trustee, and cannot be affected by an ap- peal to the county superintendent ; that the right of appeal lies only when proceedings are instituted by the voters of the school district, as provided by 4499, Rev. St. 1881 ; and that in no event can the sound discretion of the trustee be controlled as declared in the proviso to 4499, supra. The proviso appended 10 PUBLIC SCHOOL LAW. to 4499, supra, relates to the action taken by the voters in re- lation to repairs, removing or erecting school-houses, and costs thereof, and provides that the action taken by the voters shall not be conclusive, and prevent the trustee from exercising a, sound discretion ; while 4537, supra, gives the right of appeal in such matters to the county superintendent, and makes his de- cision final. There is no inconsistency in these sections of the statute. The trustee first determines in regard to the loca- tion, building, or removing of school-houses, and from his de- cision there is an appeal to the county superintendent, and his- decision is made final. The decision of the superintendent in this case went beyond his power in ordering the school-house erected on another site not owned by the township, and that portion of his decision is probably void ; but that question is not involved in this case. "It is further contended that the appeal was not taken from the trustee within the proper time, but it is not shown by the finding of facts the date when the trustee made his decision. No entry of it was made of record, and the voters of the dis- trict and patrons of the school were in no way notified of his having made it. He paid for the land Oct. 1st, and afterwards gave notice that he would let a contract for the building of a. school-house. When those steps were taken, the appellees took immediate steps to preserve their rights. The trustee granted the appeal, and appeared and submitted the question to the county superintendent for decision, and by such decision he was bound. The judgment is affirmed, with costs." 5. Bonds. In an election, "the" omitted from the words "for the bonds" on the ballot does not invalidate the election, 1 i State v. Metzger, 26 Kas. 395. BONDS. 11 and mere irregularities will not invalidate. 1 A vote was re- quired by a majority of all the inhabitants of a district entitled to vote ; it was held that a vote in favor of bonds by a majority of those voting was sufficient, though this was less than half the voters at that meeting; 2 but it was held, where bonds may be voted for at special or at regular city election, and must have a majority of votes polled, if voted for at a regular city election all the votes cast at such election for any officer must be con- sidered to determine the issue of the bonds ; 3 and where bonds were voted and sold, and proceeds used by district, on petition to compel the officers of the district to report the amount of debt, the court will not investigate the regularity of the election when the same was held in good faith by bona fide residents of the district.* The successors of a school district, sued on a bond given by former district, are not estopped from making defense of non-incorporation of former and ultra vires. 5 The right to- recover on refunding bonds cannot be defeated because a part of the proceeds of their sale was misapplied ; 6 but where a board issued to one of its members a bond for an unauthorized pur- pose, a person who received the bond from the payee, knowing that he was a member, could not recover on the bond ; 7 but bonds issued under a law for a proper purpose are valid in the hands of innocent holders for value, notwithstanding the uses for which they were intended have been prevented. 8 No au- thority is given school directors to issue bonds and place them on the market for anything less than their par value. If they i State v. Ellwood, 12 Win. 552; State v. Ca- vere, 22 Iowa, 343; Cat tell v. Lowry, 45 Iowa, 478: Clark v. Robinson, 88 111. 498; Kirk v. Rhoads, 46 Cal. 398. Smith v. Proctor, N. Y. App., 29 N. E. 312; 6 N. Y. S. 212. State v. Benton (Neb. ) 45 N. W. 794. ^State v. Adams Co. Sch. Dist., 13 Neb. 82. 6 Dartmouth etc. v. Sch. Dist., 6 Dak. 255. 8 Cummins v. Dist. Tp., 42 F. 644. ' Hewitt v.Norm. Sch. Dist. Bd. etc., 94 111. 528. 8 Sherlock v. Village Wiunetka, 68 111. 531. 12 PUBLIC SCHOOL LAW. do, they are liable in 111. for any loss the school fund may sus- tain. 1 6. Bonds. 111. Rev. St. 1874, p. 47, conferring upon school directors the power to give bonds for money borrowed, enlarges the power they would otherwise have in connection with the power to borrow money. 2 The right of the secretary of state and auditor of public accounts, in La., to claim possession of the assets of the free-school fund, is not affected by the pre- scription of three years. 3 Payment of interest does not estop district from repudiating where it is not shown that the district officers and people had knowledge. 4 In action against direct- ors in 111., on a note, it must be alleged that the indebtedness was incurred for a purpose authorized by statute. 6 The Neb. statute that the submission of bonds to vote must also include a proposition to levy tax to pay interest on same, does not apply to act of March 31, 1887. 6 Bonds issued under a vote not authorized by law are not valid even when held by innocent purchaser, 7 but authority to issue a certain amount does not invalidate the issue of a lesser amount or levy of tax at lesser rate. 8 7. Bonds. In an action against a district on refunding bonds, the burden is on defendant to show that at the date of the original issuance the outstanding indebtedness of the district exceeded its constitutional limitation, 9 but the refunding of an outstanding valid bonded indebtedness is not the creation of a debt, within the inhibition of Const. Iowa, art. 11, p. 3, provid- ing that "no county shall be indebted in any manner exceeding 1 Adams v. State, 82 111. 132 2 Folsom v. Sch. Dirs., 91 111. 402. 8 San. M. Co. v. Bd. of Liquidation, 31 La. An. 175. ^Ashuelot Bk. v. Sch. Dist., 41 F. 514. 6 Sch. Dist. v. Sippy, 54 111. 287. estate v. Benton ( Neb ) 45 N. W. 794. 7 Ashuelot Bk. v. Sch. Diet., 41 F. 514. 8 Rogers v. Trs., ( Ky. ) 13 8. W. 587. Cummins v. Dist. Tp., 42 F. 644. BONDS. 13: five per centum on the value of the taxable property." 1 An act authorizing trustees of district to hold an election, subscribe stock, and issue bonds in aid of a railroad, is unconstitutional, 2 and the act which abolished the free-school fund, and ordered the bonds composing that fund to be sold, is unconstitutional r and no title is acquired at a sale made under said act. 3 In Kas. a school district irregularly created and organized may issue bonds that will be binding on that territory,* so a school district de facto, but not de jure, may issue bonds; its acts bind itself, third persons, and its successor,* and power to borrow money implies power to issue bonds therefor under Neb. statutes. 5 8. Bonds. Under 1st Ind. Kev. St. 1876, p. 343, where- trustees of incorporated town have filed a verified report show- ing contract to purchase land on which to erect building, and showing amount of debt and cost of building, and asking the- issuance of bonds, the board may authorize sale of the city bonds not exceeding limit specified in the first section of the act ; 6 but where bonds were issued to purchase a site and erect a building, and the bonds recited on their face that they were issued in exchange for a school-house and site, it was held that the issue of bonds for that purpose was not authorized by stat- ute, and that they were not valid. 7 The official certificate of call for bond election to purchase a site and build a school- house, and of the posting of notices, and result and issuance of the bonds purporting to be by officers of the district, and of the election and registration of the bonds, are evidence of corporate existence of the school district. 8 The selection of an ineligible site, or the fact that a former election had resulted against their 1 Cummins v. Diet. Tp., 42 F. 644. 2 Trustees of School v. People, 63 111. 299. 3 State v. Bd. of Liquidators, 29 La. An. 77. 4 Sch. Diet. v. State, 29 Kas. 57. estate v. Adams Co. Sch. Dist., 13 Neb. 78. e Williams v. Albion, 58 Ind. 329. ^State v. Scb. Dist., 16 Neb. 182; State v. Bd.. Co. Comm'rs, (Neb.) 48 N. W. 146. estate v. Sch. Dist., ^eb. ) 33 N. W. 2C6. PUBLIC SCHOOL LAW. issue, does not invalidate the issue of bonds at a later election. 1 The St. Joseph (Mo.) board of public schools had power to is- sue bonds in 1868 and 1871 to build school-houses, and to re- fund same. 2 The leasing of a public school building for private school unauthorized by law, will not render the building bonds invalid. 3 Boards of education in cities of first class under law of 1879, in Kas., had no authority to issue bonds to raise funds to purchase a school-site, or to erect buildings.* 9. Bonds. In the case of GMs v. Sch. D. (Mich.), 50 N.W. 294, it was decided: "Under How. St. Mich., 5104, 5105, which authorize the school-district board to issue bonds only in specified instances and on a vote of the school district, the question whether the proceedings to vote bonds are such as will authorize the board to issue them is one of fact, to be de- termined by the board, and hence a recital in a bond, signed by two of the three members of the board, that the bond is issued pursuant to a vote of the qualified electors at a special school meeting, held at a designated date and place in accordance with law, is sufficient evidence of the legality of the issue to protect a bona fide purchaser, though the records of the board do not show its authority to issue the bond. "Purchasers of municipal bonds are bound to know the ex- tent and limitations upon the authority of the corporation to issue the bonds. They are bound, in other words, to know the law under which the authority is exercised. Purchasers of such securities have a right to rely upon all facts asserted or appear- ing upon the face of the bonds, made by any person or body authorized by law to pass upon and determine the facts. In purchasing this bond the purchaser was bound to know that 1 Taylor v. Brownfield, 41 Iowa, 264. 2 St. Joseph Sch. Bd. v. Gaylord, 86 Mo. 401. 3 Sherlock v. Winnetka, 68 111. 530. *Bd. Ed. v. State, 26 Kas. 44. BONDS. 15 school districts have no authority to issue bonds except for the purposes specified in the statute, and that their authority is lim- ited by the number of scholars between five and twenty years then residing in the district ; that there must be a two-thirds vote of the qualified electors in favor of their issue. The pur- chaser is chargeable with knowledge of the prerequisites of a legal special meeting, and of the provisions for a board of in- spectors, and their duties, and of the requirement that the vote shall be by ballot. The recitals in this bond are made by the director and moderator, who compose a majority of the school board. Neither the school board nor the moderator and director are authorized to issue the bonds unless voted by the district at a lawful meeting; and under 5104, before the board can act they have a function to perform, in its nature somewhat judicial, and that is as to their own authority to issue the bonds. The statute limits that authority to bonds voted by the school dis- trict, and consequently the question whether the proceedings to vote such bonds are such as will authorize the board to issue them must be passed upon by the board. A purchaser of the bonds, therefore, need look no farther back than the face of the bonds for the facts which show a compliance with the law. We think the assertion appearing upon the face of the bond is suffi- cient evidence to an innocent purchaser that the board ordered and directed the bond to be issued. The officers signing the bond are two of the three officers who constitute the board, and the director is the officer whom the statute requires should make a record of the proceedings of all district meetings, and the or- ders, resolutions and other proceedings of the board. It mat- ters not, therefore, that the records kept by the board do not show the order of the board to execute the bonds. The title of PUBLIC SCHOOL LAW. a ~bona fide holder of the bond cannot be defeated by a neglect to enter the order in cases where the face of the bond upon which he has a right to rely recites the fact that such order was- made. " This case is not controlled by Spitzger v. Village of Blanch- ard, 82 Mich. 234. In that case there was a limitation upon the authority to borrow money in excess of a certain percentage upon the taxable property. In that case the law did not desig- nate any body or board to pass upon the facts, and only per- mitted the bonds to be issued for 'loans lawfully made.' The bonds could only be issued upon the vote of the electors, and the bonds did not recite that such a vote was taken. In that case we said that 'where there is a total want of power, under the law, in the officers or board who issue the bonds, the bonds will be void in the hands of innocent holders, the distinction being between questions of fact and questions of law. If it is a question of fact, and the board or officers are authorized by law to determine the fact, then their determination is final and conclusive ; and although it may be contrary to the fact, yet if recited in the bond that the necessary and proper steps required by law to be taken had been taken, then the municipality is es- topped from denying that they were taken.'" 10. Building contract. Where a school district votes to purchase a building for a school-house, and raises funds, and a committee of the district make a bargain in behalf of the district for the purchase of the building at an agreed price, if the district afterwards uses the building for a school-house, in an action by the owner to recover the price the defendant cannot deny the authority of the committee, and is bound, in the absence of fraud or mistake, to pay the price agreed on by the committee, BUILDING CONTRACT. 17 although they acted in making the purchase without any legal antecedent authority. 1 Where a school district contracted witli a builder to erect a school-house for a certain sum, with liberty to build a public hall over the same, as the builder's property, the district to have the use of the hall free of charge, for meet- ings and for examinations of the schools, etc., and the house was so built, the district did not exceed its authority, and a tax therefor was legal. 2 Where a tax was raised to build a school- house, and a committee was appointed for this purpose, but, owing to some difficulty as \f> the land for the site the com- mittee did not proceed, and a second meeting was called to take the whole matter into consideration, and the district was unable to elect a committee, but requested the selectmen to proceed and build the house, this was construed as neglect and refusal on the part of the district to give the selectmen jurisdiction. 3 11. Building contract. A district authorized its school board to build a school-house, and to expend not to exceed $5,000 in building, and to procure plans for the house, which were to be presented at the next meeting. At that meeting plans were not accepted, but an architect was empowered to make other plans and specifications for a certain size building, and to have them ready at the next meeting. At that meeting no plans or specifications were presented, or adopted by the dis- trict, but the meeting appointed the school board a committee to carry out the previous vote of the district to build a school- house, and with power to act fully in the matter, limiting the board to a certain size for the building and the amount to be- expended ; the power thus conferred on the school board was. full and complete, limited only as to size of school-house and 1 Keyser v. Sch. Diet., 35 N. H. 477. I 3 Blake v. Sturtevant, 12 N. H. 567. 2 George v. Meudon, 6 Mete., ( Mass. ) 497. | 2 18 PUBLIC SCHOOL LAW. the amount of money to be expended, and their acts were legal and binding. 1 The school board let the contract for building accordingly, and as the work progressed certain changes were necessary in order to make the building symmetrical and strong, which changes were made by order of the board, causing an ad- ditional outlay. Held, that so long as the changes were bene- ficial and necessary, and the additional cost, added to the original contract, did not exceed the amount limited to be expended, the board had the power to make them, and its acts are binding. 1 A committee with power to lease, executed a lease to A for five years ; another committee, same year, subsequently executed a lease for the building to B for four years, which lease B ac- cepted and had recorded ; in an action by A against B, under Conn. Stat., title 56, ch. 1, 12, against selling pretended titles, it was held that the first committee had authority to make the lease to A, and that A was rightfully in possession under it ; but that as he was tenant of the society, claiming under it, the society were not ousted of their possession, and consequently B had not incurred the forfeiture of the statute. 8 The board of di- rectors of a district township, having power to make contracts for the erection of school-houses in the sub-districts, may ratify a contract of this character, 3 but where vote to raise money to build is absolutely void for want of power, no claim will lie against district, and cannot be made by ratification.* The board of public schools in St. Louis, in contracting for building may take a bond from contractor to protect material and labor, and may sue in their behalf on said bond ; 5 and in Iowa, contract for building school-houses must be let to lowest bidder, who must give bond ; 6 and under Ohio Kev. Stat., 3988, board of lEdinburg Am. L. & M. Co. v. City of Mit- chell, S. D., 48 N. W. 131. 2 Emerson v. Goodwin, 9 Conn. 422. 8 Stevenson v. Tp. of Summit, 35 Iowa, 462. 4 Brown v. Sch. Disk, (N. H. ) 10 A. 119. 6 St. Louis Sch. Bd. v. Woods, 77 Mo. 197. 6 Weitz v. Ind. Dist. of Des Moines, Iowa, 44 N. W. 696. BUILDING CONTRACT. ' 19 education can accept only the lowest responsible bid for im- provement or repairs, 1 and a contract for building at larger cost than authorized is void. 2 12. Building contract. In Ind. the school trustees can- not bind a township without an order from county commission- ers, for erection of a school-house, when the debt of a township already exceeds the money in hands of trustees and that to be raised by taxes for the next year ; 3 but Mich. Comp. Law, 3618, in providing that the township school director shall keep the necessary school-house furniture in proper order, and that his expenses shall be subsequently audited and paid, does not in- tend that money must be put into his hands beforehand.* A provision in a building contract that a board may retain in their hands a certain fund to meet the demands of material-men is valid, 5 and equity will treat the transaction as an assignment of the fund, to the exclusion of any other creditors of the origi- nal contractor. 5 Contracts should be made with reference to the funds in the treasury for that purpose, and the district board has no authority to draw orders on a fund which has been pro- posed, but not raised by taxation. 6 13. Building contract. A school district having voted a certain sum toward purchasing land and erecting a school- house, it is no defense to an action against them on a contract with their committee, that the committee expended a larger sum than that named in the vote, nor that the school-house was worth no more than that sum ; 7 and where the district voted to build a school-house, and located it, and chose a committee to superintend the building thereof, and the committee employed 1 State v. Bd. Ed., 42 Ohio St. 374. 2 App. Luburg, 23 W. N. C. 454, Pa ; 17 A. 245. SMiddletowii v. G reason, 106 Ind. 18; Rose- boom v. Jeff. Sch. Tp., 122 lad. 377. *Hantranck v. Holikan, 46 Mich. 127. 6Luthy v. Woods, 6 Mo. App. 67. e Sch. Dist. v. Stough, 4 Neb. 357. i Junkins v. Union Sch. Dist., 39 Me. 20 PUBLIC SCHOOL LAW. the plaintiffs to build the house, and they built it where the committee directed, but not where the district had voted to locate it, and on land owned by the district, the plaintiffs acting in good faith under the direction of the committee, the district was held liable. 1 In a suit on a building contract against trus- tees, where there was no allegation that they were trustees and had contracted as such, or were so authorized, a recovery could not be had. 2 Where a school-house was used to keep all the schools of the district, without objection from anyone, and the district at its annual meeting, after the house was built, voted to sell the old house to help pay for the new one, and also voted to raise money to pay for the house and land, the evidence was competent to show a ratification of what had been done by the plaintiff and an acceptance of the house by the district, notwith- standing an informality in the notice of the meeting. 3 14. Building contract, The inhabitants cannot em- power a building committee to advertise or make a contract for building a school-house, or do any other act binding upon the trustees, without their assent.* In Ind. the township trustees may levy a tax to build school-houses ; and their contracts for building such houses are binding on the township. 5 Where a district erected a school-house with a hall on the second floor, on a petition praying for an injunction against the collection of tax for same, on the ground that such expenditure was illegal , the court found that the house, with the exception of the hall, was not more than the convenience of the district required for school purposes ; it was held, that aside from any question as to the propriety of erecting said hall, the proceedings of the 1 Baker v. Sch. Diet. No. 2, 46 Vt 189; Norris v. Sch. Di8t., 12 Me. 293. 2 Shuler v. Meyers, 5 Lans. N. Y. 170. *Chapin v. Sch. Dist. No. 2 in Walpole, 30 N. H. (10Fost.)25. * People v. Banfield, 6 How. (N. T. ) Pr. 437. 6 Heal v. Jefferson, 15 Ind. 431 ; Rose v. Bath, 10 Ind. 18. BUILDING CONTRACT. 21 district were not illegal ; x and where the expense of such hall was about one-fifth of that of the whole building, and it would be useful and convenient for holding district meetings and ex- hibitions, these were legitimate objects ; and the vote authoriz- ing the building of such school-house was not void, because it specified, among other uses of the hall, that of holding school society meetings and lectures therein. 1 15. Building contract. The board of directors of dis- trict have no power to employ one of their number to oversee the completion of a school-house abandoned by the contractor, nor can he recover from the district for services so rendered. 2 Under the Iowa law which empowers the electors to vote a tax "for the payment of any debts contracted for the erection of school-house, and for procuring district libraries," etc., they can- not be incurred by the directors before a tax has been voted upon. 3 A warrant in W. Ya. against sheriff for material and labor furnished for school-house is a novation, and after accept- ance an action of assumpsit will not lie against board, but holder must sue sheriff. 4 Where board of education does not take bond required from contractor for building school-house, the board will be liable for labor and material, but the payments thereon will be a set-off in action by contractor on the contract. 5 Where land is held by city in trust for public school, the board of edu- cation may build thereon, (the law of Neb. forbidding building of brick or stone school-house without at first obtaining title in fee.) 6 In 111. the board of education cannot contract to build school-house without petition of majority of voters of district. 7 i Sheldon v. Centre Sch. Diet., 25 Conn. 224. 2 Moore v. Toledo City Dist., 55 Iowa, 654; Weitz v. Ind. Dist. Iowa, 42 N. W. 577. * Manning v. Van Buren, 28 Iowa, 332. ^Oanby v. Sleepy Creek D. B., 19 W. Va. 6 Wells v. Bd. Ed., ( Mich. ) 44 N. W. 261 estate v. Ben ton, ( Keb. ) 45 N. W. 794. 7 Bd. Ed. v. Roehr, 23 111. App. 629. 22 PUBLIC SCHOOL LAW. (They may now on petition of 500 voters, or one-fifth the vot- ers.) In assumpsit to recover pay for building a school-house and finding materials therefor, the district cannot object to the absence of proof of a legal meeting to determine upon the build- ing and the raising of the money therefor, unless they have raised such objection by their specifications of defense, 1 and a contract for school-house building not authorized by vote re- quired by statute is void ; but the district cannot recover money advanced to the contractor. 2 16. Building contract. Where at a meeting it was voted to build a school-house, and the committee was directed to make a contract proposed, and the meeting adjourned to a certain day, and before that day another meeting was legally called, and the district voted at that time to build on a plan proposed by another party, the second meeting rescinded the first ; 3 and where the meeting notice was not legal, and a committee was chosen who superintended the erection of a school-house, it did not thereby bind the district. 4 A contract to build a school-house for an amount in excess of funds on hand, or subject to collection for that purpose, and the amount that could be realized by the max- imum tax which could be levied by the inhabitants for the cur- rent year and used for that purpose, is void, and could not be ratified. 5 IT. Building contract. Where one contracts to build a school-house in a particular manner, to the acceptance of a dis- trict, and erects one thereon which is not built according to the contract, and the committee do not unreasonably refuse to ac- cept it, and there is no acceptance, he cannot recover ; 6 nor be- cause defects were waived, unless the subsequent work is done 1 Collins v. School Dis?t., 52 Me. 533. 2 Fluty v. Sc-h. Dist, 49 Ark. 94. 8 George v. Mendon, 6 Mete., ( Mass. ) 497. * Jordon v. Dist., 38 Me. 164. Cap.Bk. v. School Dist., ( N. D. ) 48N.W. ; 'Hill v. Sch. Dist. No. 2, 17 Me. 316. BUILDING CONTEACT. 23 conformably to the contract, or accepted. 1 Boards of school commissioners in cities of more than 30,000 inhabitants, un- der Ind. Rev. Stat., 4460, may contract for building school- house and give its notes for deferred payments. 2 Where contract is required to be let by township board to lowest re- sponsible bidder, this power cannot be delegated to sub-district officers. 3 i 18. Under Yt. Gen. Stat., ch. 22, 43, it is within the prov- ince of a school district to build a hall in connection with a school-house, designed to accommodate the school and the in- habitants of the district for the purpose of examinations and exhibitions, and such other things as are proper and customary in connection with district schools.* Mandamus lies to compel trustees to erect a school-house, according to the superintend- ent's decision in Ind.; 5 (but see 1, ante.) No power is given in Wis. R. S., 434, to the district board to build a school-house and then afterward impose the cost on the district, and Laws 1883, ch. 116, do not imply a ratification. 6 The normal-school authorities, having accepted the buildings erected by plaintiff and leased to them, which buildings were erected in pursuance of the authority granted by vote of the citizens, cannot retain the buildings and repudiate the conditions attached to the grant ; 7 and the plaintiffs' recovery is not defeated because their con- tract was with a committee styled the " building committee of the district," instead of a "committee to superintend the laying out and expending of the moneys raised by the district," such a committee being the only one authorized by Laws 1850, art. 2, ch. 193, 9, Me. 8 A sub-contractor can recover, in a suit against iHill v. Sch. Diet. No. 2, 17 Me. 316. 2 Fatout v. Indianapolis S. C., 102 Ind. 223. 3 Stock Bd. &c. v. Mills, 38 Ohio, 383. *Greenbanks v. Boutwell, 43 Vt. 207. * State v. Caster, 11 Ind. 210. Nevil v. Clifford, 63 Wis. 435. T City Emporia y. Partch, 21 Kas. 208. s Collins v. Sch. Dist., 52 Me. 522. PUBLIC SCHOOL LAW. the district and the principal contractor, only an indebtedness of the contractor to him to the amount due such contractor from the district. 1 19. Building contract. Under act of 1853, since re- pealed by act of 1857, a school-house erected in a sub-district formed from two townships was to be paid for solely by the part of the sub-district included in the township in which it is erected. 2 The Ohio statute authorizes the committee to assess "such portion" of the cost as they deem just upon the sub- district, and under that they may assess the whole upon the sub-district, and their certificate to the auditor need only state the amount, and not their reasons therefor. 2 The school board has no power to contract for work upon a school-house, unless authorized by voters of the district, under Neb. Gen. Stat., 966, 29, 30. 3 A district at special meeting can vote to raise money to build school-house, notwithstanding a previous failure of such vote the same year.* Under N. J. Law, a majority vote of those present at a meeting is binding, except in regard to condemning land.* In Ga. a purchase of an interest in a building for public school purposes, where it is not kept up for private gain, is not illegal. 5 By the 111. act of 1857, a tax to erect school-houses must be voted by the people. 6 Resolution to raise a single sum for building and furnishing a school-house is not bad for un- certainty because the amounts are not separately stated. 7 An order of a board of Ind. township trustees, signed by the clerk and president, on the treasurer, for the building of a school- house, was a valid demand, upon which an action might be maintained. 8 1 Radennz v. Sch. Dist., 42 Wls. 897. 2 Bryant v. Goodman, 9 Ohio St. 471. *Gehling v. Sch. Dist., 10 Neb. 239. State v. Clark, (N. J.) 19 A. 462. 6 Danully v. Cabaniss, 52 Ga. 211 Beverly v. La bin, 20 111. 357. * State v. Clark, ( N. J. ) 19 A. 462. 8 Heal v. Jefferson, 15 Ind. 431. BUILDING CONTRACT. 25 20. Building contract. It was held in Capital Bank of -St. Paul v. School Dist. No. 53 of Barnes County, 48 K W. Kep. 363 (K D.) opinion by Corliss, C. J. : U A contract authorized by the inhabitants of a school district at a district meeting, to build a school-house for an amount in excess of funds on hand or subject to collection for that pur- pose and the amount that could be realized from the maximum tax which could be levied by the inhabitants for the current year and used for that purpose, is void. Therefore, held, that ;such a contract, void because the district board had no author- ity to make it, could not be made binding upon the district by subsequent ratification by the inhabitants. Whether there was sufficient evidence of such ratification, not decided. " Such contract being impliedly prohibited by statute, the re- ceipt by the district of the fruits thereof creates no liability either under the contract or for the value received. "A warrant creates no greater liability than the debt it rep- resents, whether in the hands of the original party or of a pur- chaser before maturity and for value. . . . "That the action of the district board in making the contract to construct the building was wholly unauthorized and void, cannot well be disputed. (See Farmers dec. Bank v. School Dist. No. 53, [Dak.] 42 N. W. Kep. 767.) The power to desig- nate a site and to authorize the building of a school-house is Tested exclusively in the inhabitants. But it is urged that, al- though not originally binding upon the district, the contract has been ratified by the conduct of the inhabitants since the erection of the school-house and the issuing of the warrants representing the alleged contract price therefor. While we do not wish to be considered as assenting to this view of the evidence, we will 26 PUBLIC SCHOOL LAW. assume, for the purpose of this opinion, that there was sufficient evidence of ratification to submit to the jury : still we think the court would have been justified in rendering judgment for de- fendant. Nay, we hold it would have been the duty of the court to give such judgment. Katification is equivalent only to original authority, and we are of the opinion that the inhab- itants, under the statute, had no authority to direct the building of a school-house whose cost would exceed the funds provided for that purpose. We hold that this contract was void, not only for want of power in the district to make it, but because prohibited by the spirit and necessary implication of the statute. "Our views find support in the decision of the territorial supreme court in Farmers* &c. Bank v. /School Dist. No. 53^ (Dak.) 42 K W. Kep. 767. We find nothing in Capital Bank v. School Dist. No. 85, id. 774, decided by the same court at the same term, at war with the other decision. It is true that in the first case the court, while favoring the construction we adopt, limited the scope of its decision to the denial of the right to create a present indebtedness by the issue of warrants, payable immediately, in excess of the amount of tax that could be levied during the year the debt was contracted. This is the doctrine of Minn, under a similar statute, but we cannot give it our assent. . . . " The language of the supreme court of Wis., in Kane v. School District No. 3, 52 Wis. 502, meets our full approval : 'We en- tertain very grave doubts whether the board and the voters of the district combined can make a contract payable out of fund& not intended to be voted or raised by taxation during the cur- rent year, except by taking such proceedings in the particular BUILDING CONTRACT. 27 cases authorized as are necessary, under the statute, to make a loan in behalf of the district. If they can, then it would be wholly unnecessary to make any loans on behalf of a district, and the district might during any current year incur such an amount of indebtedness, to be charged upon the funds of suc- ceeding years, as to absorb all the taxes which could be lawfully collected in such years, and leave the district wholly without re- sources, except by a repetition of the same system of mortgag- ing the future for the necessities of the present. Either this result would follow, or, if such liabilities were held to be debts lawfully incurred by the district, then the tax-payers of the dis- trict could be compelled to raise the necessary amount to pay the same at the time agreed upon for their payment, notwith- standing such sum might exceed the limit fixed by the statutes for raising money by taxation for the purposes for which the debt was incurred. It seems to be the policy of the laws of this state to restrict the expenditures of the towns, cities, counties, and school districts within certain specified limits ; and in the case of school districts it has put a very effectual restraint upon such expenditures by fixing a limit to the amount which can be lawfully collected from the tax-payers of the district for school purposes in any one year. To give proper force to these legis- lative restrictions, it would seem necessary to restrain the dis- tricts, as well as their officers, from contracting debts drawing interest which can become a lawful charge upon the future re- sources thereof.' " 21. Building contract. In the case of Sullivan v. School District, 39 Kas. 347, it was decided : "A contract for building a school-house, void because made by only one member of the school board, may afterward be ratified and made binding upon 28 PUBLIC SCHOOL LAW. the school district by the full school board, or by the school dis- trict. The evidence in the present case tended to prove such a contract and such a ratification. Held, sufficient when attacked by a demurrer to the evidence. . . . "It is admitted that the original contract with Eley was at the time it was made void, for the reason that it was not made by the entire school board, but only by a portion thereof. (Aikman v. Sch. Dist., 27 Kas. 129 ; Mincer v. Sch. Dist., 27 id. 253.) But it is claimed by the plaintiffs that the evidence introduced in the court below tended to show a ratification of the contract by the entire school board, and also by the entire school district. We think such a contract might be ratified and might be made binding upon the school district. (Fisher v. Sch. Dist., 4 Gush. 494 ; Keyser v. Sch. Dist., 35 K H. 477 ; Kim- loll v. Sch. Dist., 28 Yt. [2 Williams] 8 ; Jordan v. Sch. Dist., 38 Me. 164; Cory v. Somerset, 45 N. J. Law, 445; National Bank v. Albany, 92 K Y. 363 ; same case, 2 Am. & Eng. Corp. Cases, 61 ; Read v. Plattsmouth, 107 U. S. 568 ; Corwin v. Wal- lace, 17 Iowa, 374 ; Humphrey v. Mercantile Association, 50 id. 607 ; Cook v. Tullis, 18 Wall. 332 ; City of Conyers v. Kirk, (Ga.] 3 S. E. Rep. 442; Sherman v. Fitch, 98 Mass. 59; Pinches v. Lutheran Church, 55 Conn. 183 ; Brown v. City of Atchison, 39 Kas. 37, and the numerous cases there cited. See also Walworth County Bank v. farmers' Loan and Trust Co., 16 Wis. 629 ; Supervisors v. Schenck, 5 Wall. 77.) " 22. Building control. Under Gen. Stat. Ky., pp. 1155, 1167, 7, arts. 6, 8, providing that it shall be the duty of the county superintendent to condemn dilapidated school buildings, .and of the trustees, when notified by the superintendent of the -condemnation, to repair the old building or erect a new one, BUILDING CONTROL. 29" the superintendent and the trustees are the judges of the neces- sity for a new building, and their action cannot be questioned by the tax-payers of the district ;* and where a town is incorpo- rated within the limits of a school township, a school-house sit- uated within the limits of a town passes under the control of the school trustees of the town. 2 Under laws of Ind., state school property is held in trust for school purposes by the per- sons or corporations authorized for the time being to control the same, and it is within the power of the legislature at any time to change the trustee. 2 The inhabitants of school district having the power of determining the kind of houses requisite- for their use and the amount necessary to defray the expenses, courts ought not to interfere, except in cases where it has been manifestly abused. 3 Injunction, and not mandamus, is the* proper remedy to restrain the erection of a school-house, against parties claiming right to control the same.* The city is entitled to possession of normal-school building, where the rent is un- paid, built by bonds and rented to pay interest on the bonds. 5 In Ga., where the mayor and council of a City had power to levy tax for and control school, and a school was built by sub- scription, an injunction was granted, preventing the teacher retained by citizens from interfering or taking possession of building. 6 23. Building control. Eev. Stat., ch. 11, 22, Me., em- powers school districts to sell and dispose of any school-house- or other property, if necessary, and the school district is the judge of this necessity ; 7 and before school districts were spe- cially authorized to do so by statute, they might make sale of 1 Trustees Sch. Dist. v. Jamison, (Ky.) 15 S. W. l. 2 Carson v. State, 27 Ind. 465. Sheldon v. Centre Sch. Diet., 25 Conn. 224. * State v. Custer, 11 Ind. 210. 6 City Emporia v. Partch, 21 Kas. 202. 6 Pattison v. City of Butler, 83 Ga. 606. i Sch. Dist. No. 6 v. ^Etna Ins. Co., 54 Me. 505.. 30 PUBLIC SCHOOL LAW. their old school-houses which had become unfit for the use of the district. 1 By statute Wis. (Laws 1863, ch. 155, 48) the district board of school directors has the care of a school-house belonging to the district, and must be deemed to have authority to bring a suit for an injury to the school-house, without any direction from the electors ; 2 and among the powers conferred on school trustees is that of taking care of the district property, and for that purpose they may maintain suits at law. 3 A com- plaint against a township for money for building a school-house should be against the school township, and not against the civil township.* 24. Building repairs and appendages. A school dis- trict is bound for repairs furnished for the school-house, not- withstanding the sum voted for specified repairs at the annual meeting had been expended, 6 and where a town voted to raise money for repairs of a school-house, which, in their opinion, the district unreasonably neglects to make, it would not be affected by the fact that the selectmen had unlawfully removed the house from the lot, or that the tax had been illegally col- lected. 6 But a district cannot be considered as promising to pay for unauthorized repairs upon school-house by using it afterwards, 7 and a vote of a school district to authorize laying out a certain sum for repairing the school-house, "does not au- thorize expending a greater sum, although it might require more to put the house in good repair." 7 In Iowa, contracts for "re- pairs" are under the control of the board of directors of the district township, and are payable out of the " contingent fund " (Laws 1862, ch. 172, 44), and no vote of the electors of a sub- 1 Whitmore v. Hogan, 22 Me. 564. 2 Sch. Diet. No. 8 v. Arnold, 21 Wis. 657. - 3 Rapelye v. Van Sickler, 1 Edin. (N. Y.) Sel. CUB. 175. * Carmichael v. Lawrence, 47 Ind. 554. Conklin v. Sen. Dist., 22 Kas. 531. 6 Knowles v. Sch. Dist., 63 Me. 261. i Davis v. Sch. Diet., 24 Me. 349. BUILDING REPAIRS AND APPENDAGES. 31 district is necessary. 1 A committee appointed by the school dis- trict according to statute, to purchase and repair a school-house, are public officers, and a majority may act for the whole. 2 To recover for erecting necessary out-buildings for a school-house, a contract made by the board in regular session need not be shown, where the buildings were erected and used with the knowledge of directors. 3 In R. I., the power to insure the school-house and its appendages is vested in the district, and not in the trustee ; but a legal vote of the district to raise money to pay the premium, would be a ratification.* It was competent for board school commissioners of the city of Balti- more to contract for heating apparatus, without a previous ordi- nance prescribing the formalities and the agencies by which such contract could be made, 6 and a contract for school-district out- house by trustee is authorized in N. Y. (Laws 1887.) 6 A well is necessary appendage to school-house, 7 and a line fence around the school-house is a necessary appendage, 8 and an inhabitant of a school district cannot, at his own pleasure, remove a fence erected by the trustees against their remonstrance. 9 A director may purchase new seats under a resolution adopted at annual meeting directing that the school board fix the school-house ready for the winter term. 10 In Ky., where trustees are notified by superintendent that a better house is required, and that the old one has been condemned, it is not necessary that they see the order of condemnation before taking action ; n but a prudential committee cannot recover from the district the money expended for slight occasional repairs; such repairs 1 Williams v. Peirmy, 25 Iowa, 436. 2 Keyset v. Sch. Disk, 35 N. H. 477. s Bellows v. West F. D. T., 70 Iowa, 320. 4 Holt's Appeal, 5 R. I. 603. 6 Baltimore v. Weatherby, 52 Md. 442. Rauscher v. Cronk, (N. Y>. ) 3 N. Y. S. 470. 7 Herne v. Sch. Dist., 30 Kas. 377. "Creager v. Sch. Dist, 62 Mich. 101. Rapelye v. Van Sickler, 1 Edm. (N. Y.) Sel. Gas. 175. 10 McLaren v. Town Bd., 48 Mich. 189. 11 Trustees Sch. Dist. v. Jamison, (Ky.) 15 8. W. 1. 32 PUBLIC SCHOOL LAW. are to be made from the school-money assigned to the dis- trict. 1 25. Building repairs. It was held in School District of the City of Erie v. Fuess, 98 Penn. St. 600 : "A school district employed a contractor to repair and improve a school-house, under the direction of the architect of the improvements, who was employed by the district, as to the manner of executing the work. The contractor was not to begin work until vacation. By permission of the architect he began it before, and he neg- ligently injured one of the pupils in the execution of it. Two of the school board visited the building after the work was be- gun, but did not order it stopped. In an action by the injured pupil against the district, held, (1) that the district was not liable for the contractor's negligence ; (2) that the permission of the architect, being outside his authority, did not bind the district ; (3) that the knowledge and inaction of the two members of the board did not render the district liable. . . . "If the school district is to be treated strictly as a municipal corporation, the authorities settle that the employment of Shenk did not operate as a relief to the contractor, nor did it make the district liable as a master or principal for Hendry's trespass or carelessness. But school districts are corporations of lower grade and less power than a city, have less the characteristics of private corporations, and more of a mere agent of the state. They are territorial divisions for the purpose of the common- school laws, and their officers have no powers except by express statutory grant and necessary implication ; and these are for the establishment and maintenance of the public schools. The common-school system partakes much of the nature of a public i Giles v. Sch. Diet. No. 14 in Sanbornton, 31 N. H. ( 11 Fost. ) 304. BUILDING, USE. 33 charity, extends over the whole state, is sustained by the public moneys, and the directors, who devote much time and labor for the public benefit, receive no compensation for their services. Unless exempted by the act of incorporation or by law, a pri- vate corporation is liable for the wrongful acts and neglects of its officers done in the course and within the scope of their em- ployment, the same as a natural person is for the acts and neg- lects of his servant or agent. A less stringent rule applies to public corporations, and least stringent of all should be applied to school districts, whose officers have limited and defined pow- ers in a system exclusively for the free education of the children in the commonwealth. "The school board stipulated that possession of the building would be delivered at a date after the vacation of the schools. Before the schools had been closed some of the directors dis- covered that persons were making a dangerous excavation, and it would have been humane in them to have endeavored to stop it. The board might have been convened, and if necessary the schools suspended until the progress of the work could have been enjoined by legal process. "But the directors omitted such action, and it is claimed that the district is liable in damages for the injury done to the plain- tiff by the act of a trespasser or the unauthorized act of a con- tractor. Although the board of directors took no measures to prevent the excavation, we are of the opinion that the persons who caused the injury are liable, and not the school district." (Wood v. Ind. Sch. Dist. of Mitchell, 44 Iowa, 27; Donovan v. Bd. Ed., 85 N. Y. 117; Maximilian v. Mayor, 62 N. Y. 160 ; Donovan v. McAlpin, 85 K Y. 185.) 26. Building, use. A statute allowing school-house to 3 34: PUBLIC SCHOOL LAW. be used for religious purposes does not contravene Iowa con- stitution, art. 1, 3, forbidding any law respecting the establish- ment of religion, or tax for maintaining a place of worship, 1 and the electors of school district may legally permit school build- ings to be used for religious purposes. 2 The provision of 111. Kev. Stat., 958, 39, for granting the temporary use of a school- house for religious meetings and Sunday schools, is constitu- tional ; no preference is thereby given by law to any religious denomination or mode of worship. 3 The trustees of a school district may, subject to the control of the district meeting, law- fully permit the district school-house to be used, out of school hours, for the purpose of private instruction in vocal music of the district scholars, and of others residing in the district ; and it is no objection to such use that the teacher is compensated by private subscription or otherwise.* In Ind., a school-house built by township trustees may be used for township purposes, or a part appropriated therefor. 5 Under Ohio Stat. L. 1889, the use of school-houses may be allowed for literary meetings, school exhibitions, singing-schools, or religious meetings. 6 In Ind., the use of school-house for other purposes may be allowed on consent of majority of voters of the district. 7 In Ark., the use of building for private school may be allowed. 8 In Mass., the use is under supervision of school committee of town. 9 27. Building, use. The question as to permission to use the buildings for other than public-school purposes is one on which the courts have largely differed, but the later statutes ap- pear to be growing more liberal, and favor such use. But Mo. school law (2 Wagner's Stat., p. 1262) confers no authority i Davis v. Blodget, 50 Iowa, 11. dget, . Hag 2 Townsend v. Hagan, 35 Iowa, 194. s Nichols v. Sch. Dirs., 93 111. 61. * Appeal of Barnes, 6 R. I. 591 6 Trustees &c. v. Osborne, 9 Ind. 458. e Ohio Acts, 1889. 7 Hurd v. Walters, 48 Ind. 148. 8 Ark. L. 6235. G. S. 38, 40. BUILDING, USE. 35 upon school directors to allow the school building to be used for a Sunday school. 1 The inhabitants of a school district have no right to use the school-house for religious meetings against the objection of any tax-payer of the district, even though the district may have voted to allow such use, and an injunction will be granted against such use. 2 A lessor demised land to the trustees of a school for the purposes of the school; the beneficiaries took a vested interest, and neither the lessor nor the trustees had any power to change the uses declared by the lease, that is, to provide that the school-house should be used for re- ligious worship on Sundays ; 3 and in Kas., a tax-payer and patron of school may enjoin misuse of school-house for social, religious or political meetings, even though a majority of the tax-payers consent to such use ; 4 also, in Wis., a district board cannot authorize the use of the school-house for any other than school purposes. 6 28. Building, use, A lease of public school-house for private school is invalid, and such use may be restrained ; 6 and a lease of a public school-house for a private school for a term of weeks is in violation of the trust imposed on the board of education by TO Ohio Laws, 195, and such use of the house may be restrained at the suit of a resident tax-payer of the dis- trict. 7 A prudential committee agreed to let H. the district school-house for a private school in vacation, and H. acted upon the agreement. The committee could not revoke it without cause, nor could he allege his want of legal authority to make the agreement, in an action of trespass against him for forcibly preventing H. from continuing the school. 8 A lease made to iDorton v. Hearn, 67 Mo. 301. aSchofieldv. Eighth Sch. Dist., 27 Conn. 499. 3 McDonald v. Starkey, 42 III. 442. -* Spencer v. Sch. Dist., 15 Kas. 259. s Sch. Dist. No. 8 v. Arnold, 21 Wis. 657. 6 35 Ohio Stat. 143. ? Weir v. Day, 35 Ohio Stat. 143. s Russell v. Dodds, 37 Vt. 497. 36 PUBLIC SCHOOL LAW. certain trustees and to their successors for a term of 99 years, "for and in consideration of the many advantages of a perma- nent school," and after the establishment of the present public- school system in this state, and not limited to private school purposes, will be presumed to be made with a view to that system ; and the court, finding the premises in use of public- school directors as such trustees, will presume them to be the rightful possessors. 1 A district meeting voted to have a private school in the school-house, and nothing appeared but that if it had been permitted to proceed it would have answered all the purposes of a public school, and been open to all the children in the district, and taught all the branches of common-school instruction enumerated in the statute, and no others. There was nothing inconsistent with the rights of the district in allow- ing the school to continue there for the time being merely, but the district could not confer any exclusive right to the posses- sion of the school-house for any definite time upon anyone. 1 By implication, the prudential committee of a school district must have the right to occupy the school-house when the school is in operation, but the statute does not give him the exclusive control of the school-house in his district ; that power must be in the district. 8 29. Colored schools. Where teacher refuses to accept colored school, but takes a white school, subject to the power of board to require teacher to take any school, and the board assigns her to a colored school, which she refuses to teach, she has no cause of action against the city. 3 "Taxation to sustain schools is permitted because the education of the children of a state is a recognized governmental purpose ; if the state can i McDonald v. Starkey, 42 111. 442. I Jacksonville v. Akers. 11 111. App. 393. "Chaplin v. Hill, 24 Vt. 528. COLORED SCHOOLS. 37 constitutionally exclude colored children from all benefits aris- ing from this tax, because white people pay the tax, there is no good reason why the state may not limit and distribute the ben- efits of government in every respect according to race or color, and in proportion to the taxes paid by each race or color." 1 Where the statute of the state does not authorize separate) schools for colored pupils, they will be entitled to a writ of\ mandamus for the purpose of obtaining admission to public [ schools, and shall have equal facilities and be entitled to attend the same school as the whites. 2 It is the duty of district oflfi cers to provide and furnish equal school facilities for blacks an whites, and they cannot claim immunity by apportioning to the' pupils of each color their proportion of the fund. 3 > The privi- lege of attending the public schools of a state is a right granted by the state, and when granted may be enforced by mandamus, 4 and since 1880, colored children cannot be refused admission in Cal. to the public schools, notwithstanding separate schools have been established for them by board of education or school trustees, 5 and the law of 1869-70, authorizing separate schools for colored pupils, was repealed in 1880. 6 A white person can- not enjoin the sale of bonds, in Ga., to be issued and sold, and proceed^ divided according to pro rata of tax as to colored and white. Where the state has not authorize'd separate schoolsl for colored children, a city board of education has no right! 71 The directors cannot maintain a separate school solely to instruct three or four colored children of the district, when these can be accommodated at the school-house with the other scholars of district. 9 The law contemplates that i Claybrook v. Owensboro, 23 Fed. R. 634. 2Knox v. Bd. Ed., 45 Kas. 156 ; Bd. Ed. v. Lin- non, 26 Kas. 1; People v. Bd., 101 111. 308. sMaddox v. Neal, 45 Ark. 121. * Ward v. Flood, 48 Cal. 36. 6 Wysinger v. Crookshank, 82 Cal. 588. e Reid v. Town Eatonton, (Ga.) 6 S. E. 602. 7 People v. Quincy Bd. Ed., 101 111. 30d, ( Walker, J.. dissenting. ) 8 Chase v. Stephenson, 71 111. 383. 38 PUBLIC SCHOOL LAW. all children within the district between the ages of six and twenty-one years, regardless of race or color, shall have equal and the same right to participate in the benefits of free schools ;* and in Iowa, a person cannot be denied admission as a pupil in the public schools on account of his color, nor can he be com- pelled to attend a separate school for colored children. 2 The act of 1867 is applicable to the city of Detroit, and under it the school board of that city cannot exclude a resident of that city from any of its schools on account of color, 3 and mandamus will lie to compel the admission of a negro child to the public schools.* A declaration against school directors, " that the plaintiff is a resident of a district, having children which he is desirous of having taught in said school, and that the defend- ants, contriving to deprive him of the benefit of having his chil- dren therein educated, unlawfully admitted colored children into the school, whereby the plaintiff was deprived of the benefit arid advantage of having his children taught in said school," is bad on demurrer, and states no cause of action. 5 Youth of negro, Indian and white blood, but of "more than half white blood, " are entitled to the benefit of the school fund. 6 The children of a white mother and a father three-fourths white, are entitled to participate in the school fund. 7 Where the number of colored .pupils in any district in Pa. is less than twenty, they cannot be excluded from the schools where white children are taught. 8 30. Colored schools. A state has the power to provide by statute for separate schools for colored children. 9 It is now well settled that any classification which preserves substantially 1 Chase v. Stephenson, 71 111. 383. 2 Smith v. Sch. Dist. of Keokuk, 40 Iowa, 210; Dove v. Ind. Sch. Dist., 41 Iowa, 689; Clark v. Bd. Dire., 24 Iowa, 266. People v. Bd. Ed., 18 Mich. 400. * State v. Stoutmeyer, 7 Nev. 342. 6 Stewart v. Southard, 17 Ohio, 402. 6 Lane v. Baker, 12 Ohio, 237. 7 Williams v. Drs., etc., Wright (Ohio) 579. 8 Com. v. Williamson, 10 Phila. (Pa.) 490. 9 Bd. Ed. v. Linnou, 26 Kas. 1; Cory v. Car- ter, 48 Ind. 327; State v. McCann, 21 Ohio St. 198; Ward v. Flood, 4SCal. 36; Bertoii- meau v. Dire., 3 Woods, 177. COLORED SCHOOLS. 39 equal school advantages does not impair any right, and is not prohibited by the constitution of the U. S. 1 In suit of man- damus for school facilities for blacks as well as whites, the parents of the children are proper parties plaintiff. 2 Where there are white and colored scholars, the laws of Ark. contem- plated separate schools. 3 In the case of State v. McCann, 21 Ohio St. 211, Judge Day, delivering the opinion of the court, says : "Equality of rights does not involve the necessity of edu- cating white and colored persons in the same schools, any more than it does that of educating children of both sexes in the same school, or that different grades of scholars must be kept in the same school; any classification which preserves substantially equal school advantages is not prohibited by either the state or federal constitution, nor would it contravene the provisions of either." 31. Colored schools. Where the statute allowed the board of education to adopt regulations so that pupils could be assigned to schools affording equal advantages, and a colored man sought by mandamus to compel the admission of his chil- dren to a school where white children were taught, instead of that for colored children to which they were assigned by the board, the two schools affording equal advantages, the supreme court refused the mandamus ;* and the right to enact laws as shall give to the children of the white and colored races equal educational advantages, but in separate schools, has been rec- ognized and declared. 5 The Ohio act of Mar. 14, 1853, oblig- ing towns to provide schools for both whites and blacks, is to be construed as a law of classification, and not a law of exclu- 1 Bertonmeau v. Dirs., 3 Woods, 177. Maddox v. Neal, 45 Ark. 121. 3 County Ct. v. Robinson, 27 Ark. 116. * People v. Easton, 13 Abb. Pr. (N. S. ) 164, 1C3. 6Puitt v. Coinm'rs, 94 N. C. 709. 40 PUBLIC SCHOOL LAW. sion, though its practical effect may be exclusive where the number of black children is too small to fill a school ;* and "white" and "black" are to be taken as commonly under- stood, 1 and under it a colored child regarded as such in the community, though more than half white, (and so far entitled to vote,) was not, as matter of right, entitled to admission to the white schools j 1 and it will be presumed that a person who was a slave before 1865, in this country, is a negro ; and the word "generation," as used in the N. C. act, means a single succession of living beings in natural descent, and is not equiv- alent to " degree " ; and an order from the board of education to admit a negro pupil to a school from which negroes are ex- cluded does not require the school committee to admit. him. 2 The Ark. law of 1868 required only districts containing both) white and colored children to have separate schools. 3 In Ind. the complaint to obtain admission as a pupil was held defective unless it affirmatively showed that the person is between the ages of five and twenty-one years, is neither a negro nor mu- latto, nor the issue of a mulatto, and is unmarried.* Where,i under the laws of N. Y., a city or incorporated village of the! state creates separate schools for white and colored children, a colored child has no right to attend a school established for white children. 5 A pupil may be refused admission, in Cal., to a public graded school if he has not sufficient education to enter the lowest grade of such school. 6 The Ohio act of 1849, "to? authorize the establishment of separate schools for colored chil-l dren," is constitutional. 7 A law authorizing the classification according to color of children for school purposes, and the es- * Van Camp v. Bd. Ed., etc., 9 Ohio St. 406. 2 McMillan v. Sen. Com., 107 N. C. 609. 3 County Ct. of Union County v. Robinson, 27 Ark. 116. * Draper v. Cambridge, 20 Ind. 268. 6 Dallas v. Fosdick, 40 How. (N. Y. ) Pr. i 6 Ward v. Flood, 48 Cal. 36. 7 State v. City of Cincinnati, 19 Ohio, 178. COLORED SCHOOLS. tablishment of separate schools for each class, equal in every particular, does not contravene the fourteenth amendment to the constitution of the U. S. 1 32. Colored schools. The act establishing the Ala. Uni- versity for colored people, 1887, is unconstitutional, as it gives the school fund into the care of the trustees and takes the super- vision of the university out of the hands of superintendent of instruction. 2 Acts K 0. 1885, ch. 51, and 1889, ch. 60, provid-l ing for separate schools for the Croatan Indians, from which all( negroes "to the fourth generation" are to be excluded, is con- stitutional. 3 Where separate schools are maintained for colored pupils, and the same is unlawful, a petition in quo warranto .against directors will not be allowed where petition does not show improper exclusion of whites/ Under act of 1887, in I Ohio separate schools for colored pupils have been abolished, \ and the regulations must be made without regard to color. 5 It Tvas held, under the Ind. Stat. 1881, courts could not control the rights of school officers to establish separate schools for -colored pupils, 6 and mandamus to require trustee to maintain separate school for colored children was refused, the necessity not being shown; 7 and since 1881 a colored scholar could not be required to attend separate colored schools in Pa. 8 A col- ored pupil cannot be excluded from public school on account of color. 9 The general school committee of Boston had power to establish and maintain separate schools for colored pupils. 10 A resolution of the board of the city of Albany, N. Y., assign- Ing a particular school for colored children, and excluding col- i State v. McCann, 21 Ohio St. 198; see also 10 F. R. 735 ; Lehew v. Brummell, 103 Mo. 546. SEllsberry v. Seay, 83 Ala. 614. * McMillan v. Sch. Com., 107 N. C. 609. < People v. McFall, 26 111. App. 319. . Ed. v. State, (Ohio) 16 N. E. 373. State v. Gray, 93 Ind. 303. * State v. Grubb, 85 Ind. 213. 8 Kame v. Commonwealth, 101 Pa. St. 490. State v. Union D. S. T., 46 N. J. L. 76. - 1 Roberts v. Boston, 5 Cush. (Mass.) 198. 42 PUBLIC SCHOOL LAW. 'ored children from schools assigned for white children, is not in violation of the fourteenth amendment of the constitution of the U. S. ; x and where the officers provide public schools of equal excellence for all children, but do not allow children of colored parents to attend the same schools with children of white par- ents, the rights of the colored under the constitution of the U. S. are not thereby impaired. 2 33. Colored Schools. In Hall v. De Cuir, 95 U. S. 504, it was held : " Questions of a kindred character have arisen in several of the states, which support these views in a course of reasoning entirely satisfactory and conclusive. Boards of edu- cation were created by a law of the state of Ohio, and they were authorized to establish within their respective jurisdictions one or more separate schools for colored children when the whole num- ber by enumeration exceeds twenty, and when such schools will afford them, as far as practicable, the advantages and privileges of a common-school education. Under that law, colored chil- dren were not admitted as a matter of right into the schools for white children, which gave rise to contest, in which the attempt was made to set aside the law as unconstitutional ; but the su- preme court of the state held that it worked no substantial in- equality of school privileges between the children of the two classes in the locality of the parties ; that equality of rights does not involve the necessity of educating white and colored persons in the same school any more than it does that of educating chil- dren of both sexes in the same school, or that different grades of scholars must be kept in the same school ; and that any clas- sification which preserves substantially equal school advantages is not prohibited by either the state or federal constitution, nor. 1 People v. Easton, 13 Abb. N. Y. Pr. (N. S.) 159. | 2 Bertonmeau v. Scb. Drs., 3 Woods C. Ct. 177. COLORED SCHOOLS. 43: would it contravene the provisions of either. (State v. McCann et al., 21 Ohio St. 198.) Separate primary schools for colored and for white children were maintained in the city of Boston. Children in the state who are unlawfully excluded from public- school instruction may recover damages therefor against the city or town by which such public instruction is supported. It appears that the plaintiff was denied admission to the primary school for white children, and she by her next friend claimed damages for the exclusion ; but the supreme court, Shaw, C. J.,. giving the opinion, held that the law vested the power in the committee to regulate the system of distribution and classifica- tion, and that when the power was reasonably exercised their decision must be deemed conclusive. Distinguished counsel in- sisted that the separation tended to deepen and perpetuate the odious distinction of caste ; but the court responded, that they were not able to say that the decision was not founded on just grounds of reason and experience, and in the results of a dis- criminating and honest judgment. (Roberts v. City of Boston^ 5 Gush. [Mass.] 198.) "Age and sex have always been marks of classification in\ public schools throughout the history of our country, and the supreme court of Nev. well held that the trustees of the public schools in that state might send colored children to one school and white children to another, or they might make any such classification as they should deem best, whether based on age,. sex, race, or any other reasonable existent condition. (State v~ Duffy, 7 Nev. 342.) "Directors of schools in Iowa have no discretion, under the existing law of the state, to deny a youth of proper age admis- sion to any particular school, on account of nationality, color,, 44 PUBLIC SCHOOL LAW. or religion. Former statutes of the state invested the directors -with such discretion, and it is impliedly conceded that it would be competent for the legislature again to confer that authority. (Clark v. The Board of Directors, 24 Iowa, 266.) "School privileges are usually conferred by statute, and as such are subject to such regulations as the legislature may pre- scribe. Such statutes generally provide for equal school advan- tages for all children, classifying the scholars as the legislature in its wisdom may direct or authorize ; and the supreme court of N. Y. decided that the legislature of the state may from time to time make such limitations and alterations in that regard as they may see fit. (Dallas v. Fosdick, 40 How. [N. Y.] Pr., 249.) Public instruction of the kind is regulated in that state by offi- cial boards created for the purpose ; and it is settled law there that the board may assign a particular school for colored chil- dren, and exclude them from schools assigned for white chil- dren, and that such a regulation is not in violation of the .fourteenth amendment. (People v. Gaston, 13 Abb. [N. Y.] Pr., .K S. 160.)" 34. Contract; attorney. Where attorney was employed by director to defend a suit and it was dismissed, and another suit brought in the circuit court, and then the electors met and ap- pointed a committee to defend, one of which committee was this attorney, a valid contract existed. 1 The Ind. state superin- tendent of public instruction and state auditor may employ an attorney to collect a desperate claim due the state school fund. 2 Where prudential committee were instructed by vote of district to prosecute for trespasses to property, the district was liable for attorney-fees, 8 and a verbal contract of a school board em- i McCaffrey v. Sch. Diet., 74 Wis. 100. I Kingsbury v. Sch. Dist., 12 Mete. ( Mass. ) 99. -2 State v. Sims, 76 Ind. 328. CONTRACTS, NOTES, ETC. 45- ploying an attorney is valid, 1 but the prudential committee have no authority, without a vote of the district, to employ counsel in the name of the district to defend a suit against an officer of the district in which the district may be interested. 2 A school, district, under act 1821, ch. 117, 8, Me., may raise money to pay expenses of litigation growing out of the exercise of express- powers conferred by the statute. 3 In Iowa, the president of a, school district township has no authority to employ counsel, un- less in a case brought by or against the district, and an appeal to the county or state superintendent contesting the location of school-house, is not a case.* The pendency of a suit, and the employment of an attorney by the prudential committee, with- out authority, though known to the officers and to the voters,, does not show a ratification. 6 35. Contracts, notes, etc. Notes given by trustees for indebtedness of the district are binding on the district, and on* the successors, 6 and plaintiff suing on note made by trustee for price of land, need not allege facts showing that statute had been complied with, 7 and the trustees of a district may become indorsers of a promissory note, and set off the same in an action against them ; nor are they under any obligation to show how they came by the note until it is impeached. 8 It is no defense to a note given to school commissioner for school funds that there was an agreement by which the commissioner was to use the money for private speculation. 9 The assent of a majority of the board at a legal meeting is essential to the validity of an order. 10 The directors of a school district have power to borrow 1 Page v. Township Bd., 59 Mo. 264. 2 Harrington v. Sen. Diet. No. 6, 30 Vt. 155. a Sch. Dist. No. 1 v. Bailey, 12 Me. (3 Fairf. ) 254. 4 Templin v. Tp. of Fremont, 36 Iowa, 411. 6 Harrington v. Sen. Dist., 30 Vt. 155. 'Bobbins v. Sch. Dist., 10 Minn. 340. 7 Craig Sch. Tp. v. Scott, ( Ind. ) 24 N. E. 585. 8Brewster v. Colwell, 9 Wend. (N. Y. ) 28. Ware v. Kelley, 22 Ark. 441. 10 Herrington v. Sch. Dist. Tp., 47 Iowa, 11;, McCortle v. Bates, 29 Ohio St. 419. -46 PUBLIC SCHOOL* LAW. money to discharge a debt which has been legitimately created, and may pledge the credit of the district, but they cannot in Iowa make the obligations evidencing such a debt bear a higher rate of interest than six per cent. 1 A note reciting that " in- habitants of Dist. No. 5, in S., promise to pay," etc., and signed by "B., treasurer of Dist. No. 5," was held to be the promise of the district, 2 but a trustee cannot borrow money and give notes in name of school corporation, especially where there is no necessity and party had notice ; 3 but advancements by offi cers for the use of the district in anticipation of taxes may be treated as borrowed money,* and advancement for that purpose was held to be an implied pledge of funds for the payment of same. 6 36. Contracts, notes, etc. A township trustee has no power to borrow money for the school township ; but for money borrowed, and actually used in a legitimate way, the township may be held liable. 6 Where no notice was given, a vote to hire money at a district meeting did not impose liability ; and a sub- sequent vote at a meeting legally called, to pay the debts due by the district, was not a ratification. 7 In 111. the board of school directors have no power to make acceptances of orders or bills of exchange so as to bind the school district and create a right of action thereon against them. 8 37. Contract ; officer interested. Where a committee employ a person to labor for their principal, the person em- ployed may by a suit in his own name recover of their principal the amount due him, though he is one of their own number, employed in good faith by the committee. 9 Proceedings to re- 1 Austin v. Colony, 51 Iowa, 102. 2 Whitney T. Stow, 111 Mass. 368. 3 Union v. Crawfordsville Bk., 102 Ind. 464. 4 Brock v. Bruce, ( Vt. ) 10 A. 93. Zartman v. State, (Ind.) 10 N. E. 94. 6 Crawfordsville Bank v. Union, 75 Ind. 361 ; Wallis v. Johnson, 75 Ind. 368. Lander v. Sch. Dist,, 33 Me. 239. 8 Peers v. Bd. Ed., 72 111. 508. Junkins v. Union Sch. Dist., 39 Me. 220. CONTRACT ; OFFICER INTERESTED. 47 move a director for refusing to recognize a teaching contract were taken by a township board, one of the members of which was related to a third person who had a contract subject to the same objections ; this did not disqualify him from acting on the case before the board. 1 A director will not forfeit his office by making contract with his minor daughter as a teacher ; 2 and a contract with one of the school committee to board teacher is valid. 3 A contract by a school board for the purchase for a school-site, of land owned by one of its members, the resolution to purchase which was carried by his vote, all the members act- ing in good faith, is not void, but voidable merely, and is bind- ing when ratified by a new board acting with full knowledge of all the facts.* The Pa. act of Mar. 31, 1860, p. 66 (P. L. 400), providing, "Nor shall any member of any corporation, or any officer or agent thereof, be in any wise interested in any con- tract for the sale or furnishing of any supplies or materials to be furnished to or for the use of any corporation, municipality or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly or indirectly interested therein, nor recover any reward or gratuity from any person interested in such contract or sale," cannot be extended to include cases of sales of realty not mentioned therein.* A member of the district school board during his membership took a contract from the board for the erection of a school- house, and participated in the proceedings for letting the con- tract; this was contrary to public policy, and forbidden by law. A school director is prohibited from making personal contract with district, and money paid thereon may be collected 1 Hamtramck v. Holihan, 46 Mich. 127. 2 Siate v. Burchfield, 12 Lea, (Tenn. ) 30. "Brown v. Sch. Dist., 55 Vt. 43. * Trainer v. Wolfe, 140 Pa. St. 279. epickett v. Sch. Dist. 25 Wis. 551. 48 PUBLIC SCHOOL LAW. from him; 1 and an official making contract for district must not be party to same individually ; 2 and where the statute for- bade a school officer from being interested in a contract, and a contractor was elected to the office of clerk of district, and the incumbent refused to deliver up the books and office, on the ground that the contractor could not fill both positions and was therefore ineligible, the court refused to install the newly-elected clerk, and sustained the action of the party refusing to give up the office. 3 38. Contracts; officers' liability. (See also "Officers' Liability.) Where the president of a board promises in their behalf, by a note, to pay a debt contracted in the erection of a school-house, he acts as a public agent, and therefore is person- ally liable on the note.* Where a contract by directors did not expressly show that they were acting on behalf of the district^ or intending to make the instrument the contract of the district, the directors were individually liable. 5 In a suit against school directors in their individual capacity on a contract purporting to be signed by defendants in their official capacity, and suffi- cient in form to bind the district, the averment that it had been determined in a former action, in which defendants were not parties, that they had signed the instrument in their individual capacity, did not aver a cause of action. 8 39. Contract, power. Under Laws 1858, ch. 52, 1, 8, Iowa, the board of directors may bind the district by a contract after their successors have been elected, but before they have qualified. 7 Contract by two trustees, in Minn., must be author-, ized at a meeting of the trustees, but use of supplies may amount iSch. Dist. v. Parks, 85 111. 338; Hewitt v. Normal Sch. Diet., 94 111. 528. 2 Currie v. Sch. Dist., 35 Minn. 163. Western v. Lane, 40 Kas. 480. * Hodges v. Eunyan, 30 Mo. 491. Sharp v. Smith, 32 111. App. 336. Armstrong v. Borland, 35 Iowa, 537. 7 Dubuque &c. College v. Dubuque, 13 la. 555. CONTRACT, POWER. 49 to a ratification. 1 One appointed to take charge of a public school may, if necessary, employ a subordinate to keep order outside while the school is in session, especially if one of the school committee approves ; and the city will be liable, although the school committee has not acted officially. 2 The board of an independent district may authorize steps to be taken to secure a highway by its school-house, and may bind district for expenses incurred. 3 Where a district committee contract, but not bind- ing the district, and the district votes to accept and pay a cer- tain sum, this binds them to pay a quantum meruit, not limited to the sum voted.* A legislative change of the board, without altering the limits of the district, does not affect the obligation of a legally created debt thereof. 5 Where a committee were au- thorized and bought a lot for a site, and gave their individual notes, and the district then rescinded the authority, the district was liable to the officers for the amount paid for it. 6 Those who contract with directors cannot repudiate their contract be- cause their action was unrecorded. 7 Where trustees are author- ized by legislature to administer school property and lease it for not more than fifty years, they may lease for that term the 16th section in their township. 8 Where contract and statute gave board power to remove janitor at pleasure, a removal of janitor before expiration of year was authorized.' 40. Contract, power. Board, furnished to teacher, under a contract with the prudential committee, constitutes a charge upon the school-money coming to the hands of the committee ; and payment by him out of the fund, made after his term had expired, but before demand upon him for the money, extin- i Andrews v. Sch. Disk, ( Minn. ) 33 N. W. 217. 2Huse v. Lowell, 10 Allen, (Mass. ) 149. 3 Flint River Ind. Diet. v. Kelley, 55 Iowa, 568. ^Kimball v. Sch. Diet., 28 Vt. 8. 6 Shankland v. Phillips, 3 Tenn. Ch. 556. 4 Kingman v. 13th Sch. Dist., 2 Cush. (Mass. ) 426. ? Sch. Dirs. v. McBride, 22 Pa. St. 215. 8 Garland v. Jackson, 7 La. Ann. 68. a Weldman v. Bd. Ed., ( N. Y. ) 7 N. Y. S. 309. 50 PUBLIC SCHOOL LAW. guishes the claim against the district for the board. 1 Where the committee notified the contractor that the house would not be accepted unless defects were remedied, and he replied that he should do the work as he pleased, and did not wish their in- terference until the work was done, no implication can arise from their silence that the defects were waived. 2 Ind. Kev. Stat., ; 6006, 6007, as to limiting debts, applies to trustees of school townships. 3 A member of a board of education cannot change a contract made by the board, unless he has been authorized,* and the individuals composing the board have no power to act so as to bind the corporation unless at a meeting of the board, and any such contract is void unless regularly approved. 5 Where two persons are authorized by a board to make a con- tract in its behalf, a contract signed and sealed by one only, is not evidence against the district. 8 Contracts made with officers de facto are not binding where parties contracting are warned and have notice ; 7 contract made by part of directors at irreg- ular meeting and no notice given to other directors, is not bind- ing. 8 Under the Minn. Comp. Stat., the trustees of districts cannot take a debt out of the statute of limitations by a new promise.* Where defendant claimed the indebtedness was in- curred by a fraudulent agreement between plaintiff and its own agents, it was competent for plaintiff to show that there was a valid consideration. 10 If a district vote to raise money for pur- poses not authorized, it is a nullity, and whoever presumes to carry it into effect, does so at his peril ;" and the powers of the i Barrett v. Sch. Dist. No. 2, 37 N. H. 445. a Hill v. Sch. Dist. No. 2, 17 Me. 316. 8 Middletown v. Greeson, 106 Ind. 18. *State v. Tiedeman, 69 Mo. 515. &Bd. v. Chitwood, 8 Ind. 504; Ohio v. Treas., 22 Ohio St. 144; McCortles v. Bates, 290 Ohio St. 419 ; Hazen v. Leiche, 47 Mich. 626. McLainv. SnyderTp. Sch. Dist., 12Pa.St.204. Genesee Ind. Sch. Dist. v. McDonald, 98 Pa. St. 444 ; White v. Sch. Dist., ( Pa. ) 8 A. 443. ( Pa. ) 8 k. 571 ; 8 Sch. Dist. v. Bennett, 52 Ark. 571 ; Pa. L. Rod Co. v. Cass Bd. Ed., 20 W. Va. 360. oSanborn v. Sch. Dist., 12 Minn. 17. 10 Wormley v. Dist. Tp., 45 Iowa, 666. 11 Sch. Dist. No. 1 v. Bailey, 12 Me. (3 Fairf. ) CONTRACT, RATIFICATION. 51 building committee are limited to the amount voted by the dis- trict. 1 41. Contract, ratification. Where the inhabitants of a district, in a suit for building school-house, repudiated the agree- ment alleged, denying that it had been accepted by them, though executed by the plaintiff, and it was proved that the district agreed to build the house, raised money for the purpose, chose a committee to superintend the building, and said committee and the inhabitants had seen the work advance, without any objection, the inhabitants of the district were liable to pay what the house was reasonably worth, though not built agreeably to the special agreement. 8 The vote of electors directing settle- ment of disputed claim growing out of contract is a ratification though originally the board of directors exceeded their powers ; 3 and the board of education can legalize and confirm the acts of de facto school officers, under a law which is declared invalid.* There is an implied liability on part of district to reimburse a de facto committee for boarding teacher and for material fur- nished, when district did not object, though the district had voted to have the teacher board around, 5 and school districts like individuals are liable for money had and received ; 6 so where district accepted benefit of contract made by prudential commit- tee de facto, it was held there was an implied promise to pay. 7 42. Contract, ratification. The court says, in School Town of Milford v. Powner, Ind., 26 N. W. 485 : "The con- tract of employment is assailed as invalid on the further ground that it never received the concurrent action of the school board as a body, but was acted upon and signed by the trustees sep- i Wilson v. Sch. Dist., 32 N. H. 118; Harris v. Sch. Dist., 28 N. H. (8 Post.) 58. 2Norris v. Sch. Dist., 12 Me. (3 Fairf. ) 293. a Everts v. Dist. Tp., 77 Iowa, 37. *Dubuque &c. Coll. v. Dubuqne, 13 Iowa, 555. SRowell v. Tunbridge Sch. Dist., 59 Vt. 658. Trustees v. Trustees, 81 111. 470. v. Sch. Dist., (Vt.) 10 A. 754. 52 PUBLIC SCHOOL LAW. arately and severally. It is undoubtedly true that the indi- vidual members of a school board, acting separately, cannot legally employ a teacher, nor can they make any other contract binding upon the corporation. The statute requires that they shall meet within five days after they are elected and organize by electing one of their number as president, one as secretary, and one as treasurer; and they are required to keep a record of their proceedings relative to the schools. The individuals composing the board have no power to act so as to bind the corporation, except when they are convened as a board ; and any contract made by them when not thus convened, unless it is afterwards freely approved and confirmed when legally in ses- sion, is not valid. (Board v. Chitwood, 8 Ind. 504 ; Ohio v. Treas- urer, 22 Ohio St. 144 ; Hazm v. Lerche, 47 Mich. 626.) Nor can the members of a board, by any prearrangement or contract entered into when not in session, bind themselves afterward to ratify or confirm any contract or engagement thus entered into. (McCortle v. Bates, 29 Ohio St. 419.) There was evidence which tended to show that the plaintiff and one of the trustees signed the contract at a time when the school board was not in session. Afterwards, at a special session of the board, the con- tract of employment was approved and signed by one of the other members, and the proceedings of the meeting, the em- ployment of the teacher and the approval of the contract were duly entered of record. As applicable to the evidence upon this point, the court stated the law correctly to the jury in a charge in which they were told, in effect, that if the plaintiff and one of the members of the board signed the contract before the meeting on April 26, 1886, and at a called meeting the con- tract was adopted by the board and signed by another member, CORPORATION. 53 it became binding upon the corporation. ( City of Logansport v. Dykeman, 116 Ind. 15.) " 43. Corporation. Incorporated township for common- school purposes, is a quasi public corporation ; the legislature may modify or change its powers. 1 By act of 1875, Ark., a district may sue and be sued ; 2 but a school district is only a quasi corporation, and not included in 1, art. 12, IT, art. 2, of constitution of Kansas, in regard to special legislation, and art. 12 applies only to corporations proper in Kansas. 8 The board of education in 111. may act by agent, and it is not neces- sary to have seal for the agent to make a contract.* The Mis- souri acts relating to boards of education and school districts do not apply to those incorporated under special acts. 5 School districts and boards of education are not corporations in Ohio within the provisions of const., art. 13, I. 6 Changing the name of the district is not a change of corporate character of the district, nor a change in the relations of parties dealing with it. 7 Where districts were established in Mass, under act of 1789, but not by geographical division, they were not made districts by act of 1817. 8 School townships are not municipal corpora- tions in their nature or purpose, 9 and school districts are not strictly municipal corporations, but territorial divisions having many of the attributes of a corporation ; 10 they are only quasi corporations, and can exercise no powers except those specially conferred by statute. 11 Trustees of school districts are public corporations to be controlled by the legislature. 13 i Bush v. Shipman, 5 111. 186. Sch. Dist. v. Bodenhamer, 43 Ark. 140. Beach v. Leahy, 11 Kas. 23. *Bd. Ed. v. Greenbaum, 39 111. 609. e State v. Vaughn ( Mo. ) 12 S. W. 507. 8 State v. Powers, 38 Ohio St. 54. TRobbins v. Sch. Diet., 10 Minn. 340. Fry v. Sch. Dist., 4 Cush. (Mass. ) 250. People v. Sch. Trs., 78 111. 136. iWharton v. Sch. Dirs., 42 Pa. St. 358. "Rapelye v. Van Sickler, 1 Edm. (N. Y.) Sel. Gas. 175; Sch. Dist. v. Thompson, 5 Minn. 280; Littlewort v. Davis, 50 Miss. 403; Sch. Dist. No. 3 v. Macloon, 4 Wis. 79. rs. of Schools v. Tatman, 13111. 27; State v. Hulin, 2 Ore. 306. 54 PUBLIC SCHOOL LAW. 44. Crime. Party can be punished for disturbing private school taught in a district school-house. 1 Where indictment avers neglect to maintain school for three years in succession, and there is a verdict of guilty, no certain penalty can be in- flicted under Mass. Kev. Stat, ch. 23, 60, and a motion in ar- rest of judgment will be sustained. 2 In Conn, it is a crime to disturb any district, public, private or select school while in ses- sion, and this applies to a singing-school. 3 In Mass, it is an offense at common law to violently disturb a town meeting. 4 So in Pa., any malicious disturbance of a meeting of school di- rectors, lawfully assembled, is a crime. 5 45. District alteration. (See also "District Boundary Organization.") Under Ark. Laws, 75, acts 1887, p. 286, it is not necessary that the petition should be signed by a majority of the electors of each of the districts to be divided. 6 Under notice to district and warning to town meeting for annexation of adjoining dfstrict in Conn., where the town meeting refused the change, but on appeal the court decreed that a part only should be annexed, the decree was not error, 7 and a setting aside action of town in dividing school district by appellate court, but making no further order, does not preclude the town from further altering; 8 but a petition by a majority of citizens in district to be affected by change in the boundaries of district, is a condition precedent to formation of new district by county superintendent of Dakota. 9 The act of 1889, 111., annexing municipalities to others, gives the enlarged city the legal title to the property, and imposes on it the school debt of added 1 State v. Leighton, 35 Me. 195 ; State v. Yager, 26 Conn. 607. Commonwealth v. Sheffield, 11 Cash. ( Mass.) 178. State v. Yager, 26 Conn. 607. * Com. v. Hoxey, 16 Mass. 385. 6 Campbell v. Com., 59 Pa. St. 266. Hudepeth v. Walllg (Ark. ) 15 S. W. 184. f Gravel Hill Sch. Diet. v. Old Sch. Diet., 55 Conn. 244. 8 Sixteenth Sch. Dist. v. E. Sch. Diet., 54 Conn. 50. Dartmouth S. Bk. v. Sch. Diet., 6 Dak. C,.'^. DISTRICT ALTERATION. 55 territory, 1 and when municipalities had been annexed to cities before passage of act giving boards of education of cities of 100,000 inhabitants control of public schools, they are under control of same, though not mentioned in the act. 1 A map and a list of tax-payers in the newly-arranged district must be filed in the county clerk's office ; this provision of the statute is man- datory in 111. 2 Under the law of 1877, a petition for a change of a district must aver that the petitioners constitute two-thirds of the legal voters of the territory, and that the district from which they wish to be severed has no bonded debt. 2 When the old district is extinguished, if they fail to apportion its indebt- edness and lay it upon the new organizations, the old district will continue in existence to enforce its liabilities, and service upon those who were directors at the time of the change will be good. 3 The legality of alteration cannot be questioned col- laterally on an application for judgment for school taxes, but must be tested by quo warranto against the directors,* and the courts will not interfere in altering districts except in cases of gross injustice. 5 A bill in chancery filed by a creditor against the district into which the debtor district had become consoli- dated will not lie, the remedy, if any, being at law. 6 Entering the funds distributed to a new school district, in 111., to the credit of such district by the treasurer of board of trustees, is not condition precedent to the organization of the new district ; 7 and where the record shows that the board met for the purpose of appraising and distributing school property and funds conse- quent upon the formation of a new district, but does not state who made the appraisement, it will be presumed that it was made by the board of trustees. 7 iMcGurn v. Bd. Ed. (111.) 24 N. E. 529; Cravener v. Bd. Ed., id. 532. 2 Potter v. Sch. Trs., 10 111. App. 343. Rudders v. People, 68 111. 154. 4 People v. Newberry, 87 111. 41. *Dirs. v. Trs., 66 111. 247; Metz v. Trustee, 66 111. 247. Sch. Dirs. v. Miller, 54 111. 338. 7 Sch. Dirs. v. Sch. Dirs., 73 111. 249. 56 PUBLIC SCHOOL LAW. 46. District alteration. (111.) Where the old districts refuse to pay over the funds to the treasurer of the new, and the board of trustees neglect to compel such payment, the rem- edy is by a bill in chancery to compel the collection and the ap- plication of the fund. 1 The failure to show, in the petition, that the district to be divided has no bonded debt, and that the boundary of the new is not nearer than one mile to a school- house, and that it is signed by all the voters of the new district, and that such district contains not less than five families, is fatal. 2 Until the township trustees shall make a division of the prop- erty, each district is bound to pay its debts ; 3 and where a district is formed from another the latter may sue in equity to recover as trustee of the former, money or property coming to former. 4 Where directors retain possession of a house on land which has been detached to form a new district, and continue to levy taxes on the detached territory, and the school trustees refuse to sell such house, a court of equity will grant relief from such acts, at the suit of the directors and tax-payers residing in new dis- trict. 5 47. District alteration. (Ind.) If the boundary of a district is changed conformably to a legal petition, the conse- quent alteration of the adjoining district is valid without peti- tion therefor. 6 Under 1st Rev. Stat., p. 780, 4, real estate conveyed to a school township, and paid for by it, remains its property, although included in territory afterwards annexed to adjoining city. 7 48. District alteration. (Iowa.) Certain territory of the independent school district of Y. was set apart by resolution of iSch. Dirs. v. Sch. Dirs., 73 111. 249. 2 Sch. Trs. v. Ball, 71 111. 559. Sch. Diet. v. Miller, 49 111. 495. * Sch. Dist. v. Sch. Diet., 16 111. App. 651. 5 Sch. Dirs. v. Sch. Dirs., (111. ) 28 N. E. 49. Nutter v. Trs. &c., 4 Blackf. ( Ind. ) 351. * Reckert v. Peru, 60 Ind. 473. DISTRICT ALTERATION. 57 the electors to "all parties interested desiring to form a new school district," and certain territory of district township of C. was set off by its board of directors for the same purpose ; this combined territory applied to the independent district of L. for admission ; the district township of C. brought suit to restrain independent district of L. from exercising control over the terri- tory ; it was held that the action of electors of independent dis- trict of Y. was illegal, and that never having been legally detached from independent district of Y., the district township of C. could not maintain an action to have it declared part of its territory. 1 In an action by an independent district to compel board of di- rectors of a district township to take action on its proposition to change boundaries, that the independent district is co-exten- sive with a village does not deprive it of the benefits of the act. {Code, 1809.) 2 When a part of one district is attached to an- other, the boards of directors of the two, or arbitrators chosen by them, have power to apportion the assets ; and their juris- diction is exclusive, 3 and it is only upon their failure to agree that the disputes are to be referred to arbitrators.* An appeal will lie from their adjudication to the county superintendent, whose decision is binding.* The court on arbitration in Iowa on division of assets where district is divided, (Code, 1715, 5416, 3431,) must render same judgment as the award. 5 The boards of directors of independent school districts have no power to change the boundaries; such changes can only be made, if at all, by the county superintendent, under the joint provisions of Code, 1797-1806 ; 6 and concurrent action of boards of directors of both townships is necessary before an in- J Dist. Tp. of Center v. Ind. Disk Lansing, ( Iowa ) 47 N.W. 1033. 2 Ind. Diet. v. Dist. Tp., (Iowa) 47 N. W. 1030. *Uist. Tp. v. Dist. Tp., 45 Iowa, 104. 4 Ind. Sch. Dist. of Lowell v. Ind. Sch. Diet. of Duser, 45 Iowa, 391. 6 Little Sch. Dist. Tp. v. Little Sch. Ind. Dist., 60 Iowa. 616. Eason v. Douglass, 55 Iowa, 390. 58 PUBLIC SCHOOL LAW. dependent district lying within the limits of two district town- ships can be deprived of its territory. 1 Where no written request was made to call a meeting for an election upon the consolidation of independent district with another, and no call was made at a proper meeting of the board, there could be no legal consolidation, Code, 1811 ; 2 and under 1797, Code, a. county superintendent cannot divide district and annex the part to another unless on account of natural obstacles that prevent attendance, and if the order is void a legislative sanction subse- quently will not divert the taxes. 3 Before 1866, a transfer from one township was unauthorized, unless it was made because of reason of natural obstacles/ The treasurer in refunding an ille- gal tax under Code, 870, should apportion the amount between the districts occupying the territory from which it was collected. 5 A portion of township A was annexed to township B, a war- rant executed by the A to the B, in consideration that the A should be entitled to receive all the taxes, was valid. 6 The re- moval of an old school-house to make place for a new one, does not disorganize a district composed of territory in different townships. 7 The apportionment by the directors of assets and liabilities cannot be attacked collaterally. 8 The law does not limit the extent of territory which may be added to a town or city district for school purposes ; 9 and where two-thirds of the electors of territory that had been detached from one district and attached to an independent district petition for its restora- tion, which is refused by the independent district, the remedy is by appeal and not mandamus. 10 Under Code, 1798, tha 1 Ind. Diet, of Fairview v. Durland, 45 Iowa, 53. State T. Leverton, 53 Iowa, 483. Ind. Diet. v. Ind. Dist., 62 Iowa, 616. 4 Troy v. Doyle, 53 Iowa, 667. * Spencer v. Riverton, 56 Iowa, 85. 6 Wesley v. Algona, 52 Iowa, 153. ? State v. McCormick, 37 Iowa, 142. 8 Ind. Dist. v. Ind. Dist., 45 Iowa, 391 : 43 id. 444. Fort Dodge v. Wahkansa, 15 Iowa, 434. WBarnett v. Ind. Diet., (Iowa) 34 N. W. 780- DISTRICT ALTERATION. boundaries of an independent district might be changed in the same way as where territory had been afterwards attached ; x and the extension of limits of a town does not necessarily enlarge the district therein. 2 49. District alteration. (Kas.) Board of education of city of second class may attach adjacent territory in Kansas,, and notice to the district affected is not a condition precedent where majority of electors of such territory apply ; 8 and appor- tionment of school property is valid, though not made for seven months after new district was formed. 4 School district admit- ting liability for property obtained by division of district may be compelled to pay by mandamus ; 5 and a petition, stating county superintendent ordered district to pay sum for retaining property on organization of district, held good. 5 It is not nec- essary to prove that school district had notice of superintend- ent's action in directing it to pay for property on division of districts. 5 Where there is no provision for compensation, and a district is divided by extension of city limits, and the city claims the building on the ground annexed, without making any compensation therefor, and the officers of the district pre- vent such control, the original district should retain control of the school-house until some arrangement is made for adjust- ment of the property rights. 6 Where the territory detached was not organized or placed in any other district for one year,. an award made about three years thereafter, that the old dis- trict shall pay the new the value of the property retained, is- binding. 7 50. District alteration. (Me.) Where two new districts. i Albin v. West B. I. S. D., 58 Iowa, 77. 'State v. Ind. Diet, 46 Iowa, 425. Sch. Dist. v. Board, 16 Kas. 536. * Sell. Dist. v. State, 15 Kae. 43. Sch. Dist. v. Sch. Dist., 90 Kas. 76. Bd. Ed. v. Sch. Dist., 45 Kas. 560. 7 Sch. Dist. v. Sch. Dist., 32 Kas. 123. PUBLIC SCHOOL LAW. -are formed from an old one, 'the title to the school-house is in the district within which it falls ;* and if a town in dividing a .school district includes that which it is not authorized to do by the warrant, a mere stranger cannot therefore avoid the whole proceedings. 1 It is not illegal for a town, in reconstructing its districts, to make its action depend on the wishes of the districts to be affected. 2 Where by a change in the district line the school-house is left out of the district in Me., the district still owns the building, and may authorize an agent to remove the same. 3 Eev. Stat. 1857, ch. 11, 26, authorizing school dis- tricts to unite without the action of the town, is not repealed by the act of 1854, ch. 104, 1, which provides that towns may -determine, etc., so far as to invalidate a union made under the former statute, although after the passage of the latter.* A dis- trict in Me. cannot be divided by town vote unless selectmen have submitted written statement required by law ; 5 and towns cannot form new school districts from adjoining without co- operating and giving due notice to all. 6 A recital in a report of the selectmen and school committee that a division would not be desirable if its inhabitants could agree to it, yet the feel- ing existing was such as to require the division, is a sufficient *' statement of facts;" 7 and a vote passed at an annual meeting as required is not invalidated by the fact that the report had also previously been made at a special town meeting. 7 The vote of a town to discontinue one district and to annex it to others, is not void because of an omission to make any pro- vision about the disposition of the school-house. 8 Under K. S., ch. 11, 1, requiring the recommendation of the municipal au- i Whitmore v. Hogan, 22 Me. 564. oga mb, v. Titcomb, 31 Me. 272. Whittier v. Sanborn, 38 Me. 32. * Call v. Chadbourne, 46 Me. 206. . Disk v. Stearns, 48 Me. 568. Butterfield v. Inhabitants of Sch. Dist No. 6, 61 Me. 583. * Webber v. Stover, 62 Me. 512. 8 Grindle v. Sch. Dist. No. 1, 64 Me. 44. DISTRICT ALTERATION. 61 thorities, it is not necessary that such recommendation should: indicate the exact change to be made. 1 Where three districts* were added to fourth, a vote to reconsider was legalized by act of legislature ; 2 but where district had been annexed by vote of town, it could not be reconsidered except by recommendation of town and school officers. 2 A vote to set off the inhabitants of School* District No. 22 with their estates, and annex the same to School District No. 9, as recommended by the muni- cipal officers and supervisors of schools, is sufficiently certain. 2 51. District alteration. (Mass.) A town in altering a district has no power to destroy the district corporation without its consent, nor so as to impair its contracts; 3 and a town defined an east and a west district by lines, and then assigned certain children to certain schools, and all other inhabitants to- the center district of the town ; this was invalid.* When ai town abolishes the old districts, the legal title to the school- houses rests in the new districts within whose territory they fall. 5 Where the vote to accept the report of the committee dividing the district filed is recorded, it is not necessary to re- cord the report ; 6 and where the town voted at a meeting on the 1st of March to accept report of committee dividing district,, and recommitted it to the same committee "for the purpose of setting up the bounds and monuments," and the committee about a week afterward returned to the town clerk a report of their making said four districts into three, "as per vote of the town March 1st," and the clerk forthwith recorded it, said three dis- tricts were legally established. 7 Establishing bounds for exist- ing districts by a town is not a districting anew within acts 1 Grindle v. Sch. Diet. No. 1, 64 Me. 44. 2 Parker v. Titcomb, 82 Me. 180. Waldron v. Lee, 5 Pick. ( Mass. ) 323. * Perry v. Dover, 12 Pick. (Maes.) 206. oSch.Dist.v.Tapley, 1 Allen(Mass.)49; Stone- ham v. Richardson, 23 Pick. ( Mass.) 62. 6 Howard v. Stevens, 3 Allen ( Mass. ) 409. 7 Alden v. Rounseville, 7 Mete. (Mass.) 218. G2 PUBLIC SCHOOL LAW. 1849 and 1851. 1 Where town in setting off a person to an- other district omitted "and his estate," it is invalid. 2 No town is to be redistricted anew under act 1849, so as to change tax- ation of land into districts using different school-houses, more than once in ten years. 8 Where town was divided into five districts, and in 1853 by selectmen into five new districts, in 1855 there was a vote to abolish the district lines, and in 1856 .a vote to divide the town into five districts as in 1852, and then a vote to reconsider this so as to form three of the districts in one, and then a vote to adopt the boundaries made by the .selectmen, the three did not then constitute one district.* A town may form new school districts, or alter the limits of or subdivide any of the existing districts, without changing all the districts. 5 Stat. 1849, ch. 206, and 1851, ch. 303, forbidding the redistricting oftener than once in ten years, do not prevent towns from abolishing all school districts. 6 A town voting to unite two of its school districts is so "districted anew," in the sense of Gen. Stat., ch. 39, 25, that a non-resident previously taxed in one of the old cannot be taxed in the new without a new certificate of the assessors. 7 A statute imposing upon towns the debts of abolished school districts is constitutional ;* and Gen. Stat., ch. 39, 3, and Stat. 1869, ch. 110, 425, abolishing school districts, are not unconstitutional; they do not impair the obligation of contracts. 9 52. District alteration. (Mich.) The action of board inspectors in Mich, in detaching territory from two districts and adding same to third, is valid where proper notice was given, even though all done at one meeting, and a writ of certiorari 1 Adams v. Crooks, 7 Gray, ( Mass. ) 411. 2 Nye v. Marion, 7 Gray, ( Mass. ) 244. - Gustin v. Sch. Dist., 10 Gray, ( Mass. ) 85. * lilankenship v. Hadley, 11 Gray,(Mass.)431. -5 Richards v. Dagget, 4 Mass. 534. Mendell v. Marion, 82 Mass. (16 Gray) 353. * Bacon v. Sch. Dist. No. 13, 97 Mass. 421. 8 Whitney v. Stow, 111 Mass. 368. 9 Rawson v. Spencer, 113 Mass. 40. DISTRICT ALTERATION. 63 will not lie unless the action of the board practically destroys a district. 1 Where ten days' notice has not been given of forma- tion of new district, it cannot be thereafter affirmed by written consent of majority of citizens affected. 2 A return by the board of inspectors that the parties consenting to division are a ma- jority of resident tax-payers, is conclusive evidence ; 8 and six years' acquiescence in division of district estops the parties from attacking same. 3 Where a district did not contain more than nine sections, it is legal although it contains five full sections and eight fractional sections.* Where the notice for alteration of district shows how it affects contiguous districts, but does not specifically name those affected, it will be valid. 6 The town- ship clerk in Mich, is a school inspector, and his signing of no- tice for alteration of a district boundary, as clerk of the board of school inspectors, is a compliance with the statute. 6 A school district may enjoin an illegal apportionment of debt, 6 and where the inspectors of the old district apply to the board of super- visors to have the sum apportioned to that district spread upon its taxable property without giving the notice required, the tax is illegal. 6 Proof of notice for meeting of township board of school inspectors must be filed with clerk of board before bound- aries of district are to be altered ; 7 and a township board has jurisdiction of appeal from decision of school inspectors appor- tioning liability on division of districts. 8 Township school in- spectors cannot enlarge a graded - school district by adding unorganized territory, though they may, with the consent of the trustees, transfer to its jurisdiction primary districts ; 9 and where a school district is divided among three other existing iDoxey v. Tp. Bd. Sch. Insp., (Mich.) 35 N. W. 170. 2 Gentle v. Bd. Insp., ( Mich. ) 40 N. W. 928. 3 Sch. Dist. v. Union Sch. Disk, ( Mich. ) 45 N. W. 993. * People v. Gartland, ( Mich. ) 42 N. W. 687. Donough v. Hollister, 82 Mich. 309. e Sch. Dist. v. Sch. Dist., 63 Mich. 51. ' Coulter v. Sch. Insp., 59 Mich. 391. 8 < 'aimon v. Wilcox, 48 Mich. 404. 9Simpkins v. Ward, 45 Mich. 559. 64 PUBLIC SCHOOL LAW. districts, the latter cannot be held jointly for a debt of the former district ; whatever they are bound to pay must be a sev- eral and not a joint obligation. 1 The board of school inspectors had no authority to dissolve the school district numbered 13 established by the act of Feb. 7, 1S67. 2 After the incorpora- tion of the city of Saginaw, the officers of the township district embraced in the city claimed to be officers of the School Dis- trict No. 1 of the city of Saginaw, and brought suit to collect money in this right, etc. Held, the city charter severed the city from the school district of the township, and the city could not recover its proportion of the moneys of the school district or of its other property. 8 Under Laws 1840, p. 215, 25, the school inspectors of any such district may dissolve one organ- ized district and annex it to another.* 53. District alteration. (Minn.) Where certain terri- tory was added to city of Winona, Minn., by statute, it became a part of it for school purposes, and as there was no statutory provision, the addition remained subject to all its liabilities and retained its property, including that which came within the city. 5 A village may not withdraw from district at its election and by its own action. 6 Where districts were divided before the act of 1891 applied, the old district retained all the prop- erty and was liable for all the debts ; 7 and districts are under control of the legislature, and the property may be transferred from one to another. 8 54. District alteration. (Mo.) To form a new district from part of two existing, the assent of a majority of each of the three is required. 9 Mo. Sess. Acts of 1868, p. 164, provid- iHalbert v. Sch. Dist., 36 Mich. 421. 2 Sch. Dist. v. Dean, 17 Mich. 223. Saginaw v. Sch. Diet., 9 Mich. 541. * People v. Davidson, 2 Dougl. (Mich. ) 121. 6 City Winona v. Sch. Dist., 40 Minn. 13. estate v. Ind. Sch. Diet., 42 Minn. 357. * City Winona v. Sch. Dist., 40 Minn. 13. 8 Connor v. St. Anthony Bd., 10 Minn. 352. Sayre v. Tompkins, 23 Mo. 443. DISTRICT ALTERATION. 65 ing for the extension of school districts, applies to both corpo- rated aiid incorporated towns. 1 Wagner's Stat., p. 1245, IT, requiring a joint meeting of the township boards of education in order to form a sub-district out of territory in two townships, is not complied with by a meeting of one board and a unani- mous consent on paper by the other. 2 Territory embraced in a school sub-district, outside of and adjoining an incorporated town, may be organized with it for school purposes under the Mo. school law, art. 2, 1, (Wagn. Stat, 1262.) A previous "mutual agreement" is unnecessary. If after the town sub- district is organized it becomes desirable to have additional territory from the township annexed, it must be done under provisions of IT. 3 Where (Wagn. Stat, ed. 18T2, 126T, IT) a township sub-district becomes merged in adjoining town or city, and the board of the municipality takes control of the school property of annexed district, the municipal board will be liable for contract made previously by sub-district board for a teacher's salary.* The act of 1868, p. 164, 1, authorizing boards of education to extend the limits of the territory, is con- stitutional, although not requiring the consent of the districts affected. 5 Voting down a proposition to organize the city into a separate school district under Gen. Stat. 1865, ch. 4T, p. 2T4, does not prevent its being so organized afterwards. 6 A resolu- tion adopted by the board of education of a city, attaching ter- ritory for school purposes, under Acts 1868, p. 164, 1, is not inoperative till the clerk of the board certifies to the township clerk and the latter acts; 7 but the resolution of July 16, 1869,, grants no authority to detach territory which has been attached 1 State v. Heath, 56 Mo. 231. 2 Smith v. Tp. Bd. of Ed., 58 Mo. 297. 3 State v. Heiser, 60 Mo. 540. * Thompson v. Abbott, 61 Mo. 176. estate v. Miller, 65 Mo. 50. 6 E wing v. Jefferson City Bd. Ed., 72 Mo. 436. 7 Henry v. Dulle, 74 Mo. 443. 66 PUBLIC SCHOOL LAW. under the above statute. 1 Under act of 1879 a district cannot vote simply to withdraw from that part outside its county with- out voting to form a new district or attaching itself to some other ; 2 and a county school commissioner can only change the boundaries of district, except as in Kev. St., 7023. 3 Though Rev. Stat. 1879, 7031, authorizes the annual meeting to change boundaries, "notice of such change having been posted in at least five public places in each district affected," yet when a new district is formed or other changes made on petition of ten qualified voters, three notices only in each district are suffi- cient under 7023, requiring the directors of district affected to post a notice of the desired change in at least three public places in each district, twenty days prior to the annual meeting, and the voters, when assembled, shall decide the question.* A notice of the proposed formation of a new district need not give its boundaries, but should refer to the petition and describe the territory to be taken from the district.* A notice signed by the clerk of the district in which it is posted is sufficient under Kev. Stat. 1879, 7067, making it his duty to make copies of election notices, and 7070, to post notices required to be given of all special meetings.* Where officers attempt to carry out void change of district, they will be compelled by mandamus to apportion funds correctly ; 5 and where change is made without required vote, it is void ; 5 and territory cannot be taken from one and added to another district until voted upon by voters of each district. 6 The statute of 1879, in regard to taxing old dis- trict for benefit of new, does not apply to change of boundariea of two old districts. 6 i Henry v. Dulle, 74 Mo. 443. sShattuck v. Phillips, 78 Mo. 80. State v. Riley, 85 Mo. 156. * Mason v. Kennedy, 89 Mo. 23, ( 14 S. W. 514. 6 State v. Jnimshaw, ( Mo. ) 1 S. W. 363. Sch. Dist. v. Sch. Diat., ( Mo. ) 7 S. W. 285. DISTRICT ALTERATION. 67 55. District alteration. (Neb.) Under subdivision 3, p. 4, ch. 79, Comp. Stat., for a change in the boundaries of two school districts, it is indispensable that three notices, containing an exact statement of the proposed change and the time when the petition will be presented to the county superintendent, be posted in three public places, one of which places shall be upon the outer door of the school-house, if there be one, in each district affected, at least ten days prior to presenting petition. 1 The affidavit of proof of posting such notices should state where each of the three was posted, and day of posting same ; and in a proceeding attacking jurisdiction of the state superintendent, the time and place of posting must appear, 1 and a petition in writing for that purpose is a condition precedent. 2 Ten days' notice must be given of application for division of district. 2 Where consolidated district assumed all the debts of the old districts, a tax was properly levied on new for payment of bonds of one of the old. 3 56. District alteration. (N. H.) The inhabitants of a town voted to divide the town into school districts, and ap- pointed the selectmen a committee to make such division ; their proceedings must be ratified by the town to make them legal ;* and a division of a town into school districts must be a terri- torial division. 6 If parts of two towns are by the legislature incorporated into a school district, one of those towns cannot dismember such district. 6 A town may unite two existing dis- tricts under an article in the warrant, " to see if the town will alter the boundaries of any of the school districts in the town." 7 Under act of July 4, 1861, towns may be divided into school iDooley v. Meese, (Neb. ) 48 N. W. 143. State v. Compton, ( Neb. ) 44 N. W. 660. Clother v. Maher, 15 Neb. 1. *Sch. Dist. v. Oilman, 3 N. H. 168. * Sen. Dist. v. Aldrich, 13 N. H. 139. Sch. Dist. v. Smart, 18 N. H. 268. f Converse v. Porter, 45 N. H. 385. 68 PUBLIC SCHOOL LAW. districts, which may be altered by vote of town provided previ- ous written recommendation of the superintendent, school com- mittee and selectmen, etc., is had ; this applies where all the districts are altered and the town redistricted ; but such recom- mendation must specify the alterations to be made, and the committee and selectmen cannot delegate their powers. 1 Per- sons and property annexed to a school district in an adjoining town are subject to school-house taxes in the district in which they are annexed, and not elsewhere. 2 The validity of the action of the selectmen and school committee does not depend upon the correct apportionment of the debts and property of the districts so affected. 3 Independent school districts exercis- ing powers equal to town district were not affected by act 1885.* Where debts of district that is abolished are less than value of property, they may be paid by district obtaining the property. 6 57. District alteration. (N. J.) Under 41 of the school law, an incorporated school district has no right to alter another district without notice to such district and its consent ; 6 and a certificate from the trustees and town superintendents to the county clerk of consent of inhabitants to the abolition of school district, does not satisfy the statute, and will not be re- quired by mandamus, although it has been given, etc. 7 The town superintendent, acting with the trustees of an incorporated district, cannot join thereto another incorporated district, 8 and the tax assessed in both districts will be void. 9 Until the ap- pointment of the trustees the town superintendent has full power to make and alter school districts; but after their ap- iNeal v. Lewis, 46 N. H. 276. 2 Pickering v. Colman, 53 N. H. 424. 3 Anderson v. Carr, 55 N. H. 452. < Sargent v. Union Sen. Diet., 63 N. H. 528. 6 Sen. Diet. v. Town of Greenfield, 64 N. H. 84. 6 State v. Browning, 27 N. J. L. ( 3 Dutch. ) 527 ; State v. Deshler, 25 N. J. L. ( 1 Dutch. 177. * State v. Jacobus, 26 N. J. L. ( 2 Dutch. ) 135. 8 State v. Reeves, 28 N. J. L. (4 Dutch.) 520; State v. Browning, 28 N. J.L. ( 4 Dutch. ) 556. 9 State v. Beeves, 28 N. J. L. (4 Dutch. ) 520. DISTRICT ALTERATION. 69 pointment they must have had full notice. 1 Where the district is to be altered by the town superintendent acting alone or with the trustees with the assent of a majority of the legal voters of the district, and the certificate shows that districts have been abolished by consent of a majority of the legal voters of the districts, and is signed by the superintendent and by two of the three trustees of each district, the proceeding is invalid ; and where the board is petitioned to enlarge the district and abol- ishes the same, it will be invalid. 2 58. District alteration. (N. Y., &c.) A school commis- sioner has power to alter or divide a union free-school district, but must give the trustees a week's notice. 3 A school commis- sioner altered districts 5 and 7 in Town T., and 13 in Towns T. and B., the trustees of 7 and 13 consenting, to take effect im- mediately as to 7 and 13, and in four months as to 5 ; two weeks after, he made an order reciting at request of trustee of 5, i he met the supervisor and town clerk of T., and then made the order. The town clerk of B. and trustees of 7 and 13 had no notice ; the trustee of 5 attended, but without a week's notice ; the alteration transferred a party from 5 to 13, and in an action by him against a subsequent trustee of 13 to recover a tax im- posed by 13, the orders could not be impeached collaterally.* (N. C.) The county commissioner had no right before an elec- tion authorized by statute had been held in two districts to es- tablish a graded school, to change and alter the districts, and the assessments imposed thereafter were void. 5 (Ohio.) Where property has been set apart for higher grade by township board for whole township, a division of district could not vest the title i State v. Reeves, 28 N. J. L. (4 Dutch. ) 520; State v.Browninsr, 28 N. J.L. ( 4 Dutch. ) 556. 2 State v. Barrett, 31 N. J. L. 31. 8 People v. Hooper, 20 N. Y. Sup. Ct. 639. 4 Rawson v. Van Riper, 1 Thomp.C.C.N. Y. 370. 6 McCorme v. Robeson, Co. Cik., 90 N. C. 441. 70 PUBLIC SCHOOL LAW. in the new, although the property may be situated there at that time and the letter of the statute implies that it does. 1 59. District alteration. (O., Pa.) The school act of 1853 merely provides that what had been districts should be sub-districts, with no change in boundaries, so that an old dis- trict formed from parts of two adjoining townships still con- tinues as one sub-district. 2 A township board of education organized under the law of 1853 can, with the consent of the board of education of a town district of the same township, organized under act of Feb. 21, 1849, make transfers or annex adjacent territory to such district. 3 (Pa.) A petition under act of 1876, authorizing court of quarter sessions to annex land of residents in one township to another for school purposes, must show that the townships are contiguous. 4 The law in Pa. is different as to apportionment of real estate and schools, and cash on hand, in the division of districts. 5 Where a district has been divided, and one again divided, where there is a con- troversy between the first two as to a division of property and liability, the third cannot intervene in that suit and assert its claim against district it was created from. 6 The temporary con- solidation of schools in a district, when reasonably exercised, will not be interfered with by the courts. 6 The act of 1854 extinguished all sub-districts which had been formed before its passage. 7 Where a new school district is carved out of another under act of Apr. 11, 1862, which provides that "the court establishing the same shall determine on hearing whether an undue proportion of the property is within the bounds of the new district," such proportion is to be determined with refer- iBd. Ed. v. Bd. Ed., (Ohio) 22 N. E. 641. 3 Bryant v. Goodwin, 9 Ohio St. 471. Can; on &c. School v. Meyer, 9 Ohio St. 580. / re Heidler, 122 Pa. St. 653. 6 Aleppo Sch. Dist. v. Appeal, 96 Pa. St. 76. e Heard v. Sch. Dirs., 45 Pa. St. 93. 7 Conley v. Sch. Dirs., 32 Pa. St. 194. DISTRICT ALTERATION. 71 ence to the value. 1 Where the school taxes remain uncollected until after the formation of a new school district by the erec- tion of a new from an old township, the new district is entitled to participate in the fund. 2 60. District alteration. (R L, Tenn.) The three vil- lages of G., B. and H. were part of the town of S., and organ- ized as independent districts. When they were set off from S. and annexed to W. they retained their original district organi- zation, the district of G. being known as No. 8, B. as No. 9, and H. as No. 10. At a meeting of the school committee of W. it was voted "that district No. 10, at H., be and it is dis- continued ; also, that the boundaries of district No. 9 be estab- lished so as to include what formerly belonged to both Nos. 9 and 10." Held, that the school committee had power to take this action. 3 (Tenn.) In Tenn., under acts 1870 and 1873, the county courts or school directors have no power to alter estab- lished school districts.* 61. District alteration. (Tex., Utah.) Established school districts of a county shall not be changed unless by con- sent of majority of valid voters in all the districts affected ; 5 and QO method being prescribed for determining the will of the ma- jority, it is left to the discretion of the county commissioners' court ; 6 and under Laws 1884, ch. 25, p. 29, the county commis- sioners' court can change the boundaries of existing districts, and also divide a district and establish in its territory two or more districts. 6 To a writ of mandamus to compel appointment of trustees, a return is insufficient which states that the relators are seeking to control the funds of the district in the interest of 1 Williams Tp. v. Williamstown. (Pa. Quart. Sese. ) Pa. Co. Ct. K. 65. 2 Manchester v. Reserve Tp., 4 Pa. St. 35. 3 Bull v. Sch. Com., 11 R. L 244. 4Rodemerv. Mitchell ( Tenn. ) 15 S.W.R.1067. 6 Junction City v. Trs. Sch. Diet. (Tex.) 16 S. W. R. 742. Porter v. State, 78 Tex. 591, ( 14 S. W. 794. ) 72 PUBLIC SCHOOL LAW. a private college, and that if the funds are apportioned, school could not be maintained in one of the new districts for more than four or five months in a year, whereas they could be main- tained eight months before the division. 1 The word "sub- divide " used in the Texas statutes in regard to duties of county commissioners' court is used with reference to existing division into counties. 8 (Utah.) The legislature has the power in Utah to consolidate districts, even if the tax should thereby be made unequal. 3 62. District alteration. (Vt.) A town may, by vote, annex a portion of its inhabitants to a district in an adjoining town which shall consent to receive them ; but the territory is not itself annexed to the district, as it is in a case where a dis- trict is formed from territory belonging to two towns by a con- current vote,* and the arrangement annexing some of the town's inhabitants to a district is not to be regarded as a compact, but as a mere license, and subject to be revoked ;* and the town may, by vote, resume its jurisdiction over its citizens and dis- solve their connection with the district without the intervention of a board of three justices of the peace/ Where a town au- thorized a division without defining the boundaries of the new, it was insufficient to show an organization of the new district, though the district voted to divide ; but where a division was made and recorded, and the town afterwards ratified the same, this rendered the division legal and binding upon the inhabitants of the town and district. 5 A warning " to see if the voters pres- ent will vote to set off" the plaintiff and six other persons named "and their real estate from Sch. Dist. No. 5, the same to 1 Porter v. State, 78 Tex. 591, (14 S. W. 794. ) 2 Reynolds L. & C. Co. v. McCabe, 72 Tex. 57. Lowe v. Hardy, (Utah) 26 Pac. 982. 'Hewett v. Miller, 21 Vt. 402. 6 Sawyer v. Williams, 25 Vt. 311. DISTRICT ALTERATION. 73 constitute a new district," was a sufficiently definite description of the real estate proposed to be set off ; and the town having voted to " constitute a new school district agreeably to such ar- ticle in the warning," it was legal. 1 And where a warning was to see if the town will divide a district, and annex a portion of it to one and the remainder to another, the town may set the whole of the district proposed to be divided to either of the other districts named. 1 Districts formed of parts of two or more towns may be dissolved or altered by mutual consent. 3 The control of a town over a farm, and the acquiescence in such .acts by the district from which such farm is set off, for a quarter of a century, is a ratification to the separation. 3 A vote of a town to annex one school district to another has the effect to abolish the former and enlarge the latter without the necessity of new organization, 3 but under Rev. Stat., 557, the union of districts -does not merge them until their debts are paid.* Where taxes have been levied for the purpose of building school-house and for expenses, and the district is then divided, the district that is set off cannot enjoin the collection of the tax. 6 63. District alteration. (Wash., &c.) Where district is divided and the building is afterwards burned, and the directors of that district pursuant to an election rebuild with the insur- ance, they cannot be compelled by mandamus to pay the same to county treasurer for new district. 6 (West Va.) Where a dis- trict was divided under act of 1881, and no provision was made for assets and liabilities, the old district was entitled to property situated therein and debts due it, and new district was entitled to the property within its limits, and was not liable to contrib- 1 Moore v. Beattie, 33 Vt. 219. 2 Jones v. Camp, 34 Vt. 384. 3 Greenbanks v. Boutwell, 43 Vt. 207. i Ackennan v. Vail, 4 Den. (N. T.) 297. Stockdale v.Wayland Sch. Diet., 47 Mich. 226. Sanborn v. Sch. Diet., 12 Minn. 17. * Bobbins v. Sch. Dist., 10 Minn. 268. *Sanborn v. Sch. Dist., 12 Minn. 17. Willard v. Pike, ( Vt.) 9 A. 907. *Bntler v. Selectmen, 19 N. H. 553. Smith v. Proctor, 53 Hun (N. Y.) 143. Holland v. Davies, 36 Ark. 446. 10 Wilson v. Watersville Sch. Dist., 44 Com 157. "Wright y. North Sch. Dist., 53 Conn. 576 MEETING, NOTICE. H9 raising money for the use of schooling for the year ensuing," held, it was sufficient to authorize the laying of a tax for that purpose. 1 Where, in 1839, a meeting was warned by posting a notice on two public sign-posts only, held, that by the act of 1823 (tit. 88, ch. 2, 2), Conn., under which this meeting was warned, the notification was sufficient, notwithstanding a vote of the society 1822, that the notice should be on all the public sign -posts. 1 All that is requisite in the form of notice of a meeting for a special purpose, is, that it should be so that the inhabitants may understand the purpose. 2 Where the notice stated the purpose of the meeting, to decide whether the in- habitants would direct a suit to be commenced for the damage then lately done to the school-house and its furniture, and ap- point agents to conduct a suit if necessary ; it was sufficient, although it did not specify the nature or amount of the dam- age, or when or by whom it was done ; 2 and where a notice of an election specifies several purposes in such a way as that no doubt is left as to its meaning, it will be sufficient. 3 Where the law does not prescribe what notice shall be given, reasonable notice only is required, and such notice will be presumed if the board meets and all members are present. 4 No notice is re- quired for a regular meeting. 6 A meeting called to consider whether it would re-establish the school - district system and choose the officers required in such an event, and a vote taken at that meeting to so re-establish, is sufficient, under the Mass, act of 1870 (ch. 196), where the district was abolished by the act 1869 (ch. HO). 6 At a meeting called "to choose a district committee and to act on other business that may be thought i Bartlett v. Kinsley, 15 Conn. 327. *Sch. Dist. v. Blakeslee, 13 Conn. 227. 'Merrit v. Farris, 22 111. 303. 4 People v. Frost, 32 111. App. 243. Aikman v. Sch. Dist., 27 Kas. 129; Hazen v. Lerche, 47 Mich. 626; Sch. Dist. v. Jen- nings, 10 111. App. 643; Bal!ard v. Davis, 31 Miss. 533; Downing v. Ruger, 21 ^>nd. 178; Sch. Dist. v. Bennett, 52 Ark. 511. Perkins v. Crocker, 109 Mass. 128. 120 PUBLIC SCHOOL LAW. necessary," it was voted that future meetings should be warned by the clerk of the district ; and at a future meeting so warned a sum was voted, which was afterwards assessed ; the vote at the first meeting was invalid, there being no article in the war- rant concerning the calling of future meetings, and the assess- ment was illegal. 1 A return on a warning that u he had warned all the legal voters" in the district u to meet at the time and place, and for the purposes within mentioned," was defective in not specifying how or when notice was given. 8 104:. Meeting, notice. Where the warrant for calling the meeting shows the purpose of acting on the articles named in the application for calling the same, the articles are as much a part of the warrant as if embodied in the same. 3 Where the warrant for a town meeting was, "To act on anything in relation to the limits of school districts, that the town may see cause," and a petition from the inhabitants of the four school districts was presented and referred to the selectmen, who made a report, at an adjourned meeting, recommending that said four districts be made into three only, and their report was recom- mitted to them, u to divide said districts," the warrant fora subsequent meeting included, "To hear all reports of com- mittees and act thereon," "To act on anything in relation to the limits of school districts, or relating to individuals or parts of districts, who may wish to be set off from one district to another," these were sufficient to authorize the last meeting to accept the report of the selectmen making three districts out of said four, and to establish them.* Where the clerk issued a warrant not under seal for annual meeting at time and in manner required by the by-law, as per order of the prudential i Little v. Merrill, 10 Pick. (Mass.) 543. I Oeorge v. Mendon, 6 Mete. (Mas? ) 497 * Perry v. Dover, 12 Pick. ( Mass.) 206. | *Alden v. Rounseville, 7 Mete. ( Mass.) 218. MEETING, NOTICE. 121 committee, and returned on warrant in pursuance of the above warrant, " I have warned the legal voters of the district " " as prescribed by the by-laws, to attend and act upon the business therein named," the warrant and warning were valid. 1 A clerk, directed by vote as to how he should give notice for future meetings, has no power to call a meeting except when directed by proper authority; 8 and where a clerk was empowered to warn annual meeting he was not authorized to call other meetings ; 8 and the manner prescribed by district for warning future meet- ings must be pursued ; 4 and a district meeting cannot act excepting upon articles stated in the warrant. 5 105. Meeting, notice. A vote to raise money at a meet- ing not properly called is illegal. 6 A meeting of a district called by the school agent, without the written application of ^hree or more legal voters, is not in conformity with the statute. 7 The act 1850, ch. 193, Me., provides two modes in which meet- Ings of school districts may be legally called. Since 1856, no opportunity for conflicting meetings has existed. 7 It is not accessary to the validity of a warrant from the selectmen, that the application should be recorded, or produced, or recited in the warrant. 8 106. Meeting, notice. Where there was no school-house in the district, a return upon the warrant that he had notified, etc., "by posting up four copies of this warrant, one on the sign-post at the confluence of the A and B roads, one on the corner of the blacksmith shop, one on the Methodist meeting- house, and one in the postoffice, all of which places are in said district," was sufficient, under ch. 17, 24, Me. 8 A district i Kingsbury v. Sch. Disk, 12 Mete. (Mass.) 99. 2 Stone v. Sch. Dist., 8 Gush. (Mass.) 592. ; Sch. Dist. v. Atherton, 12 Mete. (Mass.) 105. * Hay ward v. Thirteenth Sch. Dist., 2 Cush. (Mass.) 419. SHolbrook v. Faulkner, 55 N. H. 311. 'Hideout v. Sch. Dist., 1 Allen (Mass.) 232. i Sch. Dist. No. 5 Y. Lord, 44 Me. 374. 8Soper v. Sch. Dist No. 9, 28 Me. 193. 122 PUBLIC SCHOOL LAW. meeting may be called by the selectmen of the town, in Me., on the written application of three voters residing in the district, although not described as such in the application ; J notice of dis- trict meetings is sufficient, if posted on the 16th of the month, the meeting to be held on the 24th. 1 Under act 1834, Me., where notices were posted "one at the school-house and one at the grist-mill, both in said district," this was a compliance with the statute. 1 Where a town has directed the mode of calling the meetings of school districts, it is necessary to show that such directions have been pursued. 2 A notice "for the purpose of hearing the inhabitants of said district on the subject of their disagreement, respecting a suitable place to be selected for the erection of a school-house in said district, and of deciding where such school-house shall be located, and lay out the same," is in- sufficient where application had been made to determine dam- ages caused by appropriation of lot, under Me. R. S., ch. 11, 57. 8 Under Mich, law of 1867, 16, (requiring ten days' notice of the meetings of boards of school inspectors,) no busi- ness not specified in the notice can be transacted.* Under ch. 36, 38, Gen. St. Minn., where the notice failed to recite on its face that the signers were freeholders, it is not void for the want of such recital. 5 A resolution for the call of a meeting of the legal voters of the district of S. A. for the purpose of de- termining upon the erection of a school-house or school-houses, and the purchase of a site or sites therefor, and the amount of money to be raised for that purpose, etc., was sufficiently spe- cific under the act of 1860, Minn. 6 It may not be necessary that all three of the school officers must unite in a contract, to i Fletcher v. Lincolnville, 20 Me. 439. Moor v. Newfield, 4 Me. (4 Greeul.) 44. Leavitt v. Eastman, 77 Me. 117. * Passage v. Sch. Insp., 19 Mich. 330; Andres* v. Same, id. 333. 6 Sturm v. Sch. Diet., 45 Minn. 88. State v. St. Anthony, 10 Minn. 433. MEETING, NOTICE. 123 make it binding upon the district, yet all of them should be duly notified, and afforded an opportunity to be present at all meetings at which any business is transacted for the district, 1 and official certificate of posting notice of election by director was held to be proof of due notice ; 8 so an appearance before the selectmen and committee acting on a change in district may waive notice. 3 107. Meeting, notice. Where the prudential committee on application of voters refuse to call a meeting, but within ten days afterwards call a meeting for the same purpose, but for a. more distant day, this is such a refusal to call a meeting as, under Kev. Stat., ch. TO, N. H., will authorize the selectmen to call it ; and the selectmen's warrant, dated before the lapse of ten days, but posted after, is valid.* In N. H. a notice of seven days is required for annual school-district meeting; 5 where there is a prudential committee duly appointed and qualified, the selectmen have no authority to warn a district meeting; 6 and an article in the warrant for a district meeting, to be held before the law of July 9, 1855, to "raise money" to build a school-house, will not authorize a vote to borrow money for that purpose, though passed at an adjourned meeting held after said law took effect ; 7 and where proper officers neglect to call meeting for election of officers, in N. H., a justice may do so, and the warrant need not recite their failure. 8 Where money is voted to be raised by taxation, at a special meeting, the pre- vious action of the trustees in calling the meeting under act 1867, 39, subdiv. 11, N. J., should appear in the certificate of i People v. Peters, 4 Neb. 254. 2 State v. Sch. Dist., (Neb.) 33 N. W. 266. * Andover v. Carr, 55 N. H. 452. *Dennison v. Sch. Dist., 17 N. H. 492. . Sch. Dist., 30 N. H. ( 10 Fost.) 25; Harris v. Sch. Dist., 8 id. 8. Giles v. Sch. Dist., 31 N. H. (11 Fost.) 304. 7 Weare v. Sawyer, 44 N. H. 198. 8 Pickering v. De Rochemont, ( N.H.) 23 A. 88. 124 PUBLIC SCHOOL LAW. the clerk to the assessor ;* and special meetings of the voters must be called by the board of trustees regularly convened. 2 The notices should set forth the objects of the meeting; the resolutions adopted at the meeting should conform to the no- tice, and should show the objects for which the tax is voted ; and the certificate of the trustees to the assessor should show all the prerequisites of taxation have been complied with. 3 A defective precept for meeting to elect officers cannot be taken advantage of to charge such officers as trespassers for official acts ;* and in N. Y. it was held that the annual meeting is valid without notice if the time and place are fixed at the next pre- ceding annual meeting, and the clerk acts in good faith ; 5 and notice of special meeting to appropriate money to build a school-house gives power to consider the plans for the same, but not unless notice of purpose to build is given. 6 In Pa. an order to commissioners to view for an independent school dis- trict must direct ten days' special notice to be given to the directors of the district from which the new one is to be taken ; putting up handbills is not such notice. 7 Condemnation pro- ceedings were not illegal because the record did not show how the notices were posted, nor at what hour held, but did recite, '"duly notified," and the notice showed the hour. 8 108. Meeting, notice. A notice of special meeting, stating object to be "to take action in regard to the collection of the tax already assessed," will authorize the election of a -collector ; 9 posting one on school-house, another on building for- merly used as a grain building, and the third against wall facing the road, held to be posting in public places ; 9 a notice by "i State v. Hurff, 38 N. J. L. 310. < State v. Sch. Tre., 43 N. J. L. 358. s State v. Browning, 28 N. J. L. (4 Dutch.) 556. * Ring v. Grout, 7 Wend. (N. Y.) 341. BMarchant v. Langworthy, 6 Hill (N. Y.) 646. People v. Bd. Ed., (N. Y.) 1 N. Y. S. 593 ^Clearfield Ind. Sch. Diet., 79 Pa. St. 419. 8 Rowland v. Sch. Diet., (R. I.) 8 A. 337. <>Seabury v. Holland, (R. L) 8 A. 341. MEETING, NOTICE. 125 trustee for district meeting, in R. L, six days before the meeting, stating time, place and purpose is sufficient; 1 and notice of annual meeting in R. L, stating one of the objects to be "to decide what amount of money shall be raised by tax," is not invalid for not stating the use to which the money is to be applied ; 2 but the notice of a special meeting, stating the "laying of a tax to meet the expenses of repairs," will not warrant rais- ing, in addition, premium paid for insurance ; 8 it was held that it is necessary that the warrant for a meeting of school district should be recorded by the district clerk;* and if it does not appear from the record of the warning, that the hour was speci- fied in the warning, it cannot be supplied by parol evidence that it was, nor that all the legal voters in the district were present at such meeting, and voted upon the question of raising the tax ;* but it has since been held the Yt. statute does not require a warning of a school-district meeting to be dated, and if the record shows no date, the date may be shown by parol; and it may be shown by parol when the warrant was posted up; 5 if a meeting of a district is duly warned by the clerk, without any application to him in writing for that purpose, and is held pursuant to the warning, it is legal and valid, but if such application in writing should have been made, the court would presume that it was made ; 6 where a statute requires seven days' notice, a notice dated on the 1st day of the month, for a meet- ing to be held on the 7th, is insufficient, and the warrant for such meeting must also specify the business to be done; 7 and in computing time for notice, either the day on which the notice was posted, or the day on which the meeting was held, will be iHowland v. Sch. Diet., 15 K. I. 184. aSeatrary v. Holland, (R. I.) 8 A. 341. Holt's Appeal, 5 R. I. 603. St. 1878, ch. 36, 38, but which notice failed to recite on its face the fact that the signers were such freeholders, is not void for the want of such recital. The first error assigned is that the notice calling the special school meeting, at which it was voted to remove the school-house in the school district men- tioned in the pleadings, was defective in not stating 'who and what the signers are.' The point intended to be made is, that it does not appear upon the face of the notice that the signers are freeholders or householders, and qualified electors in the district. The answer which the court allowed to be interposed on opening the judgment herein shows that the persons named, or more than five of them, were in fact qualified electors and freeholders in the district, as the statute requires, (Gen. St. 1878, ch. 36, 38,) and that the notices were duly posted as required by law, after the refusal of the district clerk to give notice of the meeting in pursuance of a petition or request so to do, signed by the requisite number of freeholders, and which peti- tion recited that the signers were qualified electors, freeholders and householders in the district. The statute does not require i Mason v. Sch. Dist., 20 Vt. 487. I 'Weeks v. Batchelder, 41 Vt. 317. . Chase, 37 Vt. 196. NOKMAL, ETC. 127 that the notice shall recite the legal qualifications of the persons signing it, although it is the usual and proper practice. But where the proceedings are attacked for want of jurisdiction, it is sufficient that the persons signing are so qualified ; and this is a fact which may be easily ascertained by the officers of the district, or other persons interested, before or at the meeting, and before the subjects embraced in the notice are acted on. It is the fact, and not the recital, which gives the notice legal validity in this respect. (Willis v. Sproule, 13 Kas. 257; Austin *. Allen, 6 Wis. 134 ; Washington Ice Co. v. Lay, 103 Ind. 48.) " 110. Meeting, etc. Act 111. 1889, p. 296, art. 5, 19, providing that no official business shall be transacted by school directors, except at a regular or special meeting, does not invali- date official actions at a meeting at which all the directors are present, though such meeting is neither regular nor specially called ;* the !N". H. statute does not require the moderator of a district meeting to be elected by ballot, or to be sworn ; 8 pro- ceedings for raising a sum by special tax were held void for want of specification in the vote of the purpose for which the money was raised, and for want of power in the clerk to appor- tion the sum to be raised ; s electors of independent districts in Iowa are given same powers of obtaining highways necessary for school, and voting tax, as at annual meeting of district township. (Acts 9th, G. A.)* 111. Normal, etc. The Mo. Constitution having vested all legislative power, not prohibited by the federal constitu- tion, in the general assembly, the establishing of normal schools, it is fair to presume, was intended to be left with the legislature. Normal schools are public schools. 5 The es- i Lawrence v. Trainer, (111.) 27 N. E. 197. 2 Mitchell v. Brown, 18 N. H. 315. State v. Greenleaf, 34 N. J. L. 441. *McShane v. Bd. Sch. Dirs., 76 Iowa, 333. 6 Briggs v. Johnson Co., 4 Dill. 148. 128 PUBLIC SCHOOL LAW. tablishment of Ya. normal school for females, is authorized, but the appropriation and handling of the funds provided for to be paid out of the public free school is unconstitutional. 1 In Kas. the principal and interest from sales of state normal school land is to be paid into the state treasury ; the interest cannot be drawn out of the treasury except by act of legisla- ture passed two years prior thereto. 2 Neb. state university re- gents cannot dispose of the endowment fund or that arising from the f -mill tax, in absence of statute ; 3 and the Mo. Constitution abrogated the continuing appropriations made by act of 1875.* In N. Y. it was held that the state superintendent has general supervision of the normal schools. 5 A statute directing that normal schools be sustained out of a fund which the legisla- ture could not divert for that purpose, does not render the whole act void ; and an act diverting common-school funds to normal-school purposes is invalid. 6 112. Officer, etc. Under K. I. Gen. St., ch. 47, 5, and the act of 1867, the school committee can appoint the superin- tendent of schools of Woonsocket, only when the council fails to elect ; 7 the power to appoint a superintendent of schools in a union school district is an incident to that control which the district board has over the schools of the districts ; 8 under the act of 1864, 825, 12, the power of appointment and removal of principals and vice-principals in the common schools in the city of New York, is vested in the board of education ;' where a director refuses to give up the books and papers of his office to claimant, his remedy is under How. St. Mich., ch. 295, providing for proceedings to compel delivery of books and 1 State Female N. S. v. Auditors, 79 Va. 233. 2 State v. Stover, 47 Kas. 119. 3 State v. Babcock, 17 Neb. 610. 4 State v. Holladay, 66 Mo. 385. 6 People v. Hyde, 89 N. Y. App. 11. 'Gordon v. Comm're, 47 N. Y. 608. i Verry v. Woonsocket Sch. Com., 12 R. I. 578. 8 Stewart v. Sch. Diet., 30 Mich. 69. 8 People v. Bd. Ed., 2 Abb. (N. Y.) Pr. N. S. 177; 32 How. Pr. 167. OFFICER'S COMPENSATION. 129 papers by public officers to their successors. 1 In Ind., special bond must be given by county superintendents within thirty days from date of issuing of proclamation of governor announc- ing the making of a contract for furnishing school-books ; superintendents must file their bond within thirty days after election if elected after the act ; where bond is not given, party is entitled to notice and hearing before removal from office. 2 On a bond to disburse the "funds," a treasurer's bondsmen were held liable for drafts and certificates of deposit which the treasurer failed to turn over to his successor. 3 Where the board of education of a district elected a treasurer, required a bond with security, and it was received and acted upon by the parties, this was a sufficient approval, without any indorsement on the bond or any entry on their records.* The Pa. Const. 1874, prohibited special law incorporating cities, or special law changing school districts, or regulating the affairs of officers. The city of Wilkesbarre elected school controllers under the unconstitutional act of 1889, and at the same time elected six directors under act of 1854. These latter constituted the au- thorized school board. 6 If the clerk of the district fail to attend the meetings, the board may appoint a clerk pro tern., and the entries of the clerk pro tern, are competent evidence of the pro- ceedings of the meetings. 6 The clerk of district in "N. Y. under the act of 1814 need not take the oath of office within fifteen days if he qualifies before any official act is done, and the col- lector may also be clerk of the district. 7 113. Officer's compensation. The act of March 5, 1887, Nev., did not repeal act of Feb. 23, 1887, requiring district i Culver v. Armstrong, (Mich.) 43 N. W. 776. 2Rnox Co. v. Johnson, (Ind.) 24 N. E. 148. s Reed v. Bd. Ed., 39 Ohio St. 635. *Bartlett v. Bd. Ed., 59 111. 264; Green v. Wardell, 17 111. 278. 9 6 Com. y. Reynolds, 137 Pa. St. 389. 'Hutchinson v. Pratt, 11 Vt. 402: State v Mc- Kee, (Oreg.) 25 P. 292. 7 Howland v. Luce, 16 Johns. (N. Y.) 135. 130 PUBLIC SCHOOL LAW. attorney to serve as ex officio superintendent of school without further compensation. 1 Where the district refuses to vote a tax to pay expenses of school officer, and he appeals but does not serve notice of appeal in time, it should be dismissed. 2 In Pa., the city treasurer acting as school treasurer as required, can draw salaries for both offices. 3 By the Ky. act of 1884, changing the commissioners to county superintendents, the commissioners were to be paid as before out of the school fund until their successors were elected and qualified.* The county superintendent cannot recover compensation for examining teachers at any other time than is provided in Iowa Code, 1766. 5 When the treasurer of a district did not claim com- pensation for his services, in an action upon his official bond for misuse of funds nothing should be allowed for his services. 6 The provision of 111. Rev. St., ch. 122, 45, that the county collector shall pay over to the township treasurer u the full amount " of the school tax, means the amount less his commis- sion allowed by ch. 53, 2 1. 7 The superintendent of public instruction, Iowa, has power to approve of so much of the com- pensation allowed to a school fund commissioner by the clerk, sheriff and attorney, as he shall deem reasonable. 8 Where a county auditor in Ind. performs duties in the management of the school funds, he is entitled to compensation. 9 Under 107, of the Ind. school law, the treasurer is entitled to the commis- sion upon taxes levied by the townships for building school- houses, etc., authorized by 12 of the same act. 10 Under the Ky. common-school law the commissioner is not entitled to i State v. County Comm'rs, (Nev.) 23 P. 935. 2/ re Merrill, 8 N. Y. 8. 737. "City Scranton v. Simpson, 25 W. N. C. 517; 19 A 359; McCauley v. Sch. Dist, 25 W. T T State v. Lewis, 35 N. J. L. 170. 8 Sch. Dist. v. Thompson, 5 Minn. 221. 142 PUBLIC SCHOOL LAW. signed individually, does not render the signers individually liable; 1 but where they promise as individuals and sign offi- cially it is an individual liability, 2 and where they step outside official duties they must show authority. 8 123. Officer, liability. The members of a board of trustees of the common schools of the city of New York are not liable in an action against them personally for the negli- gence of workmen employed by them ;* and in an action against a trustee for the neglect of the duties of his office, a declaration in very general terms is sufficient. 5 The trustees of union free schools (N. Y. Laws 1864, ch. 555, tit. 9) are individually liable for personal injuries sustained by a teacher in falling through a floor which has become defective through their default and neglect ; 6 and the board of education of the city of New York is liable in its corporate capacity for personal injuries caused by its neglect. 7 The board of education created under 1ST. Y. Laws 1864, ch. 555, as to union free-school districts, are not individually liable for a neglect to perform a duty imposed on the corporation ; the liability rests upon the corporate body. 8 It seems, however, that a member charged by the board as its agent, distinct from its corporate relation, with a specific duty, is individually liable for his neglect thereof ; 9 but a judgment against all the members jointly, for a personal injury caused by one's neglect as agent or servant, is error. 9 School directors who vote for a misapplication of the public funds in payment of a teacher, are personally liable to the township ; 10 and the treasurer, who was also a school director, and voted in favor of such payment, cannot shield himself under the warrant of the i Sanborn v. Neal, 4 Minn. 83. 8 Fowler v. Atkinson, 6 Minn. 412; Bingham v. Stewart, 13 Minn. 406. 8 Sen. Dial. v. Thompson, 5 Minn. 221. 4 Donovan v. McAlpin, 46 N. Y. Super. Ct. 111. Ii v. Miller, 13 Wend. (N. Y.) 66. iper .) Bassett v. Fish, 19 N. Y. Supreme Ct. 209. i Donovan v. N. Y. Bd. Ed., 44 N. Y. S. Ct. 53. ( Reversing s. c., 12 Hun, N. Y., 209 ) Baa- sett v. Fish, 75 N. Y. 303. "Bassett v. Fish, 75 N. Y. 303. 10 Dickinson v. Linn, 36 Pa. St. 431. OFFICERS, POWER. 143 board. 1 When school directors neglect to keep the schools open as long as is prescribed by law, they may be removed, but are not liable to indictment. 2 A certified settlement by the proper officers of the account of the treasurer of a school dis- trict, is conclusive if not appealed from. 3 Five years' acqui- escence on the settlement of collector's account by the township auditors, precludes the board from objecting to the record thereof as prima facie evidence; the auditors having destroyed his vouchers.* The penalty for non-performance of duties of office, under the act of N. Y. 1819, does not extend to any par- ticular act, but to general non-performance of the duties of office. 5 Where a town in Mass, does not provide for care of its school-houses, the school committee employing a suitable person to cut down a tree in the school-yard are not liable for damages from his negligence. 6 School districts in Pa. are not liable for negligence of their employes ; 7 and for trespasses committed by school officers they are personally liable and not the district ; 8 but school officers in Minn, are not liable for negligence in making repairs.' 124. Officers, power. The board of education of the city and county of San Francisco cannot delegate their power of visitation and inspection to other officers appointed by them, and they cannot employ inspecting teachers to visit, inspect, advise, and instruct. 10 Error in appointing a building commit- tee to contract is cured by discharging committee, and the dis- trict board acting instead. 11 By law, state of Ind. is divided into three classes of distinct municipal corporations, for school 1 Dickinson v. Linn, 36 Pa. St. 431. 2 McElhiney v. Commonwealth, 22 Pa. St. 365. Porter v. Sch. Dirs., 18 Pa. St. 144. * Scott v. Strawn, 85 Pa. St. 471. *Spafford v. Hood, 6 Cow. (N. T.) 478. McKenna v. Kiinball, (Mass.) 14 N. E.789. T Ford v. Sch. Dist., (Pa.) 15 A. 812. 8 Sch. Dist. v. Williams, 38 Ark. 454. Bank v. Brainerd Sch. Dist., 51 N. W. 814. 10 Barry v. Goad, (Cal.) 26 P. 785. 11 Maher v. State, ( Neb.) 49 N. W. 436. 144 PUBLIC SCHOOL LAW. purposes, to wit, "each civil township and each incorporated town or city in the several counties," and within the territorial limits of each of these school corporations each is entitled to the control of its school revenue ; and the school trustees of a town within the limits of a township were entitled to the school funds of the township that belonged to such town. 1 Where by act Ga. 1889, pp. 1305, 1306, election notice to determine whether a local school should be established was published once a week for four weeks, and the last publication was inad- vertently omitted, the omission may be treated as a mere irreg- ularity if more than two-thirds of the qualified voters actually voted. 8 The failure of school trustees, granting a petition for the formation of a new district, to file a map and to order an election of school directors, will not invalidate the formation of the new district. 8 Where school trustees are compelled by mandamus to grant petition for formation of a new school dis- trict, the legality of such school cannot be collaterally attacked. 3 An assessor can be compelled by mandamus to pay sum appro- priated by school district, at its annual meeting, to moderator for money paid by him for district.* The courts may compel school directors to perform their duties, or restrain them when they transcend their powers ; but they cannot interfere in mat- ters of discretion. 5 The board of education of San Francisco may maintain ejectment for a school lot ; 6 but school directors can exercise only such powers as are expressly granted ; 7 but if district has no school-house, and needs one, the trustees should secure a room. 8 When a trustee of school funds is such by color of title, his acts are valid as regards third persons ; much 1 Johnson v. Smith, 64 Ind. 275. 8 Iran v. Gregory, 86 Ga. 605. Sch. Dir. v. Sch. Dir., (111.) 28 N. E. 49. * Phillips v. Sch. Diet., (Mich.) 44 N. W. 439. *Wharton v. Sch. Dirs., 42 Pa. St. 358. Bd. Ed. v. Donahue, 53 Cal. 190. * Sch. Dir. v. Fogleman, 76 111. 389. 8 Gould v. E. E. Sch. Dist., 7 Minn. 145. OFFICER, POWERS. 145 more when he is fully in office, except as to giving bond and taking the oath. 1 Two of the board of trustees, in 111., concur- ring, may perform any act which the board is authorized to do, and their acts will be valid until vacated by direct proceedings f but in N. Y. two trustees of a school district cannot act in the performance of their duties, except when all three are present, whether the third one refuses to act, or not. 8 125. Officer, powers. Act 111. 1889, p. 296, art. 5, 19, does not invalidate official actions taken by board of directors at a meeting at which all the directors are present, though such meeting is not a regular one, nor one specially called in a stat- utory manner.* In Oreg. the oldest director in office shall preside as chairman of the meetings of the district ; this means the one who has held office longest. 6 A district in Mass, may choose one member of a prudential committee and then adjourn and choose the remainder at adjourned meeting, and a majority of the prudential committee may act for the whole when minority refuses. 6 In Mich., the board of township school inspectors while engaged in altering the boundaries of a district, may adjourn their meeting to another time and place. 7 In a sub-district in Iowa, containing but five pupils, the board could direct that no school should be taught during the winter in their district, and provide for the attendance of their pupils else- where. 8 The Kevision of 1860, 2133, Iowa, allowing an appeal to the county superintendent, does not clothe the latter officer with judicial powers. 9 Under the Const. Iowa, the educa- tional board have the primary power to provide for all public i Rhodes v. McDonald, 24 Miss. 418. 3Trs. v. Allen, 21 111. 120; Schofield v. Wat- kins, 22 111. 66. Whitford v. Scott, 14 How. (N. T.) Pr. Bow. (N. . (N.Y.) Lee v. Parry. 4 Den. (N. Y.) 125; Keeler v. Frost, 22 Barb. (N. Y.) 400. 10 Lawrence v. Trainer, (HI.) 27 N. E. 197. 6 State v. McKee, (Oreg.) 25 P. 292. sKingsbury v. Sen. Diet., 12 Mete. (Mass.) 99. ?Donough v. Hollister, 82 Mich. 309. 8 Potter v. Fredericksbnrg, 40 Iowa, 369. Sen. Diet v. Pratt, 17 Iowa, 16. 146 PUBLIC SCHOOL LAW. instruction j 1 and though the legislature can annul acts of the board they cannot originate measures, and they cannot act until the board of education is organized ;* and the act of Mch. 12, 1858, so far as it provides for a system of public education, is void. 1 Under Iowa Code, tit. 12, ch. 9, a sub-director cannot interfere with the use of apparatus in schools of his sub-district. 2 The duties of school-district board can only be performed by joint action of officers. 3 If a board of education refuses to do an act required to be done at a particular time, and the board could be compelled to perform it, the board may afterwards, on its own motion, do the act.* Under Md. Acts 1872 and 1874, the state board of education have a visitatorial power of the most comprehensive character, and such power is, in its nature, summary and exclusive. 5 Section 37, of act of April 6th, 1863, Cal., to provide for the maintenance and supervision of common schools, is not repealed as to San Mateo county, by 9, of act of Feb. 6, 1864, nor by 12, of act Mch. 24, 1864. 6 Trustees, in cases beyond their authority and duties, must show their authority ; 7 and the action of county board in Minn, in forming districts is legislative and not judicial, and cannot be reviewed on certiorari. 8 A party acting as prudential committee in a school district will be presumed to have been authorized. 9 A trustee for good cause may discontinue a school in Ind. where there are only four scholars and other schools are convenient. 10 126. Officer, qualification. School commissioner of the city of New York must be at the time a resident of the ward for which he is chosen ; and a removal from the ward for which i"P st. Tp. v. Dubuqne, 7 Iowa, 262. = 1 1 -it. Tp. v. Meyers, (Iowa) 49 N. W. 1042. s ite v. Sch. Dist., (Neb.) 33 1ST. W. 480. <<; K-rothers v. Clinton D. Bd. Ed., 16 W. Va. 5.7. & Wiley v. Allegany Co. Comm'rB, 51 Md. 401. 'People v. San Francisco &c. R. E. Co., 28 Cal. 254. * Sch. Dist. v. Thompson, 5 Minn. 280. Moode v. Stearns Co., (Minn.) 45 N. W. 435. State v. Williams, 27 Vt. 755. i Tufts v. State, 119 Ind. 232. OFFICER, QUALIFICATION. 147 he was chosen vacates the office. 1 Pa. act 1867, providing that service as a county, city or borough superintendent is a suffi- cient test- of qualification on re-election, does not preclude other objections when the person is unfit to hold the office. 2 Pa. act providing that persons residing on certain lands in the township of N. are attached to the borough of S. for school purposes, and shall be entitled to the right to vote for and serve as school directors in said borough, is not contrary to constitution pro- viding that electors shall reside in their election district. 8 In N. Y. the same person may be appointed district clerk and col- lector of the district at the same time ;* and in N. H. the offices of selectman and school committee may be held at same time by the same person. 5 The assessment by a sole prudential committee of a district, who is ineligible for that office, is in- valid. 6 The appointment of district collector under N. Y. L. 1864 should be made in writing, as required by the statute; 7 but a parol appointment of the collector by a sole trustee of the district, his giving bond and the approval by the trustee, and the delivery of the tax warrant to him, constitute him an officer de facto ? but the government may try the right to the office by quo warranto / his title may also be questioned where he is sued for an act which he can only justify as an officer. 7 Sec- tion 27, act of April 17, 1873, requiring an applicant, before appointment as county superintendent, to submit with his appli- cation a certificate from the board of examiners, is constitu- tional, and an appointment without such certificate is invalid ; 8 but it has been held that the statute of Miss, which provides that superintendent of education must have a first-grade certifi- 1 People v. Bd. Ed., 1 Den. (N. Y.) 647. 2 Com. v. Wickersham, 90 Pa. St. 311. 8 Colvin v. Beaver, 94 Pa. St. 388. * Rowland v. Luce, 16 Johns. (N. Y.) 135. 6 Andover v. Carr, 55 N. H. 452. s Woodcock v. Bolster, &5 Vt. 632. 7 Hamlin v. Dinsroan, 41 How. ( N. Y.) Pr. 132 8 Burnham v. Sumner, 50 Miss. 517. 148 PUBLIC SCHOOL LAW. cate is unconstitutional, and that anyone an elector is eligible. 1 Laws Mo. 1887, p. 273, 5, which provides no person shall be eligible for a director "who shall not have paid a school tax within said city for two consecutive years immediately preced- ing his election," means a tax assessed on property in which the school director has an interest subject to taxation at the date of assessment or date of payment, paid at any time within two consecutive calendar years next preceding the year of the director's election. 2 127. Officer, Qualification. A payment by a copartner- ship of a tax in part for school purposes against its personal property by one who is a member of the copartnership at the time ; the payment of taxes on land by one having a tenancy by the curtsey initiate therein, out of his own means ; and the payment of delinquent taxes on land purchased by the payor, though the payment was made for the express purpose of quali- fying for the office, constitute a payment of taxes ; 2 but the pay- ment of delinquent taxes on land by a stranger for the purpose of qualifying for that office, or the payment of taxes for the cur- rent year instead of those for the two years immediately preced- ing the election, or the payment of a merchant's license which does not appear to be for the benefit of the schools, are not such payments of taxes as will qualify. 2 And superintendent employed by board trustees in Mich, is not required to have teacher's certificate. 3 Clerk of district in Mass., once duly sworn into office, afterward chosen clerk but not sworn again, may act as clerk under K. S., ch. 23, 27.* The failure of a moderator of a school district in Neb. to take oath of office does not va- cate the office ; school-district officers are not required to take iWynn v. State, (Mies.) 7 So. 353. 1 'Davis v. Sch. Dist., 45 Mich. 989. * State v. Macklin, 41 Mo. App. 335. | *Sch. Diet. v. Atherton, 12 Mete. ( Mass.) 105. OFFICER, QUALIFICATION. 149 oath of office ; x and school director in Vt. is not required to be sworn. 128. Officer, qualification. In Ark. it is necessary for the school director to qualify within ten days by subscribing the oath of office, and filing the same with the clerk, and until he thus qualifies, his predecessor is entitled to exercise the powers of the office, under Mansf. Dig., p. 6205 ; 3 under Kas. Stat., TT 5594, 5607, the failure of a district treasurer to give bond for nearly a year, where he was elected his own successor, did not create a vacancy ;* but in a similar case the sureties on his original bond were liable for succeeding term. 5 Where director accepts the office, no notice to him is then necessary, and if he fails to file oath within ten days, the term of his predecessor will continue, in Ark. 9 An oath attached to the certificate is same as indorsement on, and indorsement on face is as good as indorsement on back of certificate. 10 The oath of office of school director cannot be administered by an election judge. 11 Where assessor and moderator are prevented from qualifying by a conspiracy, and tender their bonds and acceptance to proper party, their acts are valid. 11 An assessor cannot withhold the funds in his hands when the same are properly demanded by his successor, a fortnight after the latter has been regularly elected, and has accepted and qualified, upon any claim that he is entitled to be first personally notified, officially, of such elec- tion and acceptance ; 12 and the oath of office taken by the clerk of a district will be presumed, when found on the records of the district to have been placed there properly, in the absence of other proof. 13 iFrans v. Young, (Neb.) 46 N. W. 528. 2 Brock v. Bruce, 58 Vt. 261. a Sch. Dist. v. Bennett, 53 Ark. 511. 4 Horneman v. Harlau, ( Kas.) 28 P. 177. e Riddle v. Sch. Dist., 15 Kas. 168. Sch. Dist. v. Bennett, 52 Ark. 611. ^State v. Horton, 19 Nev. 19. 11 Culver v. Armstrong, ( Mich.) 43 N. W. 776. 12 Mason v. Frac. Sch. Dist., 34 Mich. 228. 13 Tozier v. Sch. Dist. No. 2, 39 Me. 556. 150 PUBLIC SCHOOL LAW. 129. Officer, removal. Where defendant in quo war- ranto files a disclaimer to office, the case is not to be dismissed, but a judgment rendered prohibiting him from interfering with the office. 1 Where there are two parties claiming to be the committee of school district, the remedy is by quo warranto* In Pa. the power of the quarter sessions to remove school directors from office is limited by the act of May 8, 1854, 9. 3 The school committee of a town cannot remove the clerk of the board, unless for cause, and after due notice, and opportunity is given him to defend himself ;* but the clerk may waive for- mal notice, and the vote removing him will be valid.* The superintendent of Paris, Ky., city schools may be removed at any time by the board, without the approval of county superin- tendent, the school being carried on by special statute. 5 Pro- ceedings by a township board to remove a director cannot properly be taken until the action of proper authorities by complaint of some definite violation of duty, (Mich. Comp. L., 3695); but they may be waived. 8 The willful refusal of a school director to sign a contract made with a teacher, or to accept and file it, or draw orders for the teacher's pay while it is pending, or to furnish necessary supplies, may be considered in proceedings for his removal. 6 The township board is exclu- sive judge of the facts, under Mich. Comp. L., 3695, to remove a school director, and its proceedings can only be reviewed by the courts on questions of law. 7 In 111. supervisors may re- move superintendent neglecting duty through intoxication, with- out giving him a hearing. 8 The directors having exercised their discretion in locating the schools, there was no authority i Atty. Gen. v. Johnson, (N. H.) 7 A. 381. Hinckley v. Breen, 55 Conn. 119. Heard v. Sch. Dire., 45 Pa. St. 93. *Willard's Appeals, 4 R. L 595, 597. Adams v. Thomas, (Ky.) 12 S. W. 940. Geddes v. Thomastown, 46 Mich. 316. i Hamtranck Tp. Bd. v. Holihan, 46 Mich. 127. 8 People v. Mays, 17 111. App. 361; People v. Maya, 117 BL 257. OFFICER, TERM. for the court to remove them, under act Pa. May 8, 1854, ex- cept on evidence showing want of good faith in their acts ; x and the court will not interfere to remove school directors, under act Pa. May 8, 1854, 9, for failure to provide a "suitable school- house" (23) where the houses provided are cheap, unsightly, unfit for permanent use, and hard to keep in repair, but not uncomfortable or unsafe ; 2 but a refusal to consider a request by two citizens, made for themselves and on behalf of their neighbors, for enlarged school accommodations, in a case where the same is clearly required, is cause for the removal of the board ; s the superintendent of common schools has the power of removing any county superintendent for neglect of duty, in- competency, or immorality ; but there must be first a charge, notice, and opportunity of defense.* Where township board did not meet to agree on notice to remove school director, the proceedings for removal are not thereby invalidated in Mich. 5 Where directors were removed for not appointing teachers, the failure to agree as to the salary is no excuse. 6 131. Officers, tax. The curative act of 1886 cures the irregularities in the election for officers and for taxing under Ky. act 1884, "imposing certain duties on board trustees certain district." 7 The legality of the existence of the district can be tried by an information against the district itself; or by an action of trespass against the members of the committee for any compulsory acts under its authority ; or by resisting the pay- ment of taxes laid by it, but not by quo warranto against an officer. 8 132. Officer, term. The term of a truant-officer, appointed 1 Price v. Barrett Tp. Sch. Dirs., 9 Pa. Co. Ct. R. 395. 2 Ohio Tp. Sch. Dire., 9 Pa. Co. Ct. R. 392. ConnoquenesBing Sch. Dirs., 9 Pa. Co. Ct. R. 425. 4 Field v. Commonwealth, 32 Pa. St. 478. 6 Wenzel v. Dorr, 49 Mich. 25. 'Appeal Sch. Dist., (Pa.) 15 A. 543. ' Ky.) 7 S. W. 896. iffift! North, 42 Conn. 79. tolUTS 152 PUBLIC SCHOOL LAW. under Mass. Gen. Stat., ch. 42, 5, expires at the end of the municipal year. 1 When a school district, at an annual meeting, has appointed one to act as prudential committee, it cannot during the year appoint another in his place, or add more to the number of the committee ; 2 school-district officers, elected at annual meeting of district, will hold their offices until suc- cessors are elected, at another annual meeting. 2 The members of the board of education of Port Huron, Mich., hold office for specific terms, and are not city officers removable by the com- mon council. 3 Miss. Const., art. 8, 5, limits the terms of office of county superintendents of education to two years, and makes no provision for their holding over until their suc- cessors are appointed and qualified ; and the term cannot be extended by legislature ;* but in Yt., the officers of a school district hold their office until their successors are appointed. 5 Where party ineligible is elected county superintendent there is no election and the incumbent holds over, in Ky.; 6 and where a school trustee has been appointed to fill a vacancy, under Ind. act 1875, he is entitled under constitution to hold office until the qualification of his successor ; 7 the successive annual elections for a school trustee should be held at the first regular meeting of the council in June ; but a valid election might be had subsequently ; 7 and a district trustee elected under 39 of the act of 1849, Ind., continues in office until a successor is elected by the qualified voters. 8 The Nev. act authorizing trus- tees to be elected and one to hold for five years when there are five trustees, is unconstitutional. 9 133. Officer, term. Where statute required division of iHnsev. Lowell, 10 Allen (Mass.) 149. 2 Chandler v. Bradish, 23 Vt. 416. a People v. Port Huron Hd. Ed., 39 Mich. 635. 4 Burnham v. Sumner, 50 Miss. 517. 6 Walker v. Miner, 32 Vt. 769. Howard v. Cornett, (Ky.) 1 S. W. 1. " Sackett v. State, 74 Ind. 486. 8 Stewart v. State, 4 Ind. 396. State v. Harris, 19 Nev. 222. OFFICER, TERM. 153 school committee into three classes, the terms of which were one, two and three years, and there was a division of seven into classes of three, two and two, and where the term of two expired and another retired, and the council elected three, the first two held three years and the last only one. 1 The act of Ya., in regard to county superintendents, declaring the office vacant July 1, 1886, and that all terms of four years should begin on that day, is unconstitutional and void. 8 In ET. Y., where the term of attendance agents expired, they cannot claim that their successors are irregularly elected. 8 In Ark., statute providing that director elected shall within ten days file ac- ceptance of office with predecessor, subscribe oath of office and file it with county clerk, and enter at once on his duties, is not affected by statute requiring officers of election to return the result to county clerk ten days before the meeting of county court, and director's term begins as soon as he has qualified. 4 Where, upon the establishment of a new county, a commis- sioner was elected a year before the assembly elections, and accepted a commission "to continue in force until the next general election," he could not hold office after his successor, elected at such general election, had qualified; under Const. S. C., a school commissioner is a state officer, and his election is governed by art. 14, 10. 8 The commissioner was a candidate, and did not contest the election before the state board of can- vassers ; he was bound by its decisions. 5 Under act 1887, Ark., the term of office of the director so elected begins as soon as he has qualified as required by the terms of the act. 6 The su- perintendent of public instruction in Mo. continues in office i State v. Lane, (R. I.) 18 A. 1035. ^Pendleton v. Miller, 82 Va. 390. People T. Bd. Ed., (N. Y.) 1 N. Y. S. 743. the state. 7 The constitution of all the states in some way pro- hibits the use of the common-school fund for the support of : sectarian institutions. State Normal of N. Y. is not a " public .school" so as to enable scholars to claim free scholarship in Cornell University. 8 The inmates of the German Protestant Orphan Asylum of Cincinnati are not children, wards, or ap- prentices of actual residents in the district of the asylum, and :are not entitled to the public-school privileges of that district.' Statutes of Wis., authorizing sending specified classes of chil- i People v. McAdams, 82 111. 356. 2/tt re Malone, 21 S. C. 435. 3 A. T. & S. F. R. R. Co. v. Atchison, 47 Ks. 713. - "'Thomas v. Visitors Frederick County Sch., 7 Gill. & J. ( Md.) 369. 6 Roach v. St. Louis Sch. Bd., 77 Mo. 484. Hall's Free S. v. Home, 80 Va. 470. * State v. Powers, 38 Ohio St. 54. 8 People v. Crissey, 45 Hun (N. Y.) 19. State v. Sch. Dirs., 10 Ohio St. 448. PAROCHIAL, SECTARIAN, RELIGIOUS, ETC. 159 dren to public industrial schools, do not involve any interference with the relation of parent and child, nor any imprisonment that may not be imposed. 1 The school law providing for the education of every individual between the ages of five and twenty-one years, is not unconstitutional. 2 140. Parochial, sectarian, religious, etc. Where the territorial law authorized the board of education to designate private institution where instruction should be given, and the tuition paid by the territory, and a contract was made accord- ingly, which contract required three months' notice to cancel, it was held that the constitution of the state subsequently adopted prohibiting apropriation to any sectarian institution, terminated the contract, and such provision did not contravene the U. S. constitution prohibiting the impairing of obligations of contracts. 3 A public institution of learning would be one which is controlled by the state through its agents, and in which the state would have a paramount interest and right of property, and which would depend upon the state for its existence. 4 Although the Illinois Industrial University at Urbana is a body corporate, yet the state appoints its trustees, and may sell and dispose of the property of the institution, or amend or repeal the charter. 5 Paying rent for use of church for school purposes is not contrary to 111. constitution. 8 The Ky. act of 1872, appropriating common-school funds to Y. academy, is unconsti- tutional. 7 " Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary ; it is not within the sphere of gov- ernment to coerce it;" 8 except in N. H., the constitution of 1 Milwaukee Industrial Sch. v. Supervisors. 40 Wis. 328. 2 Commonwealth v. Hartman, 17 Pa. St. 118. 8 Synod of Dakota v. State, ( S. D. ) 50 N.W. 632. * State v. Graham, 25 La. Ann. 440. 6 Trustees 111. Ind. TJ. v. Champaign Co.. 76 111. 184. . Ed. Bd., 19 111. App. 48. ^Halbert v. Sparks, 9 Bush (Ky.) 259. 8 Cooley Const. Lim., 576. 160 PUBLIC SCHOOL LAW. which permits the legislature to authorize towns, parishes, bodies corporate, or religious societies within the state to make adequate provisions at their own expense, for the support and maintenance of public Protestant teachers of piety, religion and morality, but not to tax other denominations for their support. 141. Parochial, sectarian, religious, etc. In the case of Comity of McLean v. Humphreys, 104 111. (Free.) 378, it was decided that " There is nothing in the various provisions of the act of May 28, 1879, entitled 'An act to aid industrial schools for girls,' which authorizes or contemplates the organization of these schools for sectarian purposes, within the meaning of 3,. art. 8, of the constitution, prohibiting any appropriation or pay from any public fund, or anything in aid of any church or sec- tarian purpose, by any public corporation ; but on the contrary,, it is expressly prohibited in the last section of the act. "If, notwithstanding this inhibition in the act, such a school should be prostituted to any church or sectarian purposes, the law affords ample means for a speedy correction of such an abuse of the act. " Constitution not to be so construed as to deprive the legis- lature of the power of protecting dependent and unfortunate in- fants. It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patrice to protect and provide for the comfort and well-being of such of its citizens as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of them- selves, and all constitutional limitations must be so construed and understood as not to interfere with the proper and legitimate exercise of this important governmental function. "The act does not infringe constitutional guaranty of per- PAROCHIAL, SECTARIAN, RELIGIOUS, ETC. 161 sonal liberty. The act of 1879, in relation to industrial schools for dependent infant females, is not obnoxious to the objection that it infringes upon the constitutional guaranty of the per- sonal liberty of the citizen." 142. Parochial, sectarian, religious, etc. "It may be said that 3 of article 8 of the 111. constitution is an inhibi- tion upon the power of appellees to appropriate any public funds for the support of a public school or any school under the domination or control of any church or sectarian denomina- tion, and that 3 of the Bill of Rights provides that ' the free exercise and enjoyment of religious profession and worship without discrimination shall forever be guaranteed,' etc. In- deed, these sections are cited in appellant's brief, but there is no question of construction of the constitutional provisions raised, or any necessity for an interpretation apparent." (Mil- lard v. Board, 116 111. 23.) 143. Parochial, sectarian, religious, etc. In the case of Milwaukee Industrial School v. Supervisors of Milwaukee County, 40 Wis. 328, it was decided that "The power con- ferred in terms by 5, ch. 325 of 1875, upon certain officers, for the commitment of minors to industrial schools, is judicial, and cannot be exercised by mayors of cities, (3 Wis. 805); and probably not by judges of courts of record at chambers, (39 Wis., 35); but any defect of jurisdiction in these will not affect the authority of courts under the act. . . . "The statute (which goes on the total failure of the parent to provide for the child) is not invalid on the ground that it invades any natural rights of parent and child. "The commitment of the child to an industrial school, as au- thorized by the statute, is not an imprisonment. . . . "In the second place, the statute, certainly so far as it is in- n 162 PUBLIC SCHOOL LAW. volved here, does not go on failure in the measure of support or education by the parent, on some nice fault-finding with the course of the parent with the child, as the court appeared to think that the Illinois statute did, in People v. Turner, 55 111. 280. It goes on the total failure of the parent to provide for the child. And it is difficult to comprehend the right of a parent to complain, that the discharge by the state of his own duty to his child, which he has wholly failed to perform, is an imprison- ment of the child as against his parental right in it. ... " We cannot think that it was intended to foreclose the right of a parent, when competent, to resume the custody and care of his child. In this respect there is a significant difference between it and the statute before the court in People v. Turner. That statute provided for process against the parent or guardian of the child, making them parties to the proceeding, and appar- ently bound by it. The statute before us carefully avoids that difficulty, and operates, so to speak, upon the child in personam, without citing the parent or guardian, without any color of in- tent to bind the parent or guardian by the proceeding or by the commitment. It appears to us quite obvious, upon familiar principles, that the parent or guardian is not precluded by the commitment from asserting any right to the custody and care of the child which he may be afterwards able to establish. When a parent or other proper guardian should be able to show that the disability or default on which the child's commit- ment proceeded was accidental or temporary, and no longer exists, and that he is, in the language of 5, ch. 112, E. S., not otherwise unsuitable for the custody of the child, his right to the custody should prevail over the commitment to which he was not a party. In such a case, if the officers of school should refuse to surrender a child, no court would hesitate to restore PAROCHIAL, SECTARIAN, RELIGIOUS, ETC. 163 the child to the care of the parent or guardian. The commit- ment during minority binds the child only, not the parent or guardian when competent to fulfill toward the child the duties assumed by the state. It is conclusive as between the school and the child, but not as between the school and the parent or guardian. The statute is a humane one, and should not be bent to a construction inconsistent with one of the dearest rights of humanity. It is our duty to give it a construction, if we can, to give it effect ; and we find no difficulty in giving it this construction, which seems to us to have been in the mind of the legislature when it was framed. . . . "The case of People v. Turner appears to turn on the ques- tion of compulsory education a very different question from that here. We are not prepared to say that we might not de- cide a similar case, under a similar statute, in the same way." 14:4:. Parochial, sectarian, religious, etc. In Millard v. The Board of Education, 121 111. 297, it was decided that " Kenting building for school purposes, as, a church building, when it becomes necessary for a board of education to procure a building in which to conduct a public school : They are au- thorized by law to lease a suitable building for that purpose, and it matters not that such building had been used for a church by some religious body. Procuring a building without a vote of the people : Where a proposition to raise money to build a school-house at a site selected is defeated by a vote of the peo- ple, the board of education or directors, being required to pro- vide a school for at least six months in each year, may lawfully rent any suitable building or room in which such school may be kept, without any vote for that purpose. The free schools of this state are not established to aid any sectarian denomina- tion, or assist in disseminating any sectarian doctrine, and no 164 PUBLIC SCHOOL LAW. board of education or school directors have any authority to use the public funds for any such purpose. The statute has not prescribed any religious belitef as a qualification of a teacher in the public schools, and therefore the school authorities may select a teacher who belongs to any church or to no church, as they may think best. A bill to enjoin a board of education from the use of school funds for sectarian purposes, alleged that the children of Catholic parents, and the teachers, who were Catholics, were required to attend at a Catholic church, the base- ment of which was used for the school, at eight o'clock in the morning on school-days, and hear mass read by the priest, and then repair to the school-room and engage in the study of the church catechism for half an hour before the opening of the school, and at the close of the school at noon the 'Angelus' prayer was read by the teachers and pupils, but failed to show that the board were in any manner connected with such exer- cises and requirements : Held, That the bill did not show any ground of equitable relief, it not appearing that complainant had any children who were required, against his wishes, to at- tend or receive any religious instruction." 145. Parochial, sectarian, religious, etc. In the case of State v. Dist. JBd., 76 Wis. 177, it was decided : "In a peti- tion by residents and tax-payers of a city for a writ of man- damus to compel the discontinuance of the practice of reading the Bible in the public schools therein, averments that the resi- dents of said city, who are taxed for the support of said schools, are equally entitled to the benefits thereof, by having their children instructed therein according to law, and that the read- ing complained of is contrary to the rights of conscience, and in violation of law, and is sectarian instruction and in violation of 3, art. 10, Const., are held sufficiently broad to cover any PAROCHIAL, SECTARIAN. RELIGIOUS, ETC. 165 valid objection which may be made to such reading. Aver- ments in the return to the alternative writ that the reading of the Bible in schools is not sectarian instruction, and that the school board has a lawful right to permit, but none to prevent, such reading, being mere legal conclusions, are not admitted by a demurrer. Nor does the demurrer admit an averment in such return that there is no material difference between the King James version of the Bible, used in the schools, and the Douay version, such averment being against common knowl- edge, and therefor not well pleaded. The courts will take judicial notice of the contents of the Bible, that the religious world is divided into numerous sects, and of the general doc- trines maintained by each sect. The whole Bible, without ex- ception, having been designated as a text-book for use in a school, and it being claimed by the school board that the whole contents thereof may lawfully be read in such school if the teacher so elect, the Bible will be regarded as a whole in de- termining whether such reading is sectarian instruction ; and it is immaterial that the only portions thereof thus far read in such school are not sectarian. (The use of any version of the Bible as a text-book in the public schools, and the stated reading thereof in such schools by the teachers, without restriction, though unaccompanied by any comment, has 'a tendency to inculcate sectarian ideas,' within the meaning of 3, ch. 251, Laws of 1883, and is 'sectarian instruction,' within the meaning of 3, art. 10, Const\But text-books founded upon the funda- mental teachings of the Bible, or which contain extracts there- from, and such portions of the Bible as are not sectarian, may be used in the secular instruction of the pupils and to inculcate good morals. /The fact that the children of the petitioners are 166 PUBLIC SCHOOL LAW. at liberty to withdraw from the school-room during the reading of the Bible does not remove the ground of complaint.S The constitutional prohibition of sectarian instruction being unam- biguous, the rules as to interpretation in the light of surrounding circumstances when it was framed and adopted, and as to the authority of contemporaneous exposition, are not controlling. Considered in the light of prior and contemporaneous history, the provisions of our constitution herein cited were manifestly intended to prohibit practices then permitted by other constitu- tions. The stated reading of the Bible as a text-book in the public schools may be ; worship,' and the school-house thereby become, for the time being, a 'place of worship,' within the meaning of 18, art. 1, Const.; and to such use of the school- house the tax-payers, who are compelled to aid in its erection and in the maintenance of the school, have a legal right to object. Children of poor parents, who are by law practically obliged to attend the public schools, would, if such reading were permitted, be compelled to attend a place of worship, con- trary to said 18. Such reading being religious instruction, the money drawn from the state treasury for the support of a school in which the Bible is so read, is for the benefit of a 'religious seminary,' within the meaning of said section. By the adoption of the state constitution and the admission of the state into the Union, the third of the articles of compact in the ordinance of 1787 ceased to be longer in force." 146. Parochial, sectarian, religious, etc. In the case of County of Coolc v. Industrial School, 125 111. 540, it was de- cided that : "A school is sectarian, and comes within constitu- tional provision ' that public funds shall not be paid out in aid of any sectarian purpose, or in aid of any school, etc., controlled PAROCHIAL, SECTARIAN, RELIGIOUS, ETC. 167 by any church,' where such school is a corporation organized as an industrial school for girls, but does not lease or own any building, although its charter contemplates that it shall have a situs, nor otherwise comply with the provisions of its act of in- corporation, but places all girls nominally committed to it under the sole charge, care, and control of two institutions controlled by a church, where they are taught, maintained and clothed by them alone, and in which institutions the inmates, although not obliged to receive instructions in the Romish faith, are yet taught no other faith or creed ; and in such case a suit to re- cover for tuition and clothing furnished girls so placed cannot be maintained against the county. "To show that a school is controlled by a church, evidence is admissible that a judge of the superior court went to the place where an industrial school was alleged to be carried on, and was refused admittance unless he should first obtain a permit from a bishop or member of the Romish church, it appearing that such judge was authorized to commit girls to an industrial school, and that books containing copies of the warrants of commitments were required to be kept therein. "If an industrial school that has availed itself of the provi- sions of the statute of 111. providing for the payment of moneys to such schools is guilty of the misuse or non-use of its powers, and brings suit against a county upon a contract which the lat- ter can lawfully make, perhaps a defense cannot be maintained solely upon the ground that the school is violating its charter ; the proper proceeding to test that question may be quo war- ranto. But if the contract sued on is a contract to pay money out of the public funds in aid of a sectarian purpose, it is abso- lutely void under the constitution. 168 PUBLIC SCHOOL LAW. "Constitution controls in preference to statute where .the statute directs a county board to pay money to an industrial school, and the constitution, in a self-executing provision, directs the county board not to pay money to such school when controlled by a church. "Appeal lies to supreme court where validity of a statute or construction of the constitution is involved ; and motion to dis- miss appeal for want of jurisdiction will be overruled where such question of proper construction is directly raised on face of record. "The constitution of 111. declares against the use of public funds to aid sectarian schools, independently of the question whether there is or is not a consideration furnished in return for the funds so used. "In State v. Hallock, 16 Nev. 373, it was held that the Ne- vada Orphan Asylum was a sectarian institution, and that the payment of a claim made by it against the state would be a violation of the following provision in the state constitution: 'No public funds of any kind or character whatever, state, county, or municipal, shall be used for sectarian purposes.' "In this connection it may be proper to notice one of the errors assigned on the ground of the exclusion of evidence. Defendant, for the purpose of showing that the Chicago Indus- trial School itself was controlled by the Catholic church, offered to prove that one of the judges of the superior court of Cook county went to the House of the Good Shepherd, and was re- fused admittance, and was told that 'if he wished to be admit- ted he must get a permit from the Koman Catholic bishop, or some gentleman member of the Catholic church in good stand- ing.' PAROCHIAL, SECTARIAN, RELIGIOUS, ETC. 169 "The doctrine here contended for is an exceedingly danger- ous one. In county of McLean v. Humphreys, 104 111. 378, it is intimated by this court that the state is under obligations to protect and educate such classes of female infants as were de- clared to be dependent girls by 3 of the act of May 28, 1879, :as that section stood before it was amended on June 26, 1885. Under this view, the industrial schools which teach and care for such girls are performing, as substitutes for the state, a duty which the state itself is bound to perform. If they are entitled to be paid out of the public funds, even though they are under the control of sectarian denominations, simply because they re- lieve the state of a burden which it would otherwise be itself required to bear, then there is nothing to prevent all public education from becoming subjected, by hasty and unwise legis- lation, to sectarian influences. By 1 of article 8 of the con- stitution it is made the duty of the state to provide a thorough -and efficient system of free schools. If statutes are passed, under which the management of these schools shall get into the .hands of sectarian institutions, then, under the theory con- tended for, the prohibition of the constitution will be powerless to prevent the money of the tax-payers from being used to sup- port such institutions, inasmuch as they will render a service to the state by performing for it its duty of educating the children of the people. It is an untenable position, that public funds may be paid out to help support sectarian schools, provided only such schools shall render a quid pro quo for the payment made to them. The constitution declares against the use of public funds to aid sectarian schools, independently of the question whether there is or is not a consideration furnished in j-eturn for the funds so used. 170 PUBLIC SCHOOL LAW. " There is nothing in the doctrine here announced which con- flicts with the case of Millard v. Board of Education, 121 111. 297. There the proceeding was by an individual tax-payer against a board of education, and a majority of the court sus- tained the act of the board, which had no school-house, in temporarily leasing the basement of a Catholic church, for the purpose of holding one of the public schools therein. But the board did not part with the control of the school. The scholars, were taught by teachers whom the board appointed, and under a system of instruction which the board prescribed. "Nor, do the reasons here given for sustaining the jurisdic- tion of the court in this case conflict with the other case of Millar d v. Board of Education, 116 111. 23. There the opinion expressly states that no question of the validity of a statute or of the construction of the constitution was raised. But here the question of the proper construction of a constitutional pro- vision is directly raised upon the face of the record." 147. Parochial, sectarian, religious, etc. In the cel- ebrated case of Cincinnati Board of Education v. Minor, 23 Ohio St. 211, which has been looked upon as the leading case prohibiting the Bible from schools on the ground of being sec- tarian in its tendency, the chief question presented, tried and decided in that case was : The constitution of Ohio declared that religion, morality and knowledge were essential to good government, and required the legislature to encourage schools for that reason; and it was insisted that this clause of the constitution required to that extent religious instruction. The court held that it authorized the legislature to do certain things, and the legislature never acted under said clause ; and that the board of education having excluded the Bible, the court had no- PUPIL, ADMISSION. 171 power to interfere with the powers exercised by the board of education ; or, as they decide it in the syllabus of the case : "The constitution of the state does not enjoin or require re- ligious instruction or the reading of religious books in the pub- lic schools of the state. "The legislature having placed the management of the public schools under the exclusive control of directors, trustees, and boards of education, the courts have no rightful authority to interfere by directing what instruction shall be given or what books shall be read therein." 148. Parochial school religious Bible. The school committee of a town have the legal power to pass a rule requir- ing a school to be opened by reading from the Bible. 1 Where the legislature has placed the management of the public schools under the exclusive control of directors, trustees, and boards of education, the judicial power will not direct what instruction, shall be given, or what books shall be read therein. 2 Permit- ting some pupils to withdraw during reading of Bible is not uniformity of treatment. Reading of the Bible is held in this case to be sectarian instruction, and against the constitution of Wis. Reading of the Bible is also held in same case to be religious instruction ; 3 but in Me. a rule requiring the reading of a particular version was held to be legal ;* and an expulsion from school for refusing to conform to rule in regard to reading of Bible was sustained. 5 149. Pupil, admission. The decision of state superin- tendent that a child is entitled to attend in a certain district will be upheld where he is living there and working for his board y 1 Speller v. Wolburn, 12 Allen (Mass.) 127. I *Donahoe v. Richards, 38 Me. 376. 2 Bd. Ed. Cincinnati v. Minor, 23 Ohio St. 211. 6 McCormick v. Burt, 95 111. 266. 'State v. Dist. Bd., ( Wie.) 44 N. W. 967. 172 PUBLIC SCHOOL LAW. -and did not come there to attend school, and his mother teaches in another city, is not able to support him, and has no home. 1 To obtain admission when pupil is wrongfully excluded by princi- pal in N. Y. city ward school, he must appeal to board trustees of ward, then to board education ; and where he had graduated from primary and there was no room to seat him he cannot compel readmission. 2 The board of education in 111. can refuse to admit pupils in a sub-district, boarding there when the schools -there are crowded and there are schools in same district in an- other sub-district where the parents of such pupil reside. 3 The power of directors to enlarge building, and the fact that edu- cation is compulsory, does not prevent directors temporarily "excluding for want of room.* Legal school age means scholars under twenty-one years, in Mass. ; 6 and the Miss, act 1866, as to -admission of outside pupils on payment of tuition means such proportion of all tuition in that school as number of outside .scholars bears to whole number. 8 150. Pupil, admission. In the case of State v. White, 82 Ind. 278, it was held: "The trustees and faculty of a public university may not refuse admission or exclude students be- cause they are members of a Greek -letter fraternity or other secret college society. . . . This right of admission may not be enforced when there is not sufficient room in the univer- sity, and may be postponed until the applicant has made some proficiency in merely preliminary studies ; but it is a right which the trustees are not authorized to materially abridge, and which they cannot as an abstract proposition rightfully deny. (Cory v. Carter, 48 Ind. 327; State v. Duffy, 1 Nev. 342 ; i State v. Thayer, 74 Wis. 48. * People v. Bd. Ed., (N. Y.) 4 N. T. S. 103. * People v. Bd. Ed., 26 111. App. 476. * People v. McFall, 26 111. App. 319. *Needham v. Wellesley, 139 Mass. 372. State v. Hamilton, (Miss.) 10 So. 57. PUPIL'S DISCHAPtGE, DISMISSAL AND EXPULSION. Chase v. Stephenson, 71 111. 383 ; School Trustees v. People, 87 id. 303 ; Eulison v. Post, 79 111. 567; People v. Board, etc., 18 Mich. 400 ; Foltz v. Hoge, 54 Cal. 28 ; Ward v. Flood, 48 id. 36.) . . . Every student, upon his admission to an institu- tion of learning, impliedly promises to submit and be governed by all the necessary and proper rules and regulations which have been or may thereafter be adopted for the government of the institution; and the exaction of any pledge or condition which requires him to promise more than that operates as a practical abridgment of his right of admission, and involves the exercise of a power greater than has been conferred upon either trustees or the faculty of Purdue University. . . . Our conclusion is, that so much of regulation No. 3, adopted by the- faculty, as may be construed to impose disabilities on persons already members of the Greek fraternities, and as requires a written pledge as a condition of admission, is both ultra vires and palpably unreasonable, and hence inoperative and void, and that the pledge tendered to Hawley was one which the- faculty had no legal right to demand as a condition of his ad- mission." 151. Pupil, Chinese. It was decided in Cal., that a, Chinese child could not be excluded, and in 1885 statute was passed allowing the establishment of separate schools. 1 152. Pupil's discharge, dismissal, and expulsion. School authorities cannot expel pupil for attending a social party contrary to rules of school ; 2 but in an action for damages for expelling under such rule, as there was no malice on the part of the directors, they were not liable in damages ; s and a 1 Tape v. Hnrley, 66 Cal. 473. 2 State v. Osborne, 24 Mo. App. 309; Dritt v. Snodgraes, 66 Mo. 286; State v. Osborne, 32 Mo. App. 536. 'Dritt v. Snodgrass, 66 Mo. 286. 174 PUBLIC SCHOOL LAW. pupil cannot be discharged for failing to comply with regula- tion that each scholar shall bring into the school-room a stick of wood for the fire ;* but when pupil is dismissed by teacher without sanction of committee or without authority, he cannot maintain an action against the city without first appealing to the school authorities ; 2 and where directors make a rule in good faith that pupil absent certain time without excuse shall be ex- pelled from school, they are not liable in damages in the ab- rsence of malice. 3 So it was held that public officers who err in the discharge of their duties, are not by reason thereof liable m damages.* In Iowa, boards of school directors may provide by-rules, that pupils may be suspended from the schools in case they shall be absent or tardy, except for sickness or other un- avoidable cause, a certain number of times within a x fixed period ; 5 and a school board has power to make a rule suspend- ing any pupil absent, without satisfactory excuse, six half-days in four consecutive weeks.* The general school committee of a town may exclude from school a pupil of immoral character. 7 Where statute authorizes board to suspend or expel pupils guilty of gross misdemeanor or persistent disobedience, this does not justify suspending for accidents or negligence. 8 A rule, prescribed by a board of education, that a pupil failing to come prepared with a required exercise, or with a reasonable excuse, shall be suspended, is a reasonable rule, such as the board has authority to adopt, and the teacher to enforce. 9 A ; requirement by a teacher of a district school that the scholars in grammar shall write English composition, and a refusal to comply with, in the absence of a request from the parents that i State v. Fond du Lac E. B., 63 Wis. 234. * Davis v. Boston, 133 Mass. 103. Churchill v. Fewkes, 13 111. App. 520. *Donahoe v. Richards, 38 Me. 376. 'Burdick T. Babcock, 31 Iowa, 562. King v. Jefferson Sch. Bd., 71 Mo. 628. 7 Sherman v. Charlestown, 8 Cush. (Mass.) 160. SHolman v. Sch. Trs., ( Mich.) 43 N. W. Sewell y. Bd. Ed., 29 Ohio St. 89. 996. PUPIL DISCHARGE, DISMISSAL, EXPULSION. 175 he be excused therefrom, will justify the exclusion of a scholar from the school. 1 153. Pupil discharge, dismissal, expulsion. It was held that pupils may be suspended from high school department of graded school for failure to provide themselves with a certain music book and practice, even where the child's parent con- siders such study unnecessary. (But see Text-Book section). 2 The remedy for deprivation of the privilege of attending school is, under Mass. Gen. Stat, ch. 41, 11, by an action against the city or town and not against the school committee. 3 A member of a district-school committee, at the school-house just before the opening of the school, being addressed by one of the scholars in a profane and insulting manner, ordered him to leave the room, and on his refusing put him out by force ; he was justified in that act ;* an ejection from the room for pro- fanity was not necessarily an expulsion from the school, and it was not so intended ; and as it could not have that effect, in an action for an assault for the forcible ejection of the plaintiff from the room the committee would not be chargeable with the loss of his school privileges ;* and when a pupil has been sus- pended and uses gross profanity and vulgarity to the board on being called before it, he forfeits his right, if any, to reinstate- ment, until reparation is tendered. 5 In a suit for damages from the suspension of a pupil, no recovery can be had without alle- gation and proof that the action of the directors was wanton or malicious. 6 The prudential committee of a school district may suspend children for absence contrary to the rules thereof, though such absence is pursuant to the command of their i Guernsey T. Pitkin, 32 Vt. 224. State v. Webber, 108 Ind. 31. Learock v. Putnam, 111 Mass. 489. * Peck v. Smith, 41 Conn. 442. Bd. Ed. v. Helston, 32 111. AI McCormick v. Burt, 95 111. 2C 300. 176 PUBLIC SCHOOL LAW. Roman Catholic parents, and by direction of their priest, for the purpose of attending religious services on Corpus Christi day. 1 The teacher has the power to suspend a pupil in a proper case, unless he has been deprived of that power by the affirmative action of the school board or board of education. 2 In action of trespass for unlawful expulsion of pupil, the defendants, teacher and prudential committee, cannot justify under plea of general issue, and as to which expelled, the teacher or prudential com- mittee, it is a question for the jury. 3 In Ohio it was held that the father may maintain an action against the teacher of a school and the local directors of the sub-district, for damages for wrongfully expelling his child ;* but the contrary doctrine was held in N. Y., that such action can only be brought in the name of the child, and what is recovered must be for her benefit ; 5 and in Me., a child could not recover damages, in an action against the school committee by whose orders the pupil was dismissed for failing to read from the Bible. 8 The board of education may require a pupil to inform it of the name of another pupil who has been guilty of a breach of the rules, if he acknowledges that it is known to him, and, on his refusal, may suspend him ; 7 but the suspension does not extend beyond the current school year. 7 A board of directors has no power to suspend except for breach of discipline, or an offense against good morals ; 8 and when the rights of a citizen are involved, the courts may determine whether authority of a school officer was lawfully exercised. 8 154. Pupil, punishment. A teacher is not liable for punishment of pupil if it is not clearly excessive in the judgment iFerriter v. Tyler, 48 Vt. 444. 2 State v. Burton, 45 Wis. 150. B Mack v. Kelsey, ( Vt.) 17 A. 780. *Roe v. Deming, 21 Ohio SL 666. . Hall, 14 Barb. (N. Y.) 222. Donahoe v. Richards, 38 Me. 376. ?Bd. Ed. v. Holstcra, 32 111. App. 300. 8 Perkins v. Ind. Sch. Dist, 56 Iowa, 476. PUPIL, PUNISHMENT. 177 of reasonable men ; an instruction that it is lawful punishment if not so clearly excessive that " all hands would at once say it was excessive," is error. 1 If one over twenty-one years of age voluntarily attends a town school, and is received as a scholar by the instructor, he is under the same restrictions and liabilities as if within the age of twenty-one years. 2 If teacher acts in good faith without malice, he is not liable for error of judg- ment; 8 and a teacher may prohibit and punish scholars for quarreling and swearing on the way home, though not provided for by directors' rules.* The Tex. statute authorizes moderate correction, and where a teacher struck a pupil with a switch of reasonable size about nine times on the legs, showing no severe abrasions, it was held to be lawful ; 5 and the authority of teacher is not limited to school-room, and moderate correction is al- lowed. 6 Where an ordinary whipping was inflicted on a boy of nine years of age for fighting away from school and not dur- ing school hours, it was held that the teacher was not guilty of an assault. 7 The Wis. statutes give the school board in each district power to suspend any pupil from its privileges for non- compliance with the reasonable rules established by the board or by the teacher with its consent. 8 A school teacher, in regard to a pupil intrusted to his care by a parent or guardian, stands- in loco pa/rentis, and is responsible in the same manner. 9 While a teacher may not punish a pupil for misconduct committed after the dismissal of school for the day, and the return of the pupil to his home, yet he may at school punish him for any misbehavior, though committed out of school, which has a di- rect and immediate tendency to injure the school and to sub- 1 Patterson v. Nntter, 78 Me. 509. 2 State v. Mizner, 45 Iowa, 248; Stevens v. Faeeett, 27 Me. 266. Heritage v. Dodge, (N. H.) 9 A. 722. ^Dnskine v. Gore, 85 Mo. 485. 12 . State, (Tex.) 5 S. W. 122. 6 Balding v. State, (Tex.) 4 S. W. 122. 7 Hulton v. State. 23 Tex. App. 386. 8 Morrow v. Wood, 35 Wis. 59. 8 Common wealth v. Seed, 5 Pa. L. J. R. 78. 178 PUBLIC SCHOOL LAW. vert the master's authority. 1 The chastisement of a scholar must not be excessive or cruel ; 8 and if there is any reasonable doubt as to the punishment being excessive, the teacher should have the benefit of the doubt. 3 155. Pupil, punishment. Where a scholar or other person in school hours, refuses to leave the desk of the in- structor on the request of the master, for that purpose he may immediately use such force and remove him as is necessary to accomplish the object, without the direction or knowledge of the superintending school committee/ The teacher has a right to moderately chastise a pupil for refusing to give an excuse for absence without leave. 5 A teacher has right to require obedience to reasonable rules, and to inflict punishment for dis- obedience ; in the absence of rules by the school board, the teacher may make all necessary rules. The teacher should be governed by the age, size and physical condition of pupil ; 6 and he may whip a pupil in a reasonable manner. 6 Where teacher on consulting with trustee on account of insubordination of pupil, gives the pupil the choice of chastisement or expulsion, and he chooses the former, and it is administered and quite painful but there is no undue severity or improper motive on part of teacher, a conviction for assault and battery was not justified. 7 If a parent acts in good faith, prompted by pure parental love, without passion, inflicts no permanent injury on the child, he should not be punished merely because a jury re- viewing the case, deem it unwise to proceed so far ; 8 and the right of the parent may be delegated to the teacher. 9 The law i Lander v. Seaver, 32 Vt. 114. a Anderson v. State, 3 Head. (Tenn.) 455. 8 Lander v. Seaver, 32 Vt. 114. 4 Stevens v. Fassett, 27 Me. 266. 6 Danenhoffer v. State, 69 Ind. 295. sheehan v. Sturges, 53 Conn. 481. 'Vanvactorv. State, (Ind.) 15 N. E. 341. 81 Bish. Cr. Law, (7th ed.,) g882; Schouler's Com. Rel., (4th ed.,) 244; 1 Black Com. 556; 1 Greenl. Ev., 97; 2 Addison on Torts, (Wood's ed.,) 840; Danenhoffer v. State, 69 Ind. 295; Com. v. Randall, 4 Gray, ( Mass.) 36; State v. Burton, 45 Wis. 150." 9 2 Kent. Com., 203. PUPIL, PUNISHMENT. 179 will not hold a teacher responsible unless the punishment occa- sion permanent injury to the child, or be merely to gratify their own evil passions ; the teacher must be governed, when chastisement is proper, as to the mode and severity of the pun- ishment, by the nature of the offense, the age, size, and appar- ent powers of endurance of the pupil. It is for the jury to decide whether the punishment is excessive. 1 The qualification that the teacher must not act from malice, will protect pupils from brutality, whilst the teacher is protected from liability for mere errors of judgment. 2 Infliction of moderate correction, with a sound discretion, is the extent of authority of school master. 3 A school master is regarded as standing in place of the parent, and may administer in case of misconduct, reason- able and proper punishment to a pupil, having regard to the character of the offense, the sex, age, size, and physical strength of the offender ; and he is liable criminally for any abuse of his authority, if prompted by malice or other improper motive, if unreasonably severe, if inflicted with an improper in- strument, or if resulting in permanent injury to the pupil.* 156. Pupil, punishment. The teacher must not use un- reasonable instruments for correction or impose immoderate amount ; if he does he will be criminally liable. 5 A teacher cannot lawfully disfigure a pupil, or perpetrate on his person any other permanent injury. As said by Gaston, J., in State v. Pendergrass, 2 Dev. & Bat. Law, 365, 31 Amer. Dec. 416, a case generally approved by the weight of American authority : "It may be laid down as a general rule, that teachers exceed the limit of their authority when they cause lasting mischief, il Wliart. Or. Law, (8th ed.,) 632. 'Lander v. Seaver, 32 Vt. 114; State v. Alford, 68 N. C. 322. 'Kent's Com., 203-206. Boyd v. State, 88 Ala. 169. SBoyd v. State, 88 Ala. 169; Schooler Dom. Kel., (4thed.,)S244. 180 PUBLIC SCHOOL LAW. but act within the limits of it when they inflict temporary pain." Reasonable correction must not exceed the bounds of due mod- eration, either in the measure of it, or in the instrument used ; if the teacher exceeds this he is criminally liable, and if death ensues from the brutal injuries inflicted, he may be liable not only for assault and battery, but to the penalties of manslaugh- ter or even murder, according to the circumstances of the case. 1 Where teacher after chastising pupil severely in school-room followed him into the yard, struck him with a stick, put his hands in his pocket as if to draw a knife, when the pupil only protested, and after apologizing for language imputed, asked to withdraw, and the teacher hit him in the face three times with his fist, and then hit him over the head with the butt end of a switch, from which the eye was closed for several days, and the teacher remarked in the presence of the school that he could whip any man in China Grove beat, he was convicted and fined. 8 When the punishment is unreasonable and from wicked motives under the influence of an unsocial heart, damages should be given; for error of opinion he ought to be excused, but for malice of heart he must not be shielded from the just claims of the child ; malice may be proved from the circumstances at- tending the punishment. 8 Where a child, as directed by the father, refused to prosecute certain studies required by the teacher, and the teacher punished the child, and the father prosecuted the teacher for assault upon the child, the father was held not liable for malicious prosecution of that case ;* and a teacher cannot punish a pupil for refusing to do that which a parent has asked the pupil to be excused from doing. The il Archbold's Cr. Prac., 218; 1 Bieh. Cr. Law, (Tthed.,) 881-2. SBoyd v. State, 88 Ala. 169. "Reeves Dom. Rel., (4th ed.,) 357-358. * Morrow v. Wood, 35 Wis. 59. PUPIL, PUNISHMENT. 181 teacher may refuse to permit a pupil to attend if the pupil does not conform to the rules. 1 To render a teacher liable to crimi- nal prosecution he must have been actuated by bad, malevolent motives, using the legal authority for the gratification of a mind bent on mischief in inflicting punishment ; 2 but a school master is not relieved from liability by acting ,in good faith and with- out malice, honestly thinking the punishment necessary, when it was clearly excessive and unnecessary. 3 Where a school master punishes, the instrument must be suitable, and be ad- ministered with moderation, or he will be guilty of assault and battery.* In a prosecution for an assault on pupil, and the court left it to the jury to say whether the punishment was excessive, and refused to instruct " that he was criminally liable only when acting from malice or passion, or inflicted excessive punishment," there was no error ; 5 and. an instruction that for punishment to be illegal it must be so excessive as to excite instant condemna- tion of all men, is too favorable for the teacher and is errone- ous. 6 A rule requiring pay for school property wantonly or carelessly destroyed, should not be enforced by corporal punish- ment. 7 157. Pupil, punishment. In the case of State v. Pen- dergrass, 2 Dev. & Batt. (K 0.), 365, it was held: "The law has not undertaken to prescribe stated punishments for particu- lar offenses, but has contented itself with the general grant of the power of moderate correction, and has confided the gra- dation of punishments, within the limits of this grant, to the discretion of the teacher. The line which separates moderate correction from immoderate punishment can only be ascer- i State v. Mizner, 50 Iowa, 145. 2 Commonwealth v. Seed, 5 Pa. L. J. R. 78. 3 Lander v. Seaver, 32 Vt. 114. 4 Cooper v. McJunkin, 4 Ind. 290. 6 Common wealth v. Randall, 4 Graj, (Mass.) 'Patterson v. Nutter, (Me.) 7 A. 273. 'State v. Vanderbilt, (Ind.) 18 N. E. 266. 182 PUBLIC SCHOOL LAW. tained by reference to general principles. The welfare of the child is the main purpose for which pain is permitted to be inflicted. Any punishment, therefore, which may seriously en- danger life, limbs, or health, or shall disfigure the child, or cause any other permanent injury, may be pronounced in itself immoderate, as not only being unnecessary for, but inconsistent with, the purpose for which correction is authorized ; but any correction, however severe, which produces temporary pain only, and no permanent ill, cannot be so pronounced, since it may have been necessary for the reformation of the child, and does not injuriously affect its future welfare. . . , "We hold, therefore, that it may be laid down as a general rule, that teachers exceed the limits of their authority when they cause lasting mischief, but act within the limits of it when they inflict temporary pain. . . . "But the master may be punishable when he does not tran- scend the powers granted, if he grossly abuses them. If he use his authority as a cover for malice, and under pretense of administering correction gratify his own bad passions, the mask of the judge shall be taken off, and he will stand amenable to justice as an individual not invested with judicial power." 158. Pupil, punishment. In the following instances, the exercise of power has been sustained : Suspending pupil for refusing to disclose the name of offending pupil / for tardiness ; 2 for failure to use text-books ; 3 for absence ;* for misconduct ; 5 suspension of pupil by officer ; 5 suspension of pupil by teacher, iBd. v. Helston, 32 111. App. 300. Russell v. Linnfield, 116 Mass. 366; Bendick v. Babcock, 31 Iowa, 562. Spiiler v. Woburn, 12 Allen, (Mass.) 127; McCormick v. Burt, 95 111. 266; Donahoe v. Kichards, 38 Me. 379; Kidder v. Chellis, 59 N. H. 473; Guernsey v. Pitkin, 32 Vt. 226; Sewell v. Bd. Ed., 29 Ohio St. 89. 4 Ferriter v. Tyler, 48 Vt. 444; King v. Jeffer- son City Sch. Bd., 71 Mo. 628; Churchill v. Fewkes, 13 Brad. (111.) 520. 6 Stevens v. Fassett, 27 Me. 266; Larock v. Putnam, 111 Mass. 499; Hods^kins v. Rock- port, 105 Mass. 476; State v^ Williams, 27 Vt. 755. PUPIL, PUNISHMENT. 183 where the officer opposed the teacher j 1 expelling for immor- ality ; 8 corporal punishment for misconduct ; 3 the teacher refus- ing to teach pupil, has been held not liable for damages;* suspending teacher for immorality was sustained. 5 159. Pupil, punishment. In the following instances, the exercise of authority has not been sustained : For barring out tardy pupil ; 8 for suspending pupil for failure to use text- books required ; 7 for suspending for attending a party ; 8 for reflecting on the director by newspaper article ; 9 for suspending for not paying for broken window ; 10 for suspending for using tobacco, the director being opposed to teacher; 11 for man- slaughter of slave. 12 Corporal punishment : For failing to use text-book ; 13 for not paying for broken window ; u for miscon- duct ; 15 for accidentally adding aloud. 16 160. Pupil, punishment. In Lander v. Se 537. 6 Thompson v. Sch. Dist. No. 6, 25 Mich. 483. Sch. Dir. v. Atherton, 12 Mete. ( Mass.) 105. Thompson v. Beaver, 63 III. 350. v. People, 87 111. 303. . Post, 79 111. 567. 198 PUBLIC SCHOOL LAW. cuse was held to be a reasonable rule. 1 (Ind.) A student is required to submit to any proper rule necessary for the good government of the institution. 2 (Iowa.) If it is necessary for the good of the school that the pupil should study certain branches that the parent objects to his pursuing, the teacher has no power to enforce the rule of study by beating the pupil, but may expel or suspend. 3 Expelling a boy from school be- cause he accidentally broke a window playing ball and did not pay for it as required by a rule of board of directors, was not upheld by the courts.* Where a pupil was suspended for being tardy, it was held that rule was for the government of the school, and was proper and reasonable and within the power of the of- ficers to enforce. 5 (Me.) Expelling a Catholic scholar for not complying with a rule which required the use of the Bible in the school, was sustained, and the court held that it was a proper text-book, and not sectarian, and that the committee had the power to adopt and enforce it, the action was by the scholar ; and that the conscience of the father was not interfered with. 6 (Mass.) Regulations forbidding attendance of immoral or licentious persons can be enforced, although the conduct of the persons may be proper while at school. 7 Where a pupil refused to obey the rule made by the committee, that the school should be opened with prayer and reading from the Bible, and that during prayer the pupils should bow their heads, but might be excused at request of parent, and a pupil was ex- pelled for refusing and his parent refused to request his being excused, his expulsion was sustained by the courts. 8 A parent sued a city for damages for the expulsion of his child, and the 1 Churchill v. Fewkes, 13 Brad. R. 520. 2 State v. White, 82 Ind. 286. * State v. Mizner, 50 Iowa, 152. * Perkins v. Directors, 56 Iowa, 479. ^Bendick v. Babcock, 31 Iowa, 562. eDonahoe v. Richards, 38 Me. 379. 7 Sherman v. Charlestown, 8 Cush. 160. sSpitler v. Woburn, 12 Allen, 127. RULES AND REGULATIONS. 199 committee had the sole power of expulsion, but had never acted, (the teacher had suspended the pupil for refusing to take a whipping for disobedience): the court held he should have first applied to the committee to see if they sustained the teacher, and failing to prove this he did not show his child had been expelled. 1 Where the board fails to record the rules it will not render them void. 2 Suspending pupil for violating rules as to tardiness, was sustained, and the court held that this was a reasonable exercise of power by the teacher. 3 (Mo.) Rules be- yond the power of board to make will not be enforced.* A rule suspending pupils absent six half-days in four consecutive weeks without satisfactory excuse was sustained. 4 (N. H.) A teacher not having a license required one of the scholars to declaim, and on refusing obedience to the rule which was made by the teacher was ejected from the building, although the parent had requested the omission of that branch. The teacher was sustained, the court in that case refusing to follow the Wis. authority. 5 (Ohio.) Where a pupil was suspended for failing to observe a rule adopted by the board of education prescribing rhetoric, the court held the rule to be reasonable, and his suspension until he should comply with it or give a reasonable excuse, was proper. 6 (Pa.) A rule prohibiting an expelled student from attending public exhibi- tions given at the normal schools of the state is tyrannical, and cannot be enforced if the party conducts himself properly at the exhibition. 7 (Tenn.) A teacher suspending a pupil for using tobacco in violation of rule adopted by the teacher, the directors objecting to that rule and discharged the teacher, the court up- 1 Davis v. Boston, 133 Mass. 103. * Russell v. Lynnfield, 116 Mass. 365. Russell v. Lynnfield, 116 Mass. 366. 4 King v. Jeff. City Sen. Bd., 71 Mo. 628. SKidder v. Chellis, 59 N. H. 473. Sewell v. Bd., 29 Ohio St. 89. Hughes v. Goodell, (Pa.) 3 Pitts R. 264. 200 PUBLIC SCHOOL LAW. held the board, they having the power to suspend scholars by law, the teacher in Tenn. only having power of temporary sus- pension. 1 (Vt.) Where Catholic parents requested permission for their children to be absent on Catholic holidays, the rule of the committee suspending for absence was sustained ; 2 where teacher required pupil to write English composition, and suspended for not complying, the rule and power to enforce were sustained. 3 (Wis.) Where parent asked teacher to excuse pupil from study of geography and teacher punished the child for complying with request of parent and refusing to pursue that study, the court held she exceeded the authority given her by law and the assault on the child was unjustifiable. 4 168. Site, addition, and appeal. The authorities may acquire lands adjoining the school-house lot, when necessary for an extension which has been duly voted. 6 The Ind. statute authorizes appeals from proceedings by trustees to condemn school-house site, but in proceedings to condemn the decision of the trustees cannot be attacked. 6 In N. H., on appeal to county commissioners as to location of school-house, their decision is conclusive as to location for five years. 7 In Iowa, where the state superintendent on appeal grants petition to district directors for removal of school-house, his decision is final, and mandamus will lie to compel the removal. 8 The decision of the commis- sioner, on appeal, is final. After confirmation by supreme court, another site cannot be chosen except by new proceedings. 9 The jurisdiction of county commissioners to hear petition from voters in district appealing from location of school-house, extends to towns in which the district system has been abolished, in N. H. 10 i Parker v. Sch. Disk, 5 Lea (Tenn.) 525. 2Ferriter v. Tyler, 48 Vt. 444. 3 Guernsey v. Pitkin, 32 Vt. 228. * Morrow v. Wood, 25 Wis. 59. 6 Couzens v. Sch. Disk, 67 Me. 280. eBraden v. McNutt, (Ind.) 16 N. E. 170. 7 Stickney v. Town Oxford, (N. H.) 10 A. 117. 8 Newby v. Free, (Iowa) 34 N. W. 1(58. Cottrell's Appeal, 10 R. I. 615. 10 Adams v. State, ( N. H.) 18 A. 331. SITE, CONTRACT. 201 169. Site, condemnation. An unqualified refusal to sell land selected by a committee as the location of a school-house, would be a sufficient refusal to justify the selectmen in setting off the land ;* and objections to the persons appointed, if known, must be made before the hearing. 1 Seven days' notice in writ- ing is necessary to condemn, when district fails to agree and selectmen locate the site under K. S., ch. 23, 30, and act 1848, Mass. 2 The Pa. act 1867, providing for the taking of land for school-house sites, is constitutional. 3 Where building commit- tee of selectmen choose a site, and on refusal to sell, a meeting was called to authorize the selectmen to select a lot, and it was voted that they are authorized to select a school-house lot from the land of H. heretofore selected by the town, this was not sufficient designation under act 1848, Mass.* In B. I. the ap- pointment of persons to value, or a tender of price for site of school-house before a vote of the district, is ineffectual to pass title, but location does not precede vote ; 5 and the tender of price of land selected, if the owner lives out of the state, may some- times be made to the party in possession. 6 A petition to the county commissioners by the owner of land taken for a school- house, for increase of damages, estops him from an action for occupation of the lot on the ground of irregularities in condem- nation ; 7 and when the district has properly designated the lot, and applied to the owner to sell the same, and he has refused, the selectmen may appraise the damages at the time they lay out the lot, in Me. 8 The township, in N. H., should be made a party in an action to establish location of school-house. 9 170. Site, contract. A contract made by the trustee on iTrne v. Melvin, 43 N. H. 503. *Scb. Dist. v. Copeland, 2 Gray (Mass.) 414. 'Long v. Fuller, 68 Pa. St. 170. * Harris v. Marblehead, 10 Gray (Mass.) 40. ^Howland v. Sch. Dist., 15 R. I. 184. 6 Gibbons v. East Granville, 4 Allen (Mass.) 508. * Jordon v. Haekell, 63 Me. 193. BCouzens v. Sch. Dist., 67 Me. 280. Loverin v. Sch. Dist., 64 N. H. 103. 202 PUBLIC SCHOOL LAW. the authority of a school district, to accept a conveyance of land to be used as a site for a public school, that the district should build and keep in repair the division fence, is valid, though made before any tax to build or repair the fence had been voted. 1 A statutory prohibition against board of education buying school- site does not prohibit a lease of temporary site. 8 In N. H. a location made by a committee is not conclusive; the proper notice of a location to be given of a hearing before a commit- tee, to individuals and to the district, is the same as for the ser- vice of process ; and a selectman cannot act in the appointment of a committee, where his brother is a party. 8 171. Site, conveyance. The grant made by the town of Ipswich, in 1650, in trust for the use of a school in that town, conveyed a fee, although it contained no words of limi- tation.* Where a site is bought with the restriction that no building should be erected to stand in front of the line of the school-house and another building, and the deed contained the restriction that no erections should be made upon said land be- tween the school-house and the highway, there was no variance to bar a recovery for the price ; 6 and one restriction, imposed by the plaintiffs in their proposal, was, that the land should be kept open ; in the deed it was expressed that the land should re- main as a public common, and in the declaration the restriction was expressed as in the deed. This difference constituted no objection to the plaintiff's recovery.* A conveyance of land to a town for the purpose of having a school-house erected and a school taught therein, for the benefit of the youth of the town,, for a term specified, imports a sufficient consideration ; 7 and an i Albright v. Kiker, 22 Hun (N. T.) 367. SMillard v. Bd. Ed., 19 111. App. 48. True v. Melvin, 43 N. H. 503. 'Feoffees Sch. v. Andrews, 8 Mete. (Mass.)584. Dix v. Sch. Diet., 22 Vt. 309. Dixv. Sch. Dist. No. 2 in Wilmington, 22 Vt. 309. 7 Castleton v. Langdon, 19 Vt. 210. SITE, ELECTION. 203 action of trespass qua/re clausum, may be maintained in the name of the town j 1 and if the town erects upon the land a school-house, in which a school should be kept for a reasonable portion of the time, it will not forfeit a part of the land, although it should use that portion of it not wanted for the ac- commodation of the school-house, for purposes not connected with the main object in view, as if it should lease it for culti- vation, or a building for a fire engine, or hay-scales should be put upon it, or it should be used as a passage-way, or be used for the purpose of accommodating teams, or a corner of a meeting-house were allowed to rest upon it, without dissent, or a room in the same building occupied as a school-house, should be finished and used by the town for the purpose of holding town and other public meeting ; such conveyances are are always construed liberally. 1 172. Site, election. Under the N. J. act of 1888, author- izing vote by the district to purchase land and build school- house, the trustees must first designate what lands are to be purchased, and this is to be approved by the voters, and the notice for the meeting must describe the lands. 2 "Wagner's (Mo.) Stat. 1244, 12, construed not to permit the directors to fix the site at their own discretion. 3 A school district voted to repair its school-house and to buy lands enough to straighten the line west of the school-house this was a sufficient location to give the county commissioners jurisdiction of a petition to change the location.* By Comp. Stat. Yt., ch. 20, 38, the majority vote of the school district has the right to locate a school-house. 5 Under B. I. Pub. St., ch. 56, 5, the selection 1 Castleton v. Langdon, 19 Vt. 210. 2 State v. Trs., (N. J.) 18 A. 683. Seibert T. Botts, 57 Mo. 430. ^Holbrook v. Faulkner, 55 N. H. 311. Bean v. Prud. Comm., 38 Vt. 177. 204 PUBLIC SCHOOL LAW. of a school-house site is not a condition precedent to vote to build, and a vote to build on that lot is not a condition pre- cedent to condemnation. 1 Under the vote of a district, request- ing the selectmen to fix the location of their school-house, the action of the selectmen is not compulsory on the members of the district. 8 The board of trustees in Dak. has no power to -acquire a school-house site, except as designated by the voters of the district at a district meeting, and warrants issued therefor -are void. 3 Section 17 of the act of 1856, Conn., to "provide suitable school-rooms," does not qualify the law which requires a vote of two-thirds to establish or change the site of a school- house. 4 Where more than one-third of the voters of a school district object, by their votes, to the place selected for the loca- tion of the school, the clerk of the district is required, by Me. Rev. Stat., ch. 11, 32, to make a record of such fact. 5 In N. Y. the site must be designated by the inhabitants in a district meeting, and such power cannot be delegated to trustees. 6 The N. J. act of 1880 requires majority vote of taxable residents of district to buy land for school-house, or build, and 86 of school law is repealed by implication. 7 Extra rooms cannot be rented and used by board of directors without a vote of the district, in Missouri. 8 173. Site, injunction. The removal of school-house to another site before proper steps required have been taken, will be enjoined at the suit of a tax-payer whose taxes will be in- creased thereby ; 9 but a private person cannot prevent removal of school-house unless he shows special damage to himself ; 10 and school district will not be enjoined from erecting school- iHowland v. Sch. Dist., (R. I.) 8 A. 337. sTozier v. Sch. Dist. No. 2, 39 Me. 556. 8 Farmers Bk. v. Sch. Dist., 6 Dak. 255. *Colt v. Roberts, 28 Conn. 330. * Norton v. Perry, 65 Me. 183. Benjammv. Hull, 17 Wend. (N. Y.) 437. "Point P. L. Co. v. Sch. Dist., 47 N. J. L. 235. s Black v. Cornell, 30 Mo. App. 641. Graves v. Jasper Tp., ( S. D.) 50 N. W. 904. 10 Parody Y. Sch. Dist., 15 Neb. 514. SITE, PLACE. 205 house on a certain site, at instance of person not affected ; J and a resident tax-payer cannot sue the directors for illegal location and purchase of school-site without first making demand on proper parties to sue, and his remedy against an illegal location is by appeal rather than injunction. 2 Discretion allowed offi- cers will not be controlled though it may be exercised unwisely ; s but where vote of electors is required before changing site or building of new site, an attempt to act without vote should be enjoined.* 174. Site, notice. A committee to locate may be ap- pointed without notice to other parties. 5 The certificate of the officers of a town, of their determination where a school-house is to be placed, is, after the application, notice to all parties, and a hearing, as required by the Me. Rev. Stat., ch. 11, 32, and conclusive. 8 175. Site, officers. When location of a school-house by selectmen is returned to the town clerk for record, no subsequent neglect of the town clerk to make a due record will affect the validity of such location ; 7 and where a site has been chosen, ir- regularities of the clerk or omissions in describing the site selected will not invalidate. 8 Under the school act of Ohio, Mch. 14, 1853, the township board of education has the power to designate the particular places where school-houses in sub- districts should be built ; and the powers of the local directors of a sub-district are to be exercised in subordination to the township board of education.' 176. Site, place. The trustees of a district were liable in trespass for assessing and trying to collect a tax voted to raise i Nixon v. Sch. Dist., 32 Kas. 510. Ind. Sch. D. v. Gookin, (Iowa) 34 N. W. 174. *Witherop v. Titusville Sch. Bd., 7 Pa. Co. Ct. Rep. 45. ^Buchanan v.Hannibal Sch. D., 25 Mo.App.85. 6 True v. Melvin, 43 N. H. 503. "Morton v. Perry, 65 Me. 183. i Converge v. Porter, 45 N. H. 385. 8 Merritt v. Farriss, 22 111. 303. "Hughes v. Bd. Ed., 13 Ohio St. 336. 206 PUBLIC SCHOOL LAW. money to purchase a site and build a school-house on a site of different location, where the previous consent of the commis- sioners of common schools had not been obtained to change the site. 1 The trustees of the town of Poplar Plains, under act Ky. of Feb. 28, 1860, and pursuant to vote of the town, sold a lot and school-house, the title to which was in the trustees, and invested the proceeds in the purchase of a seminary lot and buildings just outside the corporate limits of the town ; they were not required to make the reinvestment in property within the corporate limits of the town, and after acquiescence for sev- eral years, the trustees were not personally liable. 8 If a loca- tion is void, by reason of its insufficient and defective description, the district must proceed anew. 8 The municipal officers in Me. have ten days within which to give their certificate to the clerk of the district of their location of the place ; they may change their certificate, and agree if their certificate is not recorded, if their determination is duly filed within ten days. 3 The school inspectors of Peoria have power to maintain a school in a house beyond the city limits for children living within them.* 177. Site, sale. Under Pa. act of 1836, whether prop- erty is any longer required for school purposes is a question within the discretion of the school directors. 5 The N. H. law of 1871, providing for relocation of school-houses, is not un- constitutional. 6 178. Site, tax. One cannot resist a school tax on the ground that the title to the land purchased for the school build- ing is defective, if there is no ouster of possession. 7 In N. Y. >a tax to build may be collected before the site of the school i Baker v. Freeman, 9 Wend. ( N. Y.) * Samuels v. Trs., 4 Bush (Ky.) 252. 3 Norton v. Perry, 65 Me. 183. * Grove v. Sen. Insp., 30 111. 533. BMcCullough v. Sch. Dirs., 11 Pa. St. 476. Farmers' Petition, 51 N. H. 376. 7 People v. Sisson, 98 HL 335. SITE, TITLE. 207 building is located j 1 but in Me. a tax for the erection of a school-house upon a lot not legally designated was deemed to be for an illegal purpose. 2 By act Pa. May 8, 1854, 33, the board of directors of a school district may levy a special tax for purchasing ground and erecting school buildings thereon; and this power is given to boards of controllers in cities and boroughs where the school property is vested in them, and in other cases to the board of directors. 8 179. Site, title. A school may be taught in rented build- ing instead of school-house, where the directors deem it advis- able.* The designation, "is included within the bounds of the survey directed to be run by 1 of act of 1812, as well as within the limits of the town of St. Louis as it stood incorpo- rated June 13, 1812," is valid, though it does not state that the land thus set apart " is or ever was, in whole or in part, a town lot, out-lot, or common field-lot, adjoining or belonging to said town." 5 Where the equitable title is in the school - district board, a contract for the legal title is valid. 6 A Writ of man- damus cannot issue to compel a township trustee to locate and build a school-house on land that does not belong to the town- ship, notwithstanding the county examiner, on an appeal from decision of trustee, has required him to erect a school-house on said land. 7 In an action by one of a building committee against the district, for money paid out by him for the district under the direction of the building committee, the fact that a perfect title to the land had not been secured was no defense to the action ; and a ratification of the acts of the committee in expending more money than they were authorized to expend iColton v. Beardsley, 38 Barb. (N. Y.) 29. 2 Marble T. McKenney, 60 Me. 332. Blair T. Boggs Tp. Sch. Dist., 31 Pa. St. 274. 4 Scripture v. Burns, 59 Iowa, 70. 6Ki*sell v. St. Louis Pub. Sch., 16 Mo. 553. Connor v. Bd. Ed., 10 Minn. 439. 7 Kooutz y. State, 44 Ind. 333. 208 PUBLIC SCHOOL LAW. would avail as between the parties, although such ratification was since the commencement of the suit. 1 A payment or tender of the damages after the school-house is built on land of private person without his consent, and after the owner of the land sues in an action of trespass, qu. cl. fr. affords no jus- tification. 2 A location of a site is not void for inadvertently overlapping part of a public way ; s but a board of education cannot appropriate a public square of a city for a school-house ;* and directors authorized to purchase land and build a school- house thereon, by vote of district, cannot erect the building on land held in trust for county. 5 180. Site, trust. A reservation, by a vendor, of certain land for a school-house, was held to be a trust for the benefit of the neighborhood ; and the sale as his individual property, was enjoined. 6 Where land was conveyed to school trustees on condition that it should revert to the grantor, if it should cease to be used for school purposes, and a school -house was erected thereon and after being used for seven years for a school, the failure for one year to eject an intruder does not work a forfeiture ; 7 and a school-district corporation will not lose its title, in N. Y., to land by non-user for a time less than twenty years. 8 181. Statute, constitution. The Pa. act of 1873 for the city of A., in so far as it assumes to empower the mayor, etc., to levy a tax and issue bonds, and to exempt the city from county taxation for public schools, contains matter not in the title, and is unconstitutional ; 9 and this section is by the sub- sequent "act to amend," etc., "the several acts granting i Davis v. Sch. Disk, 44 N. H. 398. "Storer v. Hobbs, 52 Me. 144. Jordan v. Heskell, 63 Me. 189. <51 Cal. 620. e Appeal of Tarbell, 129 Pa. St 146. Hamner v. Sharp, 11 Heisk. (Tenn.) 701. 'Barber v. Sch. Tr., 51 111. 396. SRobie v. Sedgwick, 35 Barb. (N. Y.) 319. Bd. Pub. Ed. Americus v. Barlow, 74 Pa. St. SUIT, PARTIES. 209 corporate authority to the city of A., repealed through incon- sistency. 1 The repealing clause of 1 of Ohio act of 1852, for the organization of cities and incorporated villages, did not abrogate the school systems nor special laws then existing. 2 182. Suits, district. Individuals cannot as such defend actions against districts; 8 and a school district in Conn, is liable to be sued ;* but in 1859, school districts were not cor- porations, and liable to be sued as such, in Iowa. 5 The peti- tion in a suit by a district need not set out the manner of its organization. 6 When right of appeal exists, the circuit court (111.) will not review by certiorari the record of trustees in re- districting. 7 Where judgment in an action against a school dis- trict is obtained by fraud of plaintiff and one of the trustees, the court may set aside the same, and allow an answer to be filed. 8 Justices of peace, in Kas., have not jurisdiction of suit against school district, when amount exceeds $100. 9 A di- rector, in Wis., can recover from the district the expenses in defending a suit against the district ; 10 but boards of education cannot use district funds to defend individual lawsuits occur- ring by reason of the members charging that bidders on work had cheated the district. 11 The school directors of a district should sue in their official capacity for the district. 12 School directors in occupancy of a school-house may maintain trespass for breaking and entering the same, although the legal title is vested in the trustees of the school. 18 A district may submit differences between it and its treasurer to arbitrators. 1 * 183. Suit, parties. The school trustees and not the iBd. Ed. Americue v. Barlow, 74 Pa. St. 232. Blanchard v. Bissell, 11 Ohio St. 96. Lane v. Sch. Dist., 10 Mete. (Mass.) 462. ^McLoud v. Selby, 10 Conn. 390. 6Runyan v. Sch. Dist., 12 Iowa, 184. "Port Dodge v. Wahkansa, 15 Iowa, 434. 7 Trustees v. Shepherd, (111.) 28 N. E. 1073. 14 8 Sturm v. Sch. D., 45 Minn. 88 ; 47 N. W. 462. 9 Jones v. Sch. Dist., 8 Kas. 362. N>Fobes v. Sch. Dist., 10 Wis. 117. " Hotchkiss v. Plunkett, 60 Conn. 229. "Kingsley v. Sch. Dirs., 2 Pa. St. 28. "Alderman v. Scb. Dire., 91 111. 179. "Walnut Dist. v. Rankin, 70 Iowa, 65. 210 PUBLIC SCHOOL LAW. school directors should sue to compel conveyance in an action for specific performance. 1 Where a suit is instituted in the in- dividual names of school directors for a matter in which they are only interested officially, the title of the cause should be amended by striking out the individual names of the directors, and substituting their corporate name. 8 A suit may be main- tained in the name of the successor of a school commissioner, upon a note made to the latter under the 111. act Feb. 26, 1841. 3 An action to recover for materials and services in the erection of a school-house, under the employment of the school trustees of a city, should be brought, not against such trustees, but against the school corporation, by the name and style of "The School City of ," filling the blank with the name of the city.* A suit to set aside a contract for the building of a school- house and to enjoin the doing of the work on the ground of fraud on the part of the township trustee in making the con- tract, is properly brought in the name of the state for the use of the township, in Ind. 6 184. Suit, party. Under the Ky. act of 1871, requiring the commissioner to collect and pay over to the " trustees " of the districts in proportion to the amount they are entitled to, for the use and benefit of the teachers thereof, on his default the trustees of each district in the county have a separate cause of action against him and his sureties, for the teachers' benefit. 6 School districts may appoint and instruct agents to prosecute and defend, or to withdraw defenses and confess judgment ; 7 but a school district, in N. H., cannot sue in assumpsit the pru- dential committee of the district, to recover the balance of the i Wilson v. Sch. Biro., 81 HI. 181. Shoudy v. Sch. Dirs., 83 HI. 290. Manlove v. McHatton, 5 111. (4 Scan.) 95. < Sims v. McClure, 52 Ind. 267. estate v. Earhart, 97 Ind. 119. 8 Hammond v. Crawford, 9 Bush (Ky.) 75. fDenniston v. Sch. Dist., 17 N. H. y. 492. SUIT, PARTY. 211 school-money raised by the town, assigned by the selectmen and paid to the committee. 1 The trustees of the schools of the town- ship may sue in equity in matters affecting lands held by state for township common schools ; a and a suit may be instituted by the state on the relation of the board of commissioners for the recovery of congressional school funds. 8 In a suit on a bond of an ex-school commissioner for not paying over the funds in his hands, the successor of such ex-school commissioners should be the relator.* In Ind., under act of 1838, the treasurer of a district could not sue in his own name for money due to the district. 6 The county auditor is a proper relator in a suit to collect money loaned by the county auditor, belonging to school fund. 6 A suit for teachers' wages must be brought against the district by its corporate name and not against the trustees as such. 7 The school commissioners of the townships of Ala. may sue as such, and the suit may be styled school commissioners of the township, giving number and range. 8 One commissioner, as such, cannot recover from another the money belonging to the school fund, in his hands ; 9 but any legal voters of the town- ship, in Ala., may sue school commissioner for funds in his hands which he fails to pay over as directed by law.' The board of education of Troy cannot aid the payee, the chamber- lain, in collecting a draft drawn by the board for school expenses, and not countersigned by the comptroller nor audited by the common council. 10 185. Suit, party. The director of a district, under Neb. G. S. 968, may bring an action for the price of bonds sold by i Sch. Dist. v. Estj, 16 N. H. 146. Moore v. Sch. Trs., 19 111. 83. Groves T. State, 9 Ind. 200. * State v. Grant, 7 Blackf. (Ind.) 71; Wright v. State, 7 Blackf. (Ind.) 63. Crawford v. Dean, 6 Blackf . (Ind.) 181. eScotten v. State, 51 Ind. 52. TSproul v. Smith, 40 N. J. L. 314. 8 Sch. Comm'rs v. Dean, 2 Stew. & P. (Ala.) 190. Burns T. Minter, 12 Ala. 316. 1 Johnson v. Troy, 19 Hun (N. Y.) 204. 212 PUBLIC SCHOOL LAW. that district. 1 In 1858, in Oreg., a suit to enforce the obliga- tion of a note and mortgage given for a loan of school funds should be brought in the name of county treasurer. 8 A suit to recover a fund belonging to the county school board must be brought in its corporate name, in Ya. 3 School board cannot, after a verdict, object to the regularity of the proceeding on account of appearance, by consent of the board, to the action.* The provisions of Wis. Laws 1869, ch. 182, make a town board organized under its provisions the legal successor of the previous board, and authorize it to sue for moneys due to the former board. 5 The district board have no authority to take the de- fense of a suit from the assessor; the control of suits is not among the powers of duties confided by the statutes to the dis- trict board, in Mich. (C. L. 1871, 3613.) 6 In Miss, the county superintendents succeeded, under the new constitution and the laws of 1870, to the rights and powers of the former boards of trustees, and should sue for moneys due to such trustees for lands sold by them. 7 Under N. H. K. S., chs. 70, 73, a school district may sue a prudential committee after its term of office for neglecting to appropriate to the support of schools money received by him belonging to that district. 8 Some of the inhabit- ants of a district may, in behalf of themselves and others, sue to test the constitutionality of the law creating the district, and the legality of the proceedings of its officers under it ; 9 but one tax-payer cannot sue in behalf of himself and the others to re- strain the sale of their real estate for the purpose of collecting a delinquent tax assessed to pay certain judgments against the district, on the ground that the judgments were obtained on iBowen v. Sch. Diet., 10 Neb. 265. 2 Alexander v. Knox, 6 Sawyer C. Ct. 54. 8 Stewart v. Thornton, 75 Va. 215. * Thompson v. Sch. Diet., 71 Mo. 495. Sch. Dirs. Sigel v. Coe, 40 Wis. 103. 6 Sch. Dist. v. Wing, 30 Mich. 351. f Simmons v. Holmes, 49 Miss. 134. 8 Sch. Dist. v. Sherburne, 48 N. H. 52. 'Bull v. Read, 13 Gratt. ( Va.) 78. SUIT, PARTY. 213 illegal and void school orders, etc. Each tax-payer must bring his several action ; * and the owners of the several judgments sought to be declared void should all be made defendants. 1 186. Suit, party. Prudential committees of themselves cannot sue ; and the vote of a district to stop an action does not render it liable for prior expenses in prosecuting it without authority. 2 The answer by clerk and director of school district was held to be the answer of district. 3 In Yt. the district alone, and not inhabitants, can bring action of trespass qua/re cloMSum fregit.*' Where a suit was brought against a school district for money borrowed by them to raise money for the township to pay bounties, the record might be amended by substituting the township. 5 An incorporated town, sued as a school corpora- tion, may be designated either in the title of the action as a school corporation, or in the complaint by an allegation of that fact. 6 A complaint cannot be brought against the trustee of a civil township to compel him, as such, to erect a school-house within its territorial limits; it must be against the trustee of the school township. 7 The board of trustees of the normal school at Oskaloosa, Iowa, organized under act of Jan. 15, 1849, was not a body capable of suing or of being sued. 8 In an action on a school order of a district township which has been subsequently reorganized into independent districts, the court may render judgment against the several independent districts, and issue a mandamus commanding the directors to assemble and apportion the same among the several judgment debtors; 9 but either of the districts may maintain an action against the others for contribution if the apportionment is erro- iNewcomb v. Horton, 18 Wis. 566. 2 Burges8 v. Sch. Diet., 100 Mass. 132. 8 Sch. Dist. r. Carson, 10 Kas. 238. < Chaplin v. Hill, 24 Vt. 528. 6 Heidelberg v. Horst, 62 Pa. St. 301. 'Noblesville v. McFarland, 57 Ind. 335. 7 Hornby v. State, 69 Ind. 102. 8 Drake v. Bd. Trs., 11 Iowa, 54. 9 Asbury Ind. Sch. Diet. v. Dubuque Co. Dist. Ct., 48 Iowa, 182. PUBLIC SCHOOL LAW. neous. 1 The president of the board of directors of a school district, in absence of statute otherwise, has authority to receive service of process in a suit against the school district. 8 An action prosecuted by superintendent of education for La. must be prosecuted by attorney general or district attorney, or it should be dismissed. 8 The board of trustees of schools under 111. Laws 1865, 39, can alone maintain an action for a trespass thereon, although not themselves in actual occupancy.* 187. Superintendent public instruction. Advice of state superintendent is no defense for unlawful act of trustee depositing money in bank. 6 The law of Wis., giving state superintendent jurisdiction of appeal from division of districts on decision of town boards is valid ;' and he may make such rules for hearing of oause before him as to him may seem proper, defining the manner of presenting the case, and requir- ing written briefs and refusing oral argument, when the statute does not otherwise direct ; 6 and the state superintendent of Ind. has jurisdiction of appeal on location of site under laws of 1855. 7 The decisions of a state superintendent are entitled to much weight ; 8 and his decision on appeal annulling certificate of teacher for cause is valid and final. 9 The state superintend- ent in La. may consider payments erroneously made when he makes a proper apportionment. 10 The state superintendent of N. Y. cannot determine appeal from apportionment by board of town auditors, (under acts 1864 and 1870.) 11 Where a trustee had brought a proceeding to compel the managers of a normal school to pay certain moneys to teacher employed by the trus- i Kennedy v. Derby Grange Ind. Sch. Diet., 48 Iowa. 189. Carr v. Sch. Disk, 42 Mo. App. 154. 8 Fay v. Jumel, 35 La. Ann. 368. * Barber v. Sch. Trg., 51 111. 396. 'IngliB v. State, 61 Ind. 212. estate v. Whitford, 54 Wis. 150. * State v. Custer, 11 Ind. 210. 8 State v. Burton, 45 Wis. 150. People v. Collins, 34 How. (N. Y.) 336. State v. Fay, 36 La. Ann. 241. "People v. Bd., 27 (N. Y.) N. E. 968. SUPERINTENDENT PUBLIC INSTRUCTION. 215 tee, the refusal of the trustee to abandon such proceeding when requested by state superintendent, justified his removal by the state superintendent, under L. N. Y. 1864, ch. 555. 1 The terri- torial superintendent of Utah is appointed by the governor under the organic act. 2 The superintendent of public instruc- tion may correct mistakes in his rulings if rights of other parties do not intervene. 3 188. Superintendent public instruction. In the case of People v. Draper, 18 N. Y. S. 282, it was held : "Removal of School Trustee Powers of State Superintendent. Where the return of a trustee of a school district to an order made by the state superintendent of public instruction, requiring him to show cause why he should not be removed from his office, admitted that he had neglected and refused to comply with and had violated certain orders of the superintendent, he was properly removed from his office, under Laws 1864, ch. 555, 18, authorizing such removal in case of the willful disobedi- ence of any decision or order of the superintendent on the part of the trustee. The question whether or not the trustee should discontinue a proceeding which he had brought against the local board of managers of a normal school to compel them to pay over certain public school-moneys they had received, to teachers employed by the trustee, was one upon which the de- cision of the superintendent was conclusive ; and the refusal of the trustee to abandon such proceedings, when directed so to do by the superintendent, constituted willful disobedience, justify- ing his removal. . . . The return of the defendant is con- clusive as to the facts therein set forth. (People v. Fire Comm'rs, 73 N. Y. 437.) That return set forth that the relator appeared i People v. Draper, 18 N. Y. S. 282. I 'Desmond v. Ind. S. D., (Iowa) 32 N. W. 6. 2 Williams v. Clayton, (Utah) 21 P. 398. 216 PUBLIC SCHOOL LAW. in person and by counsel before the defendant on the return- day of the order hereinbefore referred to, and by the return and by the statement of his counsel admitted that he had vio- lated that and a previous order of the superintendent, and had neglected and refused to comply with the orders of the super- intendent ; and that he had advised teachers to commence suits against the district for their wages, instead of levying a tax to raise the money to pay them, as the superintendent had ordered him to do. As above stated, the facts stated in the return are conclusive upon the court here ; and these facts, being true, abundantly justified the defendant in removing the relator from office. The proceeding was perhaps summary, but the facts were admitted ; there was no occasion for proof. " But it is claimed that there are facts stated in the affidavit upon which the writ was issued which are not denied in the re- turn, and therefore the court may consider them, under the case of People v. Commissioners Dept. Fire and Buildings, 106 K Y. 64, 12 N. E. Eep. 641. The claim of the relator is that the real reason the defendant removed the relator was that he refused to discontinue a proceeding he had brought to compel the local board of managers of the normal school at New Paltz to pay over the public school-moneys they had received to be paid to the teachers employed by the relator. Even if that were so, I see no reason to reverse the order of the superin- tendent. He had made a decision of that question himself. It was in a matter over which he had jurisdiction. He also there and then made a decision in regard to the matter, and it was in a matter where the statute made his decision conclusive. The conduct of the trustee as to school matters was also subject to his supervision and control. He then and there made an order, SUPERINTENDENT, COUNTY. 217 which he had a right to make, directing the relator to abandon his proceedings against the local board of managers of the normal school. The relator then and there refused to abandon the proceedings, and expressly announced, by his counsel present with him, his intention of continuing such proceedings. This, I think, constituted a willful disobedience of an order or decision of the superintendent, within the meaning of the statute. 'Willful,' I think, in this statute, means intentional, (Anderson v. Howe, 116 N. Y. 336, 22 N. E. Rep. 695 ;) and the relator cer- tainly intended to disobey the defendant's order. It was not a case of neglect, omission, or misapprehension, but of absolute refusal, and an announcement of an intention of doing directly the reverse of what he was ordered to do. The writ should be quashed, and the determination of the defendant affirmed, with $50 costs and printing disbursements." 189. Superintendent, county. Where the rights of a citizen are involved in matters required to be submitted to the county superintendent on appeal, the court may determine whether the exercise of such authority is lawful. 1 In Neb. the county superintendent must apportion the fund before the county treasurer can pay out credits of the county school fund. 8 The county superintendent may be compelled to perform his duty by mandamus; 3 and in Ind. he must execute a special bond under the text-book law.* In Iowa he cannot recover compensation for examining teachers at any other than at the time required by law ; 5 and his salary may be regulated in Tenn., under acts 1873, by county court. 6 A vote by township trustee for himself for the office of county superintendent is void, and i Perkins v. Dirs., 56 Iowa, 476. I *Knox Co. v. Johnson, 24 N. E. 148. * Donnelly v. Duras, 11 Neb. 283. 6 Farrell v. Webster Co., 49 Iowa, 245. * Brown v. Nash, 1 Wy. Ter. 85. | Haile v. Young, 6 Lea (Tenn.) 501. 218 PUBLIC SCHOOL LAW. contrary to public policy. 1 The Miss, act providing for election of county superintendents in only a part of the state, is not void. 2 Discretion of, cannot be controlled by courts ; 8 but he has only such powers as are given by statute ;* and when he is dismissed from office and appeals, he cannot act pending appeal. 6 Trustees, in Ind., should appoint superintendent on the day fixed by law, or adjourn from day to day. 6 In that state, to be eligi- ble for county superintendent, he must have been an inhabitant of the county one year prior to appointment. 7 If county judge refuses to permit school commissioner to qualify, he may be compelled to by mandamus. 8 Appeals on school questions in N. J. are to the county superintendent, 9 but in Ind. no appeal lies from action of trustee contracting or dismissing teacher in city or town ; 10 and he cannot compel the erection of a school building on land not owned by township. 11 He is not liable in damages for changing district on proper petition. 18 The election of superintendent by town school committee may be reconsid- ered before he has been informed of his election. 13 An officer ostensibly a principal, cannot be employed by board directors in Pa., whose duties are same as district superintendent. 14 Un- der N. J. Rev., p. 1071, a dispute over election of a trustee may be submitted to county superintendent for opinion, but the state superintendent is to try and decide the matter in dispute. 1 * The failure of school superintendent to give bond, under Ind. act March 2, 1889, will not per se forfeit the office. 16 190. Superintendent, county. Although the county ^Hornung v. State, 116 Ind. 458. Wynn v. State, ( Miss.) 7 So. 353. SBrmsinore v. Cotthtfchflm, 11 Ky. L. R. 486; Bailey v. Ewart, 52 Iowa, 111. *Ratcliff v. Faris, 6 Neb. 539. 6 Walls v. Palmer, 64 Iiid. 493; Matthews v. Chase, 41 Ind. 357. State v. Harrison, 67 Ind. 71; Sackett v. State, 74 Ind. 487. 'State v. Kilroy, 86 Ind. 118. SGreenup Co. Ct. v. Clifton, 5 Ky. L. R. 241. 9 State v. Gloucester City, 45 N. J. L. 100. icCrawfordsville v. Hays, 42 Ind. 206. "Kooniz v. State, 44 Ind. 323. "Sch. Dist. v. Wheeler. 25 Neb. 199; Cowles- v. Sch. Diet., 37 N. W. (Neo.) 493. "Wood v. Cutter, 138 Maes. 149. "Delano Land Co.'s Appeal, 103 Pa. St. 347. is State v. Albertson, (N. J.) 22 A. 1083. "Knox Co. v. Johnson, (Ind.) 24 N. E. 148. SUPERINTENDENT OF SCHOOLS. 219< auditor is authorized, in Ind., to cast a vote for county superin- tendent in case of a tie, jet he cannot vote on a resolution to change vote by ballot to yea-and-nay vote, and cannot vote when half the trustees vote for one and the other half vote blank or for a fictitious person. 1 Where superintendent of public instruction was authorized to remove any county super- intendent "whenever in his opinion the interests of public edu- cation demanded such removal," no notice need be given or charges made, and a removal by him and appointment of an- other to fill vacancy will be upheld. 2 The action of the county superintendent in regard to changing boundaries is discretion- ary, from which an appeal will lie ; but his judgment cannot be controlled by mandamus, 3 as courts are not disposed to inter- fere with the exercise of mere discretionary authority.* A school board may employ a superintendent whose term of office does not begin until after some of the members of the board go out of office ; 5 and the Ind. statutes do not limit the board of school trustees, in contracting with superintendent, as to the time the board shall continue in office. 6 A county su- perintendent should keep his accounts itemized. 7 The board of directors of public schools in the city of Olney, 111., were re- quired to establish and keep up a system of graded schools in the city; by necessary implication from the duties imposed upon it, the board had authority to appoint a superintendent. 8 191. Superintendent of schools. In the case of Davis v. School District No. 1, of the City and Towmhip of Niles, 45 N. W. Eep. (Mich.) 989, it was held, Cahill, J. : "Under i State v. Edwards, (Ind.) 16 N. E. 627. 2 State v. Shaver, 54 Ala. 193. State v. Clary, 25 Neb. 403. * Smith v. Comm'rs, 10 Col. 17. SReubelt v. Noblesville, 106 Ind. 480; Wait v. Ray, 67 N. Y. 38; Tappan v. Sch. Diet., 44 Mich. 500; Webster v. Sch. Diet., 16 Wis. 337; Gates v. Sch. Dist., 58 Ark. 470. SReubelt v. Noblesville, 106 Ind. 478. 7 Smith v. Comm'rs, 10 Col. 17. 8 Spring v. Wright, 63 111. 90. 220 PUBLIC SCHOOL LAW. How. St. Mich., 5134, par. 5, authorizing the board of school trustees to employ such officers and servants as may be neces- sary for the management of the schools and the school prop- erty, to fix their compensation and prescribe their duties, one -employed as a superintendent, not being a teacher, is not re- quired to have the certificate required by law to qualify one for employment as a teacher. . . . In an action for compen- sation by one employed by a director as superintendent, it is ^rror to exclude evidence that the board of trustees, which alone has authority to make a contract for such employment, Jmew of his services in that behalf and acccepted them. . . . The plaintiff sued the defendant, being a graded-school district, to recover for services rendered during the months of April, May, and June, 18 87, as superintendent. Paragraph 5 of 5134 authorizes the board of trustees to employ such offi- cers and servants as may be necessary for the management of the schools and the school property, prescribe their duties, and fix their compensation. Under this provision the person em- ployed is not required to be a teacher, nor to have a certificate as a teacher. "We think the plaintiff, if duly employed to render the services he claims to have rendered for the school district, was not disqualified from receiving compensation there- for, by the fact that he had no certificate as a teacher. The doubtful question in the case is as to whether the plaintiff was legally employed to perform the duties for which he seeks com- pensation. It is clear that he was not, in the first instance, so -employed, because such employment is required to be made by the board of trustees, and one of such trustees, acting as di- rector, could not lawfully employ the plaintiff so as to bind the district. But, as this contract of employment was one which the board itself could lawfully make, the question arises as to SUPERINTENDENT OF SCHOOLS. 221 whether, if the plaintiff actually performed the duties with the knowledge and consent of the board, and the district received the benefit of his services, the law will not imply a promise on the part of the district to pay what such services were reason- ably worth. Cases are not wanting which hold that municipal corporations may become liable upon an implied assumpsit. Where a municipal corporation receives money or property of a party under such circumstances that the law, independent of express contract, imposes the obligation upon the corporation to do justice with respect to the same, it has been held that it may be liable to an action. (Argenti v. San Francisco, 16 Cal. 255.) In the case just cited, Chief Justice Field say& that in reference to services rendered, the case is different. "Their acceptance must be evidenced by ordinance (or express corporate action ) to that effect. ... If not originally au_ thorized, no liability can attach upon any ground of implied contract. The acceptance upon which alone the obligation to- pay could arise, would be wanting." I do not see why any distinction should be made between services rendered and ap- propriated by municipal corporations, and any other property so received and appropriated, except that it might be more- difficult, in the case of services rendered, to show an actual acceptance and intentional appropriation than in the case of tangible property. But, if the proof showed that the services were actually accepted by the corporation with full knowledge of all the facts, I think the same rule ought to apply to services rendered that would apply to money or other property. It does not appear what the plaintiff could have known as to the services having been performed with the full knowledge and assent of the board of trustees. The offer of proof by him on 222 PUBLIC SCHOOL LAW. this subject was rejected, and we think erroneously. For this rror, and also for the direction of the court that the jury should return a verdict for the defendant, the judgment must be reversed, and a new trial granted." 192. Supplies. Where township refuses to receive sup- plies on the ground that they are not needed, an assignee of holder of the certificate cannot recover, although he and the seller act in good faith. 1 A complaint on note given by Ind. school trustee must allege that the consideration was necessary, that the articles were suitable, and that they were received and accepted ; 2 and evidence of the usefulness and necessity of school supplies, as to the particular township to which they were fur- nished, is material in an action for the price. 8 Where there was conflicting evidence as to the delivery of the supplies, and whether they were necessary for the common schools of the township, three of defendant's witnesses testifying that the in- struments sold were not useful, a verdict for the defendant will not be disturbed ; 8 and a school commissioner and superintend- ent for the county, and a person who has followed farming in the summer and taught school in the winter in that township, are competent to testify as to the usefulness and necessity of such supplies in the township ; 8 and a trustee may refuse to fur- nish any supplies or teachers when the school is not leased or owned by the school township, notwithstanding orders from county superintendent, and vote of district.* To enable board directors to buy supplies authorized by Iowa Code, 1729, the purchase must be made with cash actually in the treasury at the time and unappropriated. 5 Iowa statute requiring physiology iBoyd v. Mill C. S. Tp., (Ind.) 16 N. E. 511. Reeve Sch. Tp. v. Dodson, 98 Ind. 497. - Litton v. Wright Sen. Tp., (Ind.) 27N. E. 339. * State v. Sherman, 90 Ind. 123. 6 Naggy v. Dist. Tp. Monroe, ( Iowa) 45 N. W. SUPPLIES. 223 and hygiene to be taught does not authorize board of directors to purchase records, maps, etc., except out of the unappropriated funds, or to contract any debt therefor ;* and where a contract was made with members of a district board for a certain book, and ratified at a board meeting, and at an annual meeting the board were authorized to place a copy of the book in each sub- district in the township, and afterward the board at a regularly called meeting repealed the ratification of the contract, it ap- pears that it was an individual contract of the members, and the ratification was not binding. 8 Neither the board of directors of a district township, nor the directors of a sub-district, have the power to contract for insurance of school-house, without a vote of the district. 8 The board of directors of a district township cannot contract for lightning-rods for school -houses, without vote of the district,* and an order drawn on the treasurer for such purchase is invalid. 5 193. Supplies. Where the district board of a township, without authority from the electors, purchased maps and other apparatus, the subsequent use and failure to repudiate the con- tract would not amount to a ratification. 8 In Kas., school- district board cannot bind the district for stereoscope, without vote, and the burden of proof is on plaintiff to establish vote ; 7 but a director and clerk of school district purchasing school apparatus without authority, are not personally liable, the parties having notice. 8 A district in Me. has not the power to con- tract for fuel. 9 School charts were held not to be necessary appendages to the school-house, within Mich. Comp. L. 1871, i Naggy v. Disk Tp. Monroe, ( Iowa) 45 N. W. a Western Pub. H. v. Disk Tp., (Iowa) 50 N. W. 551. 8 American Ins. Co. T. Willow, 55 Iowa, 606. *Monticello Bank v. Coffin's Grove, 51 Iowa, 350. Wolf v. Ind. Sch. Disk, 51 Iowa, 432. Taylor v. Wayne, 25 Iowa, 447. * Sch. Disk v. Perkins, 21 Kas. 536. 8 Watson v. Pickard, 25 Kas. 662; Duncan v. Niles, 32 111. 532; Mann v. Richardson, 66 111. 481 ; Abeles v. Cochran, 22 Kas. 405. Estes T. Sch. Disk, 33 Me. 170. 224 PUBLIC SCHOOL LAW. 3618 ;* and occasional use in the school cannot operate as a ratification ;* or impose on the district any obligation to pay for them. 8 A custom of a district to apportion the wood itself to the scholars, and, if there was a deficiency, to sell the right of supplying it to the lowest bidder, was not binding upon the prudential committee, in the absence of any vote of the district on the subject. 3 He might supply the deficiency himself, and charge the price to the district, but could not assess the amount on the scholars or the district without a vote. 3 The use of seats in the school-house is no proof that the district has ratified the purchase, where it does not appear that the board ever presented any account for such seats to the district for allowance.* The treasurer need not honor a warrant signed by clerk and district director for fuel, when it is the duty of the board to provide and the board has not acted. 6 The certificate given by inde- pendent township trustee for necessary supplies binds the cor- poration ; 6 but evidence of the usefulness and necessity of the supplies, as to the particular township to which they were fur- nished, is material, and all persons dealing with a trustee are bound to know he can bind his township only by contracts authorized by law. 7 194. Supplies. In Mich, the trustees of graded school may contract for piano for high -school purposes. 8 An inde- pendent school district may provide for teaching of music and the board of directors have authority to contract for the pur- chase of a musical instrument, to be paid for out of any unap- propriated funds of the district ; 9 and in an action for the price, 1 Gibson v. Sch. Dist, 36 Mich. 404. 2 Johnson v. Sch. Dist No. 1, 67 Mo. 319. 'Norton v. Tinmouth Sch. Dist, 37 Vt 521. * Kane v. Sch. Dist., 52 Wis. 602. Doycc v. Gill, 59 Wis. 518. Miller v. White River, 101 Ind. 503. i Litton v. Wright Sch. Tp., ( Ind. ) 27 N. E. 329. SKnabe v. Bd. Ed., (Mich.) 34 N. W. 568. 9 Bellsmeyer v. Ind. Dist Marshalltown, 44 Iowa, 564. SUPPLIES. 225 the court will presume that there were unappropriated funds of the district on hand at the time the purchase was made. 1 Pur- chase of flag is authorized in N. J. 2 A complaint for furnishing school supplies must show necessity, delivery, and acceptance. 3 District will be liable in Mich, for contract by one director for fencing land inclosing school-house site ; it is a necessary ap- pendage/ A purchase of a mathematical chart by a district board, where such chart may be considered both an appendage and an apparatus, is not illegal ; 6 and at the annual vote for tax for school appendages the district may ratify acts of board sim- ply irregular in purchasing charts. 5 The division of the school fund by Iowa statute into teachers', school-house, and contin- gent, is an appropriation of the latter to statutory purpose of rent, fuel, and repairs, and all other contingent expenses neces- sary for keeping the school in operation as regards empowering directors under Code, 1729, to use unappropriated for maps, etc. 6 School warrants issued by a school board under the pro- visions of S. D. Laws 1879, ch. 14, 62, in payment of neces- sary appendages for a school-house during the time a school is taught, are prima facie valid claims against a school district, and in the absence of evidence to the contrary, the law will pre- sume that they were lawfully issued. 7 Under the 111. statute, school directors may appropriate to the purchase of libraries and apparatus any surplus funds, after all necessary school ex- penses are paid, and the form of the orders to be drawn by them on the treasurer of the township, as prescribed by statute, must be followed. 8 iBellsmeyer v. Ind. Diet. Marshalltown, 44 Iowa, 564. *N. J. L. 1890, ch.177. 'Bloomington v. Nat. Sch. F. Co., 107 Ind. 43. *Creageixv. Wright Sch. Disk, 62 Mich. 101. 6 Sch. Dist. v. Swayze, 29 Kas. 211. 15 Taggy v. Dist Tp. Monroe, (Iowa) 45 N. 7 Edinburgh-Am. L. & M. Co. v. Mitchell ( S. D.) 48 N. W. 131. 8 Clark v. Sch. Dirs., 78 111. 474. 226 PUBLIC SCHOOL LAW. 195. Supplies. Litten v. Wright School Tp., (Ind.) 26 N. E. 567 Elliott, J. : "Our decisions affirm that, to entitle a plaintiff to recover for personal property sold to a township trustee for school purposes, it must be shown that the property was delivered to the school township or its officers : School Tp. v. Barnes, 119 Ind. 213 ; Bloomington School Tp. v. National etc. Co., 10T id. 43 ; State v. Howes, 112 id. 323 ; Boyd v. School Tp., 114 id. 210 ; Union School Tp. v. First Nat. Bank, 102 id. 464. A note or other obligation executed by the trus- tee does not bind the school corporation, for it is only bound where the school supplies are actually furnished : Union School Tp. v. First Nat. Bank, supra ; Grimsley v. State, 116 Ind. 130. The notes or certificates issued by a township trustee do not, under the law declared in the cases referred to, preclude the school township from proving the actual or true value of the property purchased by the trustee. If in fact the property is valueless, nothing can be recovered. The rule which prevails in ordinary cases where parties fix the value of property by the exercise of their own judgment does not apply to the purchase of supplies on credit, for school corporations, for no more than the reasonable value of the property can in any event be recov- ered : Boyd v. School Tp., 114 Ind. 210. The law intends that, where property is sold on credit to school corporations, they shall be only held for the fair and reasonable value of the prop- erty received. Parties who deal with school officers are bound to know the limitations placed upon them by law. It was there- fore proper in this case to admit evidence of the value of the property which the plaintiff alleged had been sold to the school township." 196. Surety. Raising money for building is "school SURETY. 22V purposes" within law of 1864, and the sureties of treasurer are liable for such money j 1 and the receipt of the treasurer's draft, the delivery of the bond to him, followed (on payment of the draft being refused) by a return of the bond and erasure of the word "paid," will not discharge the sureties. 1 Under "N. Y. L. 1864, ch. 565, 7, treasurer of board of education gave a bond, but not under seal, and entered upon the discharge of the office ; the writing was enforceable against the sureties as a bond. 1 The sureties of defaulting school commissioner cannot sue to recover the revenues. 8 The sureties of a public officer are only responsible for his performance of the duties assigned him by law ; where the law requires the clerk of the county court to keep the bonds for the loan of school funds, and the county court to renew bonds and to pass upon the sufficiency of the bonds, and if, by an order of the court, these duties are devolved upon the treasurer, the sureties of the treasurer will not be liable therefor. 8 If the court permit the treasurer to use the school funds as a loan, and any loss happen, his sureties will not be responsible. 8 Where a chairman, in N. C., gave his bond in Jan. 1855, and continued in office without any new appointment until April, 1857, (when a successor was appointed,) he and his sureties were held liable on such bond for an unex- pended balance of school-money in his hands in 1857.* 198. Surety. Upon a change in the contract between the school district and the contractor, a consent thereto by his sureties would not increase their obligations or connect them as parties to the amended contract. 5 While a school district in whose favor a bond to secure a contract had been executed i Fail-port Sch. Bd. v. Fonda, 77 N. T. 350. apryse y. Hewitt, ( Ky.) 1 S. W. 469. Nolley v. Callaway Co. Ct. f 11 Mo. 447. 4 Chairman Com. Sch. v. Daniels, 6 Jones, N. C. L. 444. Ind. Sch. Dist. v. Eeichard, 39 Iowa, 168. PUBLIC SCHOOL LAW. might have power directly to release the sureties, it had author- ity to change the contract and thus release the sureties. 1 Sure- ties of a school township treasurer are liable for money coming to his hands during his former term of office and not paid over to his successor.* 199. Tax Alabama. The Board Mobile School Com- missioners is a municipal corporation, and the statute authoriz- ing assessing and collection of taxes is not repealed by repealing section of revenue law of 1868 ; 3 and the statute of 1856 does not repeal the former statute authorizing collection of tax on auction sales. 4 A board of school commissioners is a municipal corporation, and taxes authorized, assessed and collected for it are for municipal purposes, and are not repealed by 136 of the revenue law. 5 The delegation of power to tax to trustees of Cullman school district, they being appointed, not being a municipal corporation, is unconstitutional. 8 200. Tax Arkansas. The failure of judges of election to state the number of votes cast for or against school tax will not vitiate sale of land for same. 7 The trustees cannot assess amount of levy ; it is the duty of the electors to determine the amount ; if they do not, the trustees then submit the matter to county court. 8 The county court could not levy tax for school purposes unless voted by district or recommended by trustee ; and in 1868 there was no limit to amount that might be voted ; 9 but the act of 1871 prohibited levy of over five mills school tax, not being a separate district in city or town. 10 The statute *Ind. Sch. Diet. v. Reichard, 50 Iowa, 98. *Kagay v. Sch. Trs., 68 111. 75. See also 59 111. 149. 'Horton v. Mobile Sch. C., 43 Ala. 598; Clark v. Mobile Sch. C., 36 Ala. 621. * Brooks v. Mobile Sch. C., 31 Ala. 227. 'Horton v. Mobile Sch. C., 43 Ala. 598. Schultes v. Eberly, 82 Ala., 242. * Staley v. Leomans, 53 Ark. 488. 8 Co. Ct. v. Robinson, 27 Ark. 116. Murphy v. Harrison, 29 Ark. 340; Worthen v. Badgett, 32 Ark. 496. 10 Vaughn v. Bowie, 30 Ark. 280. TAX COLORADO. 229 allowing the board of supervisors to levy the district - school taxes in cities and towns organized in single districts was re- pealed by constitution of 18T4. 1 Under act of 1871, the county court had no power to levy tax for school purposes unless the amount had been voted or the trustee had reported the amount; 2 and county court cannot levy district-school tax except as voted, and if it does the sale and levy will be void. 3 School warrants of trustees are receivable for school taxes of the district in which they were issued.* Since 1875 the notice for annual meeting for levying tax must be given by the school directors only. 5 The tax title is inferior to lien of state for unpaid pur- chase-money for school land. 6 201. Tax California. Special tax for school purposes can only be levied upon vote of school district, 7 and substantial compliance with law is sufficient for a levy of school tax, 8 but the tax must be based upon an assessment made by an assessor, elected by the qualified electors of the school district.' 202. Tax Colorado. Exemption of seminary property applies to property in actual use for school purposes. 10 Taxes for school purposes are not a lien on personalty until seizure on the tax-warrant ; n where school tax is properly certified to county commissioners, mandamus is proper remedy to compel levy. 18 The statute in regard to levy of school tax, certifying same to county commissioners, and the levy thereunder, is not unconstitutional. 13 If a school district is divided, the secretary of district cannot distrain property out of his district. 1 * iCole v. Blackwell, 38 Ark. 271. Cairo etc. v. Parks, 38 Ark. 131. 'Rogers v. Kerr, 42 Ark. 100. Wallis v. Smith, 29 Ark. 354. Davies v. Holland, 43 Ark. 425. Simpson T. Robinson, 37 Ark. 132. People v. Castro, 39 Cal. 65. 8 People v. Pratt, 59 Cal. 78. People v. Sac. etc. R. R. Co., 49 Cal. 415. ^Comm'rs T. Col. Seminary, 12 Col. 497. " McKay T. Batchellor, 2 Col. 591. 18 People v. Comm'rs, 12 Col. 89. McKay v. Batchellor, 2 Col. 591. 230 PUBLIC SCHOOL LAW. 203. Tax Connecticut. Where a school society voted a tax, the omission of the vote to fix a time for the payment of the tax did not render it invalid, as the tax, being legally im- posed, was payable on demand, or within a reasonable time. 1 Since 1821 the lands of a non-resident are taxable where situ- ated. 2 Notice given by the district committee of the time and place of the meeting of equalizing board, pursuant to the pro- visions of 10 of act 1839, relating to schools, is sufficient notice within that statute. 3 Where the certificate of a district school committee stated the tax, and when and for what laid, and the recorded vote of the district, open to public inspection, specified the list on which it was laid, such rate-bill was not in- valid because it did not show on what list the tax was laid. 3 In an action of trespass against the collector and committee of a school society, evidence to prove that the defendants, and other members of the society, voted for the tax, with the inten- tion of having the proceeds distributed among the several dis- tricts in the society, was inadmissible.* 204. Tax Florida. The "itemized estimate " of moneys required to be raised by county tax for school purposes, fur- nished by the board of public instruction to the board of county commissioners, should contain the estimated expenditures for the school year, the estimated income from the state school tax, state school fund, and other probable sources ; and may contain an item for outstanding warrants which were issued by the board of public instruction and are still unpaid. 6 Under Laws 1879, ch. 3100, 1, the tax assessor of a county cannot be com- pelled by mandamus to levy a county school tax, merely upon iBartlett v. Kinsley, 15 Conn. 327. I *Bartlett v. Kinsley, 15 Conn. 327. 8 Rowe v. Blakeslee, 11 Conn. 483. 6 State v. Bd. Co. Comm'rs, 17 Fla. 418. 1 Sanf ord v. Dick, 15 Conn. 447. TAX ILLINOIS. 231 receiving the statement of the board of public instruction, but only upon the requisition of the board of county commissioners. 1 205. Tax Georgia. A majority of the complainants having voted in favor of the approval of a local school law, and all of them having acquiesced in the result of the election until after a school was established and put in operation, an injunc- tion was refused ; 2 and acquiescence in election authorizing tax, is a bar to suit restraining collection ; 3 the act of 1883, as to Richmond county, did not repeal the act of 1872 giving the board of education the power to raise school funds by taxation.* The acts 1889-90-91 are to be construed as one, and the com- missioners may lower rate of taxation estimated by school board where it does not affect the amount of money needed by the board. 5 206. Tax Illinois. The 111. statute does not exempt from taxation a private academy conducted for profit ; 6 to ex- empt it as a public school from taxation, such school must be property under the immediate control of the school directors ; 7 lands held by Illinois Industrial University's trustees are there- fore exempt from taxation ; 8 and the validity of school tax cannot be questioned by one who participated in the election and seconded the motion to raise the money.* A school tax must be certified to the clerk at the appointed time. 10 Directors of district schools have power to levy taxes for the purpose of supporting a school for six months in the year, without first submitting the question to a vote of the inhabitants, but cannot erect a house costing more than $1,000, nor change a site; 11 1 Jones v. States, 17 Fla. 411. Irvin v. Gregory, (Ga.) 13 S. E. 120. 8 Irvin v. Gregory, 89 Ga. 695. * Montgomery v. Richmond Co. Ed. Bd., 74 Ga.41. 6 State v. Co. Comm'rs, (Fla.) 10 So. 14. 6 Montgomery v. Wyman, 130 HI. 17. i Pace v. Jefferson Co., 20 111. 644. 8 Trs. 111. Industrial University v. Champaign Co., 76 111. 184. Thatcher v. People, 98111. 632. "Cowgill T. Long, 15 111. 202. "Mnnson v. Minor, 22 111. 594; Merritt v. Farris, 22 111. 303; Schofield v. Watkins, 22 111. 66. 232 PUBLIC SCHOOL LAW. and the tax will be binding, although persons and property liable to assessment are not included. 1 The county clerk can- not extend school taxes from year to year on his own motion. 8 The act of 1879, authorizing a levy not to exceed 2 per cent, does not affect board of education of Bloomington, that being under a special act, and therefore excepted out of said act of 1879. 3 The levying of a tax to defray the expenses, and the acceptance of school-house built without vote, and teaching school therein, could not legalize the act or bind the tax- payers. 4 The prohibition in Const., art. 4, 22, that the gen- eral assembly shall not pass any local or special law providing for the "management" of common schools, does not prevent levying of taxes by different officers in a city from those dis- charging these duties in other localities. 5 A bill to enjoin a school tax, alleging that the determination to levy was not made by the school directors at a regular or special meeting, nor in their corporate capacity, but as individuals, does not charge that the directors acted in the matter without meeting together. 8 Where the levy of a tax is proper, and is within the statutory limit, it cannot be enjoined as unnecessarily large, or that the directors proposed to use part for another purpose.* Under act 1889, p. 296, art. 5, p. 17, a tax levy which has been duly signed by the directors and filed with the township treas- urer is not invalidated by the failure to record the action of the directors in making the levy/ The school law (Eev. Stat. 1874, p. 957, 35) authorizes trustees of high schools to levy taxes for the support of such high school. 7 The legislature iSchofield v. Watkins, 22 HI. 66. 2 Weber v. R. R., 108 Til. 451. 3 People v. City Bloomingion, 130 El. 406. *Sch. Dirs. etc. v. Fogleman, 76 111. 189. 6 Speight v. People, 87 111. 595. Lawrence T. Trainer, (111.) 27 N. E. 197. ' Fisher v. People, 84 111. 491. TAX IOWA. 233 may legalize irregularities in the assessment of taxes j 1 and acts of directors in levying a tax will not be inquired into for irreg- ularities by a court of equity ; J but if a tax is attempted for the benefit of the directors acting corruptly, equity will relieve. 1 207. Tax Indiana. The law of 1855 does not prevent the township trustees from levying over 25 cents on $100 to discharge debts incurred under the old law. 2 The exercise of a valid power to levy a tax will not be vitiated by an additional vote authorizing such tax in pursuance of an unconstitutional section. 3 The trustees of townships have no power to levy a tax to build a township house, but may for a school-house.* The constitution requires public schools to be provided for by general laws, and a law authorizing cities to levy school taxes and support schools, not limited to the object of building houses, is unconstitutional. 5 Township school tax, authorized by 1 Rev. Stat, 454, 130, is illegal. 8 Under R. S. 1881, 4460, the school board had no power to levy poll tax. 7 208. Tax Iowa. A non-resident tax-payer has the right to see that the school funds are property administered ; 8 but after erection of school-house and voting of tax to pay for same, a tax-payer cannot enjoin the collection of the tax for irregu- larities in contract for construction. 9 A sub-district may levy a tax for school-house in addition to that voted by the township. 10 Land not in B. township, which has not been set off into B. by reason of natural obstacles, under Code, 179T, cannot be taxed for erecting school-house in B. township. 11 A tax voted for a new building will not be enjoined where it appears that the i Schofield v. Watkins, 22 111. 66. * Wayne v. Alexander, 10 Ind. 221. 'Winters v. State, 9 Ind. 174. 4 Trs. etc. T. Osborne, 9 Ind. 458; Adamson v. Auditor, 9 Ind. 174. 6 Lafayette v. Jennero, 10 Ind. 70. Lima v. Jenks, 20 Ind. 301. 7 Indianapolis S. C. v. Magner, 84 Ind. 67. 8 Case v. Blood, (Iowa) 33 N. W. 144. Casey v. Nutt S. D., 64 Iowa, 659. 10 Wool v. Farmer, 69 Iowa, 533. " Large v. Washington, 53 Iowa, 663. 234: PUBLIC SCHOOL LAW. building used is old and remote from some of the scholars of the district and they cannot attend. 1 An illegal tax having been refunded entirely from the funds of a portion of the district from which it was collected, that portion may sue the remaining parts for contribution. 8 A board of supervisors can- not levy a tax to pay a judgment against the school-house fund, after the tax for that fund has reached the limit allowed for the year. 3 In a proceeding to compel the board of directors of a district township to levy a tax required by the electors of a sub- district, for the erection of a school-house, the records of the proceedings of the sub-district meeting, signed by the proper officers, is admissible in evidence, though not required to be kept.* A tax levied at a district meeting not held within the time fixed by the act of 1858, ch. 52, 10, is not cured by act passed by board of education, Dec. 15, 1862 ; 5 the directors of the school district have the power to levy tax to increase the teachers' fund when it becomes necessary to do so. 6 Liability to pay a school tax attaches upon levy of the tax by vote of the district. 7 Where a tax is levied by a county judge, under 31 of the act Mch. 12, 1858, for the support of school with- in the county, the county treasurer may lawfully collect the same. 8 Where there is a failure to collect a school-house tax during the year in which it is levied, the power and authority conferred by the warrant do not expire with the year, and a lost warrant may be supplied by a new one ; 9 and the officer can show that a warrant was issued and lost, and may protect himself by proving its contents. 9 A resident in a school district W. 1091. 1 Seaman v. Banghman, ( Iowa) 47 N. 8 Spencer v. Reverton, 56 Iowa, 85. Sterling Sch. Furniture Co. v. Harvey, 45 Iowa, 466. *Rose v. Hindman, 36 Iowa, 160. 6 Spencer v. Wheaton, 14 Iowa, 38. 6 Snyder v. Wampton, 12 Iowa. 409. 7 Toothaker v. Moore, 9 Iowa, 468. 8 Co. of Louiea v. Davieon, 8 Iowa, 517. 9 Higgins v. Reed, 8 Clarke (Iowa) 298. TAX KENTUCKY. 235- cannot be assessed in that district for the personal property which is in another district. 1 A vote "that there be an appro- priation sufficient to build a house on the line between " two specified sub-districts, with a further vote u that there be $800 levied as school-house tax," amounts to voting a tax for the school-house described in the first vote, and cannot be rescinded bj the electors. 8 A levy made later than the time directed by Code, "1778, was sustained; 3 but Code, 1738, is mandatory,, and a tax cannot be levied by board directors after third Mon- day in May.* The action of supervisors in making a levy under Code, 1777, depends upon the action of the board of directors, and when that is invalid the whole will be.* The Code, 1807, limiting levy, applies only to districts in which no bonded debt has been created ; 5 this section does not limit tax under 1823,. for tax necessary for independent district to pay bonds. 6 209. Tax Kansas. Agricultural college is wholly a state institution and exempt from taxation. 7 School-district plat filed, but not attested, is not evidence to show that certain prop- erty is included in a certain school district. 8 An apportionment and award after lapse of three years will be held binding ; 9 and the general rule is, that on a division of a district the original corporation retains its property until settled for. 10 In a suit by a district to recover taxes paid to another, the validity of such district cannot be questioned. 11 210. Tax Kentucky. The legislature could compel the payment of tax for 1885 by residents of district outside of city, cut off from the city by act of 1886 ; the residents of the 1 Lemp v. Hastings, 4 Greene (Iowa) 448. 'Benjamin v. Malaka. 50 Iowa, 648. 'Perrin v. Benson, 49 Iowa, 325. 4 Standard Coal Co. v. Ind. Diet, etc., ( Iowa) 34 N. W. 870. 6 Richards v. Lyon Co. S., 69 Iowa, 612. U. S. v. Ind. S. D., 20 F. R. 294. *Bd. Trs. v. Champaign Co., 76 111. 184; City Chicago v. People, 80 111. 384; Board \v Hamilton, 28 Kas. 376. s A. & N. R. R. v. Maquilkin, 12 Kas. 301. Sch. D. v. Sch. D., 32 Kas. 123. > Bd. Ed. v. Sch. Dist, 45 Kas. 560. 11 Sch. Dist. v. Sch. Dist., 45 Kas. 543. 236 PUBLIC SCHOOL LAW. outlying district being given the school privileges of the city for one year, said act being adopted by majority of qualified white voters of the district. 1 Unless the report of the division of counties into school districts by boundaries is filed for record with the county clerk, the trustees cannot enforce the collection of taxes. 2 System of education in a particular district, under act authorizing tax so that school may be taught the entire year, and the teaching of Latin and Greek in common schools, is not unconstitutional. 3 One receiving his share of the bene~ fits of the school system cannot complain that the legislative power, as exercised in the expenditure of the school fund, is unwarranted.* Mere irregularity in the election will not invali- date the levy voted for by majority of voters in a district. 5 A tax on a town for a school, permitting non-residents of a town to attend free, is void. 6 Under statutes 1884, and 1886, the trustees of a school district may levy a tax to build a new school -house not to exceed a certain rate, without a vote, when a necessity exists, or they have been notified that the old one has been condemned by the superintend- ent. 7 The statute for assessment of railroad for its length through county, city, and town, for the purposes of county, <;ity, town, or "precinct," does not authorize an assess- ment for school district. 8 The provision of statutes, ch. 92, art. 1, as to use of part of general tax for school, and art. 12, as to application of railroad tax, do not conflict; each 425. TEACHER'S CERTIFICATE. 267 gave his sanction to the previous arrangement of the school^ in the presence of the trustees, the trustees could not be held liable for the amount paid the teacher from the time of the ex- piration of his certificate. 1 Notwithstanding Gen. St. Colo. r 3055, one who is employed by the board to teach when, as they are aware, she has no license, but who shortly afterwards procures one, may maintain an action against the board for compensation. 2 A teacher's certificate from the school commis- sioner is prima facie evidence of qualification, and it devolves- upon directors to prove incompetency or neglect of duty when they have dismissed him for either of such causes. 3 242. Teacher's certificate. A contract by a common- school district to hire a teacher not having a certificate of quali- fication, is void ; and a complaint by the teacher should aver possession of the certificate. 4 A warrant issued to teacher who has not the certificate required by Dak. Stat., is void, and non- negotiable so as to cut off defense, and township is not liable for services rendered. 5 Where teacher failed, on examination, to obtain a renewal of certificate, and kept on teaching as ordered by a director who had no power to bind the district, he could not recover for teaching after failure. 6 The secretary of board of examiners, Mich., has not power, four days after teacher fails to pass at public examination, to grant such teacher a special certificate, and the teacher cannot complain of third party as- sisting at the public examination unless it is shown that was cause of failure to pass. 7 A contract employing a teacher who has not a certificate as provided for by the school law, is void, and is not susceptible of subsequent ratification ; and where, 1 Barnhart v. Bodenhammer, 31 Mo. 319. 2 Hotz v. Sch. Dist. No. 9, (Colo. App.) 27 P. 15. 'Neville v. Sch. Dirs., 36 111. 71. *Ryan v. Dak. Co. Sch. Dist., 27 Minn. 433. 6 Goose River Bk. v. Willow Lake Sch. Tp ( N. D.) 44 N. W. 1002. Devoe v. Sch. Dist., ( Mich.) 43 N. W. 1062. 'Lee v. Sch. Dist., (Mich.) 38 N. W. 867. 268 PUBLIC SCHOOL LAW. after having taught three months, he obtained the certificate, and the directors then made a new contract with him, whereby he was to teach three months at a salary of twice the amount per month he was to receive under the first contract, both con- tracts were void. 1 To entitle a teacher to recover on a contract to teach, he must prove he had a certificate at time of employ- ment. 2 A trustee of the owners of a building leased to the di- rectors of schools is liable for a trespass, although the school has no funds, and the teacher has not been examined for that year, if such teacher has a certificate, and has been examined on a previous occasion. 3 A school committee is not confined to moral character and literary qualities of a teacher in determin- ing his fitness.* In Tenn., the common-school commissioners are indictable for employing a teacher who has no examiner's certificate of his competency, as required by 1019 of the code. 5 243. Teacher's certificate. Every teacher is required to obtain a certificate of his qualifications before he opens his school, and circumstances cannot supersede the statute, and it cannot be waived. 6 A certificate granted to a teacher may be anulled by the city superintendent of common schools for the city and county of New York. 7 Where a town superintendent refused a certificate on the ground of moral character, and on appeal having been taken to the state superintendent it was ordered that the town superintendent examine into her literary qualifications, and if satisfied with them, that he license her, by a tender of a certificate of literary qualification, the town super- intendent has discharged his duty, moral qualification being, by appeal, left to the state superintendent ; 8 and from the refusal i Wells T. People, 71 111. 732. 2 Stevenson v. Sch. Disk, 87 111. 255; Jenness v. Sch. Disk, 12 Minn. 448. 8Ki:igsley v. Sch. Dirs., 2 Pa. St. 28. 4 Sch. Disk v. Mowry, 9 Allen (Mass.) 94. 6 Robinson v. State, 2 Coldw. (Tenn.) 181. Goodrich v. Fairfax, 26 Vk 115; Baker v.Sch. D., 12 Vt. 192; Welch v. Brown. 30 Vt. 586. T People v. Bd. Ed., 17 Barb. (N. Y.) 299. 8 People v. Masters, 21 Barb. (N. Y.) 252. TEACHER'S CERTIFICATE. 269 for want of literary qualifications, no appeal lies to the state superintendent. 1 One who has not a certificate of the super- intending committee, required by law, cannot recover any com- pensation for his services. 8 A judgment in favor of the teacher will be restrained by injunction, at a suit of any person inter- ested as a tax-payer within the district, suing in behalf of him- self and others ; a school district cannot waive the law requiring the school master to produce the certificate of the superintending committee, or to dispense with the certificate ; 2 and in an action by a teacher, under the act of 1857, 111., it must be alleged that the certificate of qualification was exhibited to the directors be- fore his employment ; 8 and the same was held under law of 1849.* Under Law of 111., 1849, a teacher must present to the school directors, before the commencement of the school, his certificate. 5 The power given board of education of Galesburg (111.) to appoint teachers, does not authorize appointment of teachers not possessing statutory qualifications. 6 In 111., the law prohibiting paying teachers not having certificates applies only to those districts acting under the general law. 7 In 111., a school board cannot employ a teacher who has not, at that time, the certificate required by law ; 8 and one who renders services as a teacher, without the certificate required by law, cannot re- cover. 9 Under 28, Ind. K. S. 1876, p. 780, a contract for the employment of an unlicensed teacher is void, and is not ratified by the subsequent issuance of a license to the teacher. 10 A county superintendent cannot sue to restrain a person from teaching, the treasurer of the town from paying him, and the i People v. Masters, 21 Barb. (N. Y.) 252. *Barr v. Denieton, 19 N. H. 170. Botkin v. Osborne, 39 111. 101. * Smith v. Curry, 16 111. 147. Casey v. Baldridge, 15 111. 65. Galesbnrg Ed. Bd. v. Arnold, 112 HI. 11. ?Knenster v. Bd. Ed., 134 HI. 165. 8 Sch. Dirs. v. Jennings, 10 111. App. 643. Harrison Tp. v. Conrad, 26 Ind. 337. 10 Putnam v. Irvington, 69 Ind. 80; Butler v. Haines, 79 Ind. 575. 270 PUBLIC SCHOOL LAW. director from permitting the use of the school-house, because such party has no certificate ; but residents of the district might maintain such a bill. 1 A certificate of a majority of the super- intending school committee as to the qualifications of a teacher, is to be regarded aaprima facie evidence that they have per- formed all their duty ; 2 but if a member has not been notified, a certificate by the majority is void. 8 A teacher cannot recover pay for teaching without the certificate of the superintending school committee, even though all the members wantonly refuse to examine him. 2 244. Teacher's certificate. In the case of Goose River Bank v. Willow Lake S. Tp., 44 N. W. Kep. (N. D.) 1002, it was held: "Every contract relating to the employment of a teacher Tvho does not hold a lawful certificate of qualification, is void by the express terms of the statute, and every warrant issued in payment of services of such teacher is without consideration, :and void. School township warrants are not negotiable instru- ments, in the sense that their negotiation will cut off defenses to them existing against them in the hands of the payee. The officers of a school township cannot estop the township by a representation, express or implied, that the facts to authorize the issue of a lawful warrant exist. Where a contract is ex- pressly prohibited or declared void by statute, retention of the fruits of such contract will not subject a municipality to liability under the contract or on a quantum meruit. A person who assists a public officer in depriving the public of the benefits of a statutory protection designed to guard the people against unfit and incompetent teachers has no standing in court, and his as- signee will receive no greater consideration. . . . J Perkins v. Wolf, 17 Iowa, 238. | 2 Jackson v. Hampden, 20 Me. 37. TEACHER'S CERTIFICATE. 271 "There is no force in the position that the defendant having received the benefit of the teacher's service, is liable. Such a doctrine would defeat the policy of the law, which is to give the people of the state the benefit of trained and competent teachers. The law recognizes only one evidence that that policy has been regarded the certificate of qualification. If the defendant could be made liable by the mere receipt of the benefit of the services rendered, the law prohibiting the em- ployment of teachers without certificates, and declaring void all contracts made in contravention of that provision, would be, in effect, repealed, and the protection of the people against incom- petent and unfit teachers, which such statute was enacted to accomplish, would be destroyed. Where a contract is void be- cause of the express declaration of a statute, or because pro- hibited in terms, the retention by a municipality of the fruits of such a contract will not subject it to liability, either under the contract or upon a quantum meruit. (Dickinson v. City of Poughkeepsie, 75 N. Y. 65 ; McBrien v. City of Grand Rapids, 22 K W. Kep. 206; Thomas v. Richmond, 12 Wall. 349 ; Argenti v. San Francisco, 16 Cal. 255 ; City of Litch- field v. Ballon, 114 U. S. 190 ; 5 Sup. Ct. Kep. 820. See also Tube-works Co. v. City of Chamberlain, [Dak.] 37 K W. Rep. 762.) This is particularly true in a case like the one at bar, where no person can teach without the certificate, without being actually or legally in collusion with local officers to de- feat a wise and salutary statute, enacted as a barrier against the employment of unqualified teachers. The person who teaches without the certificate has violated the letter and spirit of the law. The wrong done is without remedy. The people who have thus had this barrier torn from about them have no re- 272 PUBLIC SCHOOL LAW. dress. Shall the wrong-doer be compensated for aiding the school township officers in breaking down this barrier, thus de- priving the people of the protection of this important law ? In this connection the language of the court in Thomas v. Rich- mond, 12 Wall. 349, is very applicable : 'The issuing of bills as a currency by such a corporation, without authority, is not only contrary to positive law, but, being ultra vires, is an abuse of the public franchises which have been conferred upon it, and the receiver of the bill, being chargeable with notice of the wrong, is in pari delicto with the officers, and should have no remedy, even for money had and received, against the cor- poration upon which he has aided in inflicting the wrong. The protection of public corporations against such unauthorized acts of their officers and agents is a matter of public policy, in which the whole community is concerned, and those who aid in such transactions must do so at their peril.' "In City of Litchfield v. Ballon, 114 TJ. S. 190, (5 Sup. Ct. Rep. 820,) the same court said: 'The money received on the bonds having been expended, with other funds raised by taxa- tion, in erecting the water works of the city, to impose the amount thereof as a lien upon these public works would be equally a violation of the constitutional prohibition as to raise against the city an implied assumpsit for money had and re- ceived. The holders of the bonds and agents of the city are particeps criminis in the act of violating that prohibition, and equity will no more raise a resulting trust in favor of the bond- holders than the law will raise an implied assumpsit against a public policy so strongly declared.' The judgment of the dis- trict court is affirmed. All concur." 245. Teachers' compensation. Salaries, under the con- TEACHERS' COMPENSATION. 273 solidation act in Cal., are to be paid in the same order as other claims against the San Francisco treasury. 1 A teacher engaged for a specific term, and discharged without cause, can recover compensation ; the measure of damages is ordinarily the amount of stipulated wages, but may be reduced by proof of ability to earn from other sources. 2 A rule that the teachers should be liable to discharge at the pleasure of the board is no defense to an action on a contract of hire for a specific term.* Where a teacher was dismissed for cause, and he took forcible possession of the school-house and continued to teach, he was not entitled to any compensation from the time of his dismissal. 8 Under the act of 1857, Ga., all accounts for teaching poor children are to be paid pro rata;* under the act of 1852, Ga., whenever the teachers are not paid in full, the balances due are to be paid out of the taxation for the next year before the accounts of the teachers for that year. 5 The act of 1854, Ga., requires the treasurer of the poor-school fund in the county of M. to pay the teachers for 1851 and 1852 their accounts in full; such act does not impair any contract made under the act of 1852 ; 5 but promises made by the ordinary, in Ga., under a mistaken con- struction of said last-mentioned act, create no contract.* In Ga. the county board of education cannot try claim for teach- er's compensation until the county commissioner has audited account.' A teacher kept a regular schedule under 111. act 1855 r certified it himself, and it was certified by one director only, the rest being absent ; and it was not presented to the township- treasurer before or on the day prescribed ; he was not entitled to recover by bill in chancery, but remedy is by mandamus. 7 1 Knox v. Woods, 8 Cal. 545. *Sch. Diet. v. Hale, 15 Col. 367. s Pierce v. Beck, 61 Ga. 413. * King v. Barker, 28 Ga. 293. 18 6 Johnson v. The Governor, etc., 17 Ga. 179.. "Cheney v. Newton, 67 Ga. 477. 7 Cotton v. Trs., 20 111. 607. 274 PUBLIC SCHOOL LAW. A teacher delivered the teacher's schedule to one of the di- rectors, who signed and retained it ; he was entitled to recover. 1 Mandamus is not the remedy of a teacher ; he should sue the school directors of the district, and upon a recovery enforce the special execution by attachment or mandamus. 8 Under the provision of 111. Rev. Stat., ch. 122, 53, it is not lawful for the treasurer to pay the teacher or assignee before the filing of the schedule. 8 Section 41 of 111. law of 1849, in relation to the distribution of the school fund among teachers on first Saturday of April and October, is mandatory.* 246. Teacher's compensation. In an action for salary of a teacher in a township school, the complaint need not allege that the trustee had, at the beginning of the suit, sufficient school revenue for tuition to pay his claim ; 5 and it is no defense to action for teacher's wages under a contract, that there is no money on hand. 8 If the treasurer has money belonging to the district, and devoted to payment of teachers' wages, and refuses to pay it over on a proper order and demand, he is personally liable. 7 In Ind. a teacher contracts with reference to the pro- vision of law, that only seventy-five per cent, due him shall be paid before he makes his report. 8 Where sufficient tax had been collected to pay the balance due to a teacher, for which he had an order on the treasurer, and payment was refused, he might recover of the district. 9 On appeal to superintendent of public instruction from district-board directors, a decision that teacher was wrongfully discharged is binding on the district. 10 Trustees failing to collect school funds as required by law, are i Adkins v. Mitchell, 67 m. 511. 'Rodgers y. People, 68 111. 154. Sch. Dirs. etc. v. Greenville Bank, 3 111. App. 349. * Thomas v. Trs. Sens., 16 111. 163. Harmony v. Moore, 80 Ind. 276. 6 Harrison v. McGregor, 96 Ind. 185. 7 Edaon v. Harden, 18 Wis. 687. Owen Sch. Tp. v. Hay, 107 Ind. 351. "McCasky v. Sch. Dist. No. 1, 2 Greene (Iowa) 482. "Park v. Pleasant Grove S, D., 65 Iowa, 209. TEACHER'S COMPENSATION. 275 personally liable to the teacher. 1 The exaction of extra com- pensation by the teacher, from the parents of children, does not constitute a defense to the payment of the warrant drawn by directors. 8 Section 11 of the act La., which requires that the warrant drawn for the salary of any teacher should be accom- panied by a statement of the number of children taught, etc., is directory only. 2 The act of 1855, La., did not fix the amount to be paid to teachers in the public schools ; and where there is no contract they can recover on a quantum merwit* Under Md. act of 1872, ch. 377, sub. ch. 8, 3, the principal of a public school is not exempt ; and if he fails to make these reports, or to perform the duties of a teacher, he cannot recover the salary agreed to be paid him for his services.* 247. Teacher's compensation. A Boston teacher, elected annually and payable quarterly, if dismissed at end of quarter by committee, under acts 1844 and 1854, without mis- conduct on her part, cannot recover compensation for remainder of time. 5 Teacher cannot recover compensation for his services until he has completed the register required by act of 1849. 6 In Mass., the act of 1838 authorized the school committee to contract for teachers for the town and district schools, and they could bind the town to pay for them ; 7 the power given to the school committee to contract with teachers, includes the power to determine their salaries ; and the city council have no con- trol except by voting to close a school after it has been kept the length of time required by law. 8 Payment of the teacher's wages by the town to the committee, does not discharge the town's liability to him. 9 Except in graded schools maintained 1 Ferguson v. True, 3 Bush (Ky.) 255. SMiahle v. Pournet, 13 La. Ann. 607. 8 Offut v. Bourgeois, 16 La. Ann. 163. *Sch. Comm'rs v. Adams, 43 Md. 349. *Knowles v. Boston, 12 Gray (Mass.) 339. 'Jewell v. Abington, 2 Allen (Mass.) 592. ffiatchelder v. Salem, 4 Cush. ( Mass ) 599. 8 Charlestown v. Gardner, 98 Mass. 587. Clark v. Great Barrington, 11 Pick. (Mass.) 276 PUBLIC SCHOOL LAW. by districts, towns alone are liable for support of schools, and are liable for the teacher's compensation, in Me. 1 A teacher employed by a de facto agent may recover compensation for his services, but not for services rendered after notice of dismis- sal by school committee. 2 There should be no deductions for holidays from the teacher's wages, 3 or for closing school on ac- count of small-pox ;* and a teacher may sue district for compen- sation, although mandamus would lie to compel the treasurer to pay the warrant ; 6 but issuing an order knowingly to an unli- censed teacher, subjects the officer to penalty in Minn.; 6 though act Miss., Mch. 15, 1884, does not relieve the county from the obligation to pay valid certificates which were not presented under the act, because they had been mislaid. 7 Warrants for the payment of teachers of both white and colored schools of the same district, are properly drawn upon the teachers' fund of said district, in Mo. 8 248. Teachers' compensation. Where teacher left on being notified that he did not give satisfaction, he cannot re- cover for the remainder of the term, his leaving being construed as voluntary on his part ; 9 but the neglect of parents to send their children to a given school cannot, of itself, affect the right of its teacher to compensation. 10 Where teacher, in Neb., has his certificate to teach in another county indorsed by the super- intendent of the district, the school-district treasurer must pay him. 11 The teacher cannot lawfully be paid until he has made a report to the superintending committee, as required by statute ; 12 and the school district may maintain an action against such com- i Norton v. Sonle, 75 Me. 385. 2Woodbury v. Knox, 74 Me. 462. Sch Diet. v. Gage, 39 Mich. 484; Halloway v. Ogden S. D., 62 Mich. 153. *Dewey v. Alpena Sch. Dist, 43 Mich. 480. 6 Martin v. El wood, 35 Minn. 309. Sch. Dist. v. Washington Co., 31 Minn. 533. 'Douglas v. Downing, (Miss.) 9 So. 297. estate v. Thompson, 64 Mo. 26. SFrazier v. Sch. Diet., 24 Mo. App. 250. iDoyle v. Sch. Dist., 36 111. App. 653. " State v. Grosvenor, 19 Neb. 494. "Moultonborough v. Tuttle, 26 N. H. Fost.) 470. (6 TEACHER'S COMPENSATION. 277 mitteeman, to recover back the money paid ; the certificate of the superintending committee that a report is made, is not con- clusive. 1 A teacher in !N. J. is entitled to a mandamus to com- pel the trustees to pay the salary due him. 2 A teacher under contract with a de facto trustee can recover pay for services. 8 Giving a note made to a teacher for wages earned in the em- ployment of the district, is within the scope of power of trustees of a district. 4 Under the by-laws of the board of education of New York city, mandamus will not lie to the board of education to pay the salary of a teacher alleged to have been wrongfully dismissed ; relator's only remedy being to have his name put on the pay-roll, that his salary might be paid in the regular way. 6 A teacher discharged before the end of the term sued the dis- trict trustee in the county court and was non-suited ; the non-suit did not bar appeal from trustee to superintendents ; an appeal could be taken to the superintendent, under laws of 1864, and the superintendent's decision was final, and the trustee, by sub- mitting the case to the superintendent, without objection, waived a jury ; 8 and the trustee may be directed by the superintendent to issue a tax list and a warrant to collect sufficient to pay the claim, if he has not enough on hand. 6 A school committee in N. C. are not personally liable on contracts made in the line of their duty, but mandamus is the remedy to compel them to give an order on the county treasurer. 7 249. Teachers' compensation. The wrongful exclu- sion of a pupil from a school by a teacher, under the direction of the directors, does not defeat the right to wages. 8 A town- ship clerk cannot refuse to draw order for wages, on the iMonltonborough v. Tattle, 26 N. H. (6 Foet.) 470. 2 Apgar v. Trs., 34 N. J. L. 308. De Wolf v. Watterson, 35 Hun (N. Y.) 111. *Horton v. Garrison, 23 Barb. (N. Y.) 176. e People r. Bd. Ed., 15 N. Y. S. 308. People v. Eckler, 19 Hun (N. Y.) I 7 Robinson v. Howard. 84 N. C. 151. s State v. Blain, 36 Ohio St. 429. 278 PUBLIC SCHOOL LAW. ground that the contract wrongfully stipulated for the exclusion of some pupils ;* nor because refusal is made by order of the township board of education. 1 The board of education em- ployed the plaintiff to teach a school in the district, which he did for three months without any notification from the local directors to desist; upon a refusal of the township treasurer, by order of the local directors, to pay the order given by the board for his wages, a mandamus would lie. 8 Mandamus is the proper remedy to compel a clerk of a school district to pay over money in his hands applicable to a warrant issued in favor of a teacher, for salary. 3 The board of public educa- tion of the city of Philadelphia had no power to appoint a superintendent of music.* Under the ordinance of councils, Mch. 4, 1861, Pa., a suit brought against the city by one of the teachers for her salary, before the adoption of scale of salaries, was prematurely brought, and could not be sustained ; 5 and the discretion in board of controllers of public schools in Philadelphia, as to salaries of teachers, must be exercised in subordination to the appropriating power of the councils. 5 County commissioners had power to approve an account of a teacher of poor children, under the act of Apr. 4, 1794, in a township which refuses to accept the general school law.* Man- damus is the proper remedy for a teacher whose certificate is wrongfully withheld by the controllers. 7 In R. L, the town committee voted to not pay certain teacher's wages ; on appeal, the commissioner of public schools decided they should be paid ; the commissioner had no authority to draw an order on the treasury, but must certify his decision to the town committee. 8 1 State v. Blain, 36 Ohio St. 429. 2 Case v. Wresler, 4 Ohio St. 561. 'Howard v. Bamford, 3 Oreg. 565. * Perot v. Philadelphia, 11 Phila. (Pa.) 181. Phila. v. Johnson, 47 Pa. St. 382. 8 Parker v. Lancaster Co., 1 Watte & S. (Pa.) 460. TMcManters v. Sch. Cont, 7 Phila. (Pa.) 23. Randall v. Wetherell, 2 B. I. 120. TEACHER'S COMPENSATION. 279 250. Teacher's compensation. By custom, in N. C., school masters charge by the quarter ; the defendant's children continuing over one quarter, he is liable to pay for two entire quarters. 1 The Tenn. act of 1870, as to payment of teachers by the county trustees, is not repealed by the act passed two days later. 2 Teachers cannot draw pay from public funds unless it is a public school.' The Tex. act of 1883, allowing auditing of unpaid claims for teachers' services rendered between Sept. 1st, 1873, and Aug. 1st, 1876, is a substitute for the law in force; and where a school voucher was audited, for which a levy has been made, and it was not presented for six months, it was barred and the act is not unconstitutional.* The act of 1883, Tex., makes it the duty of the counties to pay the claims of the teachers that have been audited, and recovery may be had by assignee of such claim. 5 After a teacher was dismissed she offered to accept $20, and the district voted to settle with her "if it could be done for $20," but they never communicated to her any acceptance of her proposal ; the offer was not binding on the teacher. 6 In a suit for teacher's salary it is improper to require him upon cross-examination to answer questions pro- pounded, to test his competency, or to show that after his em- ployment a remonstrance was circulated in his district, and signed by divers persons ; 7 and evidence that a majority of the voters in the district were dissatisfied with the plaintiff, and plaintiff and committee contracting knew this at the time the plaintiff was employed as teacher, is inadmissible. 8 In Yt, a teacher did not forfeit her salary by neglect to answer the in- quiries in the school register, and to certify to the correctness of iReckely v. Cummins, Harp. (S. C.) 267. >Arrington v. Cotton, 57 Tenn. 316. 8 Us8ery v. Laredo, 65 Tex. 406. 4 Parker v. Buckner, (Tex.) 2 S. W. 746. 6 Co. Caldwell T. Crocket, (Tex.) 4 S. W. 607. Richardson v. Sch. Dist., 38 Vt. 602. 7 Doyle v. Sch. Dist., 36 111. App. 653. 8 Mason v. Sch, Dist. No. 14, 20 Vt. 487. 280 PUBLIC SCHOOL LAW. her record of the attendance and deportment of pupils ; but she was liable for any loss to district which her neglect has caused. 1 251. Teachers, contract. Under Me. act 1821, ch. 117, a school committee of three appointed by a district had no au- thority to hire a school master, that power being vested in the school agent ; 2 and under the Ga. act 1881, giving mayor and council of B. power to employ teachers, the citizens cannot em- ploy against will of the officers. 8 Where contract does not pro- vide as to time, but the commissioners of the 16th section, Ala., agree to remunerate him with its "available funds" for one year, the inference is that he is to render service for that time and enter on his work in a reasonable time/ The trustee of a school district, disputing the legality of an adjourned school meeting at which his successor was elected, held over, and em- ployed plaintiff as teacher ; such acts were valid as those of an officer de facto!" A contract, in Wis., for teaching the district school for a term extending beyond the time when the term of office of its officers will expire, unless made contrary to a deter- mination of the district at the previous annual meeting, under Rev. St., ch. 23, 15, is valid, subject to the power of the dis- trict at its next annual meeting, or of the same officers or their successors, to end it by determining the length of time a school shall be taught in the district, and by whom. 6 Board of direct- ors at end of their term cannot contract for teacher for ensuing year ; 7 and in New Orleans a teacher cannot be employed in public schools for longer term than one year. 8 School direct- ors in 111. cannot employ teachers for a succeeding year with- out the annual reorganization of the board ; 9 and in "N. C. a 1C osby v. Sch. Dist., 35 Vt. 623. Patterson v. Butler, 11 S. E. 399. s.Moor v. Newtield, 4 Me. (4 Greenl.) 44. 4 Coinm'rs v. Criswell, 6 Ala. 565. J5arrett v. Sayer, 12 N. Y. S. 170. Webster v. Sch. Dist., 16 Wis. 316. ^Cross v. Sch. Dirs., 24 111. App. 191. s Golden v. N. O. Sch. D., 34 La. Ann. 354 ; Sch. Dirs. v. Hart, 4 111. App. 224. Davis v. Sch. Dirs., 92 111 . App. . 293. TEACHER, CONTRACT. 281 school committee have no power to employ teacher beyond their term of office. 1 "In the case of Stevenson v. School Di- rectors, 87 111. 255, the decision was placed upon the ground that the meeting which chose directors determined what should be taught in the schools, and that it was a necessary inference that no contract could be made until it was known what service was to be contracted for." 252. Teacher, contract. An answer which alleges that the persons who signed plaintiff's contract were not duly elected .and qualified school trustees, but mere usurpers, is demurrable when pleaded after a general denial, since it is only a special denial. 2 A contract, when signed by the teacher and one of the trustees, when the board was not in session, and afterwards approved at a special session of the board, and there signed by another trustee, is binding. 8 The admission of evidence con- cerning rumors in regard to the purpose of the board, and their intention not to permit plaintiff to teach, is not reversible error. 8 There is no law that forbids the school board to make a contract for a superintendent, for a term beginning after some members of the board go out of office. 8 A contract cannot be annulled by the subsequent action of the school town in abolishing the department in^ which teacher was engaged to teach.* Where trustees, with the acquiescence of the town, continue to act as such after the expiration of their term, and before their success- ors are appointed, they are officers de facto, and their contract with a teacher is binding. 4 Such contract cannot be assailed by subsequently-elected trustees, when it is not alleged that the teacher was a party to the fraud in effort to forestall them ;* the i Taylor T. Sch. C., 5 Jones (N. C.) L. 88; Stevenson v. Sch. Dirs., 87 111. 255. * Town Milford v. Powner, 126 Ind. 528. 'Reubelt v. Sch. Town, 106 Ind. 480; Wait v Ray, 67 N. Y. 38; Tappan v. Sch. Diet., 44 Mich. 500; Webster v. Sch. D., 16 Wis. 317. * Sch. T. Milford v. Zeigler, ( Ind.) 27 N. E. 303. 282 PUBLIC SCHOOL LAW. board of school trustees may bind the school town by a contract with a teacher, although the contract is not to be performed be- fore the election of a new board. 1 In N. Y., a contract with teacher made by the sole trustee of a school district, extending beyond the trustee's term of office, was valid ; 8 and the power of a school committee to contract with a teacher for a period longer than their own term of office, upheld. 8 The district- school board, Mich., need not wait for the annual meeting of district before hiring teacher for following year, though two of the members of the board go out of office at that time.* As- sumpsit lies against the trustees of a school district for the wages of a teacher employed under a contract with their prede- cessors, whether funds are in the defendant's hands or not. 5 Contracts with teachers are binding on the successors of the trustees of the district. 6 253. Teacher, contract. The provisions in the Mich, primary-school law, whereby the voters and the district board shall have full control of the schools during the entire school year, did not apply to graded schools and cannot affect any contract for teaching, made by the trustees before the year opened. 7 The prudential school committee, chosen in March, cannot interfere with a teacher engaged by the general com- mittee of preceding year, under act of 1846, for that term. 8 A school district was bound by the contract of its prudential com- mittee, although it extended beyond the official year of the com- mittee, and the school district had neither authorized the prudential committee to enter into a contract extending beyond iSch. T. Milford v. Zeigler, (Ind.) 27 N. E. 303; Reubelt v. Sch. T., 106 Ind. 478. 'Gills v. Space, 63 Barb. (N. Y.) 177; Waid v. Ray, 67 N. Y. 36. Wilson v. East Bridgeport Sch. Dist., 36 Conn. 280. 'Cleveland v. Amy. (Mich.) 50 N. W. 293. * Williams v. Keech, 4 Hill. (N. Y.) 168. sSilverv. Cummings. 7 Wend. (N. Y.) 181. 7 Tapp n v. Carrollton Sch. D., 44 Mich. 500. s Sch. D. v. Morse, 8 Gush. (Mass.) 191. TEACHER, CONTRACT. 283 the official school year, nor authorized this term of school which he was employed to teach. 1 Under Rev. L. Vt., 515, a com- mittee elected in March might make contract for the ensuing school year, September to June. 8 Where de facto trustee con- tracts with a teacher, the election of a trustee de jure who ignores the contract, will not defeat the teacher's right to com- pensation for discharge by him. 8 Where statute Ala. enacts,, "where but one school is supported, the commissioners shall have power to employ a teacher," etc., a teacher so employed need not allege there is but one school. 4 Mandamus is the remedy to restore a teacher to the position from which he has been removed wrongfully and unlawfully. 5 Two of three directors may contract at a meeting of which the third has had .notice, and notice need not be given for regular meeting ; 6 and this applies to a school-district committee. 7 A vote directing the committee not to employ a certain teacher, was inadmissible in evidence, where the notice of the district meeting was not sufficient. 8 If the district neglects to act, the committee are authorized to provide rooms and employ teachers at the expense of the district ; 9 but if the district acts, the committee must con- form to its action. 9 254. Teacher, contract. That the plaintiff had miscal- culated the amount due him, is not admissible evidence of in- competency. 10 Where not waived, a teacher's contract cannot be fulfilled by procuring a substitute, however competent. 11 In order to create a liability, under a contract provided for by the common-school law, the statutory requisitions must be complied iChittenden v. Waterbury, 56 Vt. 551 ; Mason v. Sch. DiPt,, 20 Vt. 487; Chaplin v. Hill, 24 Vt. 528 ; Waterbnry v. Harvey, 56 Vt 556. 'Cnittenden v. Waterbury, 56 Vt. 551. O'Neil v. Battie, ( Sup.) 15 N. Y. S. 818. Comm'rs v. Criswell, 6 Ala. 565. 6 Kennedy v. Bd. Ed., 82 Cal. 483. Sch. Dist. v. Bennett, 52 Ark. 511. i Wilson v. Waltereville, Sch. Dist., 46 Conn. 400. s Wilson v. Sch. Dist., 44 Conn. 157. 9 Oilman v. Bassett, 33 Conn. 298. 10 Doyle v. Sch. Dist., 36 111. App. 653. "Sch. Dirs. v. Hudson, 88 111. 563. 284 PUBLIC SCHOOL LAW. with. 1 The defendant wrote : " We have had a meeting of all the citizens of the place that are interested in a female school, and all are satisfied with Miss J., and are anxious to employ her, and are resolved to make her this proposition : we will guaran- tee to her the sum of $400 for one year," etc. The plaintiff accepted the proposition, and taught the school three months and ten days, when the parties separated by consent. The peti- tion was filed for discovery of the names of the trustees and guarantors, and for payment ; defendant was not liable ; there was no contract shown, and the plaintiff's remedy was at law.* A teacher cannot hold a school district in N. H., liable for his wages, under a contract made with him by the prudential com- mittee. 3 In an action to recover subscription in aid of a com- mon-school fund, it is a good defense that the teacher admitted scholars not entitled to by law. 4 Employment of unlicensed teacher by trustee of school district, in N. Y., is illegal. 5 The Pa. statute of 1862, requiring names of all the directors and manner of voting for teacher to be recorded, is mandatory and must be strictly complied with, and cannot be supplied by other evidence. 6 The employment of teacher by committee of Dis- trict No. 3, Chowan county, N. C., after acts 1883 and 1885, was unauthorized, this district having been put in hands of trus- tees. 7 Where the president of a board of school directors is authorized to employ teachers with the consent of the board, and one whom he employs by written contract begins teaching, with the knowledge of each member, the consent of the mem- bers will be presumed. 8 The trustee of a civil township, in Ind., as such, cannot employ a teacher, an action against such town- 1 Cascade v. Lewis, 43 Pa. St. 318. 2 Wilie v. Price, 5 Rich. ( S. C.) Eq. 91. Stebbins v. Sch. Dist., 16 N. H. 510. * Chalmers Y. Stewart, 11 Ohio, 386. *Blandon v. Moses, 29 Hun ( N. Y.) 606. Seh. Dist. v. Mercer. (Pa.) 9 A. 64. T Skinner v. Baleman, (N. C.) 1 S. E. 533. 8 Hull v. Ind. Dist., (Iowa) 46 N. W. 1053; N. W. 83. TEACHER, CONTRACT. 285 ship cannot be sustained, 1 and a civil township was not liable on a contract made by a township trustee with a common-school teacher. 8 255. Teacher, contract. In Mich, a teacher cannot be employed by two members of the board without the concur- rence of the third, and without any meeting of the board. 3 A contract with teacher, made by two members of the board, in absence of each other, and without knowledge of third, is not binding on district.* A contract made by two of three di- rectors of a district, at a time different from the time fixed for regular meetings, and of which the third director had no notice, is not binding. 5 A contract between the president and secre- tary of board with teacher, is void ; Pa. Acts 1862, p. 472, requires concurrence of the board. 6 Where statutory mode of contract is required to be by the board, a contract by individual members of board will not bind, and ratification will not make valid; 7 but the fact that the officers of the district were not together when the contract was signed , does not overcome the presumption that it had been author- ized by the board at a meeting, as required by R. S. Wis., 43 2. 8 The board of directors cannot waive the fact that the teacher is unfit or incompetent to teach; they should dis- charge him. 9 Where contract with teacher was for definite time unless discontinued by directors, a discontinuance for diph- theria is to be deducted from the time. 10 Section 28 of 1 Ind. Rev. Stat. 1876, p. 788, applied to the school trustees of cities and incorporated towns, as well as to the trustees of school 1 Greensboro v. Cook, 58 Ind. 139. 2 Harrison v. McGregor, 67 Ind. 380. SHazen v. Lerche, 47 Mich. 626. *Aikman v. Sch. Diet., 27 Kas. 129. *Sch. Diet v. Bennett, (Ark.) 13 S. W. 132. 'Dennison Sch. Dist. v. Padden, 89 Pa. St. 395. ? Pa. L. Hod Co. v. Cass Bd. Ed., 20 W. Va. 360 8 Dolan v. Joint Sch. Dist., (Wis. ) 49 N W 96-J Sch. Dist. v. Maury, 53 Ark. 471. 1 Goodyear v. Sch. Dist., 17 Oreg. 517. 286 PUBLIC SCHOOL LAW. townships. 1 A vote to discontinue the school and to pay her $17.50, "for teaching in sub-district," etc., was no ratification of contract made by sub-director without authority. 8 A trustee, employed as a teacher by the two others, vacates his office as trustee. 3 No recovery can be had on contract to teach school, made with a sub-director, in Iowa, but not approved by the president of the board, unless approval is waived, and contract ratified ;* a contract with a teacher becomes binding upon a district township only when made by a sub -director and ap- proved by the president of the board, under Iowa Code, 1753. 5 256. Teacher, contract. Contract in book, signed by assessor and director, but not at same time, and moderator con- senting, is valid. 6 Where the resolution is passed at a session of the board of school trustees, it is immaterial that the trustees signed the contract at different times. 7 Where a township trus- tee pays teacher out of his own pocket, in good faith, and the school funds are insufficient, he may maintain an action for money so paid. 8 Where one of the board signed the contract with a teacher, which was afterwards approved at a called meeting and signed by another member, it became binding ; 9 and where an order employing a teacher is passed at a session of the board of school trustees, it is immaterial that the trustees signed the contract at different times. 10 In Iowa the discretion of directors to employ teacher for less than fifteen scholars will not be controlled by mandamus. 11 A township obtaining ser- vices of a teacher under claim of authority is estopped to deny its liability. 18 Although a contract did not comply with the 1 Putnam v. Irvington, 69 Ind. 80. 2 Herrington v. Listen Dist. Tp., 47 Iowa, 11. 3 Furguson v. True, 3 Bush ( Ky.) 255. 4 Place v. Coif ax, 56 Iowa, 573. *Gambrell v. Lenox, 54 Iowa, 417. 6 Holloway v. Ogden, 62 Mich. 153. 7 Sch. T. Milford v. Zeigler, (Ind.) 27 N.E. 8Kiefer v. Troy, 102 Ind. 279. 9 Logansport v. Dykeman, 116 Ind. 15. 10 Sch. T. Milford v. Zeigler, (Ind.) 27 N.E. 11 Ananaon v. Anderson, 70 Iowa, 102. i*Heill v. Dist. Tp., 41 Iowa, 494. TEACHER, CONTRACT. 287 statute requiring it to be in writing, (Iowa School Laws 1872, 51,) the acceptance of part performance was a ratification, rendering the district liable. 1 While a sub-director is author- ized to make contract with teachers, his authority is subject to the rules prescribed by board of directors, in Iowa. 2 A peti- tion on teacher's contract, stating contract and certificate of qualification, is good on demurrer, and an action will lie on the same. 3 A school teacher, without written contract, is entitled to reasonable compensation from the district, in Kas.* Con- tract by district with teacher, reserving right to discharge him at any time he fails to give satisfaction, is valid. 5 Where mod- erator of district hired her husband to teach for more than a better teacher would charge, she could not be removed as mod- erator, under primary-school law, for that reason, in Mich. 6 Where two or three officers of a board are related to teacher, and others could have been hired for much less, this is not suf- ficient fraud to render the contract void. 7 257. Teacher, contract. Where a contract, signed by the director of their school district, and teacher, and the moder- ator writes on it, "Approved," subscribing as moderator, it will be valid. 8 Where Minn, statute requires a contract with a teacher to be in writing, and where it is admitted that a majority of the trustees signed, it is proper to instruct the jury that where the necessary trustees signed, it would be a compliance with the law, and to leave the question as to whether there was a contract or not, to the jury ; 9 signed by a majority at different times and filed with clerk is prima facie binding. 10 Although 6 of Mo. Law 1865, allows the local directors to employ 1 Cook v. North McGregor, 40 Iowa, 444. 2 Potter v. Fredericksburg, 40 Iowa, 369. sHamrick v. Bd. Ed., 28 Kas. 385. *. Jones v. Sch. Dist., 8 Kas. 362. 6 Sch. Dial. v. Colvin, 10 Kas. 283. Hazen v. Akron, 48 Mich. 189. 'Dolan v. Jt. Sch. Dist., ( Wis.) 49 N.W. 960. s Everett v. Sch. Dist., 30 Mich. 249. McGinnesa v. Sch. Diet., 39 Minn. 499. 10 Armstrong v. Sch. Dist, 28 Mo. App. 169. 288 PUBLIC SCHOOL LAW. teachers, a teacher may sue the township board of education for a breach of the contract, under 7. 1 Contract made by direct- ors in accordance with statute is not to be avoided by district on account of want of funds. 8 Where directors close the school they cannot claim teacher has forfeited his contract by not mak- ing his reports during that time. 2 In Neb., a contract with teacher, made by director and treasurer of district, without knowledge of moderator, was valid. 3 A district cannot deprive the prudential committee of the power to provide board for teachers. 4 Where a teacher made a contract with a member of the district board, who paid her for teaching and boarded her, he could only contract on the credit of the school-money of the district and not on the credit of the district. 5 The authority conferred by statute upon local directors, to employ teachers, and certify the amount due them for services, cannot be con- trolled by any rule of the township board. 8 Where, at special meeting of school board that is called for other pur- poses, a quorum is present and a unanimous vote is had to employ a teacher, this will be sufficient, under Acts Pa. 1862. 7 In Pa. the board of directors may employ a teacher if not chosen by the inhabitants. 8 258. Teacher, contract. A contract, in Tenn., for one year at so much per month, from Aug. 16, was held to begin at usual time for opening school and to end with usual time for closing, or when funds gave out. 9 In Tex., it was not intended that the county judge should approve the contracts in the com- munity system, where the trustees make contracts with the teachers ; 10 where county judge approves two copies of contracts iPnterbangh v. Tp. Bd. Ed., 53 Mo. 472. Kudy v. Sch. Diet., 30 Mo. App. 113. Ru8Bell v. State, 13 Neb. 68. 4 Sch. Diet. v. Currier, 45 N. H. 573. 6 Wheeler v. Alton Sch. D., (N. H.) 23 A. 89. State v. Wilcox, 11 Ohio St. 326. 'Geneseelnd. S.D.v. McDonald, 98Pa.St.444. 8 Kingsley v. Sch. Dirs., 2 Pa. St. 28. 9 Morley v. Ponver, 10 Lea ( Tenn.) 219. l v. Coleman, 72 Tex. 550. TEACHER, DISMISSAL AND DISCHARGE. 289 and retains the third, he cannot afterward claim that he in- tended to approve them qualifiedly. 1 Where the school-house was burned, and no house was provided, and teacher was not discharged, etc., an action would lie for her wages for the full term ; 2 and a teacher may recover where school-house is de- stroyed by fire and no other is furnished ; 3 but it was held in Mo., that where teacher was hired for four months and the school-house burned down after two months had elapsed, the teacher could not recover compensation for the remainder of the time. 4 In Yt., the vote instructing the committee to hire a female teacher for the district, is advisory merely. 5 Defendant cannot avail itself of its refusal to certify that the register is re- turned, to defeat plaintiff's right of recovery for her services. 6 R. L. Yt, p. 515, provides that the prudential committee of a school district shall " appoint and agree with a teacher to in- struct the school." 6 Where the school committee had left an order for $7.50 at boarding house for her services as teacher, which she took, but returned in two or three hours, saying that she did not accept it, she lost nothing by taking and returning. 7 An infant may contract with a school board to teach a school.* A contract by which the board declares, " We reserve the right to close the school at any time if not satisfactory to us," is un- authorized and inoperative. 9 A contract made between a teacher and the school-district clerk, in the name of the district, with the consent of the director or treasurer, is prima facie valid. 10 259. Teacher, dismissal and discharge. After a teacher has been irregularly dismissed, his continuance in the i Caviel v. Coleman, 72 Tex. 550. 2Cashen v. Sch. Diot., 50 Vt. 30. 8 Sch. Dirs. v. Crews, 23 111. A pp. 367. * Hall v. Sch Diet., 24 Mo. App. 213. 6 Sch. Dist. v. Harvey, 56 Vt. 556. Cobb v. Sch. Dist., ( Vt.) 21 A. 957. 19 7 Richardson v. Sch. Diet., 38 Vt. 602. "Monaghan v. Sch. Dist No. 1, 38 Wis. 100: Cashen v. Sch. Dist., 50 Vt. 30. 6 Tripp v. Sch. Dist., 50 Wis. 651. 10 Webster v. Sch. Dist., 16 Wis. 316. 290 PUBLIC SCHOOL LAW. school, with the assent of a majority of the trustees, is a waiver of such dismissal. 1 In an action for services, evidence "that the said plaintiff was incompetent to manage the said school ; that she was unreasonable in her requirements of the scholars in said school ; and was uneven in her treatment of them, and partial and abusive in her treatment of certain ones in said school, and that she failed in all respects as a teacher of said school," was admissible. 8 An action on the case by a teacher will not lie against the school directors for removing her when they acted within the scope of their authority, unless malice and injury were the impelling motives. 8 The certificate of school teacher as to morality is not conclusive, and the power to revoke a certificate does not prohibit or prevent the board of directors from terminating a contract on the ground of in- competency or gross immorality. 4 " The delicate nature of the duty devolved upon the trustees, to see that unfit or incompe- tent persons are not put or kept in charge of the children who attend the common schools, forbids the idea of a trial with the formality and strictness that belongs to courts." 5 The directors of a school district may undoubtedly discharge a school teacher for incompetency or neglect of duty. 6 The trustees of a public school (N. Y.) may terminate the employment of the teacher at pleasure, and the only remedy is on the contract. 7 The teach- ers of the city (of New York) are simply employes of the trus- tees. 8 A teacher discharged by directors for incompetency, without a compliance with Iowa Code, 1734, cannot sue for damages unless he has appealed, as required by 1829, to the county superintendent. 9 A teacher (Iowa) contracted to "faith- i Finch v. Cleveland, 10 Barb. (N. Y.) 290. 2Holden v. Sen. Dist., 38 Vt. 529. 8 Burton v. Fulton, 49 Pa. St. 151. *Sch. Dist. v. Maury, 55 Ark. 47; McCutchen v. Windsor, 55 Mo. 149. 5 The People v. Bd. Ed., 3 Hun (N. Y.) 181. e Neville v. Sen. Dirs., 36 111. 71, 73. 7 Swartwood v. Walbridge, 57 Hun ( N. Y.) 33. 8 The People v. Bd. Ed., 3 Hun (N. Y.) 179. Kirkpatrick v. Ind. Sen. Dist., 53 Iowa, 585. TEACHER, DISMISSAL AND DISCHARGE. 291 fully and impartially govern and instruct the children " ; the sub-director had a right to dismiss her for a failure to control the school, even conceding that she was not unfaithful in the discharge of her duties. 1 If a teacher proves incompetent and unable to teach the branches of instruction he has been em- ployed to teach, the trustees are authorized to dismiss him. 2 The trustees, before the time expired, paid the teacher to date, informing her that they no longer needed her services ; for such violation of their contract the trustees were not personally and individually liable. 3 260. Teacher, dismissal and discharge. A contract with teacher may be rescinded when he is charged with out- rageous crimes.* The act (70 Ohio L. 195) gives local direct- ors of schools authority to dismiss teachers for sufficient cause. 5 A district-school board has power to discharge a teacher for cause, notwithstanding employment for a certain time, (Neb. Gen. Stat. 968, 45, 56.) 6 Permission to teacher for absence can only be given by the directors as a board. 7 Under K J. Rev., p. 1076, dismissal of a teacher should be done at a meet- ing whereof all the trustees have had notice. 8 Teacher may be discharged for incompetency or neglect of duty ; 9 the law only requires average qualification and ability, and the usual applica- tion to the discharge of his duties, to fulfill his contract. 9 The board undertaking to discharge an employe, could properly do so only after taking certain prescribed steps. 10 "Under the common law, the teacher would be subject to discharge if he failed to perform his duty in any material point." 11 In Mo., under 1 Eastman v. Rapids, 21 Iowa, 590. 2Crawfordsville v. Hays, 42 Ind. 200. s Morrison v. McFarland, 51 Ind. 206. TEXAS. 389 improper conduct, or inattention ; to suspend or dismiss pupils when the prosperity and efficiency of the school make it neces- sary ; to use the school fund apportioned ; to see that the cen- sus is taken ; to hold regular meetings as prescribed and special meetings when called by the chairman or by any one of the members ; to keep separate white and colored schools ; to con- trol public-school property. No state or county officer can be interested in a school contract. Contracts with teachers must be in writing. Teacher, for cause, may suspend pupil from attendance on school until the case is decided by the board of school directors, which shall be with as little delay as possible. State board of education controls normal schools ; has no other powers. Cities, incorporated towns, and municipal corporations of the class called taxing districts, have power to establish boards of education, and to establish and maintain graded high schools. TEXAS. (Compiled by Hon. J. M. CARLISLE, State Superintendent.) Districts: One hundred forty-five counties have school dis- tricts ; the commissioners' court fixes the boundaries. Change by majority vote of each district affected by the change. Citi- zens meet on the first Saturday in June and elect three trustees, who must be able to read and write. Notices are sent out by the commissioners' court as for other elections. Seventy-five counties have no fixed districts. They are called community counties. The citizens of each community petition the county superintendent each year for a school, and that certain named persons be appointed trustees. The patrons of any school are not limited as to territory. There is no continued organization. Powers of District Trustees : They contract with teachers, determine the number of schools in the district, the location of each, and when schools shall open and close ; they manage the schools, subject to the regulations of the county and state super- intendent ; they approve all vouchers ; they are not allowed to create deficiency debts; they can dismiss teachers, but the 390 SYNOPSES OF SCHOOL LAWS. teachers so dismissed may appeal to the county and state super- intendents; they may employ assistant teachers. In cities, towns, and taxing districts, the trustees have increased powers as to the general management of the schools, and are not limited as to the salaries of teachers. Contracts, Supplies, War- rants: The trustees contract with teachers, subject to the limita- tion as to salaries and certificates fixed by law and the approval of the county superintendent. The contracts of cities, towns, and taxing districts are not required to be approved by the county superintendent. They buy all supplies, make repairs, and have school-houses built. They cannot, under the law, create deficiency debts for teachers' salaries or other purposes. All warrants must be approved by the county superintendent, and his permission must be obtained before warrants for sup- plies, repairs, or buildings, are drawn. Teacher cannot con- tract until he has a valid certificate. In the rural schools and in the non-taxing towns salaries are limited to the grade of the certificate held third grade $30, second grade $50, first grade $75. They may receive tuition collected from pupils over and under school age, and from those who attend from other districts, or this may go for extending the school term. Teachers 1 Certificates: Each county has an examining board three teachers with first-grade certificates; questions are furnished by the state superintendent. Examinations are held quarterly. These certificates are good only in the county in which they are issued. A third-grade certificate is good for one year, a second-grade for one or two years, according to the grade made, a first-grade good for one, two or three years, ac- cording to the grade made. A summer normal institute is held in each senatorial district each year. First- and second-grade certificates are issued, good for two years. Questions are pre- pared by the state superintendent, and graded by a state board appointed by him. State certificates are granted once a year on specified subjects, papers being graded by a state board. Life certificates are granted to B. S. and A. B. graduates of first- VERMONT. 391 class colleges, provided each candidate has taught five years in Texas. Pupil Punishment Rules : The rules are left to local trustees. A pupil may be suspended for the remainder of any school year on account of incorrigible conduct. State Superintendent: He may issue directions in all cases wherein the law makes no provisions, or when hardships or delays will result without such rules. He is the executive officer of the state in all educational matters. He has power to withhold the compensation of teachers and school officers until the required reports are made. He submits forms for reports, hears appeals from the rulings and decisions of the county superintendents, and acts as secretary of the state board of education. County Superintendent: He has the general supervision of all the schools in his county ; he visits all the schools, approves all vouchers against the school fund, and makes a report to the state superintendent. VERMONT. System: Superintendent of education, town superintendent, towns, districts ; superintendent to have general supervision ; shall hold teachers' institute in each county during his biennial term ; shall visit, lecture, advise. Graduate normal school hold- ing ten-years' certificate, teaching 200 weeks, may obtain a re- newal good until revoked. Graduate of highest course of normal school in another state may obtain certificate to teach in any county. Towns may be organized into districts and may be di- vided into districts, or several towns may unite and form a dis- trict. District at Annual Meeting elect a moderator, clerk, collector, treasurer, one or three auditors, and a prudential com- mittee of one or three persons, and may elect the collector of town taxes. Prudential Committee employ teacher, remove him when necessary, and may adopt measures not in conflict with town superintendent. Prudential committee, when not prohibited by vote, may permit use of house for religions or other purposes. Schools may be maintained under the town sys- tem. Town central school system for advanced pupils may be 392 SYNOPSES OF SCHOOL LAWS. adopted. Town system may be abolished. School age is five to eighteen years. Compulsory education is required. Text- Books may be changed every fifth year. Any town or district may purchase and hold text-books for use in its schools if it so votes in a meeting warned for that purpose. The county su- pervisor and county board of education are abolished, and town superintendents restored. The state superintendent and gov- ernor shall appoint in each county an Examiner of Teachers, and fill vacancies. Examiners to consult with town superin- tendents and hold suitable number of examinations of teachers in spring and autumn ; may employ suitable person to examine ; shall issue certificates on examination papers and report of per- son conducting examination ; if examiner is unable to issue cer- tificate, state superintendent may. No person to teach without certificate ; exception as to principal of highest department in graded schools ; teachers to be not less than seventeen years of age. Three grades of certificates to be issued by examiner : first grade to one teaching forty weeks, with examination papers of grade required by state superintendent, good for five years in any town in the state ; second grade to one who has taught twelve weeks, and whose examination papers are of grade re- quired by state superintendent, and good for two years in any town in the state ; third grade limited to a particular school and not to exceed one year. Examiner may be removed by state superintendent and governor for cause. Superintendent of Education shall prepare questions for examination and blanks for teachers' certificates, and fix the standard required. Town Superintendents may issue permits to teach a particular school for a single term, not to be renewed more than three times to anyone. Town superintendent of each town shall have power to dismiss any teacher who is incompetent. Nothing in the above shall interfere with existing arrangements of such towns as may be acting under the town system of schools ; and the chairman of the school directors shall perform the duties of the town superintendent. School districts hold annual meeting on the last Tuesday of March. VIRGINIA. 393 VIRGINIA. (Compiled by Hon. JOHN E. MASSE Y, State Superintendent.) Each county is subdivided into school districts ; three trus- tees for each school district constitute district school board ; district trustees of a county constitute county school board. Each district board elects from its members a chairman and a clerk. Duties of District School Boards : Explain and en- force school laws, rules, regulations, and observe same ; employ and dismiss teachers ; suspend or dismiss pupils ; decide who may receive text-books free (refers to indigent pupils) ; see that school census is taken ; hold regular meetings ; call meeting of people for consultation in regard to school interests of districts ; to make estimates of school funds ; manage and control school property of district ; make reports to county superintendent ; to visit schools, etc. District Boards make contracts (writ- ten) with teachers, purchase supplies, and issue warrants in payment of teachers' salaries and incidental and other expenses. Under the constitution, the state board of education provides for uniformity of Text-Books. The state board prescribes a list of books from which county and city school boards select. (State board is composed of the governor, superintendent pub- lic instruction, and attorney-general.) Teachers elected by district boards ; must hold certificate issued by superintendent of county or city in which they purpose teaching ; elected by district boards from list licensed by county or city superin- tendent ; must enter into written contract with district board. Schools free to all persons between the ages of five and twenty- one years residing within district; white and colored pupils taught in separate schools. State Superintendent Du- ties: Chief executive of school system; see that school laws .are faithfully executed ; use all proper means to promote a de- sire and appreciation of education among the people ; determine true intent and meaning of the school laws and regulations,