THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES DECISIONS | OF THK SUPERINTENDENT OF COMMON SCHOOLS STATE OF NEW-YORK. BY JOHN A. DIX, SUPERINTENDENT. TOGETHER WITH THE LAWS RELATING TO COMMON SCHOOLS, AND THE FORMS AND REGULATIONS PRESCRIBED FOR THEIR GOVERNMENT. PUBLISHED BY AUTHORITY OF THE LEGISLATURE, ALBANY: FKINTED BY CKOSWELL, VAN BENTHU7SEN fe BUKT, 1837. [Entered according to Act of Congress, in the year one thousand eight hun- dred and thirty-seven, by JOHN A. Dix, in the Clerk's office of the Dis- trict Court of the Northern District of New-York.] Stack Annex 1-2-37 PREFACE. The decisions of the Superintendent of Common Schools con- tained in this volume were arranged and prepared for publica- tion under circumstances which are explained in a communica- tion to the legislature, of which the following is an extract : "STATE OF NEW-YORK, > SECRETARY'S OFFICE, ) Albany, 4t h January, 1837. "TO THE LEGISLATURE. "The Superintendent of Common Schools begs leave to state, that he has collected and arranged in a form similar to that in which cases decided in the Supreme Court are reported, the de- cisions which have been pronounced by his predecessor and himself in matters of appeal brought before them for adjudica- tion. This collection is designed to embrace every important case which has been decided by the Superintendent; and for the purpose of rendering the decisions more serviceable as precedents, each one is accompanied by a brief statement of the principle or rule which it establishes, or what may with greater technical propriety be denominated a note of the case, and with, a suc- cinct recital of the facts, where such recital is essential to a clear comprehension of the subject matter of adjudication. A very large proportion of the cases reported consists of opinions given upon ex parte statements ; but as the facts accompany the opi- nions, they will show as clearly as decisions pronounced in mat- ters of appeal, what would be the issue of an adjudication by the Superintendent in a similar case, and they will therefore have the same utility as precedents. -.' * * IV PREFACE. "The decisions of the Superintendent have always been divest- ed, as far as possible, of technicalities. The aim has been to render them so plain that there should be no room for misappre- hension, even with those persons who are wholly unacquainted with legal maxims or forms. They have been reported with a strict regard-to the same object ; and if they have the recommen- dation of clearness and simplicity, all that was in view will have been attained. " If each school district were to be put in possession of a copy [of the decisions,] it is believed that applications to the Superin- tendent for his opinion would be less frequent, and that appeals would often be prevented in cases in which they are now made ; as persons thinking themselves aggrieved, would almost always be able to find among the reported cases, one so nearly similar to their own, as to remove all doubt as to the result in the event of an adjudication by the Superintendent. It would, therefore, be reasonable to expect that the inhabitants of school districts would in numerous instances adjust by amicable arrangement matters of difference, which, for want of such a guide, would have been brought before him for decision. Thus not only would the delay, trouble and expense of a controversy be avoid- ed, but there would be no incentive to that feeling of hostility which is too often engendered during the prosecution of appeals, and which frequently continues to disturb the harmony of school districts and to shed an unhappy influence upon the schools themselves, long after the subject matter of contention has been disposed of. The advantage to the Superintendent of having it in his power to refer disputants to a decision applicable to the matter of controversy between them, would be great ; for, in case of an application for his opinion, he could, by a mere reference to a reported case, avoid the necessity of entering into the same explanations, as he is now compelled to do in a multitude of cases, where the facts and the rule applicable to them are the same. " There would be no difficulty in publishing the work at pri- vate cost, if the Legislature should not think proper to authorize PREPACK. V its publication at the expense of the State. In the former case, the benefits to be expected from it would be but partial. The publisher would endeavor to realize as large a profit as possible; and the price would probably be such that its circulation would be comparatively limited. The work has been voluntarily un- dertaken and executed by the Superintendent, with the sole view of rendering the common schools a service. He has con- sidered his time, as well as the materials on which he has been employed, as the property of the public ; and the work is respect- fully presented to the Legislature, with the desire that it may be disposed of, should it be deemed worthy of any action on their part, in such manner as they may deem most useful and proper. 'JOHN A. DIX." This communication was referred to the committee of the Assembly on colleges, academies and common schools, who re- ported a bill, which passed both houses and became a law, and of which the following is the first section : AN ACT concerning Common Schools. Passed May 1, 1837. The People of the State of New- York, represented in Se- nate and Assembly, do enact as follows : \. The Superintendent of common schools is directed to publish, for the use of the common schools in this state, the se- veral acts now in force relating thereto, together with such de- cisions as may have been made by said Superintendent, and his predecessors in office, in matters of appeal brought before them for adjudication: and he shall also furnish one copy to each town clerk for the use of the commissioners and inspectors of common schools. The office of Superintendent of Common Schools was created by chap. 242 of the laws of 1812, and Gideon Hawley was ap- pointed to fill it. He continued in office until February, 1821, when Welcome Esleeck was appointed in his place. In April of the same year, the office was discontinued as a distinct depart- VI PREFACE. % *_, - ^ ment, and the duties were assigned to the Secretary of State, who has since that time been ex officio the Superintendent of the Common Schools. At the time of this change, John Van Ness Yates was Secretary of State. During the administration of the department by Mr. Hawley, the Superintendent had no appellate power with respect to the determination of controversies arising in school districts. This power was first given while Mr. Yates was in office. Although numerous decisions were made by the latter, copies were not pre- served in his office. His practice was to send them to be recorded by the commissioners of common schools of the towns, or the trustees of the districts, in which the cases arose. Abstracts of some of them were appended to a new edition of the School Laws which he was directed to publish in the year 1822 ; and a reference to a few of them will be found in this volume, as well as to the exposition by Mr. Hawley of the early laws relat- ing to the common schools. In 1826, Azariah C. Flagg was appointed Secretary of State, and from the commencement of his administration of the com- mon school department down to the present time, a continuous record of decisions has been preserved. Mr. Flagg continued in office until January, 1833, when John A. Dix was appointed in his place; and for the reasons be- fore assigned, this volume contains only the decisions pronounc- ed by these two officers. Should this publication have the effect of diminishing the num- ber of controversies in school districts, or lead to an amicable set- tlement of them before they shall have ripened into feuds, and thus contribute to the preservation of that spirit of harmony on which the social comfort of parents, and the intellectual im- provement of their children are alike dependent, the undersign- ed will be amply repaid for the labor expended in preparing the decisions for the press. JOHN A. DIX. Albany, August 1, 1837. ERRATA. Page 1. 1st line from bottom, for 42 read 43. " 14.10th " " strike out marks of quotation. " 16.15th " " between " the" and " owner" insert noti-rttidtnt. " 18. 9th " " for King read Ring* " 28.9th " " after "others" insert 18 Johnson, 351, " 69. 14th " top, for "their" read its. " 127. 5th " top, for "moneys" read "money" " 142. 14th " bottom, for "officers" read "offices" "274.19th " " after "each" insert other. "334.11th " " for "there" read their. DIRECTIONS TO THE COMMISSIONERS OF COMMON SCHOOLS. The Commissioners of Common Schools, on receiving the copies of this work, which will be sent to them for distribution, will deposite one copy with the Town Clerk for the use of the Commissioners and Inspectors of Common Schools of the town ; and they will distribute the residue among the school districts in their respective towns, giving one copy to each district. Before they deliver a copy to a joint district, they must satisfy them- selves that it has not already received one from the Commissioners of the other town or towns in which such district partly lies. The work has been printed at great expense to the state ; and the utmost care must, therefore, be taken in distributing the copies according to the intention of the law. It is hoped that equal care will be taken in preserving them for the use of the towns and districts to which they are furnished. If after all the dis- tricts in a town are supplied, there should be surplus copies re- maining on the hands of the Commissioners, they should ascer- tain whether there is not a deficiency in some adjacent town, and in such a case the surplus copies should be delivered to the Commissioners of the town in which such deficiency exists. When a new district shall be hereafter created, it will be fur- nished with a copy by the Superintendent of Common Schools, on a certificate from the Commissioners that such district wa? formed subsequently to the distribution of the work, and that it has not received a copy. CASES DECIDED BY TUB SUPERINTENDENT OF COMMON SCHOOLS OF THE STATE OF NEW- YORK, FROM 182G TO 1837, INCLUSIVE. The Commissioners of Common Schools of the town of Lorraine, ex parte. The formation of a new district not having been recorded at the time it was formed, on application to the Superintendent of Common Schools, the com- missioners will be authorized to enter their proceedings of record. On the representation of two of the commissioners of common schools of the town of Lorraine, it appeared that district No. 11 in said town was formed on the petition of the freeholders and inhabitants of districts No. 3 and 7, and that the order of the commissioners was left with the town clerk, who was requested to record the same on the 15th Dec. 1825. By the neglect of the town clerk the order was not recorded. By. A. C. FLAGG, March 29, 1826. Ordered, that the acts and doings of the commissioners of common schools of the town of Lorraine in the organization of district No. 11, be entered of record, in conformity to the llth section of the act entitled "An act for the support of common schools," passed April 12, 1819.* The Commissioners of Common Schools of the town of Starkey, ex parte. The formation of a new town does not affect the organization of school districts. A district intersected by the line of division between the new town and the town from which it is taken, becomes a joint district. By an act passed April 6th 7 1824, a part of the town of Read- ing was set off and erected into a new town by the name of Starkey. The first town meeting was held in Starkey in March, * Sec. 42, page 474, vol. 1, f. S. 1 2 CASES DECIDED BY THK and in Reading in April, 1826. By the division referred to, school districts No. 7 and 8, were intersected by the line dividing the two towns, and the commissioners of common schools of the town of Reading applied to the Superintendent to be instructed as to the effect of the division upon the above mentioned districts. By A. C. PL AGO, May 20, 1826. The statute relating to common schools, authorizes the organization of school districts without reference to town or county lines. The alteration of a town line, therefore, does not, as a matter of course, break up or disorganize a school district. And where the line of a new town runs through a school distiict, the commissioners of the old and new town should regard a district thus intersected by a town line, as a joint district. The law seems to contemplate that school districts should be formed with a view of accommodating neigh borhoods, without regarding the divisions into towns and coun- ties, except where the inhabitants would be as well accommoda- ted by regarding such lines. It is not a matter of any particular consequence to the inhabitants of a district, whether or not an imaginary town line runs through their district. But it is a sub- ject of deep interest to them that their school district should not be disarranged; because it is by keeping up their organization, and complying with all the requirements of the law, that the trustees are enabled to make such report as will entitle the dis- trict to the public money. The same steps must be taken to reorganize or dissolve dis- tricts composed of parts of both towns, as if those districts had been formed by the commissioners of both towns after the divi- sion of the town of Reading. The Trustees of School District No. 1 in the town of Lansingburgh, ex parte. An error or omission in the assessment roll of the town may be corrected or sup- plied by the trustees of a school district in making oat a tax-list. In assessing a tax to be levied for the purpose of erecting a school-house in district No. 1, in the town of Lansingburgh, the trustees believing that the valuation of some of its taxable pro- perty by the town assessors was erroneous, but doubting their power to correct the assessment roll, addressed to the Superin- tendent the following question, viz : "Are the trustees of a school district bound by valuations put upon property by the town assessors, or may they exercise a discretion and vary the valua- tions accordingly ?" By A. C. FLAGG, June 5, 1826. The law provides that the valuations "shall be ascertained and taken from the then last assessment roll of the town, so far as the same can be ascertain- ed and taken therefrom." Where it cannot be thus ascertained. SUPERINTENDENT OF COMMON SCHOOLS. O the trustees can " inquire into and ascertain the same from the best evidence in their power." Sec. 25, act of April 12, 1819.* Where there is a known error in the town assessment, the trustees may correct it in the district assessment. For instance ; if a resident of the district should purchase or sell a lot after the town assessment had been made, the trustees would be re- quired to vary the district assessment accordingly. But where there is no change in the property of the individual, and the va- luation is a matter of opinion merely, the trustees must be guid- ed by the assessment roll of the town, even though in their judg- ment a farm be worth more or less than the estimate put upon it by the town assessors. Edmund Whittier against the inhabitants of school district No. 11 in the town of Ogden. An appeal to the Superintendent will not be entertained when the point at issue has been settled by an adjudication upon the same case in a court of compe- tent jurisdiction. This was an appeal from the proceedings of a meeting of the inhabitants of school district No. 11 in the town of Ogden, at which a tax of $250 was voted to build a school-house. The facts are fully set forth in the decision of the Superintendent. By A. C. FLAGG, June 23, 1826. It is alleged that the vote imposing the tax was carried by the admission on the part of the moderator of the illegal votes of William Hill and Alsen Smith. The appellant has presented a number of affidavits to show that Hill and Smith, in the opinion of those who testify, were not legal voters. The affidavits set forth generally that the per- sons testifying have no knowledge that Hill and Smith were le- gal voters, and from their situation and circumstances do not be- lieve they were. On the other side, the record of proceedings before a magis- trate is produced and duly authenticated, by which it is shown that Hill and Smith were prosecuted for having voted, without being entitled to vote by law, and that on the trial of the cause it appeared that they were legal voters at the time of the meet- ing, from the proceedings of which the appeal is brought. In addition to this, Smith and Hill testify that, they were at the time of the meeting worth fifty dollars in taxable property. The Superintendent feels bound to recognize the decision of the court as having settled the point that Hill and Smith were legal voters. This being the only point at issue, it is ordered, that the appeal in this case be dismissed. * Sec. 79 and 80, pages 4S2 and 483, vol. 1, R. S. 4 CASES DECIDED BY THE Zeno Allen and others against the Trustees of school district No. 1 in the town of Hounsfield. If the children residing in a school district are too numerous to be instructed in one school, the trustees may hire one or more additional teachers and the ne- cessary rooms for the accommodation of the additional schools, when authori- zed by a vote of the inhabitants; but the compensation of the teachers must be provided for in the same manner as though only one instructor had been employed. The daily opinions of the Superintendent, given in reply to abstract questions and ex parte representations, are not to be classed among those decisions which the law declares to be final. This appeal was brought from the decision of the majority of the trustees of school district No. 1 in the town of Hounsfield, under the following circumstances: The inhabitants of the district, which was composed of the village of Sackett's Harbor, finding the number of children too great for one school, and disagreeing as to the division of the district, voted, at a meeting held on the 8th of January, 1824, that the trustees should employ one or more additional teachers, and hire separate rooms for them, and voted a tax to pay the rent. They also voted that the public money should be divided among the teachers in proportion to the number of scholars taught in each school. These proceedings were sent to the Su- perintendent, (John V. N. Yates) who sanctioned and confirmed them, and ordered them, together with his approval, to be re- corded in the town clerk's books. In the fall of 1824, the trustees hired two teachers and a room for the additional school, and gave the inhabitants permission to send to either, as they might choose. The result was that the number of scholars in one of the schools was nearly double the number in the other. This circumstance gave rise to a differ- ence of opinion among the trustees : two of them were in favor of applying the public money equally to the compensation of the teachers, and assessing the balance on the patrons of the schools in proportion to the number of days sent to either or both. The other trustee objected to that mode of compensating the teachers, and obtained an opinion from the Superintendent in favor of his own, which was in conformity to the vote of the inhabitants of the district on the 8th Jan. 1824. Being overruled by a majo- rity of the trustees, an appeal was brought in the spring of 1826, from the determination of the latter to provide for the payment of the wages of the two teachers without regard to the number of scholars taught by each. By A. C. FLAGG, June 20, 1826. In whatever light this question is taken, I conceive that district No. 1 must be consi- dered one district under the control of one set of trustees, and that all the rules for the government of distinct districts are ap- plicable to this? The law in providing for the distribution of the SUPERINTENDENT OF COMMON SCHOOLS. 5 public money, recognizes certain geographical divisions ; such as counties, towns and districts. In the 5th section of the act of 1819,* the Superintendent is required " to apportion the said sum of money among the several counties of this state, and the several shares of such counties among the several towns and cities there- of," in the ratio of the population "of such counties and towns or cities." The 15th section requires the commissioners to apportion the public money received by them '-'according and in proportion to the number of children between 5 and 15," &c.f And the 26th section, taken in connexion with the 25th, provides that the trustees shall " agree with and employ all teachers to be em- ployed" in the district ; and to " pay the wages of such teachers out of the moneys which shall come into their hands," &c., and ' ; the residue of the wages of such teachers shall be collected by the trustees" by a tax which is to be assessed upon the inhabi- tants of the district, " according to the number of days for which each" person " shall be liable to pay for instruction," chap. 320 of the laws of that year, sec. 6 and 6. t Sub. 6 of sec. 20, page 470, vol. 1, R. S. J Sub. 7 and 8 of sec. 75, page 481, vol. 1, R. S. 6 CASES DECIDED BY THE all in the same district. There is no authority in the law for such an unequal distribution, and I conceive that it is irreconci- lable with the principles of equity. What equivalent is given to the patrons of Shepard's school to warrant this great dispro- portion in the assessment ? None, which is entitled to conside- ration. The patrons of the small school are not formed into a separate district by their own request, and designated by name as belonging to one school, nor are they bounded by the designa- tion of certain geographical lines on account of any local accom- modation to their children. But the taxable strength of their sub-district is to be settled by chance ; subject to be affected by the inclination or caprice of others. They continued in good faith in the school, as requested by the trustees, relying upon the assurance that the charge for tuition would be alike upon all the members of district No. 1. Their neighbors changed to the other schools, and thus left the parents of thirty scholars, who had no volition HI the case, to pay as much for tuition as the pa- rents of a hundred scholars ; and all this under the authority of the same trustees. This view of the subject is forcibly illustra- ted by the fact that some members of the district actually sent to all three of the schools. And here it might be welt to en- quire what rule the trustees should adopt in making out the as- sessment against a person who should have sent to all the schools : Should it be 8| mills per day for the time sent to Cha- plin; 2i cents for the time sent to Everett; and 3 cents for the time sent to Shepard ? In this way, they might require a diffe- rent scale of assessment for almost every person in the district. As to the vote of the district it is only necessary to say that a tax voted by a district meeting must be an equal tax, according to property, upon all the inhabitants of the district. The reso- lution passed in Jan., 1824, contemplated a division of the pub- lic money "according to the number of scholars taught in each school." It was expected, no doubt, by the meeting, that the schools would be equally attended, and consequently the money equally apportioned. It is not to be inferred from the terms of this resolution that the meeting could have contemplated an in- equality in the distribution of the public money or in the appor- tionment of the tax. This inequality was caused by those who disregarded the efforts of the trustees in their attempt to equalize the schools. But the present trustees are protected by a subse- quent vote of a meeting, which is, " That the teachers' wages be paid by a tax on the scholar, after the public money is ex- pended." This was a vote taken at a meeting of the whole district ; it must have had reference to all the inhabitants of that district taken collectively, and to the aggregate amount of tui- tion required for district No. 1. In collecting the teachers' wa- ges " by a tax on the scholar," it was the obvious duty of the SUPERINTENDENT OF COMMON SCHOOLS. 7 trustees to assess each person according to the number of scho- lars sent by him ; that is, in proportion to the amount of tuition which had been received by his children, having relation to all the other inhabitants of the district. It could not have had re- ference to the number of scholars which might by chance be sent to one or the other of the three schools. The opinion given by the Superintendent to the trustees of 1824, could only apply to that special case. It could not be con- sidered permanent in its character, on the ground that it was the Superintendent's construction of the school act ; for a diffe- rent rule is established in that act in regard to taxes and distri- buting the public money in districts. And the appellants can- not claim an adherence to its principles as a decision under the 7th section of the act of 1822. That act provides that persons aggrieved by decisions of the trustees, &c., may appeal to the Superintendent, " whose decision thereon shall be final" The fact of establishing a tribunal from which there is no appeal, does not consequently give the Superintendent unlimited juris- diction. So far from this it ought to be an admonition to exer- cise this authority with great caution and circumspection, and not until after a hearing of both parties, and an examination of all the facts in the case. In this case, the opinion of the Super- intendent appears to have been given on an ex parte represen- tation, and must be considered merely advisory, and applicable to that special case, based upon the representations made. It is only in cases of appeal that the decisions of the Superintendent are declared by the law to be final; and in such cases the law pre-supposes that there will be a hearing of both sides and a full investigation of the rights of both parties, preparato- ry to making such decision. The daily opinions of the Super- intendent given in reply to abstract questions and ex parte re- presentations, cannot be classed among those decisions alluded to in the act of 1822, and which are declared to be final. It would be unjust to allow the opinions thus given, in reply to abstract questions, .to affect the rights of individuals beyond the cases in which they were specially given. If it is contended that those who sent to the large school re- lied upon the order of the Superintendent, it might be asked in what respect they have injustice done them 1 According to the decision of a major part of the trustees, they are called upon to pay only an equal proportion of the expense of the tuition which was requisite for the first district. Is this a hardship ? What entitles them to exemption ? The only reason urged by the ap- pellants is, that their children suffered the inconvenience of at- tending a crowded school. But this was a matter of choice with themselves ; and if they sent an unreasonable number of scho- lars to the school^ against the wishes of the trustees, they can- Hot expect to take advantage of their own wrong. 8 CASES DECIDED BY THE It is a well settled principle that taxation to be just must be equal. It is inequality which renders taxes intolerable and fur- nishes a good cause of complaint. There is no authority given in the school act, or in the general act for the assessment and collection of taxes, for making any other than an equal assess- ment, graduated according to the property and ability to pay oi each individual. This equality is not only kept up among the different persons of the same town, but by the 19th section of the act for the assessment and collection of taxes, boards of su- pervisors are required to compare the rolls of the different towns ; " to ascertain whether the valuations in one town bear a just re- lation or proportion to the valuations in all the towns in the county." I am unable to discover any good reason which would authorize a departure in relation to any of the citizens of dis- trict No. 1 from this equitable principle which is recognized in all our systems of taxation. After a full consideration of the appeal of Zeno Allen, one oi the trustees of district No. 1 in Hounsfield, and Hiram Steele. and others, inhabitants of said district, and after a hearing of the evidences produced by Messrs. Canfield and Jenison, two of the trustees of said district, as well as of those produced by the said appellants, the Superintendent of Common Schools de- cides, that the appeal of the said Zeno Allen and others, be din- missed, and that the major part of the trustees of district No. 1 in Hounsfield in the county of Jefferson, have acted correctly in the distribution of school money and in the assessment for the collection of the residue of teachers' wages in said district, and that the collector of district No. 1 will proceed to collect said as- sessment under the direction of the trustees, or a major part of them, according to law. The Trustees of school district No. in the town of Greece, ex parte. Land purchased after a tax is voted, but before the tax-list is made out, must be assessed to the purchaser if he resides in the district. A tenement leased for a school-house cannot be taxed. Veesels, canal-boats, &c., are not exempt from taxation. This was an application to the Superintendent to decide cer- tain questions, which arose among the trustees of district No. in the town of Greece, in assessing a tax voted by the inhabi- tants of the district for the purpose of leasing and repairing a tenement to be used as a school-house. The questions present- ed by the trustees are subjoined, with the answers of A. C. FLAGG annexed, March 30, 1826. Question 1. Can land, which was purchased after a tax wa voted, and before the tax-list was made out, and which was tax- SUPERINTENDENT OF COMMON SCHOOLS. ed as non-resident property in the last town assessment, be as- sessed to the purchaser, he being a resident of the district. ? Answer. Land purchased after a tax is voted, but before the tax-list is made out, may be assessed to the purchaser, he being a resident of the district, notwithstanding it may have been as- sessed as non-resident land in the last town assessment. The 25th section of the act of 1819, requires the trustees to make out a rate bill or tax-list of " all the taxable inhabitants residing in their district, at the time of making out sucJi rate bill or tax- list"* &c., " according and in proportion to the valuations of the taxable property which shall be owned or possessed by them at the time last aforesaid"^ which is the time when the list is made out. They are required to refer to the town assessment for the valuations of the property, but not for a list of the own- ers or occupants ; and the town assessment is not obligatory on them even for the valuations, only so far as it is a correct guide. Question 2. The house, which has been leased, is it taxable to the lessor ? Answer. If the school-house is meant, it cannot be taxed. The 3d section of the "Act for the assessment and collection of taxes," passed April 23d, 1823,1 in the exemptions from taxes, includes school-houses and the lands upon which they stand. Question 3. Are vessels, canal-boats, ade out by the trustees : it is therefore taken as embracing all the fact? which are necessary in a decision of this question. The ultimate object of the school system is to secure to each school district in the state a rateable proportion of the public money as an inducement and encouragement to the employ- ment of competent instructors, and the establishment and con- tinuance of good schools. To effect this object, regulations, and a strict observance of them, are necessary. But where the inhabitants of a district have complied with all the substantial requirements of the law, although the trustees may have omitted some fact, it is better to allow the report to be corrected, than to deprive a district of its equitable portion of the school moneys : For the deprivation falls on the inhabitants of the district, and they have complied with the conditions of the law in fact, although their trustees have not in form. If the report had not been furnished before the commissioners met, the money would have been apportioned, and the district would have been without remedy ; the other districts being interested in having a prompt distribution of the money. But this report seems to have been made before the commissioners met to distri- bute the money, and therefore could not have occasioned delay or worked an injury to the other districts of the town. The second objection relates to an omission of the names of the parents and guardians of the children between 5 and 15, agreeably to an amendment of the school act, passed in 1823. SUPERINTENDENT OF COMMON SCHOOLS. 11 This amendment has not been distributed to the school districts, and as the trustees were newly elected, and called upon the town clerk for the law, and as he gave them the "act for the support of common schools" published and distributed by order of the Superintendent, they had a right to suppose that this act con- tained all the law on the subject ; and it would be unreasonable that a district should lose its rights for an omission under such circumstances. The object of requiring the names of parents and guardians, is to enable the commissioners to test the accuracy of the num- ber of children returned by trustees : without this, where con- troversies existed as to the lines of districts, the same children would be returned by two sets of trustees, and the reports could not be impeached. By giving the names, a remedy is furnished for such difficulties. In the case of .district No. 1, the accuracy of the list of children is not questioned, and the rights of other districts are not prejudiced by this omission to give the names of parents. Under all the circumstances of this case, it is decided, that the report of the trustees of district No. 1 in Athens, be accepted by the commissioners, and that said district is entitled to its just proportion of the school money. The trustees of school district No. 4 in the town of Orangetown, ex parte-. None but children residing in a school district can of right be benefitted by the public money. But if children not residing in the district are admitted into the school, their pa- rents should be apprised of the conditions on which they are received. This was an application to the Superintendent for his direc- tion on the following case: An inhabitant of school district No. 4 in the town of Orangetown, sent to the district school three of his grand children, who resided with their father in the state of New- Jersey, near the line of the district ; the grand parent, who owned about one fourth of the taxable property of the district, holding himself responsible for their tuition. By A. C. FLAGG, July 27, 1826. The question presented by your letter of the 20th is, whether children residing in an- other state, and not incorporated in the district, can participate in the public money. There is no provision in the law to ex- tend the benefit to any except resident children of the district. Indeed the trustees can exclude all children except those who are residents of the district, even from attending the school. In the exposition of the school act, page 35, Mr. Hawley says, " If children not residing in the district be permitted by the trus- tees to attend their school, as such permission might have been 12 CASES DECIDED BY THE withheld, it may, and ought if granted, to be on condition that no part of the public money shall be applied for their benefit." But in the case presented in district No. 4 in Orangetown, it appears that the trustees granted permission to non-resident chil- dren to attend the school, on the application of a resident and taxable inhabitant of their own district, and without any condi- tions, save those which were common to all the children of the district. The school is closed, and you are now to apply the public money and collect the residue of the teacher's wages from the inhabitants who are liable therefor. The public money is paid, as far as it goes, towards extinguishing the sum total of tuition expenses for the district. The parent of the children be- ing out of the state, has no claim to any benefit from the school money; and if the children as a matter of favor had been ad- mitted on his application, he would have been bound to pay the full expense of tuition. But he is out of your jurisdiction, and cannot be taxed ; and indeed he has made no contract with the trustees, and is not on any principle expected or required to pay. The legal claim of the trustees is against the grand-father of the children ; he made the contract, and he is bound to pay accord- ing to the conditions of his contract. He being a resident of the district, and as the trustees admitted scholars on his re- quest, without conditions, common usage would guarantee to him the conditions which were usual for all the taxable inhabi- tants of the district. The justice of having the conditions es- tablished at the commencement of the school, if any discrimi- nation was to be made, is obvious : it might have been one in- ducement with the grand-father, in becoming accountable for the tuition of the children, that he could give them the advan- tages of school privileges which he had been taxed in common with others to acquire. Then w r as the time for the trustees to inform him that the children could not be admitted to the privi- leges of the school, on his request, unless he would pay full tui- tion without the benefit of the public money. Unless there ex- ists some special cause, the trustees must assess all the tax pay- ing citizens of the district at the same rate per scholar, and if would be unfair to apply special conditions to the prejudice of the interests of an individual unless the terms were made known to him at the time the contract or application was made for the tuition of the children in question. The admission of non-resident scholars is an act of favor al- together. There is no law for admitting them at all ; district^ and trustees accede to it as a matter of courtesy or accommoda- tion, and the trustees can dictate the conditions ; they can re- quire foreign scholars to pay full price for schooling, and also for house rent ; but having in this case exacted none of these con- ditions, and having consented that the children should be mem- SUPERINTENDENT OP COMMON SCHOOLS. 13 bers of their school, on the application and responsibility of one of the inhabitants of their own district, they can only make, out an equal assessment, according to the scholars sent, upon all the tax paying inhabitants in the same district. In future, as there is no law in favor of the admission of scho- lars from another state, the trustees ought not to admit them, unless upon such conditions as will protect most scrupulously the interests of residents of the district. The Commissioners of Common Schools of the town of Burns, ex parte. On the division of a town and the formation of a new one, the commissioners of common schools of the new town cannot disturb the organization of a school district lying partly in both, without the concurrence of the commis- sioners of the other. Inhabitants of school districts have not power to alter the boundaries of their districts. Commissioners of common schools are not authorized to change the site of a dis- trict school-house, although their consent to such change is necessary in some cases. This was an application from the commissioners of common schools of the town of Burns for the decision of the Superinten- dent upon their own proceedings in relation to school district No. 1. lying partly in that town and partly in the adjoining town of Dansville. By an act passed the 17th March, 1826, a part of the town of Ossian was set off and erected into a new town by the name of Burns. By this division, school district No. 1, lying partly in the town of Ossian and partly in the town of Dans- ville, became a part of the town of Burns and Dansville, all the territory of the district belonging to the town of Ossian being in- cluded in the bounds of the new town. Soon after the division, the commissioners of common schools of the new town met, to- gether with the inhabitants of school district No. 1, for the pur- pose of re-organizing the district. The commissioners resolved that the connexion with Dansville should be dissolved ; and at a subsequent meeting of the inhabitants of the district, it was declared by a resolution to that effect, that four persons residing ia Dansville, and formerly constituting a part of that district, were no longer members of it. The commissioners of the town of Burns at the same time selected a new site for the district school -house. By A. C. FLAGG, August 14, 1826. It seems that district No. 1 was originally formed from parts of Dansville and Ossian, (now Burns,) and your inquiry is, "had not the new town of Burns a right to form themselves into districts without reference to the town of Dansville ?" No. District No. 1 was originally formed by the concurrence of a major part of the commissioners of Dansville and Ossian ; and it is necessary to have a concur- 14 CASES DECIDED BY THE rence of the same authority to dissolve as to form a district. Burns stands in the same relation to district No. 1 that Ossian did, and its commissioners could not dissolve the connexion with Dansville without giving notice to the commissioners of that town. If the commissioners refused or neglected to attend, then the commissioners of Burns might have proceeded to dissolve the connexion, as provided by the 6th section of the amendment to the school act of 1822.* The vote in relation to admitting or excluding the four per- sons in Dansville is of no consequence. The district could not vote away their rights, and if they were not legal members of the district, a vote could not make them so. The 12th section of the act of 1819,t gives to the commissioners the sole power of forming, as well as altering and regulating school districts; but in this case the district meeting usurped that authority, when they determined to vote four members out of the district. "Were the acts of the commissioners legal as to fixing the site of the school-house, contrary to the voice of the district?" The 20th section of the act of 1819J authorizes the inhabi- tants of the district, or a majority of such of them as shall be present at any district meeting legally convened, to fix on the site of the school-house. A majority can designate the site ; but after it is fixed, and a house built, even a majority of a regular meeting cannot remove the site, without a certificate from a major part of the commissioners that such removal is necessary and proper. The proviso to the *^0th section is designed to give the commis- sioners a negative upon the district vote under a particular state of things. They (the commissioners) have no authority to change the site of a school-house ; they can assent to the change or object to it. The commissioners ought not to inter- fere in changing the site of a school-house, unless requested by a vote of the district : and on such request, which would be an expression of the wishes of a majority, the commissioners are to determine whether it is necessary and proper to have the change take place."|| * Sec. 65, page 479, 1 vol. R. S. fSab. 1, sec. 20, page 470, 1 vol. R. S. JSec. 61, page 478, 1 vol. R. S. & Act of 17 Feb., 1831, chap. 44. II The law in relation *o the removal of school-houses and change of their sites, has been amended in several important respects since this decision was pro- nounced, (see sec. 70 in the appendix to this volume,) though the principles of the decision, so far as the right of commissioners of common schools to change the site of a school-house is concerned, are unaltered by subsequent legislation. SUPERINTENDENT OP COMMON SCHOOLS. 15 A. B,, an inhabitant of school district No. 7 in the town of Schoharie, ex parte. In making out rate-bills to provide for the payment of teachers' wages, inhabi- tants of school districts can only be charged for so much time as their children have actually attended school. Superintendent cannot interfere with proceedings before justices of the peace ; but his opinion will be given with a view to the amicable adjustment of con- troversies. This was an application to the Superintendent for his opinion upon a statement of facts contained therein. By A. C. FLAGG, September 9, 1826. Your letter of the 8th states that a person who sent his children to a school in dis- trict No. 7 in Schoharie for two months and a half, was charged by the trustees in the warrant issued according to a vote of the district meeting for teachers' wages, with six months' tuition. On the state of facts presented in your letter, the trustees were wrong. The 26th section,* to which you refer, authorizes the trustees " to ascertain and settle by examination of the returns or school lists of their teacher by him for that purpose to be kept, and certified on oath to be just and true, the number of days for which each person not exonerated shall be liable to pay for in- struction," and to make out a rate-bill accordingly. For what purpose is the teacher required to keep a list, and the trustees to examine that list, unless for the purpose of ascertaining from it the number of days which each person has sent to school, and to charge them in proportion to the number of days actually sent ? The trustees under the authority given them to " ascer- tain and settle," are not to do it arbitrarily, but according to fair principles " by examination of the school lists." There could be no justice in charging a person for 100 days, who had sent only 50 ; and it would be extremely oppressive if trustees could arbitrarily charge a man with six months schooling, if he com- menced sending and stopped after two months. The demand of the bill at the time of withdrawing the scho- lars is of no consequence. The trustees could not make out the bill until the expiration of the school. But when they did make it out they should have taxed the individual only for the num- ber of days during which he actually sent to school. You say. that a suit has been commenced, and that my opin- ion will prevent litigation, &c. With this view it is given. There is no appeal, as you are doubtless aware, from a suit at law to the Superintendent ; and 1 am reluctant to give opinions in a case where a suit is pending. At all events, opinions thus given ought not to influence the case before the magistrates. If the parties can agree to take their cause out of court, and sub mil all the facts, I will cheerfully decide the case. * Sub.' 12, sec. 76, page 482, 1st vol. R. S. 16 CASES DECIDED BY THE * * The Trustees of school district No. 1 in the town of Middlefield against the Commissioners of Com- mon Schools of said town. The acts of an officer de facto, are valid, so far as the public and third persons are concerned. This was an appeal from the trustees of school district No. 1 in the town of Middlefield, from the proceedings of the commis- sioners of common schools of said town in setting off certain in- habitants to other districts. The ground of objection taken by the appellants was that one of the two commissioners by whom the alteration was made, did not file his acceptance of the office of commissioner until after the- expiration of 15 days from his elec- tion, and until after the performance of the official act from which the appeal was brought. By A. C. FLAGG, October 3, 1826. The principle involved in this application has been decided by the supreme court in the case of the People vs. Collins, 7th Johnson's Reports, page 549. In that case the court say, The allegation is not material that the commissioners had not caused their oath of office to be filed in the town clerk's office. If the commissioners of highways acted without taking the oath required by law, they were liable to a penalty; or the town upon their default, might have pro- ceeded to a new choice of commissioners. But if the town did not, the subsequent acts of the commissioners as such, were valid as far as the rights of third persons and of the public were concerned in them." (ANONYMOUS.) Persons leasing specific portions of a lot are to be taxed for so much as they lease. The agent or*rrvant of the owner must reside on the lot in order to subject such owner to taxation. By A. C. FLAGG^ October 18, 1826. A. owns a farm in district No. 24 of 200 acres, about 100 improved : he resides in No. 3: he leases two small lots and houses, and improves the remainder himself and by his hired men living with him." 1. The houses and lots leased should be assessed to the occu- pants ; as they lease specific portions of the same, they are ten- ants ; and Mr. Hawley in his exposition of the 25th section, p. 33, school act, says in relation to making non-residents of the district taxable therein, that " it does not apply to landlords who have tenants thereon." If the tenant ought not to pay, he has his redress upon the landlord by the 32d section of the act of 1819.* * Sec 83, page 483, vol. 1 R. S. SUPERINTENDENT OP COMMON SCHOOLS. 17 2. If A. "improves and occupies by his agent or servant" the remainder of .the farm, then he should be taxed for it ; and by the 25th section the valuation is to be taken from the then last assessment roll of the town ; in which valuation the wood-land is of course included. Mr. Yates, in the 13th decision, p. 37, has decided that a non- resident, although he may cultivate a farm himself, cannot be taxed unless the farm is occupied at the time by his agent or servant. By this occupancy he probably meant a residence on the lot. In this case there has not been such an occupancy as would render the owner liable to taxation for the remainder of the farm ; and if the tenants have leases for specific parts of the farm, they can be assessed only for such parts as are covered by their leases. Asa Philips against the Trustees of school district No. 2 in the town of Granby. Rule of taxation applied to a particular case. This case was submitted by the parties. By A. C. FLAGG, November 22, 1826. In the case submit- ted by Asa Philips and the trustees of school district. No. 2, Gran- by, Oswego county, it appears that the said Philips owns two- fifths of lot No 75 in Granby, on which are two houses, which are occupied by two men who are employed by Mr. Philips as sawyers in mills of his adjoining the premises, Mr. Philips resi- ding in another town and county. The 25th section of the act of 1819* provides that every person owning or holding any real estate lying within such district, who shall improve and occupy the same by his agent or servant, shall be taken and considered a taxable inhabitant of such district, &c. Where a family resides upon a lot, it is tp be presumed that there are scholars to enjoy the benefits of a school, and the residence of a family on the lot is such an occupancy as to justify taxation. If the individual hires the premises, and is in the character of a tenant, then he is to be taxed personally; but in this case Mr. Philips states that he employs these men as sawyers. It is therefore decided that the trustees are correct in assessing Mr. Philips for his in- terest in lot No. 75, in school district No. 2, Granby. *Sec. 77, page 482, vol. 1, R. S. 18 CASES DECIDED BY THE The Clerk of school district No. 9 in the town of New-Haven, ex parte. A new district being formeU, a notice to each inhabitant of the time and place for the first meeting is sufficient. This was an application from the clerk of school district No. 9 in the town of New-Haven, for the direction of the Superin- tendent in respect to a notice given in the manner explained in the subjoined opinion. By A. C. FLAGG, December 6. 1826. In warning a school meeting in the first organization of the district, a person liable to pay taxes notified the inhabitants that they were set off into a district, and of the time and place of the meeting. This in my opinion was a sufficient notice. The 13th section of the act of 1819* says the commissioners shall give a written notice to some inhabitant liable to pay taxes, "describing such district," &c. It is necessary for the person notifying the inhabitants to have the district described, in order that he may know whom to notify. The inhabitant notified of the school meeting has no necessity for knowing who else is notified. The notice is to him as an in- dividual. The same section defines the extent of this notice to individuals by saying when the person is absent from home, he is to be warned by leaving at his place of abode a copy of the commissioners' notice. " or of so much thereof as relates to the time and place of such meeting." This is clear and conclusive. It could not be necessary that a personal notice should be more full and particular than is required for a notice left in the absence of the person notified. Josiah Hilton and others against the inhabitants of school district No. 3 in the town of Erwin. A person taking up his residence in a school district, becomes by that act a *o- ter, if he has the requisite qualifications. If in balloting for district officers the number of ballots exceeds the number of voters, a second balloting should take place. This was an appeal by Josiah Hilton and others, inhabi- tants of school district No. 3 in the town of Erwin, from the * Sec. 55, page 477, vol. 1, R: S. In the case of King vs. Grout, 7 Wen- dell, 341, decided in 1831, the Supreme Court held that it was not indispensa- bly necessary to insert the boundaries of the district in a notice given by com- missioners of common schools for a meeting for the election of officers in school district No. 1 in the town of Ogden under circumstances somewhat similar to those which occurred in school district No. 9 above reported; though it is sup- posed that the notice in the case decided by the Supreme Court was given in consequence of a re-organization of the school district, and when there was no competent authority existing within it to call a special district meeting. SUPERINTENDENT OF COMMON SCHOOLS. 19 proceedings of an annual meeting in said district, at which offi- cers for the ensuing year were chosen. The objections, upon the ground of which the interposition of the Superintendent was sought, were; 1st. That one person voted at the meeting who had come in- to the district a short time before, and who had not the amount of property necessary to entitle him to vote ; 2nd. That in counting the ballots, they were found to be one more in number than the persons present. By A. C. FLAGG, February 22, 1827. If the person who is alleged by the appellants not to have been entitled to vote, had actually taken up his residence in the district, and had the pro- perty required by law, he was a voter, although he might have been there only a week. If he was not a taxable inhabitant, he might have been prosecuted for the penalty, provided by law, before a magistrate, before whom access to all the facts could be had. The testimony before the Superintendent is too vague in reference to this point to justify an interference with the pro- ceedings on that ground. It appears that there was one more ballot than there were per- sons present at the meeting. The most satisfactory proceeding in such a case would have been to have ballotted over again; and this ought to have been done- A double ballot being put in, however, does not destroy an election. When the ballots and poll-lists do not agree, (in general elections,) the excess of ballots are drawn before they are opened : but the election or the votes of the town are not vitiated by a disagreement between the poll-list and the ballots. It is stated in the affidavit of the moderator that the persons declared elected, had a majority after deducting the ballot alluded to. Under all the circumstances of this case, it is decided that the officers chosen in district No. 2 in the town of Erwin, at the an- nual meeting, from the proceedings of which relief is sought, are the legal officers of said district, and that the appeal be dis- missed. The Trustees of school district No. 14 in the town of Cazenovia, ex parte. If the district clerk refuses to give notice of a meeting of the inhabitants, the notice may be given by the trustees. If the collector refuses to give a bond, his office becomes vacated, and the trus- tees may make a new appointment This was an application from the trustees of school district No. 14 in the town of Cazenovia, for the direction of the Su- perintendent with respect to the following cases : 20 CASES DECIDED BY THE 1st. The district clerk when required by them to give notice of a meeting of the inhabitants, refused to act. 2nd. The collector of the district, on receiving a \varrant for the collection of a tax, declined giving a bond for the faithful discharge of his duties. By A. C. FLAGG, March 12, 1827. By the proviso to the 20th section of the act of 1819, the trustees are authorized to call special meetings. By the 23d section* it is made the duty of the clerk to notify such meetings whenever they shall be call- ed by the trustees : and in case of the absence or incapacity of the clerk, tthe trustees themselves may (and it is declared their duty to) give notice to the inhabitants of the district of a special meeting. If the clerk refused to notify the meeting, then it might be done by the trustees or one of them. Even for a want of notice to a part of the inhabitants, a meeting shall not be deemed illegal, unless the omission to give such notice was wil- ful or designed, (see last clause of the proviso to the 20th section, act of 18194) By the 24th section of the school act, the trustees can require a bond from the collector, " and in case of his refusal or neglect to execute and deliver such bond within such time, not less than tan days, as shall be allowed to him for that purpose by the trustees, his office of collector shall thereby be vacated, and thereupon it shall and may be lawful for the said trustees, or the major part of them, to appoint any other person residing in their district to supply such office so vacated."? (ANONYMOUS.) If the commissioners of common schools know a district report to be erroneous, the public money may be withheld, and the case submitted to the Superin- tendent. By A. C. FLAGG, March 16, 1827. If the trustees of a school district make a false report, they are liable to a fine of twenty-five dollars, under the 28th section of the school act.[ Commissioners of common schools cannot actually know a re- port to be erroneous, unless they have positive proof of the fact. If such proof were to be presented to them, they might withhold the public money until the facts could be presented to the Su- perintendent for his decision. Sub. 2, sec. 74, page 480, vol. 1, R. S. t Sub. 2, sec. 75, page 481, vol. 1, R. S. J Sec. 63, page 478, vol. 1, R S. Sec. 107, page 487, vol. 1, R. S. [| Sec. 96, page 485, vol. 1, R. S. SUPERINTENDENT OP COMMON SCHOOLS. 21 The Trustees of school district No. 6 in the town of Canajoharie, ex parte. A tax may be levied in a school district to build a wood-house and necessary. This was an application to the Superintendent to decide ' whether a school district is authorized to raise money by tax to build a wood-house and such other appendages as common decency requires should be attached to a school-house ?" By A. C. FLAGG, May 5, 1827. The 20th section of the act of 1819 gives authority to the taxable inhabitants of school districts to vote such a tax as a majority of them shall deem sufficient to procure a school-house, and to furnish it with " ne- cessary fuel and appendages."* Both the conveniences referred to in the case presented to me are to be regarded as necessary appendages to a school-house, and the inhabitants of the district have an undoubted right to provide them. The Town Clerk of the town of De Ruyter, ex parte. The proceeds of lands set apart for the support of the common schools in a par- ticular town, must be applied exclusively for the benefit of the inhabitants of the town to which the lands belong. This was an application for the direction of the Superinten- dent with regard to the disposition to be made of the rent of a school lot belonging to the town of Fabius, in Onondaga coun- ty, a portion of the rent having been apportioned to a school dis- trict lying partly in that town and partly in the town of De Ruyter, Madison county, which had no local fund yielding an annual income. The question submitted to the Superintendent was, whether the amount so apportioned to the joint district was to be regarded as a common fund, to be applied for the benefit of the entire district, or whether it was to be applied exclusively for the benefit of the inhabitants of that part of the district lying within the boundaries of the town of Fabius. , By A. C. FLAGG, May 5. 1827. The third section of the act relative to the school lands passed March 23, 1798, provides that the money arising from those lands " shall be applied to the use of schools or support of the gospel, in the original townships as surveyed, in which such lots shall be situated, and for no other purpose." This law has a special application to the funds derived from the school lands, and is a warrant for the mode of distribution adopted in your district. Where a district is formed partly from a town having this local fund, and partly from a town having none, the only way of carrying the act of 1798 in- * Sub. 5, sec. 61, page 478, vol. 1, R, S. 22 CASES DECIDED BY THE *La^_ * to effect is for the trustees to make out separate assessments for the residue of the teacher's wages, if any, and in graduating the assessment, to give credit to the inhabitants of Fabius to the amount derived from their local fund, as has been done. In cases where an inequality exists in towns out of which double districts were formed, by reason of fines or by raising double the amount of school money in one town and not in the other, &c., the amount received should be considered a common fund for the use of all the inhabitants of the district. Suppose al- so that by the neglect of the commissioners the public money is withheld from one town. Still the trustees of a double dis- trict would pay the money received from the other town to the teacher, and all the inhabitants of the district would share alike. The exception is made in cases which fall under the act of 1798. Some districts are formed with neighborhoods in other states, and in such cases the trustees of course have to make out two assessments for teacher's wages, as you have done. Where a district is formed from two towns or counties, the offi- cers may be located in any part of the district. County and town lines, so far as relates to the district, have no influence : the district lines are alone material in what relates to the organi- zation and government of the district. Where districts are form- ed with other states, the law has specially provided, that one trustee at least shall be chosen in the part of the district lying in this state, (sec. 27*) for the reason that the other part of the dis- trict is beyond the jurisdiction of the state. (ANONYMOUS.) The real estate of ministers of the gospel is exempt from taxation to t certain amount, only when occupied by them. By A. C. FLAGG, July 7, 1827. By the 3rd section of the actt for the assessment and collection of taxes, the real estate of a minister of the gospel is exempt from taxation to a certain ex- tent, " if occupied by him." In the case of Clark Kenyon, jun., as I understand from your letter, he is the tenant of the minis- ter, and the occupant, and therefore liable to be taxed for the farm. Sec. 95, page 485, vol. 1, R. S. t Sub. 8, sec. 4, page 388, vol. 1, R. S. ST $t& sgftq'.ld' SUPERINTENDENT OF COMMON SCHOOLS. 23 The inhabitants of joint school district No. 15, .lying partly in the town of Warwick, and partly in the town of Goshen, against the Commissioners of Common Schools of said towns. In altering school districts lying partly in two or more towns, a majority of the commissioners of each town must concur. This was an appeal from the proceedings of the commission- ers of common schools of the towns of Warwick and Goshen, in dividing school district No. 15, with the consent of only one of the commissioners of the former town.! By A. C. FLAGG, November 13, 1827. In this case it is con- tended that the division of No. 15 is invalid, for the reason that it was a district formed from parts of Goshen and Warwick, and that a major part of the commissioners of each town did not as- sent to the division of the old district No. 15. It appears by the affidavit of H. M. Hopkins, one of the commissioners of Goshen, that Mr, Shepherd, one of the commissioners of Warwick, dis- sented from the division, and " contended that the law required the consent of a majority of the commissioners of both towns, (to wit, two,) which opinion was overruled, and he, the said Shepherd, although opposed to the division, signed the proceed- ings," C. FLAGG, January 27, 1830. The Superintendent has no control over the proceedings of justices of the peace. If the trustees or inhabitants of a district commence litigation in the courts, in relation to school affairs, they must follow the or- dinary channel of the courts, as prescribed for all other cases. The Trustees of school district No. 8 in the town of Hounsfield, against the Commissioners of Com- mon Schools of said town. If trustees consent verbally to an alteration in their school district, the proceed- ings will not be set aside for want of a written assent. In this case, the commissioners of common schools in the town of Hounsfield, divided school district No. 8 in said town and formed a new district The trustees of school district No. 8 were present, and made no objection to the alteration. An ap- peal was afterwards presented to the Superintendent upon the sole ground that the commissioners should have procured the written consent of the trustees before making the alteration. By A. C. FLAGG, January 30, 1830. The verbal consent of trustees to an alteration of their school district is sufficient. If they are present when the commissioners make the alteration and do not object, they must be considered as consenting to it, and the proceedings will not be disturbed. The Inspectors of common schools of the town of Monroe, ex parte. A teacher should not be questioned by the inspectors as to his religious opinions: but a person who openly derides all religion should not be employed as a teacher. This was an application to the Superintendent from the in- speetors of common schools, of the town of Monroe, for instruc- 60 CASES DECIDED BY THE tions as to their right to question a teacher with respect to his religious opinions, in order to determine whether his moral cha- racter was such as to entitle him to a certificate of qualification. By A. C. FLAGG, February 1, 1830. In relation to the moral character of the teacher, much is left to the discretion of the inspectors. They must be satisfied that it is good, because they have to certify to its correctness. On this point what would be satisfactory to one man might be unsatisfactory to another. Every person has a right to the enjoyment of his own religious belief without molestation: and the inspectors should content themselves with inquiries as to the moral character of the teacher; leaving him to the same liberal enjoyment of his religious belief that they ask for themselves. If a person openly derides all religion, he ought not to be a teacher of youth. The employment of such a person would be considered a grievance by a great portion of the inhabitants of all the districts. The Trustees of school district No. in the town of Winfield, ex parte. A tax voted to repair a school-house should not be collected, if the district has no title to the site, and the owner has forbidden the repairs to be made. This was aa application for the direction of the Superinten- dent in a case in which a school-house had been erected, by the sufferance of the owner, on land to which the district had no title : the land, after passing through the hands of a number of persons, came into possession of a purchaser, who was desir- ous of appropriating the site of the school-house to his own use. The house having become dilapidated, the owner of the land for- bade any repairs to be made on it so as to render it habitable for common school purposes. A tax had been previously voted, and the question submitted was whether it should be collected and ex- pended as had been intended. By A. C. FLAGG, February 16, 1830. It appears that your district built a school-house by consent of the owner on land for which no^title was obtained; that this land has passed into other hands, and that the present owner forbids the district the use and occupancy of the house, or at least forbids their repairing it for use. There is no redress in this case. The district is in the situation of a person who builds his house on land which does not belong to him. The tax voted to repair the house should not be collected, as it cannot be safely expended for the purpose. SUPERINTENDENT OP COMMON SCHOOLS. 61 The Trustees of school district No. in the town of Winfield, ex parte. A school-house may be kept in repair by tax, if the district. has a lease of the land on which it stands. This was an application for the opinion of the Superintendent with regard to the propriety of expending money for repairing a school-house, in a case where the district had obtained from the owner of the land, on which it stood, a lease of the site for so long a time as the house should be used for common school purposes. By A. 0. FLAGG, March 6, 1830. Where the district has a lease from the owner of the land on which the school-house stands, to use it as long as the district may require it for a school- house, a tax to repair it is legal and proper. It is in all cases desirable that the fee of the land should be vested in the trustees, but this does not affect the question of collecting the tax, for this may be done even to pay the rent of a school room. The Trustees of school district No. 3 in the town of Redhook, ex parte. If a teacher cannot procure a certificate of qualification from the inspectors, his wages may be collected of those who send children to school, and fuel may be provided by tax, if a tax is voted for the purpose. This was an application for the direction of the Superinten- dent in a case, in which the inspectors, after examining the teacher, had refused to give him a certificate of qualification. In consequence of such refusal, some of the inhabitants of the district denied the right of the trustees to collect his wages, and the right of the district to vote a tax to provide the school with fuel. By A. C. FLAGG, March 17, 1830. Whether the teacher has a certificate or not, there can be no doubt of the right to collect a tax for fuel, when voted by the district. The trustees cannot pay the public money to a teacher who is not legally qualified, but they can collect his wages of those who send to school, by warrant, and the fuel can be provided by a tax upon property, if voted to be so furnished by the district. (ANONYMOUS.) Land occupied by a minister of the gospel, as tenant, cannot be taxed unless its value exceeds $1,500. By A. C. FLAGG, April 10, 1830. By the Revised Statutes relative to the assessment and collection of taxes, a minister of the gospel is entitled to exemption from all taxes for real estate to the amount of $1,500, "when occupied by him." The mi- 62 CASES DECIDED BY THE nister being a tenant on Mr. Rentier's land, it could not be as- sessed to Mr. R., and therefore is exempt under the statute for the assessment and collection of taxes. (ANONYMOUS.) If a district directs the public moneys to be divided, the rote should be passed during the year in which the moneys are to be applied. By A. C. FLAGG, April 19, 1830. It is made the duty of the trustees, by sec. 75, sub. 9, to divide the public moneys into not exceeding four parts, " whenever authorized by a vote of their district," and to apply one portion to each term, during which a school shall be kept. The vote as to the manner of applying the money, should be passed during the year in which it is to be expended. The trustees are annually elected, and this vote must be considered as an instruction to each set of trustees by the district meeting. If no vote is passed, then the manner of applying the public money is left to the discretion of the trustees. The Trustees of school district No. in the town of Colesville, ex parte. Trustees have the exclusive right of employing teachers* At the annual meeting in school district No. in the town of Colesville, a vote was passed directing the trustees to employ a female teacher. The trustees disregarded the direction, and engaged a male teacher; and the opinion of the Superintendent was solicited as to the propriety of the proceeding. By A. C. FLAGG, April 26, 1830. The trustees are empow- ered by the statute to employ all teachers for the district. They should employ qualified teachers; for to such only can they pay any part of the public money. If in doing this, they can con- form to the wishes of the district, they ought to do so ; but if the district votes to employ an incompetent teacher, the trustees should not regard the vote. The inhabitants of the district designate the persons who shall be trustees; and the persons thus designated are invested by the law with certain powers, for the faithful and conscientious discharge of which they alone are re- sponsible, and with which the district cannot properly interfere. ,- SUPERINTENDENT OF COMMON SCHOOLS. 63 The Commissioners of Common Schools of the town of Farmington against the trustees and inhabitants of school district No. 11 in said town. The vote of a district meeting declaring the district dissolved has no binding force. This was an application to the Superintendent for his decision on a statement of facts agreed to by the parties, in which the right of a district to interfere with its own organization by a vote of the inhabitants was asserted on the one hand and denied on the other. By A. C. FLAGG, April 27, 1830. The proceedings of a dis- trict meeting, declaring the district dissolved, has no binding force whatever. The commissioners can alter, modify, and even an- nul a district; but in doing this, they must attach the inhabi- tants thereof to some other district. A district meeting has no power over thil matter. The Trustees of school district No. 5 in the town of Jamestown, ex parte. If a warrant to collect a tax is made out under the seal of the trustees, as requir- ed by law, the renewal may be without a seal. District No. 5 in the town of Jamestown having been duly formed, a tax was voted to build a school-house, the tax-list was made out, and a warrant, under the hands and seals of the trustees, was duly issued and delivered to the collector. A few individuals having neglected to pay their proportion of the tax, the trustees renewed the warrant as to the delinquents, but did not affix their seal to the renewal. The warrant was delivered to the collector, who levied on the property of the delinquents and sold it. The question submitted was, whether the renewal of the warrant was valid. By A. C. FLAGG, June 2, 1830. A warrant was made out under seal, and in relation to certain delinquents was renewed by the trustees : The delinquents contested the validity of the renewal, because it was not also under seal. It is conceded that the warrant is valid in all respects ; and it would seem that those who have been favored with an extension of the time for paying their tax beyond the ordinary life of the warrant, are the last persons who ought to call in question the form in which this in- dulgence to them is granted. The original warrant is just as good evidence of the indebtedness of the person, and the equity of the assessment, after thirty days, as before. The warrant re- quires the collector to levy and make return within thirty days, and the renewal is, in its operation, merely giving the collector 64 CASES DECIDED BY THE thirty days longer to make his return in respect to certain delin- quents, and gives such delinquents thirty days longer to make payment. The renewal does not recapitulate any part of the warrant, but is made upon the supposition that the warrant is perfect. If it is not to be viewed in this light, it would seem that the renewal should state the material parts of the warrant, as well as to have the seal affixed. The proceeding on district warrants is the same as on justices' executions, and in the case of executions, 2d R. S. p. 251. sec. 145, it is provided that "if any execution be not satisfied, it may from time to time be re- newed by the justice issuing the same, by an endorsement there- on to that effect, signed by him and dated when the same shall have been made." A similar endorsement embracing the names of the delinquents, is a valid and sufficient renewal of a warrant issued by the trustees of a school district. Trustees cannot issue or renew a warrant after their successors are chosen. The new trustees, on being satisfied by their predecessors thfit certain sums are due, should sign or renew a warrant in order to give it ef- fect, but in doing this they do not incur any individual liability. (ANONYMOUS.) Public money cannot be paid to a district unless a school has been kept therein three months by a qualified teacher, and unless all moneys received the pre- vious year have been paid to him. By A. C. FLAGG, July 16, 1830. The commissioners of common schools are expressly prohibited from paying the public money to any district, unless there is a report showing that the district has had a duly qualified teacher for three months at least, and that all moneys received from the commissioners for that year have been applied to the payment of the compensation of such teacher, sec. 24. The leading design of the schooljsystem is to promote the em- ployment of qualiQed teachers. The Trustees of school district No. 13 in the town of Castile, ex parte. A person set off without his consent from a school district, cannot be taxed for a school-house, if within four years he has paid a tax for that purpose in the district from which he was thus set off. If a part of the value of the property of an old district is awarded to a new dis- trict on account of a person not liable to be taxed in the latter for a school- house, the amount is to be allowed to the credit of all the inhabitants. This was a case in which a new district was formed, and a part of the value of the school-house belonging to the district from which it was taken, was apportioned to the former on ac- SUPERINTENDENT OF COMMON SCHOOLS. 65 count of the taxable property of a person who had paid a tax in the old district within four years, and who was set off to the new district without his consent. The questions submitted were, whether he could be taxed in the new district for a school-house, and if not, to whose credit the sum received from the old district on account of his taxable property, should be applied. By A. C. FLAGG, July 26, 1830. The 81st section exempts "every taxable inhabitant of a district who has been within four years set off from any other district," without his consent, if he has paid a tax within that time for building a school-house. It is not material whether he is set off from an old to a new dis- trict, or whether from one old district to another. The person to whom you allude, if he has paid a tax within four years for building a school-house, and if he did not consent to be set off, is entitled to exemption. The money which is apportioned on the property of this per- son from the old district is to be paid to the trustees of the new district, and by them applied towards procuring a school-house for their district. This, if it is equal to the new tax, is an ex- emption of all those set off, whether they consented or not ; for it is to be allowed to the credit of the inhabitants thus set off in payment of any tax assessed on them. But an apportionment made to one individual is not to be credited to another in ex- tinguishment of his tax, but is to be paid towards the erection of the new house, as an offset for the exemption which the non- consenting individual claims. The fair, equitable import of sec. 69 is, that the money apportioned to each individual and paid by the old district, shall be credited to that individual. This is the only "credit" to which he is entitled. My opinion therefore is that the individual, on the facts assumed, is exempt, and that the money apportioned to him from the old district is to be ap- plied for the benefit of the new district, as an offset for such ex- emption. The Commissioners of Common Schools of the town of Hamilton, ex parte. Persons attached to a school district without the consent of the trustees, may within three months be set off again without the consent of such trustees. This was a case in -which the commissioners of common schools of the town of Hamilton set off three persons from one existing district to another, without the consent of the trustees- of the district to which they were thus annexed. Before the ex- piration of three months, the commissioners formed a new dis- trict, and annexed to it the three persons referred to. The ques- tion submitted was, whether the consent of the trustees of the 5 66 CASES DECIDED BY THE district to which they were first set off was necessary, or whether the consent of the trustees of the district from which they were originally taken, was sufficient. By A. C. FLAGG, August 6, 1830. If persons are attached to a district without the consent of the trustees, and the com- missioners, before the end of three months, set them to a new district, they only want the consent of the trustees of the dis- trict to which they originally belonged. The new district has MO trustees to consent for it ; and the persons are not yet legally incorporated with the district to which they were first transfer- red. ' The executors of the estate of Thomas Smith against the trustees of school district No. 21 in the town of Brookhaven. Persons about to remove from a district must be included in a tax-list, if they are actually inhabitants of the district when the list is made out. No appraisement of a school-house and other property is necessary when persons are set off from one existing district to another. This was an appeal by the executors of the estate of Thomas Smith deceased, late a taxable inhabitant of school district No. 21 in the town of Brookhaven, from the proceedings of the trus- tees of said district, in assessing a tax for building a school- house. The circumstances under which the appeal was brought, are stated in the decision of the Superintendent. By A. C. FLAGG, August 9, 1830. In the case of the ap- peal of Charlotte S. Smith, executrix, Wm. Woodhull and Win. Beale, executors of the estate of Thomas Smith, deceased, from the doings of the trustees of district No. 21 in Brookhaven, it appears that Thomas Smith in his life time was transferred from district No. 20 to 21, and that at the time of the transfer all the trustees of the two districts gave their consent. District No. 21 having no school-house, a room was hired for the ac- commodation of the district school. In September, 1829, Tho- mas Smith, of whom the house was hired, died, and the trus- tees had notice that they could not occupy the house after May following. Accordingly in February the district voted a tax to build a school-house. In pursuance of this vote, a tax-list wa? made out and placed in the hands of the collector, property be- longing to the estate of Thomas Smith deceased, was seized and advertised by the collector, and two days before the sale no- tice of an appeal to the Superintendent was served, and the sale has been thus suspended. r - !! .|yi -1HV--4 -= ': >,.') '-nil SUPERINTENDENT OF COMMON SCHOOLS. 67 1. The appellants allege that the family of Thomas Smith, deceased, were about removing from the district when the as- sessment was made, and complain as a hardship that the estate should be required to pay for privileges which none of the family can enjoy. 2. That it was the duty of the trustees to have obtained from the commissioners an appraisement of the school-house in No. 20. and to have deducted the apportionment belonging to the Smith estate before the tax list was made out. In relation to the first point, it is to be observed that sec. 76, says that the trustees shall apportion the tax among all the taxable inhabitants of the district " at the time of making out the list." If those who are liable to pay taxes on the estate of Thomas Smith deceased, were residents of district No. 21 at the time of making out the assessment, then it was imperative on the trustees to place them upon the list. As to the hardship of pay- ing for a school-house from which the family, in consequence of their removal, will derive no advantage, it is similar in character to the apparent hardship to which all those persons are subjected who are assessed to erect school-houses when they have no chil- dren to send to school, and consequently receive no direct equi- valent for their money. The law however for supporting com- mon schools is based upon the principle that all property shall be assessed for the support of schools, whether the owner has chil- dren requiring school accommodations or not. And if the per- sons thus situated receive no direct equivalent for their money, they are nevertheless interested in and benefitted by every mea- sure which tends to ameliorate the condition and enlighten the minds of those around them. Property is valueless unless the owner is protected in the quiet enjoyment of it, and it is better to pay a tax to give ipstruction to the rising generation, and thus train them to usefulness, than to pay a tax to punish them for crimes from which an education might have protected them. Persons of property have the greatest interest in whatever con- cerns the peace and welfare of the community ; and they have an interest in supporting the common schools proportioned to their property. If the child of their neighbor becomes intelligent and grows up a useful citizen, he is a safeguard to them, and secures them in the quiet possession of their property. If he grows up in ignorance and vice, and becomes a depredator upon society, the man of property is exposed in proportion to the ex- tent of his possessions, and in addition to this his property is taxed for the punishment of the depredator. County and town taxes are paid with a less gratifying equivalent than that re- ceived for taxes paid for schools. DO CASES DECIDED BY THE The trustees in this case could not legally exempt the estate of Mr. Smith from assessment. As to the second point, it is only necessary to say, that as the commissioners set the persons in question from one district te another district, no appraisement of the school-house was neces- sary. Sec. 67 provides that the school-house of the old district shall be estimated " when a new district shall be formed from one or more districts possessed of a school-house." In this case no new district was formed ; it was only an alteration of the line between two old districts.* The appeal is dismissed. !i..) '.. . : ',}' ]/ The Trustees of school district No. 4 in the town of Mount Morris, against the inhabitants of said dis- trict. A tax being voted to build a school-house, the tax list made out and a warrant issued, the collection of the tax can not be suspended by vote of a district meeting. The facts of this case are stated in the Superintendent's deci- sion. By A. C. FLAGG, August 12, 1830. In the case of the ap- peal of the trustees against the inhabitants of district No. 4 Mount Morris, it appears that in the month of March last, the district passed a vote to raise 175 dollars to erect a school-house, fixed a site, and instructed the trustees to erect the building. Accord- ingly a contract was made and the house is now in progress. On the 5th of June, at a district meeting, a vote was passed suspending the collection of the tax, or a part of it, until after the expiration of the term of service of the present trustees. This is improper: the trustees have made contracts on the faith of the vote to raise a tax. The assessment is made out and the war- rant issued. The power given to district meetings, by sec. 61, sub. 6, to alter and modify their own proceedings, does not con- fer authority to interfere with a warrant which has been issued by the trustees. It is decided that the proceedings of the meeting of the 5th of June, 1830, in district No. 4 Mount Morris, are void. " This principle is settled by the decision in the case of the trustees of school district No. 17, in the town of Hector, page 35. ?5">I rt illiH lot bffiq SUPERINTENDENT OF COMMON SCHOOLS. 69 (ANONYMOUS.) Vacant unimproved lota are not taxable, if the owner is a non-resident. Of a lot of 50 acres, a tenant of ten is regarded as the agent of the non-resident owner for the remaining forty. By A. C. FLAGG, October 11, 1830. Vacant unimproved lots, if the owner is a non-resident of the district, are not taxable for school purposes. Where a lot of fifty acres, had a tenant on ten acres of it, it was decided that the tenant could he assessed for ten acres; and that he must be so far regarded as the agent for the forty acres, as to make the non-resident owner taxable therefor, under sec. 77. (ANONYMOUS.) Purchases subsequent to the organization of a school district are not to affect their boundaries. By A. C. FLAGG, October 13, 1830. Where a person pur- chased a lot in an adjoining district along side of his farm, it was decided that he was taxable for the lot purchased, in the district where it was situated. If his farm had been intersected by the district line, when the commissioners formed it, then he would have been assessed for his whole farm, in the district where his house was situated ; but the lot purchased is a distinct lot, and the lines of districts cannot be changed by individual purchases. The Trustees of school district No. 12 in the town of Sardinia, against the Commissioners of Common Schools of said town. Commissioners of common schools cannot interfere with the organization of a school district, while an appeal before the Superintendent, in respect to such organization, is pending. On the 16th September, 1829, the commissioners of common schools of the town of Sardinia, formed school district No. 12 in said town, by setting off a part of No. 1. From this proceeding an appeal was brought to the Superintendent, who, on the 22d May, 1830, annexed to district No. 12 a part of district No. 2, and in other respects confirmed the proceedings of the commis- sioners. While this appeal was pending, the commissioners formed a new district and set off to it the persons previously an- nexed to No. 12. From this proceeding another appeal was brought by the trustees of No. 12. By A. C. FLAGG, November 25, 1830. The decision of the 22d May establishes the boundaries of district No. 12. The com- missioners were wrong in interfering with this question during 70 CASES DECIDED BY THE the pendency of the appeal. The whole design of the law which authorizes the appeal, was that the authority in relation to the points in controversy, should be taken from the commissioners, and transferred to the superintendent from the time of making the appeal. The appeal would be a mockery, if, in the mean time, the commissioners could go on and make anew all the altera- tions which were appealed from as a'grievance. But if the com- missioners had not erred in their interference with a question which had been taken from them by an appeal, still the deci- sion of the 22d of May settles the boundaries of No. 12, and that decision, as to the particular question submitted, is final, and the commissioners cannot alter those boundaries at a subsequent time. [(ANONYMOUS.) If an annual meeting is held at the time and place appointed at the annual meet- ing of the preceding year, it is valid, although the clerk of the district may have neglected to give the notice required by law. By A. C. FLAGG, October 30, 1830. At an annual meeting the time and place for the next annual meeting are to be fixed ; this is notice to all the district, and if the inhabitants meet ac- cording to the adjournment, the meeting is valid, although the clerk may have neglected to put up the notice required by the statute. The Trustees of school district No. in the town of Lysander, ex parte. The public money must be paid to teachers for services rendered between the January preceding and the January following the time of receiving it. This was an application to the Superintendent for his opinion with regard to the right of the trustees of a school district to pay the public money received in April to a qualified teacher for giv- ing instruction during the summer of the previous year. By A. C. FLAGG, November 10, 1830. The school money received in April, should be paid for the wages of qualified teach- ers between the January preceding the time of its receipt, and the January following. This enables the trustees to certify in their annual report, dated in the following January, that the money has been paid to a qualified teacher, " during the year ending at the date of such report," as required by the 24th section of th school statute. wi- i ;'.' .''.':- TK\itt*mYV .- -rttcK) arf' /I. Joittef i) 'to -," r r ;bru;od ..:' - uiill ;iji'// ^nnohoJni at SUPERINTENDENT OF COMMON SCHOOLS. 71 The Trustees of school district No. in the town of Stillwater, ex parte. A store and lot must be taxed in the district in which they are situated; but goods in a store are to be taxed in the district in which the owner resides. This was an application for the opinion of the Superintendent in a case where the ovfrner of a store was assessed to pay a tax on the goods contained in it, in a district adjoining the one in which the store was situated, the residence of the owner being in said adjoining district. The store and the owner's dwelling house were separated by a road, which was the boundary line between the two districts. The principle of the Superintendent's opinion in the case is, that the store and lot, being real estate, were taxable in the district where they were situated, and the goods contained in the store, being personal property, were tax- able in the district in which the owner resided. By A. C. FLAGG, November 19, 1830. The owner of the store who is a non-resident is liable to be assessed in your district for the building and store lot ; for the goods in the store he is li- able to be taxed in the district where he resides, and not else- where. The Trustees of school district No. 2 in the town of North Salem, ex parte. A person coming into a school district the day before a district meeting, with the bona fide intention of residing there, is a voter. This is a case in which the Superintendent's opinion was so- licited with respect to the right of a person to vote at a district meeting, who had removed into the district with his family and taken up his residence in it the day before the meeting was held. By A. C. FLAGG, November 19, 1830. Persons who have recently moved into the district, if they have done it with a bona ride intention of taking up their residence therein, and who have the other legal qualifications, are entitled to vote at district meet- ings. A person who has purchased a farm, or rented a tene- ment, and has come into the district to reside the day before a district meeting, has the required residence to entitle him to vote. The Trustees of school district No 7 in the town of Salem, ex parte. Persons having certain qualifications may vote at district meetings. This was an application to the Superintendent, from the trus- tees of district No. 7 in the town of Salem, to decide what qua- 72 CASES DECIDED BY THE lifications were necessary to entitle a person to vote at a district meeting, a tax having been laid in the district to build a school- house, and a question having arisen as to the right of certain in- habitants to give their votes. By A. C. FLAGG, December 7, 1830. The qualifications for voting at district meetings, are : 1. Having a freehold in the town. 2. Having been assessed to pay taxes in the town. 3. Having fifty dollars liable to taxation. Either qualification is sufficient without the other. The payment of taxes on the highway, qualifies a person to vote in a district meeting under section 60. The old constitution, section 7, required as one qualification for voting, that the citizen should have "been rated and actually paid taxes to this state-/' and the 10th section of the election law, 2 R. L. of 1813, p. 253. declared that payment of taxes on the highways should be con- sidered as a " payment of taxes to the state," for the purpose contemplated in the constitution. By section 60 of the school statute, the person entitled to vote is only required to have paid taxes, or to have been assessed, in the town where he resides, to entitle him to vote in the district. Personal property to the amount of fifty dollars over and above the exemptions on execution, if the fifty dollars is liable to tax- ation in the district, makes the owner, if he is a resident of the district, a voter therein. The Trustees of school district No. 3 in the town of Eaton, ex parte. In employing teachers trustees should so far consult the feelings and wishes of the inhabitants as not to give offence to a large portion of them. This was a case in which the inhabitants of school district No. 3 in the town of Eaton, had, at a district meeting, voted that a certain person should be employed as a teacher by the trustees. The trustees, in opposition to the direction contained in the vote referred to, employed another individual. In con- sequence of thus violating the wishes of the inhabitants great ex- citement was produced in the district, and the opinion of the Su- perintendent was solicited with regard to the legality of the pro- ceedings of the trustees. By A. C. FLAGG, December 16, 1830. I have received the application of twenty-five of the inhabitants of district No. 3 in the town of Eaton, in regard to the employment of a teacher by two of the trustees, contrary to a vote of said district for ano- ther person. Two of the trustees have a legal right to employ a teacher ; SUPERINTENDENT OF COMMON SCHOOLS. 73 they ought, however, so far to consult the wishes and feelings of the district, as not to employ a person who is offensive to a large portion of the inhabitants. In this case the trustees appear to have a majority of the district with them ; they also have the law on their side. With all this, however, I would urge upon them the importance of conciliation and of preserving harmony in the district. If the opposing party have valid objections to the teacher em- ployed, that would be another matter, and they could urge those objections on an appeal to the Superintendent. The Trustees of school district No. 2 in the town of Depau, ex parte. A minister of the gospel is exempt from taxation for common school purposes in the same manner as for other taxes. This was an application to the Superintendent for his opinion with regard to the right of the trustees of school district No. 2 in the town of Depau, to include in the assessment of a tax voted to build a school-house, a minister of the gospel residing in the district. By A. C. FLAGG, December 30, 1830. A minister of the gospel is exempt from a tax for school-houses in the same man- ner as for other taxes, by the 4th section of the general tax law: If the minister is to be included in the district assessment roll, then by the same rule all the property exempted in said 4th sec- tion should also be embraced ; for there is no special exemption in the school statute, of colleges, poor-houses, churches, and United States and state lands : And if full effect were not given to the exemptions in the general law, the school-house would also be embraced in the tax-list of the district. The inhabitants of school district No. 13 in the town of Knox, against the Trustees of said district. No real estate except such as lies in a school district can be taxed in it for com- mon school purposes. Non-resident tenants cannot be taxed under section 78 of the title relating to common schools. (But see note.) This was an appeal by certain inhabitants of school district No. 13 in the town of Knox, from the proceedings of the trus- tees of said district in assessing a tax. The grounds of objec- tion are set forth in the Superintendent's opinion. By A. C. FLAGG, February 25, 1831. In district No. 13 in Knox, it is represented that the trustees omitted to include in the assessment one separate lot which is not within the dis- trict, on the ground that said lot was included in the same 74 CASES DECIDED BY THE deed with the one on which the owner resides. By the same rule, if a man inherited by will one lot in Cayuga county and another in Columbia, he must be taxed for them both in the county where he resided, because he derived title to both of them in the same will. The lots referred to in the case in dis- trict 13, will be taxed in the same manner as if the title to them had been contained in separate deeds. Another lot was embraced in the same assessment, which was in the occupancy of a tenant who was a non-resident of the dis- trict, except the house and garden, which had been sub rented to a person residing in the district. The 78th section, making non-resident owners liable for taxes, does not extend to non- resident tenants. In this case the tenant of the house who re- sides in the district can be assessed for the value of the part oc- cupied by him; but that part cleared and cultivated by the origi- nal and non-resident tenant is not liable to be assessed to the latter.* The trustees must correct the assessment accordingly. The Trustees of school district No. 1 in the town of Oswego, ex parte. Bridge companies are taxable in the school districts where the tolls are col- lected. This was an application for the opinion of the Superintendent with regard to the liability of the Oswego Bridge Company to be taxed for common school purposes. By A. C. FLAGG, March 12, 1831. The question is sub- mitted whether the Oswego Bridge Company (a corporation with the usual powers) is liable to be assessed for school taxes. It is provided by title 4, chap. 13, that "all moneyed or stock cor- porations shall be liable to taxation on their capital ;" and sec. 79, of the statute relating to school assessments, says, "the valua- tion of taxable property shall be ascertained as far as possible * In the case of Dubois vs. Thome and others, 8 Wendell, 518, it would seem that a non-resident tenant was considered liable for a (ax, the owner Of the land being also a non-resident. The decision of the court was made under the school act of 1819, the Revised Statutes not being in force when the tax was laid. The 78th section of the statute relating to common schools, under which the Superintendent's decision above reported was pronounced, was new, and, as the revisers state in their notes, was taken substantially from a bill reported to the assembly in the year 1826. Although the provisions of law, according to which these two cases were determined, were essentially different, the supreme court having, though incidentally, given the opinion that the tenant, who was a non-resident, was liable for the tax on so much of the land as he occupied, and that he, " for the time being, was owner," it would seem that a non-resi- dent tenant might, under section 78, be taxed as owner, for the time, for clear- ed and cultivated land in the same manner as if the fee were in him. SUPERINTENDENT OP COMMON SCHOOLS. 75 from the last assessment roll of the town." If the Bridge Com- pany is on the assessment roll of the town, and the tolls are col- lected in your district, then the company is liable to be taxed in the district in the same manner as in the town. Under the for- mer laws, and when the amount assessed upon corporations was distributed to the several towns where the stockholders resided, it was decided that the school tax must be assessed upon the in- dividual stockholders according to their interest, and not upon the corporation. The laws for assessments upon corporations have been essentially varied, and as they now stand, all Banks and other moneyed or stock corporations, deriving an income or profit from their capital or otherwse, are liable to taxation on their capital, in all assessments for school district purposes. The Commissioners of Common Schools of the town of Olive, ex parte. Alterations ought not to be made in school districts when the effect is to giv particular individuals unjust advantages in respect to others. This was an application to the Superintendent for his opinion on the following statement of facts : A. B. and C. were an- nexed to school district No. 8 in the town of Olive, after a school- house had been built and paid for in that district. Sometime afterwards the commissioners of common schools formed a new district, and annexed to it A. B. and C. by setting them off from No. 8. The individuals thus set off, claimed that they were entitled to a portion of the value of the school-house of No. 8, although they had contributed nothing towards its construc- tion. By A. C. FLAGG, March 14, 1831. The case stated in your letter, where certain persons were annexed to a district which had a school-house previously constructed and who being detached again, claim to receive a portion of the value of a house which they did not help to build, is one in which a strict com- pliance with sees. 67 and 68 would operate inequitably upon those who only retain the house which they themselves built. In such a case, those who are set off ought not to ask remunera- tion; and if this is not satisfactory, it would be less unjust to them to be set back to No. 8, than it would be to the inhabitants of the latter to be taxed to pay to those who had contributed nothing to the erection of the house, a portion of its value. This is a case in which the commissioners should have de- clined setting the persons off if they required the appraisement of the school-house. f"W> M -.. 76 CASES DECIDED BY THE (ANONYMOUS.) Aliens may vote at district meetings. By A. C. FLAGG, March 15, 1831. Aliens may vote at dis- trict meetings. The general law for regulating elections, pro- vides that, " every male citizen" having a certain residence, may vote. The statute relating to schools, says, " No person" shall vote at district meetings unless he has certain qualifications. Subdivision 2, of sec. 74, requires the district clerk in calling a special meeting, to notify " each inhabitant of such district, liable to pay taxes." All persons or inhabitants, who pay taxes, are therefore entitled to vote. The school statute does not require citi- zenship as a qualification for voting; and an alien, who is a resi- dent of the district, and has the other qualifications, is entitled to vote. The Trustees of school district No. 4 in the town of Lenox, ex parte. Trustees should see, when they employ a teacher, that he has a certificate of qualification. If a teacher does not pass an examination before the inspectors, his wages must be collected by a warrant against those who hare sent their children to school. Certificates of qualification are good for a year, even though given by the inspec- tors for a shorter period. This was an application to the Superintendent by the trustee* of school district No. 4 in the town of Lenox, for the purpose of being advised as to the proper course to be pursued to pay the wages of a teacher who had been engaged in teaching three months, and on application to the inspectors, and after an exami- nation by them, had been refused a certificate of qualification for a year; but received one from the inspectors limited in duration, by its terms, to one month. The principal question submitted was whether, on the certificate received by the teacher, the pub- lic money might be paid to him for the three months preceding the time when it was given. By A. C. FLAGG, April 16, 1831. The trustees of a district can issue a warrant for the school bills of a teacher who has no certificate as well as for one who has. In applying the public money however, they can only pay it to those who are duly qualified. (See sec. 24.) When the trustees employ a teacher to whom they intend to pay the public money, they ought to know that he has a certifi- cate dated within one year of the time of his employment. The certificate of the inspectors, if it is good for a month is good for a year. There can be no half way certificates; it is either good or SUPERINTENDENT OF COMMON SCHOOLS. 77 bad for the whole time. I have always decided in cases where a conditional certificate was given, that so far as the trustees and the district were concerned the certificate must be considered good. But in your case the teacher did not apply for a certifi- cate until the end of three months, and then failing to pass a eatifactory examination, he could not be considered a qualified teacher for the preceding three months. You can collect, by warrant, the whole amount of this teacher's wages from those who sent to school, but no part of the public money can be paid to him. (ANONYMOUS.) Unless fuel is provided by tax it must be furnished by those who send children to school. If any person neglects to furnish his proportion of fuel, the amount may be in- cluded in the rate bill or sued for. By A. C. FLAGG, April 22, 1831. Where a district meet- ing votes to provide fuel by a tax, according to sec. 61, sub. 5, the tax must be assessed upon all the inhabitants of the district according to the property owned and possessed by them respec- tively, whether they send to school or not. Where a district does not vote to provide fuel by a tax, each person sending to school can be required by the trustees, to furnish fuel in propor- tion to the number of children sent. If any person neglects to furnish his proportion of fuel, the trustees may furnish it, and an- nex the amount paid for it to the school bill of the delinquent at the close of the school term, or they may prosecute him for it in their name of office. To enable the trustees to make an apportionment of fuel at the commencement of the school, they can ascertain how many scholars each inhabitant proposes to send, and graduate the fuel accordingly. If, in the progress of the school, the num- ber is varied, the apportionment can be altered so as to do jus- tice to the parties concerned. (ANONYMOUS.) A tax can not be laid on the property of a district to pay school bills. By A. C. FLAGG, May 7, 1831. The district has no power to vote a tax to pay a school bill. The school bill must be paid by those who send to school. If they are in the district the bill can be collected by warrant: if they live out of the district, by sec. 89, the trustees can prosecute them, in their name of office. If the warrant to collect a bill has run out, and new trustees are chosen, the new trustees must sign the renewal. 78 CASES DECIDED BY THE The Commissioners of Common Schools of the town of Nunda, ex parte. * In apportioning the value of a school-house belonging to a district lying partly in two towns, the commissioners should follow the assessment rolls of the towns. This was an application for the direction of the Superinten- dent in a case where a school district had been formed by setting off from a district lying partly in two towns a portion of its terri- tory and inhabitants. On examining the assessment rolls of the two towns for the purpose of apportioning the value of the school- house belonging to the old district among the persons set off to the new one, the commissioners found the standard of valuation in one town much higher than in the other, and the ques- tion submitted was, whether they had a right to equalize the apportionment by disregarding the assessment rolls of the two towns, and adopting a standard of valuation which should be uniform as to both. By A. C. FLAGG, June 4, 1831. If a new district was form- ed from Nunda and an adjoining town, it was proper to appraise the school-house retained by the old district. In apportioning the value of the school-house, it is to be, by sec. 68, " according to the taxable property," to be ascertained from "the best evidence in the power of the commissioners/' The assessment roll is ordinarily the best evidence which the commissioners can have. I think that the commissioners should follow the assessment rolls of the towns ; and if any persons are aggrieved, they can appeal to the Superintendent for an equa- lization of the apportionment. The Trustees of school district No. 1 in the town of Conewango, ex parte. The jurisdiction of the trustees and collector of a school district, in collecting rate bills by warrant, is limited to the district. Rate-bills must be collected of residents by warrant, and of non-residents by prosecution. This was a case in which two non-residents had sent children into school district No. 1 in the town of Conewango to attend school, and who, in consequence of a difficulty in respect to the application of the public money, had refused to pay their school bills. The question presented to the Superintendent was whe- ther a warrant could be issued to the collector by the trustees for the collection of the amount due from the non-residents referred to, on account of their portion of the teacher's wages. By A. C. FLAGG, June 21, 1831. I am inclined to the opi- nion that the remedy given in the 89th sec. intended to limit the SUPERINTENDENT OF COMMON SCHOOLS. 79 jurisdiction of the trustees and collector, in collecting a rate-bill, to the boundaries of the district. Non-residents of the district who have lands therein, may be subject to the operation of the warrant of the trustees, where they come under the 77th or 78th sec., being specially made taxable inhabitants by those sections. The provisions in subdivision 13 of sec. 75 authorizes the trustees to make a rate-bill against every person who is liable for teachers' wages. This would seem to 'give color of jurisdiction; but yet I am inclined to believe that it is restricted by section 89. The provision in section 88 authorizing the collector to proceed as on executions issued by a justice of the peace, applies only to the manner of executing the process, but does not extend its ju- risdiction. A rate-bill against residents of the district must be collected by warrant issued by the trustees, and against non-residents of the district by a prosecution on the part of the trustees, in their name of office, and not otherwise in either case."* ' The Trustees of school district No. 13 in the town of Edmeston, against the Commissioners of Com- mon Schools of said town. If the record of an alteration in a school district does not show that the consent of the trustees was obtained, the fact may be proved by other testimony, and the omission does notinvalidate the proceedings. Where the proper records have not been made, the legal existence of school dis- tricts will be presumed, if they have been organized for a length of time. This was a case in which the commissioners of common schools of the town of Edmeston in the year 1830 set off from school district No. 9 to No. 13 several inhabitants, but neglect- ed to set forth in the record, agreeably to the form prescribed by the Superintendent of Common Schools, that the consent of the trustees of No. 9 had been obtained. In the year 1831, the suc- cessors of the commissioners who made the alteration, refused to apportion to district No. 13 any part of the public money on ac- count of the children of the persons set off to it from No. 9, up- on the ground that the proceeding was void, as the record did * By various enactments, warrants for the collection of all taxes for school dis- trict purposes, as well as rate bills for teachers' wages, must direct the collector to proceed in the same manner as on warrants issued by boards of supervisors to the collectors of towns. The principle of this decision is, therefore, essentially varied, excepting in a few cases. The decision by John A. Dix, bearing date the 6th March, 1837, in a case presented from the town of Willsborough, con- tains a full examination of the law applicable to cases of this description, and in relation to the limits within which school district officers charged with the col- lection of taxes, may exercise jurisdiction. 80 CASES DECIDED BY THE not show the consent of the trustees of the latter district to the alteration. From this decision of the commissioners the trustees of No. 13 appealed. By A. C. FLAGG, June 25, 1831. On the appeal of Samp- son Chase and David Nichols, jun., trustees of district No. 13, Edmeston, from the decision of the commissioners of said town, in not apportioning to said district the public money for that portion of the annual report which embraced the children set from No. 9 in 1830, it' appears by a statement received from the commissioners that they did not consider the proceedings of their predecessors legal in breaking up district No. 9 in 1830, and setting the inhabitants to No. 3 and 13, for the reason that the trustees of the latter districts, as appears from the record, had no notice of such alteration, and of the additions made to their respective districts. The notice they admit was duly served on the trustees of the district which was broken up. The commissioners who were in office in the year 1830, have testified that when they made the alteration, notice was duly served on the trustees of No. 9, and that no other notice was given to the trustees of No. 13 than to read over the proceedings in regard to the alteration in the hearing of the said trustees of No. 13, who were present when the commissioneis dissolved No. 9. It seems that the trustees of No. 13 were present and consent- ed to the alteration of their district, and that due notice was given to No. 9, and therefore the alteration, so far as^!3 was concern- ed, was complete, except that it could not go into effect for three months, the consent of the trustees of No. 9 being withheld. In the new forms, the consent of the trustees is inserted as a part of the record, in order to furnish evidence that it was ob- tained. It was put in the form to prevent the very trouble which has occurred in. this case, of getting affidavits to prove that the district was legally formed. But when the evidence which the record should contain, is furnished from satisfactory sources, its omission in the form of the record, does not invalidate the acts of the commissioners. The district was duly altered, as the tes- timony now produced shows, but the commissioners neglected to state the fact according to the form. ' In some instances districts which have been in existence for tent years have been found to be without any record whatever; but the legality of their existence has been considered established by the concurring testimony of the commissioners, and the fact that the district had been organized and in regular operation for so long a time. In such cases it has been decided that the boundaries should be defined, as the district had been understood to be ; and that the district should not be destroyed by any neglect of the SUPERINTENDENT OF COMMON SCHOOLS. 81 commissioners or clerk in making out the record in the manner required. In all cases where it can be avoided, the inhabitants of a district should not be made to suffer, for the neglect, in mere matters of form, of any of the officers of common schools. A less liberal course would often visit injustice as well upon dis- tricts as upon individuals. Under the old law, and by a former Superintendent,* it was decided that for errors of form a district should not be deprived of its money, but that the commissioners might allow the trustees in such cases to correct their reports. Where a person who has paid a tax for a school-house is set from one district to another, without his consent, he is exempt by sec. 81 from taxation for a similar purpose for 4 years ; and in order that there may be evidence at hand to prove that he was transferred without his consent, the form requires that the fact should be stated in the record. But if this is neglected by the commissioners the neglect on their part does not deprive the indi- vidual of his rights; it only subjects him to the inconvenience of proving the fact in some other way. And when this is done, the trustees would be bound to exempt him as much as if the com- missioners had stated the fact in the record. It is therefore decided in this case that district No. 13 was du- ly formed by the commissioners in 1830, and that the trustees thereof were authorized to return the children set to their district from No. 9, and to draw the public money accordingly. (ANONYMOUS) A. B. having two farms separated by a district line is taxable in each district By A. C. FLAGG, July 5, 1831. If A. B. owns two farms, and the district line separates them, he is liable to be taxed for each farm in the district where it lies. The Trustees of school district No. 13 in the town of Avon, against the Trustees of district No. 9 in said town. An appraisement of a school-house, postponed for good cause, will be confirm- ed when made subsequently to the formation of the new district. The facts of this case are fully disclosed in the Superinten- dent's decision. By A. C. FLAGG, July 18, 1831. In the case of the ap- peal of the trustees of district No. 13 of the town of Avon, representing- themselves aggrieved by the refusal of the trustees of No. 9 of said town to collect and pay to them a certain sum, * Mr. Yates. 6 82 CASES DECIDED BY THE according to the appraisement of the commissioners, it appears that in December, 1830, the commissioners of said town formed a new district (13) and attached to it certain persons from No. 9, which latter district was possessed of a school-house; this was not appraised at the time of the division, under an expectation, as is stated by the commissioners, that a compromise would take place between those who were set off and those who remained in No. 9, so that the trustees of the latter district would give their consent to the formation of the new district. This expec- tation, however, was not realized, and on the 21st of March, 1831, the commissioners met and appraised the school-house in No. 9, and apportioned fifty-seven dollars and seventy-seven cents to be paid by the trustees of district No. 9 to the trustees of district No. 13, as the proportion to which those set to the new district were entitled. The trustees of No. 9 have ne- glected to execute the order of the commissioners; alleging that the appraisement should have been made at the time of the division. And the trustees of No. 13 have appealed to the Superintendent, representing themselves and those for whom they act as aggrieved by the refusal of the trustees of No. 9 to execute the order of the commissioners, and pay over to them $57.77. The trustees of No. 9, by direction of the Superin- tendent, have been served with copies of the appeal and have had an opportunity of showing wherein their rights have been prejudiced by the omission of the commissioners to make the appraisement at the time of the division ; but have not shewn that the postponement of the valuation had any influence upon the division or the formation of the new district. It is therefore decided that it is the duty of the trustees of district No. 9, in Avon,- to collect the said sum of fifty-seven dollars and seventy- seven cents from the taxable inhabitants of said district, and to pay the same to the trustees of No. 13, in the manner and for the purpose contemplated by sec. 69 of the statute relating to common schools. (ANONYMOUS.) A saw-mill having an agent or servant in charge of it is taxable to the non-resi- dent owner. By A. C. FLAGG, August 30, 1831, The lot in your di&- trict which has a saw-mill and dwelling-house on it, is taxable to the non-resident owner, as you say he improves and occupies the same by his agent or servant during the time for running the mill, and whenever there is water for the purpose. fc ,j, SUPERINTENDENT OF COMMON SCHOOLS. 83 (ANONYMOUS.) Children of the overseers of poor-houses are to be enumerated by trustees of school districts. This was an application for the opinion of the Superintendent in a case in which the overseer of a county poor-house resided in it with his wife and a number of children between the ages of 5 and 16 years. By A. C. FLAGG, October 15, 1831. The children of the overseer of the poor-house, between 5 and 16 years of age, must be enumerated and returned in the annual reports of the school districts. The intention of the act of April 25, 1831, is to ex- clude only such children as are supported at the county poor- houses as paupers. The Trustees of school district No. in the town of Milan, ex parte. If a person agrees to pay for a certain number of scholars he is to have the be- nefit of the public money in reduction of their school bills. This was a case in which certain persons agreed to pay the tuition of a given number of scholars, whether they were sent to school or not, with a view to encourage the trustees of the district in procuring a good teacher. In providing funds to pay the teacher's wages, it was contended by some of the inhabitants of the district that the public money should be applied exclusively to the benefit of the children actually sent to school, and that the persons liable by a special agreement to pay for more scholars than they had sent could not be benefitted by an application of the public money to the reduction of their school bills. By A. C. FLAGG, November 5, 1831. You ask, if an inha- bitant of the district promises, in a written article, to pay $5 a scholar for the instruction of 5 scholars and does not send any to the school, whether he can have any of the public money? I an- swer; he is to be treated as if he sent 5 scholars to the x school all the time. The effect of his agreement is that he will be obli- gated to pay, whether he sends or not : that is, he is willing to be considered as sending all the time and pay accordingly. The trustees, by the same agreement which holds the subscriber to pay for five children all the time, are bound to grant the same person all the advantages which can arise from sending all the time. If he sends 3 out of the 5, he is to be charged in his bills as if he sent 5, because he has made a special agreement to be so charged, whether he sends or not: and if his absent children are considered present for the purpose of charging, shall they not be considered present for the purpose of crediting the parent, 84 CASES DECIDED BY THE or enabling him to share the public money in reducing his tui- tion bill? I think they should. The persons who have made this agreement are to have their bills made out as if they bad sent the number of scholars subscribed for all the time. The Trustees of school district No. in the town Sangerfield, ex parte. The vendor of a farm, remaining in possession, is liable for taxes assessed on it The facts of this case are stated in the opinion of the Super- intendent. By A. C. FLAGG, November 7, 1831. You state that in June, 1830, a resident and trustee of your district sold a farm to a resident of Rensselaer county, which farm was to be delivered to the purchaser in April, 1831, " free from all incumbrances, taxes being particularly specified." In November, between the time of purchasing and giving possession, a tax was voted for the school-house, and the seller, as one of the trustees, made out the tax against the purchaser, who was not yet a resident of the dis- trict. The 76th section declares that " in making out a tax list, the trustees sball apportion the tax on all the taxable inhabitants within the district, according to the valuation of the taxable pro- perty which shall be owned or possessed by them, at the time of making out the list within the district." Under this section the trustee in possession of the farm might have been legally assess- ed therefor. If in equity or by contract he ought not to pay the tax, he had his remedy under the 83d section of the school statute, and if the charge had been made against the- purchaser under that section it would Have afforded him an opportunity to show that the seller had agreed to pay all taxes. J. W. Brewer and others, against the inhabitants of school district No. 17 in the town of Hartwick. If a legal vote, which if given might have affected the result, is rejected, pro- ceedings will be set aside on appeal. The facts of this case are stated in the Superintendent's deci- sion. By A. C. FLAGG, November 15, 1831. In the case of the ap- peal of Jonathan W. Brewer and other taxable inhabitants of dis- trict No. 17 in the town of Hartwick, it appears by the affidavit of Cornelius Woodcock that his vote was rejected by the moderator, although he has resided in the district for the last year, and rented a tenement of $125 in value, in said district, the present year end- ing the 1 st of April, and has paid road taxes this season ; and that SUPERINTENDENT OF COMMON SCHOOLS. 85 his vote would have prevented the election of the present trustees. It is also proved that one person voted for the trustees who was not at the time a resident of the district. A satisfactory reason has been given for not presenting the appeal within 30 days, and notice of the appeal has been served on the clerk. It is clearly shown that Mr. Woodcock was a legal voter, and that the rejection of his vote may have changed the result of the election. It is therefore decided that the election of district offi- cers, in school district No. 17, Hart wick, on the 4th day of Octo- ber, 1831, be, and it is hereby set aside, and the several district offices are hereby declared to be vacated : and the clerk of the preceding year, or if he is unable to attend to it, any taxable in- habitant of the district is authorized to call a special meeting, by exhibiting this order, for the purpose of choosing district officers, to hold until the annual meeting, on the 4th of October next, or until others are chosen. The Trustees of school district No. in the town of Alden, ex parte. CSerks or journeymen, of lawful age, are entitled to vote in school districts, if they have paid taxes on the highway. This was an application for the opinion of the Superintendent in a case where several clerks and journeymen of lawful age, who had been assessed to work on the highway, but who possessed no property, claimed to vote at a meeting which had been called to lay a tax for building a school- house* By A. C. FLAGG, November 29, 1831. A clerk or journey- man of lawful age who is a resident of the district, and has work- ed or paid taxes on the highway, is a legal voter at district meet- ings. In the case of individuals who have no property and no interest in the school, the law may seem to operate unjustly; but an exclusion which would reach them would cut off the poor man with a large family of children requiring school accommo- dations, who has no freehold or property exempt from execution, and who is made a voter in the district solely on the ground of paying highway or other taxes to the town. If persons who have no care for the district should sport with its best interests, by means of their votes at district meetings, a remedy is secured by an appeal to the Superintendent, under sec. 110 of the school statute. 86 CASES DECIDED BY THE ^ ' iy Peter Magher, an inhabitant of school district No. 4 in the town of Cherry- Valley, against the Trustees of school district No. 4 in the town of Maryland. Real estate is taxable where it lies, and personal property where the owner re- sides. This was an appeal by Peter Magher, who resided in school district No. 4 in Cherry-Valley, from the proceedings of the trus- tees of school district No. 4 in Maryland^ in assessing him to pay a tax, voted to build a school-house in the latter district, on per- sonal property possessed by him in said district. Mr. Magher was the owner or lessee of a store in the latter district, which he occupied by an agent for the sale of merchandize. The princi- pal question involved in the appeal was, whether he was taxable for the goods in the district where the store was situated, or in the district of which he was a taxable inhabitant. By A. C. FLAGG, December 3, 1831. A person can be as- sessed for personal property only in the district where he resides: the general tax law, section 5 of title 2, provides that every per- son shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him. Real estate is assessed in the town where it lies although the owner lives in another town. The statute relating to common schools, authorizes the tax list to be made out against all the taxable inhabitants within the district, and in relation to certain real estate, (sections 77 and 78,) declares that the owners who are non-residents, for the purposes of taxation, in relation to such land, shall be considered taxable inhabitants of the district. But there is no such provision in relation to personal property of non-residents. Mr. Magher is assessed for his personal pro- perty embracing the goods in store in district No. 4 in Cherry- Valley, and in an assessment in the district where he resides the valuation would be taken from the town assessment, and he would pay taxes on the goods in that district. If Mr. Magher rents or owns the store in district No. 4, he can be assessed for the real property thus owned or occupied. If I am not mistaken as to the facts agreed upon by the trustees of No. 4. Maryland, and Peter Magher, the said Magher has been wrongfully assessed in said district, and the trustees will discharge him from such wrongful assessment and charge the amount to the taxable in- habitants of the district.* The principle of this case is settled by the case of the trustees of school din thct No. in the town of Stillwater, page 71. SUPERINTENDENT OF COMMON SCHOOLS. 87 The President and Directors of the Jefferson County Bank, ex parte. Banks are taxable for common school purposes. This was an application to the Superintendent for the purpose of ascertaining upon what grounds the trustees of the school dis- trict, in which the Jefferson County Bank was situated, had teen directed to include the property of that institution in the as- sessment of a tax voted to build a school- house. By A. C. FLAGG, December 21, 1831. The general tax law provides for taxing banks, and the manner of collecting the tax. The school statute refers to the assessments under the ge- neral tax law, as the guide for the trustees of districts in levying taxes which they are directed to collect. The officers of the bank for the purposes of collecting this tax, are made to represent the corporate property as much as trustees, guardians, &c., are the property in their custody by section 10, title 2, of the general tax law. I conceive that the general act for the assessment and collection of taxes settles the principle as to the equalization of all taxes which are to be raised upon property, unless the law imposing the tax makes special exemptions. And instead of be- ing under the necessity of pointing out a provision in the school law declaring that banks shall be taxed in order to sustain my opinion, I am inclined to believe that the bank ought to show a special provision exempting it from the operation of the school statute in relation to taxes, before it can claim an exemption. (ANONYMOUS.) Tax lists must include all taxable inhabitants; but rate-bills include such only as have sent children to school. By A. C. FLAGG, December 27, 1831. School bills are made out in proportion to the number of scholars sent by each person. After exempting the indigent, the trustees are directed in subdi- vision 12 of section 75, to ascertain by examination of the school lists kept by the teacher the number of days for which each per- son not so exempted shall be liable to pay for instruction, and the amount payable by each person. The sum is assessed up- on the scholar and not upon the property. A tax upon property must in all cases embrace every taxable inhabitant of the dis- trict. A rate bill for tuition embraces only such as have patro- nized the school by sending their children to it. 88 CASES DECIDED BY THE (ANONYMOUS.) Mode of proceeding in appraising school-houses explained. By A. C. FLAGG, March 24, 1832. In appraising a school- house the commissioners should give to the trustees of the old district the sum total which is to be paid to the new district, and also the names of the individuals for whose benefit it is to be paid, and the sum to which each person set off is entitled, see form page 69. The trustees of the old district then take the amount, say four- teen dollars, and make out the tax list the same as if it had been voted to raise fourteen dollars for repairing the school-house, ad- ding thereto five per cent for collector's fees. When collected, the money is paid to the trustees of the new district, and they credit the same to the persons who were declared by the com- missioners to be entitled to it. Moses Elkins, a teacher in school district No. - in the town of Plattsburgh, ex parte. Schools should not be kept more than six hours per day. This was an application from the teacher of a district school for his direction in a case in which the trustees of the district had required him to keep his school open eight hours per day. By A. C. FLAGG, April 5, 1832. The law is not specific as t,o the number of hours which shall constitute a day in teaching school. The custom of the country therefore must determine this question. So far as I am informed it is customary to keep six hours. It is not in my judgment desirable to confine children more than six hours a day. The Trustees of school district No. 13 in the town of Canton, ex parte. A man of lawful age hired out for a year or six months, and having no family, is a resident of the district in which he is hired. This was a case in which a young man, after having attain- ed the age of 21 years, left his father's house, and hired him- self out for six months in another school district. During the period for which he was so hired, he returned to his father's house on a visit, and claimed to vote at a meeting of the inha- bitants of the district in which his father resided. By A. C. FLAGG, May 8, 1832. When a man arrives at the age of 21 years, having no family of his own, and hires out for a year or six months, his residence is where he is employed, and he cannot come into the district where his father may live, and vole at the district meeting. SUPERINTENDENT OP COMMON SCHOOLS. 89 The Trustees of school district No. 6 in the town of Pawlings, against the Commissioners of Common Schools of said town. Commissioners cannot be compelled to pay interest on moneys withheld from school districts in the discharge of their duties. This was an appeal to the Superintendent of Common Schools under the following circumstances : In the year 1831 it was de- cided on an appeal by the trustees of school district No. 6 in the town of Pawlings, that the commissioners of common schools of that town should pay over to said trustees a certain amount of public money which had been withheld by said commissioners on account of informalities in the annual reports of that district. The specific sum awarded to the district by the Superintendent's decision was paid over, and this was an appeal by the trustees from the refusal of the commissioners to pay interest on the amount for the time during which it was withheld. By A. C. FLAGG, July 6, 1832. In deciding that the com- missioners should pay the school money to district No. 6. it was not intended to include any interest. In relation to the public money, a specific sum is apportioned to a district, and in conse- quence of a supposed informality the commissioners withhold it. The case is submitted, and it is decided, that all things consi- dered, the commissioners may accept the report, or allow it to be amended, and then pay the public money as apportioned. I should not think it fair to make them pay interest if I had the power to do so. E, Savage, a taxable inhabitant of school district No. 3 in the town of Salem, against the Trustees of district No. 9 in said town. Rule of taxation applied to a particular case. E. Savage was the owner of a farm consisting of several con- tiguous lots, all of which were wholly included within the boun- daries of school district No. 3, excepting lot No. 227, which was included within the boundaries of district No. 9. On lot 227 there was a tenant who rented a house and a small garden spot, but the residue of the lot was worked as a part of E. Savage's farm. The question presented was whether the whole of lot No. 227 was taxable in district No. 9, or only the house and garden spot occupied by his tenant. By A. C. FLAGG, September 3, 1832. It is submitted whe- ther E. Savage is taxable in district No. 9 for lot 227, which lot forms a part of his farm, and with the exception of a house and garden spot, is now improved as a part of his farm. The 76th 90 CASES' DECIDED BY THE section of the school act authorizes the trustees to assess taxe? "on all the taxable inhabitants within the district, according to the valuations of the taxable property which shall be owned or possessed by them at the time of making out the list within, the district, or which being intersected by the boundaries of the district, shall be so owned or possessed by them partly in such district and partly in any adjoining district." If there were no tenant on lot 227, it clearly would be assessed to- E. Savage in No. 3, although intersected by the district line and lying in No. 9. But as there is a tenant on 227, he is taxable in No. 9 for the house and garden, or such portion as he rents, and E. Savage is taxable for the residue as a part of his farm, in No. 3 and not in No. 9. In 4th Wendell, page 429, a case somewhat similar is decided, where a farm consisted of 100 acres in Cambria, and a distinct lot of 50 acres in Lewiston ; the house was on the 100 acres, and the barn on the 50 acres. It was in that case decided that the two lots formed one farm, and that the owner could not be assessed in the town where the 50 acres and barn were situated, but was taxable for the whole in the town where his house was situated. If Mr. Savage had a barn on lot 227, that being a legitimate appendage of a farm, it would not render the lot liable to be assessed in No. 9, or any part of it. It is my opinion, therefore, that the trustees of No. 9 cannot assess E. Savage in No. 9 for such part of lot 227 a? is occupied by him as a part of his farm ; and that the tenant on 227 is taxable for the house and garden spot only. The trustees will discharge E. Savage from the assessment, and re- assess the amount put to him, upon the other taxable inhabi- tants of the district. The Trustees of school district No. 3 in the town of Charlotte, ex parte. Land belonging to a minister of the gospel, if leased to a tenant, is taxable. This was an application for the opinion of the Superintendent in a case, in which a lot of land was owned by a non-resident minister of the gospel, and leased to a tenant who resided in the district, a tax having been voted to build a school-house, and the tenant having claimed an exemption under the provision of the statute, exempting under certain circumstances, the real estate of ministers of the gospel from taxation. By A. C. FLAGG, September 10, 1832. The land owned by a minister of the gospel, if rented, can be taxed to the tenant. If the occupant is the agent of the minister, so as to render k necessary to make out the assessment against him as owner, SUPERINTENDENT OF COMMON SCHOOLS. 91 then the ministerial exemption may possibly extend to this lot, and release it from taxation. The exemption of the real estate of ministers of the gospel, by the 4th sec. sub. 8 of the act re- lating to the assessment and collection of taxes, provides express- ly that real estate to- be exempted from taxation, must be occu- pied by them.* (ANONYMOUS.) Taxes for fuer or repairs may be voted at annual meetings. By A. C. FLAGG, November 12, 1832. A tax can be voted at the annual meeting for fuel or for repairing the school-house. The Trustees of school district No. 3 in the town of Massena, ex parte. School-houses may be used for Sunday schools. This was an application for the opinion of the Superintendent as to the propriety of allowing the school-house in district No. 3 in the town of Massena, to be used on the Sabbath for the ac- commodation of Sunday schools. By A. C. FLAGG, December 6, 1832. I think it is proper for the trustees to allow the school-house to be used for Sunday schools. They are so intimately and so usefully connected with the objects and purposes of the common schools, that the school- houses should not be shut against them. The inhabitants of school district No. 24 in the town of Sempronius, against the Trustees of said dis- trict. Land occupied by an agent or servant of the non-resident owner is taxable to the latter. This was an application for the decision of the Superintendent on a statement of facts agreed on by the parties. By A. C. FLAGG, December 29, 1832. In the case of the Birch lot in district No. 24, Sempronius, it appears that the owner is a non-resident of the district; that a relative of the owner lives on the lot, which has about 15 acres of 150, cleared; that it is uncertain whether the person living on the lot pays rent or not ; but that in the town assessment, the lot is taxed to the owner, and not to the person living on the farm. The Birch lot is in my opinion taxable in the school district, under the 77th * The principle of this case is settled by the decision of the Superintendent, page 22. 92 CASES DECIDED BY THE section, to the owner, as being occupied by his agent or servant. The 78th section under which the land cleared and cultivated, only is to be assessed, relates to such lots as are " not occupied by a tenant or agent." The principle of the law is this, that where a family is on the lot requiring and enjoying school ac- commodations, the whole farm shall be assessed to build the house. Where there is no occupant the non-resident owner shall only be assessed, for such parts of the lot as he cultivates, and from which he is supposed to derive some benefit. The fact that the non-resident owner in this case pays the town tax, proves that there is no arrangement or expectation between the owner and occupant, that the latter is to pay the taxes. The trustees will follow the town assessment. The Trustees of school district No. 5 in the town of Clifton Park, ex parte. A teacher, who at the commencement of a term of instruction, holds a certifi- cate dated within a year, is a qualified teacher to the end of the term. This was an application for the opinion of the Superinten- dent in a case where a female teacher held at the time she was. employed a certificate of qualification, dated within a year, from the inspectors of common schools of the town. Before the ex- piration of her term the year ended, and her certificate was not renewed. The question presented was, whether she could be considered a qualified teacher for the whole term or only for so much of it as elapsed during the year commencing at the date of her certificate. By A. C. FLAGG, December 30, 1832. In the application from district No. 5, Clifton Park, a question is presented, whe- ther a teacher having a certificate, dated within one year of the time she was employed, but which ran out before the close of the term, is a qualified teacher under the law, arid entitled to receive the public money. In my opinion she is legally a qualified tea- cher. Section 93 is complied with if the teacher at the time the trustees employ her had a certificate dated within one year of that time. The public money rightfully and legally can be paid to her. Robert T. Law, a taxable inhabitant of school dis- trict No. 23 in the town of Salem, against the Commissioners of Common Schools of said town. No person who is set to a new district can, without his consent, be deprived of his ripb' to receive a portion of the value of the school-house of the district, from which he is taken. This was an appeal from the proceedings of the commission- SUPERINTENDENT OF COMMON SCHOOLS. 93 ers of common schools of the town of Salem, in neglecting to appraise the school-house and property of district No. 8 in said town, on the occasion of forming a new district. It appeared, on the presentation of the appeal, that all the inhabitants of district No. 8, who were set off to the new district, with the exception of Robert T. Law, relinquished their claim to a portion of the value of the school-house belonging to that district. By A. C. 'FLAGG, January 12, 1833. Robert T. Law of Salem, represents himself aggrieved by being set off from dis- trict No 8, Salem, in which district there was a school-house, and being" annexed to district No. 23, a joint district, without appraising the school-house and apportioning to the appellant his share of the property of No. 8. It is for redress in this par- ticular that the appeal is made. The appellant urges that the new district should be annulled, because the school-house was not appraised. This is unreasonable and will not be granted. The person set to a new district, from an old one possessed of a school-house, has a right as an individual to his share of the value of the school-house, which he can relinquish or not as he pleases. The trustees are, to be sure, made his agents for at- tending to and securing his interests in this particular: but the 69th section declares, that the money received by the trustees of the new district from the old trustees, " shall be allowed to the cre- dit of the inhabitants who were taken from the former district, in reduction of any tax that may be imposed for erecting a school- house." If the individual is willing to waive his right in the school-house, for the advantages he acquires in the new district, and is willing to pay the tax for the new school-house, he may do so. It does not appear that Mr. Law was among those who relinquished their right in the school-house, and he can properly pursue all legal remedies to get his just due. It is therefore order- ed thatthe commissioners of common schools of the town of Salem, ascertain the proportion of the value of the school-house in No. 8, to which Robert T. Law was entitled according to the valuation of his property, and that they certify the same to the trustees of district No. 8, who are required to collect and pay over to the trus- tees of district 23, the sum so certified: and the trustees of dis- trict No. 23 will deduct the sum thus ascertained, and colled only the residue of the assessed tax from the said Law. 94 The Trustees of school district No. 4 in the town of German, ex parte. An illegal vote does not necessarily vacate the proceedings of the meeting t which it is given; but if the illegal vote might have affected the result, an ap- plication may be made to the Superintendent to set aside the proceedings. This was an application to the Superintendent for his opinion as to the effect of an illegal vote on the proceedings of the meet- ing, at which the vote was given. By JOHN A. Dix, January 31, 1833. If a person without the requisite qualifications votes at a district meeting, his vote does not necessarily impair the validity of the proceedings, but he may be prosecuted for the offence, and will forfeit the sum of ten dollars with the costs of prosecution. If, however, it can be made to appear that the result might have been different if the illegal vote had not been given, it will be a proper case for an application to the Superintendent to set aside the proceedings. The Trustees of school district No. in the town of Florence, ex parte. A person leasing land at halves of a non-resident owner is taxable for it. This was a case in which a non-resident owner of land leas- ed it to a tenant, who by the conditions of the lease was to pay to the lessor one half of the products. The question presented was, whether the land should be taxed to the non-resident owner or the lessee, who was in possession. By JOHN A. Dix, February 5, 1833. If a non-resident owner of real property lets it at halves, the tenant in possession must be taxed for the whole amount assessed on the property, under section 76, 1 R. S. page 482. The apportionment of the tax between him and the owner is a question for them to settle by agreement or otherwise between themselves, and not for the trustees of the district in which the property lies. If the tax be assessed for any of the purposes specified in section 83, page 483, same vol., the tenant in possession would have a valid claim on the owner for the whole amount, provided he held upon any of the conditions recited in that section, and had made no agree- ment with the owner to the contrary, and the tax voted was for one of the purposes specified. This is a case of the description last referred to. The tax was for building a school-house. The tenant in possession must be looked to for the tax ; but unless there was an agreement to the contrary, the owner must pay over the whole amount to him. If he will not do it voluntarily, he may be compelled by a suit at law. But the district must collect the tax of the tenant on whom it was assessed. SUPERINTENDENT OF COMMON SCHOOLS. 95 The Trustees of school district No. 10 in the town of Smyrna, ex parte. Trustees of school districts are not required to take and subscribe the .oath pre- scribed in the constitution. Trustees in assessing taxes may administer an oath when a reduction is claimed. This was an application to the Superintendent by the trustees of school district No. 1 in the town of Smyrna, for his opinion as to the necessity of taking the oath of office when they were required to proceed in the same manner as town assessors in as- sessing a tax, and as to their right to administer an oath to a person claiming a reduction in the amount of the valuation of his taxable property. By JOHN A. Dix, February 9, 1833. The constitution of this state, .article 6, provides that "members of. the legislature, and all officers, executive and judicial, except such inferior officers as may by law be exempted," shall take and subscribe the oath therein prescribed. Whether trustees of school districts are to be regarded as infe- rior officers within the meaning of this provision of the constitu- tion, may be considered doubtful. But they are charged with the exercise of certain powers for the benefit of the inhabitants of the districts for which they are appointed ; and as they are en- trusted with the expenditure of the income of the school fund, their trust must be regarded as partaking of a public character, if, as is said, the nature of the duty to be performed, and not the extent of the authority, determines the character of the officer. In the convention by which the constitution was framed, great differences of opinion prevailed with .regard to the extent of the provision prescribing the oath of office. Some of the members were of opinion that it did not embrace town officers, that it was applicable only to those officers whose stations required them to swear to the constitution of the United States, or such as are enu- merated in section 3, article 6, of that instrument. The lan- guage of this section is that "all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution," &c. The section of the constitution of this state, as originally reported, was nearly identical in language with this, so that the difficulty of construction was not relieved by the reference to the constitution of the United States. Some of the members were of opinion that town officers were embraced by it; and on the final adoption of the provision the words " except such inferior officers as may by law be exempted," were introduced as an amendment and car- ried, although at a previous stage of the discussion a similar 96 CASES DECIDED BY THE amendment was opposed as useless and withdrawn by the mo- ver. If any inference is to be drawn from these discussions it is that town officers were within the scope of the provision of the con- stitution as adopted ; and it would seem, therefore, that a special exemption would have been necessary to release them from the obligation of taking the constitutional oath of office, if the law had been silent as to other officers. But such is not the case. The statute has undertaken- to specify by what classes of officers the oath shall be taken. The highest judicial and executive offi- cers in the state are required by the 1 R. S. sec. 20, page 119. to take the oath, although, if the statute had been silent, the obligation to take it, by virtue of the constitutional provision, would have been equally imperious. The course of legislation on this subject is so far important in its bearing upon the question that it may tend to throw light upon the intention of the legisla- ture, with regard to the exemption of inferior officers from the constitutional requirement. If, from the fact that the legislature has undertaken to enumerate all the classes of officers who shall take the constitutional oath, the inference may be drawn that all inferior officers, not embraced in such enumeration, were de- signed to be exempted, a construction of the law which shall be in accordance with that intention ought to prevail. With regard to certain town officers the statute is silent, while others are required to take the oath. Of the latter class are the supervisor, town clerk and others, pages 345 and 346, 1 R. S. while the commissioners and inspectors of common schools, and some others, are merely required to file in the town clerk's office a notice of the acceptance of their respective offices. The office of commissioner of common schools is a much more responsible one than that of trustee of a school district, not only as regards the more extended sphere of the jurisdiction and the nature of the duties to be discharged, but in respect to the pecuniary lia- bility incurred, by reason of the sums of money confided to the incumbents for distribution. As these officers are merely re- quired to file a notice of their acceptance, and as other town offi- cers are required by the same title to take the oath, there can be no doubt that the intention of the legislature was to exempt the former from the constitutional obligation; although the exemp- tion is left to be inferred from the silence of the statute with re- gard to them, and from its express provisions with respect to others of the same grade. If this construction of the statute be correct, it would be unrea- sonable to suppose that it was the intention of the legislature to leave officers of school districts, who are of a grade still inferior, to the operation of the provision of the constitution prescribing SUPERINTENDENT OF COMMON SCHOOLS. 97 the oath of office. On the contrary, as the statute has enume rated the classes of officers, by whom the oath shall be taken ; as the exemption of the commissioners and inspectors of common schools is inferred from its silence in relation to them, and as the act relating to common schools is silent as to school district offi- cers, it may be fairly assumed that the latter were intended to be exempted. The question must manifestly be settled by con- struction; and as no special exemptions of inferior officers have been made by law, it is not unreasonable to infer a design to exempt in one case from circumstances, which in another case are deemed conclusive as to the intention of the legislature. It is worthy of observation that by the acts of 19th June, 1812, and loth April, 1814, for the establishment of the com- mon school system, there was no provision by which trustees of school districts were required to take an oath of office, although it was provided that the clerk should be " qualified by oath or affirmation," as town clerks by law are qualified. By the act reorganizing the common school system, passed the 12th April, 1819, and repealing the act of 15th April, 1814, (the act of 1812 had been already repealed,) the provision requiring the clerk of the school district to be sworn was not re-enacted : and although the commissioners of common schools were, by the act of 1812, and both the commissioners and inspectors were, by the acts of 1814 and 1819, required to be qualified by oath or affirmation, an act was passed on the 23d March, 1821, by which the pro- vision then existing, and prescribing such oath or affirmation, was repealed, and a notice of the acceptance of their office was substituted for it. To this act the following preamble was an- nexed: "Whereas the multiplication of oaths, without absolute necessity, has a direct tendency to impair the reverence due to them, and to produce consequences unfavorable to the morals and good order of spciety: and whereas certain oaths of office required by the laws of this state are either unnecessary in them- selves, or rendered useless by the change of those circumstances which formerly required them : Therefore. Be it enacted," &c. The exemption of commissioners and inspectors, by the Re- vised Statutes, from the obligation of taking the oath prescribed by the constitution, is in accordance with the provisions of this act, which certainly adds strength to the inference I have drawn, with regard to the intention of the legislature in respect to trus- tees of school districts. I do, therefore, decide that trustees of school districts need not, before they enter on the duties of their office, take and subscribe the oath prescribed by the constitution of this state. In ascertaining the value of property to be taxed, trustees are to be considered as having regularly entered on the discharge of 7 98 CASES DECIDED BY THE their duties, and competent to do any act, which the law autho- rizes them to perform. The affidavit of a person claiming a re- duction in the valuation of his property, may be taken before the trustees or one of them. The 80th section of the title and chap- ter of the Revised Statutes relating to common schools, requires them in certain cases to proceed in the same manner as the town assessors are required by law to proceed in the valuation of taxable property. The 25th section of title 2, chapter 13. Revised Statutes, relating to town assessors, provides that the affidavit of a person objecting to an assessment may be made before the assessors, or one of them, who are authorized by that section to administer oaths for the purpose. The authority is given for a specified purpose, and I consider the authority to administer oaths, for the same purpose, given to the trustees by the section requiring them to proceed in the same manner as town assessors. Although it is not expressly given, they would not have the power to proceed in the same manner if, by deny- ing to them the authority of administering oaths to persons ap- pearing before them to dispute the justice of their assessments, they should be compelled, in order to give effect to their proceed- ings, to call in the aid of individuals authorized to administer oaths for other purposes. (ANONYMOUS.) A school must be kept twenty-six days for a month, and seven ty-eight days for a quarter. By JOHN A. Dix, February 11, 1833. Whenever the term " month," is used in a contract with a teacher, it means a calendar month. Twenty-six days, therefore, constitue a school month, this being the average number of days after deducting Sundays. Ninety-one days are to be considered a quarter of a year.* Whenever the term " quarter" is used as the term for which a teacher is employed, seventy-eight days will be the number, during which the school is to be kept, deducting such customary holidays as may occur during the time. * See a case decided by A. C. Flagg, Jan. 20, 1830, page 57. SUPERINTENDENT OF COMMON SCHOOLS. 99 The Trustees of school district No. 4 in the town of Scriba, against the Commissioners of Common Schools of said town. It' a school district loses its portion of the public money in consequence of mis- laying its annual report, the loss will, on application to the Superintendent, be allowed out of the moneys distributed the next year. . The facts of this case are fully set forth in the decision of the Superintendent. By JOHN A. Dix, February 18, 1833. Whereas it has been made to appear from affidavits of the trustees and others, that the annual report of district No. 4 in the town of Scriba, for the year 1831, was regularly made and delivered to the town clerk of said town, but by mistake was not handed over to the com- missioners of common schools, and by reason of this mistake said district was deprived by the commissioners of the amount of public money to which it was justly entitled for the year 1832 ; and it having been made to appear that said district complied in all respects with the requirements of the law : It is ordered that the amount to which said district was entitled, be ascertained and paid out of the next moneys which shall come into the hands of the commissioners of common schools of said town, and that the residue of the public money, after deducting said amount, be apportioned in the usual manner according to the reports of all the districts, including No. 4. The Trustees of school district No. 4 in the town of Champion, ex parte. School-houses cannot be used for any other than common school purposes, ex- cepting by general consent A vote of a majority of the inhabitants does not render it proper to use school- houses for any other than their legitimate purposes. This was an application to the Superintendent for his opinion upon the following questions: 1st. Whether the trustees have a right to hold the school- house of their district open for any religious or temperance meet- ings, when not encroaching on school hours. 2d. Whether a vote of the majority of the taxable inhabitants in any district shall decide as to the duty of trustees on the ques- tion above mentioned. By JOHN A. Dix, February 19, 1833. 1st. The trustees of each school district have the custody and safe keeping of the dis- trict school-house. They have the custody of it for the purposes specified in the act from which they derive their authority ; and they have, therefore, strictly no more right to allow it to be used for religious meetings, than the trustees of a religious society 100 CASES DECIDED BY THE would have to allow the church or meeting house to be used for keeping a school. There would be no impropriety in allow- ing either to be used for one purpose or the other, if no objection were raised by the district or the society. But where controver- sies grow out of the application of a school-house to pnrposes not contemplated in establishing it, it is the duty of the trustees to confine its use strictly to the legitimate objects. 2d. I do not consider the voice of a majority of the inhabi tants of a district as a proper criterion for determining the pro- priety of applying a school-house to other uses than those for which it was designed. The law has determined this ques- tion. It cannot with strict propriety be applied to other than common school purposes. It may be otherwise used by the ge- neral consent of the parties interested. But if such use were likely to distract the district, by breeding dissensions, and a re- spectable minority should apply to me for an order to confine the school-house to its legitimate purposes, I should not consider myself at liberty to deny the application. The trustees there- fore should so act as to render any such application to me un necessary. Harvey W. Babcock and Amos H. Brown, against the Trustees of school district No. 4 in the town of Milford. A factory unoccupied is taxable to the non-resident owner, though a house on the same lot is occupied by a tenant. This was a case submitted by the parties, on a statement ol facts, for the decision of the Superintendent. By JOHN A. Dix, February 19, 1833. The facts submitted in this case are briefly these: There is a lot of 97 rods of land, on which are a factory and a house, the owners being non-resi- dents. The factory and house have been leased separately, and the valuations on the last assessment roll of the town are sepa- rate. A tax is levied to build a school-house, but at the time the tax is assessed, the factory is unoccupied, the tenant having left it. The question submitted is, whether the owners of the factory are liable for the tax assessed on it. The general rule in relation to improved property of non-resi- dent owners which is unoccupied, is that the non-resident own- ers are taxable therefor in the same manner as if they were in- habitants of the district. The house is in the occupation of a tenant, and he must be looked to for the tax upon it, which, however, he may charge upon the owners under section 83, 1 R. S. page 483, unless there is an agreement to the contrary. The tenant is not responsible for the tax assessed on the factory, SUPERINTENDENT OF COMMON SCHOOLS. 101 as the tenancy is altogether separate from and unconnected with it. Decision No. 25 of the Superintendent, heretofore published with the school laws, relates merely to vacant unimproved lots, and not to improved property.* In the case referred to in that decision, the tenant who occupied ten acres of improved land, on a lot of which the residue was unimproved, was considered as the agent of the owner for the unimproved part. The case now submitted is entirely different. The whole property is improved, and it would be taxable upon the non-resident owners as a whole, but for a separate lease of a portion of it. The tenant who is in possession becomes liable in the first instance, under the provisions of sec. 76, page 482, 1 R. S. for the portion which he occupies, but he is not liable for the residue. Indeed, if he were to be considered as the agent of the owners for the factory, un- der the decision above referred to, the effect would be only to make the non-resident owners taxable for it as if they were in- habitants. Under whatever view the question is considered, it seems to me that the non-resident owners are taxable for the factory in the same manner as if they w r ere inhabitants of the district. The Trustees of school district No. 10 in the town of Shawangunk, ex parte. If a teacher inflicts unnecessarily severe punishment on a pupil he is answerable in damages. His government should be mild and parental ; but he is respon- sible for the maintenance of discipline in his school. Quere. Whether inspectors can annul a certificate except on the grounds on which their authority to examine teachers is given ? Corporal punishment has no sanction but usage. Teachers cannot demand payment of their wages until the collector has had 30 days to collect them. This was an application for the opinion of the Superinten- dent on several questions submitted to him, the nature of which is explained by his answer. By JOHN A. Dix, March 1, 1833. Teachers are respon- sible to their employers for any abuse of their authority over the children committed to their charge. Their government should be mild and parental, but at the same time, steady and firm. If a teacher inflicts unnecessarily severe punishment upon a scholar, he is answerable in damages to the party injured. It has been doubted by some whether the inspectors have a right to annul a certificate, except upon the ground on which their authority to examine is given to them, viz.. to ascertain the quali- fications of teachers in respect to moral character, learning and ability. The section of the law which gives them authority to * See case decided by A. C. Flagg, October 11, 1830, page 69. 102 CASES DECIDED BY THE annul a certificate, is general in its terms, but the question has been raised, whether that power is not to be construed as limited by the provisions of the other sections defining their powers. Whether inspectors may annul a certificate because a teacher has punished a scholar with too much severity, depends on the man- ner in which this question is settled. The question has never been presented distinctly to the Superintendent in such a man- ner as to obtain his decision upon it, and I merely suggest it as a matter, which has given rise to doubt. With regard to the right to punish, no general rules have been laid down, and it would be difficult, if not impossible, to make any which would be applicable to every case. The practice of inflicting corporal punishment upon scholars in any case whatever, has no sanc- tion but usage. The teacher is responsible for maintaining good order, and he must be the judge of the degree and nature of the punishment required, where his authority is set at defiance; at the same time he is liable to the party injured for any abuse of a prerogative which is wholly derived from custom. The trustees must pay to the teacher the wages which they have contracted to give him ; he cannot be put, against his con- sent, to the inconvenience of collecting his dues himself, and if the trustees, who made the contract with him, do not pay him any portion of his wages, he can prosecute them or their succes- sors in office for the whole amount. But unless they have made some specific agreement with him to the contrary, he cannot de- mand payment until after the expiration of the time allowed the collector for making his return to the warrant annexed to the rate bill. He must be presumed to have made his contract with full knowledge of the requirements of the law. The trustees are to be regarded as acting in a public capacity, and they cannot be required to do more than the law enjoins upon them, unless they have made themselves responsible individually by a specific agree- ment to do more. The statute gives the collector 30 days to execute the warrant, and the money by which the teacher is to be paid wiJl not be presumed to be in their hands until that time has expired. He cannot before the expiration of that time de- mand his wages, without showing moneys in their hands for the purpose of paying him. Davis Gates, against the Trustees of school district No. 22 in the town of Clarence. Separate tenancies are exceptions to the genera] rale of taxation with respect to farms lying partly in tw districts. In this case school district No. 22 in the town of Clarence was formed so as to intersect a farm occupied by the appellant, leaving SUPERINTENDENT OF COMMON SCHOOLS. 103 a part of the farm in district No. 1, from which No. 22 was ta- ken. Mr. Gates' residence was on the part of the farm lying in district No. 22, and on the part lying in district No. 1, there were two tenants, each occupying specific portions of it. By JOHN A. Dix, March 6, 1833. The general rule is that where a new district is formed, and the line is made to intersect a farm, the whole farm is to be taxed in the district where the owner resides. This would be the case with the farm in ques- tion, if Mr. Gates were the only occupant. But it appears that the two southern lots which are within the bounds of district No. 1 are occupied by two tenants. Separate tenancies are excep- tions to the general rule above stated. The moment a part of a farm is leased it ceases to be an entire possession, and the part so leased must, with regard to taxation, be considered as follow- ing the residence of the lessee or tenant. The two tenants are taxable in No. 1 for the portion of the farm leased by them re- spectively, and Mr. Gates, whose residence is in No. 22, is taxa- ble in the latter for the residue. The Trustees of school district No. 4 in the town of Hinsdale, ex parte. The loss of the record of a school district does not disorganize it, but the com- missioners should describe the boundaries anew. If the time for the annual meeting is unknown, application should be made to the Superintendent to fix a day for holding it. This was a case, in which the clerk of a school district re- moved from it and carried away the book of records, and in con- sequence of the loss, the proper time for holding the annual meet- ing was unknown. It was also alleged that the description of the district in the town clerk's office was imperfect. By JOHN A. Dix, March 9, 1833. The loss of the records of a school district does not disorganize and destroy it. If, in consequence of such loss, and the imperfection of the town re- cords the bounds of the district have become uncertain, the de- fect may be remedied by the commissioners who should meet and > describe them anew.* If the time for the annual meeting is unknown, application should be made to the Superintendent of common schools who will by special order appoint a time for holding it. New dis- trict officers cannot be elected at a special meeting called for the purpose by the trustees or commissioners. This is not such a case as is contemplated by section 57, 1 R. S. page 477, where a district is dissolved, nor is it such a case as is * See the case of the trustees of school district No. 13 in the town of Edmes- ton, against the commissioners of common schools of said town, page 79. 104 CASES DECIDED BY THE contemplated by section 71, page 480, where a vacancy exists : but it is a special case for which no provision has been made by law, and the defect can only be remedied by the interposition of the Superintendent, who by virtue of the general authority conferred on him to pass upon all questions arising under the school laws, can afford the required relief. In the mean time, the old district officers hold over. The inhabitants of school district No. 5 in the town of Perry sburgh, against the Commissioners of Com- mon Schools of said town. Improper alterations in school districts will not be sanctioned for the purpose of quieting controversies. This was an appeal to the Superintendent under circumstan- ces fully explained by his decision. By JOHN A. Dix, March 13, 1833. It appears by thcr affi- davits presented in the matter of appeal from the proceedings of the commissioners of common schools of the town ot Perrys- burgh, that the said commissioners, on the 10th of January last, divided school district No. 5 in said town, and formed a new district under the designation of school district No. 22. By this division district No. 5 is left with 28 children between the ages of 5 and 16 years, and with taxable property amounting in value to $4,952; and district No. 22 is organized with 5 children be- tween the ages before mentioned, and with property of the value of $1,731. These districts united have neither too many chil- dren nor too much property to support a respectable school. On the contrary, as one district it would be inferior in strength to the average of the districts in the state; and yet this unequal divi- sion, injurious to one district and ruinous to the other, has grown out of the unwillingness of the inhabitants hitherto to agree upon a site for a school -house on terms of friendly accommodation. The Superintendent feels it his duty to re-unite the districts; and in doing so, he trusts that he does not overrate the liberali- ty of the inhabitants in believing that they will come together again under the influence of better counsels, and with a readi- ness to adjust the matter of controversy, which has divided them, in a spirit of mutual conciliation. It is hereby ordered that the proceedings of the commissioners of common schools of the town of Perrysburgh, in dividing district No. 5, be annulled, and that the district be restored to its former bounds. SUPERINTENDENT OP COMMON SCHOOLS. 105 Moses Rowley and others, against the inhabitants of school district No. 2 in me town of Groton. If a district is unaltered, the site of the school-house can not be changed by a vote of 14 against 8, as this is not the legal majority required. This was a case in which the site of a school-house was changed by a vote of 14 to 8, after an alteration had been made in the district. The alteration was appealed from as illegal sub- sequently to the vote for changing the site, and was declared void by the (Superintendent. The district not having been legally altered the change of site was appealed from as unauthorized and illegal. By JOHN A. Dix, March 14, 1833. It appears by the affi- davits presented in the appeal of certain inhabitants of school district No 2 in the town of Groton, that the site of the school- house was changed by a vote of the district on the 12th of December last, in consequence of an addition of families from district No. 17 in Locke and Groton, and that the school-house was subsequently moved to a point fixed by individuals, who were by general agreement appointed for the purpose. It is alleged by the appellants that the vote for removing the school- house was taken by uplifted hands. This last allegation is not expressly negatived by the statement of the trustees, and it is admitted by the latter that the votes in relation to the new site, which had been fixed by the individuals appointed for the purpose, were 14 for and 8 against it. The act of 17th February, 1831, among other requirements provides that whenever a school-house shall have been built or purchased for a district the site of such school-house shall not be chang- ed, nor the building thereon be removed, as long as the dis- trict shall remain unaltered, unless the commissioners shall con- sent, and unless two-thirds of all those present at a special meeting of such district, called for that purpose, &c. shall vote for such removal, and in favor of the new site ; the vote to be taken by ayes and nays, and the name of each voter, together with his vote, to be recorded. This act applies only to unaltered districts. Where therefore a school district has been lawfully altered, the school-house may be removed by a vote of a majority of the taxable inhabitants, without the consent of the commis- sioners. But if the district is not altered, the house can only be removed by the consent of the commissioners and a vote of two- thirds of the taxable inhabitants, to be taken in the manner pointed out by the act referred to. By an order of the Superintendent, dated the 13th inst., the proceedings of the commissioners of common schools of the towns of Locke and Groton, dissolving joint school district No. 17, were 106 CASES DECIDED BY THE declared to be of no effect. The bounds of district No. 2 in Groton have therefore never been altered, and not only the con- sent of the commissioners, but the votes of two thirds of the per- sons present are necessary to render the removal of the school- house legal. If the vote in favor of removing the school-house at the previous meeting had been taken in the mode prescribed by law, it appears, from the statement of the trustees, that the votes in favor of the new site were not sufficient, in point of number, to give validity to the proceeding. There were 22 persons present, and of these 14 were in favor of the new site and 8 opposed to it. Fourteen votes are two-thirds of twenty one, but not of twenty- two, and are not therefore the legal number required. Without adverting to any other objection this alone is fatal to the pro- ceeding, and renders the removal of the school-house illegal. It is therefore ordered, that the school-house be restored to its former site. The Trustees of school district No. 6 in the town of Cobleskill, ex parte. If, from unavoidable necessity, a balance of the public moneys remains in the hands of the trustees, the district may receive its share of the public moneys the next year. This was an application to the Superintendent for his opinion in a case where a school had been kept in a district five months by a qualified teacher, to whom a portion of the public money was paid; the residue was retained for the fall term, but the trustees, notwithstanding due diligence on their part, could not procure a teacher; so that at the end of the year a balance of the public moneys remained in their hands. By JOHN A. Dix, March 16, 1833. The Revised Statutes, vol. 1, page 471, section 24, provide that no money shall be ap- portioned to a school district unless all moneys received from the commissioners of common schools during the year ending on the 31st December preceding the apportionment shall have been ap- plied to the payment of the compensation of a qualified teacher. The same section also requires that a school shall have been kept in the district by a qualified teacher during three months. The statute had in view two objects: 1st, to secure a proper school to the district, during a specific term ; and 2d, to secure the application of the public moneys for the benefit of those who are entitled to them during the year for which they are appor- tioned. The penalty annexed to a non-compliance with these provisions is the loss of the public moneys to the district the en- suing year. Cases may occur in which all the public money could not have been expended as contemplated by the statute. SUPERINTENDENT OP COMMON SCHOOLS. 107 It may have happened that a teacher could not be procured, even by extraordinary diligence on the part of the trustees; the teacher may have violated his engagement; or the district may, through some unforeseen accident, have been deprived of his services, so that all the public money could not properly have been expended. In every such case, where the school has been kept three months by a qualified teacher, it is just that the equi- table rights of the district should be preserved ; but this can only be done by a special interposition on the part of the Superinten- dent. The cases referred to are not provided for by the statute ; but they have always been considered as coming within that general supervision of the common school system which the law has confided to the Superintendent. (ANONYMOUS.) If the title to the site of the school-house fails, a new one may be fixed by a ma- jority of votes. By JOHN A. Dix, March 18, 1833. If a district is divested of its supposed title to the site of a school-house, the inhabitants may choose another by the votes of a majority without the consent of the commissioners of common schools. Where the owner of the land on which a school-house stands, and which has been occupied by his suffrance merely, but without any for- mal agreement, refuses to allow it to be used for the purpose any longer, the district must be considered without a site, and may therefore designate one by a majority of votes, in the same man- ner as in fixing a site originally. The inhabitants of school district No. 6 in the town of Harpersfield, and of district No. 7 in Harpers- field and Kortright, against the Commissioners of Common Schools of said towns. New districts should not be formed without sufficient strength to support respect- able schools. The facts of this case are given in the Superintendent's de- cision. By JOHN A. Dix, March 20, 1833. After a full examina- tion of all the papers presented in the matter of appeal of certain inhabitants of school district No. 6 in Harpersfield, and district No. 7 in Harpersfield and Kortright, from the decision of the commissioners of common schools of said towns, in refusing to form a new district, the Superintendent of common schools deems it proper to sustain the said decision. He has not come to this determination without difficulty. The 108 CASES DECIDED BY THE situation of several of the appellants in relation to their respective schools is inconvenient, and the expense of education burden- some ; and if he could have afforded them the required relief, without doing injustice to long established districts, he would not have declined interposing for the purpose. But it appears by an examination of the papers submitted, that district No. 6 as now organized, has but 34 children between the ages of 5 and 16 years, and a valuation of 15,370 dollars, and that district No. 7 has but 29 children between the ages aforesaid, and a valua- tion of 10,449 dollars. The number of children and the amount of taxable property in each of these districts, is certainly no more than sufficient to support respectable schools ; and if the appel- lants should be set off from them and organized into a separate district, there is reason to apprehend that the interests of the old districts would suffer severely, without affording any material re- lief to the new. At all events, the relief afforded to the latter would hardly be sufficient to justify a measure which threatens the prosperity if not the existence of the old districts. In dis- tricts thinly inhabited, the evils from which the appellants seek to be relieved, are of frequent occurrence, and whenever they can be removed without producing others equally oppressive, the required relief will not be withheld. But the Superintendent is of opinion that the case before him, for the reasons above as- signed, is not so strong as to justify his interposition to overrule the decision of the commissioners. It must be left to them and their successors, to make the necessary alteration, at some future time, should a change of circumstances authorize it, so that it can be done in justice to all parties. It is ordered that the ap- peal in this case be dismissed. The Trustees of school district No. 24 in the town of Fishkill, ex parte. Trustees are bound to know the condition of the taxable property of their dis- tricts, so that in assessing taxes no person shall be improperly taxed. This was an application for the direction of the Superinten- dent in a case in which the trustees making the application had included in a tax-list a non-resident, who owned a lot of land in the district, partly cleared and cultivated, without making any deduction for the unimproved part. By JOHN A. Dix, April 1, 1833. It is the duty of the trus- tees of a school district to ascertain what property in their district is liable to taxation. They are required, it is true, to make out their tax-lists from the last assessment roll of the town. But they know that in town assessments all lands are included, whe- ther cultivated or not, while the law expressly provides that only SUPERINTENDENT OF COMMON SCHOOLS. 109 such part of the lands of non-residents as is cleared and cultivated shall be liable for taxes for common school purposes. It is mani- fest, therefore, that the assessment roll of the town is not a guide in all cases ; it must of necessity be departed from sometimes, and it is the business of the trustees to inform themselves as to the condition of the taxable property of the district. It is not neces- sary for a non-resident to claim a reduction in such a case as this. It is enough that the property was not taxable. The collection of that part of the tax which was assessed upon unimproved land cannot be enforced against the non-resident. The Trustees of school district No. 5 in the town of Ripley, ex parte. A tax-list must include all the taxable inhabitants of the district at the time when it is made out, though some of them may have become so after the tax is voted. This was an application to the Superintendent for his opinion as to the propriety of including in a tax-list a person who moved into the district after the tax was voted, but before it was assess- ed by the trustees. By JOHN A. Dix, April 4, 1833. Tax-lists must include all the taxable inhabitants residing in the district at the time the lists are made out. It makes no difference, therefore, whether the individual re- ferred to in the case stated by you, was an inhabitant of the dis- trict or ndt at the time the tax was voted, provided he was re- siding in the district at the time the tax-list was made out. The inhabitants of school district No. 13 in the town of Ithaca, against the Commissioners of Common Schools of the, towns of Ithaca, Enfield, and Ulys- ses. School districts must be composed of contiguous farms. The circumstances under which this appeal was brought are set forth in the Superintendent's decision. By JOHN A. Dix, April 10, 1833. On the 28th of Febru- ary last the commissioners of common schools of the towns of Ithaca, Enfield, and Ulysses formed a new school district, desig- nated as district No. 27, by setting off a part of district No. 13 in Ithaca, and three other districts east and west of it. From this proceeding sundry inhabitants of district No. 13 have ap- pealed. All the persons set off to form the new district acquiesce in the proceeding, with the exception of Anthony Davenport and Moses Van Orden, the former of whom has only one child 110 and no taxable property, and the latter taxable property to the value of $300, and no children. It does not appear that ei- ther of these two persons has any particular cause of dissatis- faction with the arrangement to which they object ; their oppo- sition to it rests upon the general grounds taken by the other appellants, consisting of a large portion of the inhabitants of dis- trict No. 13. The principal objection raised by the appellants to the division of district No. 13. is that the arrangement is such as to separate the lands of three persons who remain in district No. 13 from the other territory which composes it. To this objec- tion the commissioners of common schools furnish no reply. The facts stated by the appellants are therefore assumed to be true. Without adverting to the other points presented by the appellants, this is of itself sufficient, in the estimation of the Superinten- dent, to justify a reversal of the proceedings of the commission- ers. School districts should be formed of contiguous farms ; and if the example of forming them of farms not adjacent to each other, should be sanctioned, it is difficult to foresee what disorder and confusion it might not create, besides opening a door to un- equal and unjust oiganizations. It is therefore ordered, that the proceedings of the commissioners of common schools of the towns of Ithaca, Enfield, and Ulysses, in forming school district No. 27, by an alteration of district No. 13 in Ithaca, and other adjoining districts, be, and they are hereby annulled. The Commissioners of Common Schools of .the town of Berkshire, ex parte. A school district formed in October, may receive a portion of the public money, when the districts, from which it was taken, have complied with the law. This was a case, in which a school district was formed in the month of October, and in its annual report dated the 1st of Janua- ry ensuing, the trustees could not state that a school had been kept in it 3 months by a qualified teacher during the year end- ing at the date of the report The question submitted to the Superintendent was, whether the district could receive a portion of the public money the year succeeding its formation. By JOHN A. Dix, April 15, 1833. The annual reports of the trustees of school districts cannot embrace any transactions subsequent to the last day of December. The district referred to was formed in October. A school could not, therefore, have been kept for three months before the expiration of the year, when, if at all, its transactions should be reported. If under these circumstances, the district, was formed from districts in which a school was kept three months, by a qualified teacher, it is en- titled to receive the public money according to the numbei of SUPERINTENDENT OF COMMON SCHOOLS. Ill children, over the age of 5 and under 16 years, on the same principle that the districts from which it was taken are entitled to their share. By referring to the act of 21st April, 1831, you will perceive that this is precisely the case contemplated by that act, and that section 26 of the school law is made to apply to it. The number of children residing in the district is there- fore, all the commissioners need to know. The Trustees of school district No. 3 in the town of Corinth, ex parte. If a school has not been kept in a district three months during the preceding year, by a qualified teacher, in consequence of any over-ruling necessity, the district will be allowed a portion of the public money. By JOHN A. Dix, April 22, 1833. It has been made to ap- pear by the affidavit of Isaiah White and Aster Eggleston, two of the trustees of school district No. 3 in the town of Corinth, that a school was kept in the district more than two months by a qualified teacher during the summer of 1832, and that they engaged a teacher to commence his school, on the first day of De- cember of that year, but that he failed to perform his agreement and did not commence until the 17th of that month, by which means, the full term of three months, during which a school is required by law to be kept, in order to entitle the district to a share of the school moneys, was deficient to the number of three or four days. It further appears, that every exertion was made to procure another teacher, but without success. Under these circumstances, as no negligence appears on the part of the offi- cers of the district, and as the failure to comply, to the letter, with the requirements of the law, is the result of causes not un- der their control ; it is hereby ordered, that the commissioners of common schools of the town of Corinth, pay to the trustees of school district No. 3, the amount of public money which that district would have been entitled to receive on the 2d Tuesday of this month, if the full term of three months had appeared by the report of the trustees to have been the period during which a school had been kept by a qualified teacher.* (ANONYMOUS.) jal fees of distress a: sy take and sell the By JOHN A. Djx, May 17, 1833. The fees of a collector Collectors are allowed the usual fees of distress and sale, in addition to 5 cents on each dollar, when they take and sell the property of delinquents. * The principle of this decision is identical with that, by which the case of the trustees of school district No. 4 in the town of Somerset, page 34, was settled. 112 CASES DECIDED BY THE . of a school district are regulated by the 104th section of the school act, when moneys are collected and paid over in the usual mode. But the 88th section supposes an extraordinary mode of collection, and in the cases contemplated, I consider the collec- tor entitled to the usual fees allowed by law in such cases, and also to the 5 per cent given by section 104. By the acts of 21st of April, 1831, and 26th April, 1832, all taxes (including rate bills) are to be collected by distress and sale of the goods and chattels of delinquents, where they are not paid on demand to the collector. The usual fees must be allowed in all such cases, and also 5 per cent for every dollar collected and paid to the trustees. The fees are an extraordinary compensation for ex- traordinary trouble and service, and there is no authority to with- hold the 5 per cent. The inhabitants of school district No. in the town of Otto, ex parte. A verbal resignation by district officers is good. If the school district offices are all vacated by resignation, notice of such resig- nation may be given to the town clerk. When the offices in a school district are all vacant the commissioners of com- mon schools may call a meeting to fill them. The material facts of this case are stated in the Superinten- dent's opinion. By JOHN A. Dix, May 24, 1833. It appears that the trus- tees and clerk of the school district, within which you reside, resigned verbally to three justices of the peace of the town, and that the said justices filed a certificate to that effect with the clerk of the commissoners of common schools (the town clerk) of said town. The commissioners issued a notice for a district meeting, which was served by a taxable inhabitant in the manner prescrib- ed by law, when a district is formed ; the meeting was held accord- ingly, and new officers were elected. On this statement of facts it seems to me, that three questions only can arise 1st. Was a verbal resignation sufficient? I am of the opinion that it was. It is undoubtedly desirable in all cases, that resignations should be in writing, in order that any dispute as to the tender of the resignation, may be settled by a reference to the document it- self. But the statute does not require that it shall be in writing, and it is therefore sufficient if it be verbally tendered. 2nd. Was the service of the notice on the town clerk, a sufficient compli- ance with section 73 of the Revised Statutes, relating to common schools ? I think it was. The trustees and clerk had all re- signed. There was no person in office, on whom the notice could be served, in strict conformity to the provisions of the sec- tion referred to. The justices of the peace were justified by the SUPERINTENDENT OF COMMON SCHOOLS. 113 necessity of the case, in giving the notice to the town clerk, who was certainly the most proper person to receive it, as will appear i'rom my answer to the next and last question. 3d. Had the commissioners of common schools of the town authority to call a meeting for the purpose of electing officers to fill the vacancies in question? I think they had. Section 57 of the common school act, -provides, that in case a school district shall be dis- solved, after having been formed and organized, "so that no competent authority shall exist therein to call a special district meeting," &c. the commissioners shall proceed to give the notice required ia forming a new district. Although the resignation or death of all the officers of a district, who have any agency in calling special meetings may not absolutely dissolve the district, it is a case in which there is no competent authority existing in the district to call a meeting. It may, therefore, be fairly con- sidered as coming within the section last referred to, and warrants the interposition of the commissioners : Hence the propriety of the service of the notice by the justices of the peace on the clerk of the commissioners. The new district officers should go on with the performance of their duties, if the above are the only questions raised in the matter of their election. The Trustees of school district No. 5 in the town of Blenheim, ex parte. The only three legal modes of providing fuel explained. In district No. 5 in the town of Blenheim, it had been custo- mary at the annual meeting to give a contract for the \vood to be furnished for the winter school to the lowest bidder per cord, and a vote was then taken that the amount, when ascertained, should be paid by those who sent children to school. In the case, which gave rise to this application to the Superintendent, one or two individuals refused to ,pay for their proportion of the wood so furnished. By JOHN A. Dix, May 24, 1833. There are but three legal modes of providig fuel for the use of a school district : 1st. To lay a tax for purchasing it. 2d. To require the inhabitants sending children to school to furnish their just proportion ; and 3d. If they refuse on notice to provide it, the trustees may fur- nish it and charge the persons in default with the amount. None of these modes have been adopted in the case stated to me ; but the inhabitants of the district have agreed to pay for it, by an informal assessment on those who send children to school, the wood being furnished by the person who would engage to pro- vide it at the lowest price. To this mode there is no objection, so long as all acquiesce in it and pay voluntarily. But if any 8 114 CASES DECIDED BY THE person concerned refuses to abide by the arrangement, the diffi- culty cannot be adjusted by a recurrence to the provisions of the law, which you will perceive affords no remedy in such a case. There is no authority to enforce the collection of a tax or assess- ment not imposed in the prescribed modes. The clerk of school district No. 24 in the town of New-Paltz, ex parte. A tax to pay the rent of a school-room cannot be assessed on those who send children to school. If trustees hire a room without being authorized by a vote of the district, they are personally responsible for the rent. In school district No. 24 in the town of New-Paltz, a tax had been voted for several successive years to pay the rent of a school- room, (the district being destitute of a school-house,) and paid voluntarily by the persons who sent children to school. In the case which gave rise to this application the usual vote had not been passed, but the trustees engaged a room and employed a teacher in pursuance of the customary practice. By JOHN A. Dix, July 8, 1833. The law intends, where a .school district is destitute of a school-house, that the rent of a house or room shall be paid by means of a tax assessed upon the property of the district. This cannot be done, however, unless the tax is voted by the taxable inhabitants. Nor can the amount of the rent be assessed and levied exclusively upon those who send children to school. They may, if they please, pay it by voluntary contribution, but it is not in the power of the inha- bitants of the district to annex such a condition to a tax. Jf the trustees hire a house or room without being authorized so to do by a vote of the district, they will be personally responsible for ihe rent, although it would be exceedingly illiberal on the part of the district, under the circumstances, to refuse to provkle the means of paying it, if the house or room was hired in good faith and actually occupied as a school-house. The inhabitants of school district No. 7 in the town of Freetown, ag-ait*st the Commissioners of Com- mon Schools of said town. If the annual meeting is void, the persons in office hold over; but the commis- sioners of common schools cannot, in such a case, call a meeting or appoint officers. The facts which gave rise to this appeal are given in the Su- j>erintendent's decision. By JOHN A. Pix, July 10, 1833. On examination of the ap- SUPERINTENDENT OF COMMON SCHOOLS. 115 peal of certain inhabitants of school district No. 7 in Freetown, it appears that at the time fixed for the last annual election, only two of the inhabitants of said district appeared, and that they pro- ceeded to appoint district officers. Subsequently on the 30th April, 1833, the commissioners of common schools of Freetown, on the application of some of the inhabitants of the district, issued a no- tice for a meeting for the purpose of electing district officers, there- by assuming the proceedings of the annual meeting at which only two persons were present, to be void. On further examination, and before the time for holding the meeting appointed by them, the said commissioners issued an order appointing two individu- als to district offices, which had become vacant, and which the district had neglected to fill, thereby acknowledging the legality of the proceedings of the annual meeting and virtually annulling their notice for holding another. The proceedings of the com- missioners are irregular and cannot be sanctioned. They had no authority to issue an order or notice for an election of district officers. After a district has been organized, and has not been dissolved, and so long as there is any competent authority with- in to call special meetings, elections must take place' at the an- nual meetings of the inhabitants, at special meetings called to rill vacancies, or at a meeting ordered by the Superintendent of common schools. In this case the district had not been dissolv- ed. If, therefore, the proceedings of the first meeting were valid, the officers chosen by the persons there present, were the lawful officers of the district. If the proceedings of that meeting were not valid in consequence of the neglect of a sufficient number of the inhabitants to assemble, then the persons in office would hold over till the next annual meeting. In either case the commis- sioners had no power to call a meeting for the election of district officers. The Superintendent does not deem it necessary or proper to say what number of the inhabitants of a school district, assem- bled in pursuance of a notice regularly given, at the time and place fixed for the annual meeting, shall be sufficient to render legal an election of district 'officers. Every such case will be de- termined upon an examination of the attending circumstances. But if the inhabitants of a school district take so little interest in its concerns as to neglect to attend their annual meeting at the proper time and place, they can have no just cause to complain if they find district officers imposed on them by a very few votes. In consideration, however, of all the facts of this case, it is hereby ordered, that the trustees of school district No. 7 in Free- town, who were in office previous to the last annual meeting, which was attended by only two of the inhabitants, do immedi- 116 CASES DECIDED BY THE ately give notice, in the manner required by the 56th section oi the Revised Statutes relating to common schools, to all the tax- able inhabitants of said district, to meet at a certain time and place, which shall be specified in said notice. When the inha- bitants, or such of them as may attend, shall be assembled, they will proceed to elect officers for the district, who will serve until their next annual meeting. Immediately after such election shall have been made, the time and place for holding the next, annual meeting will be fixed. The Trustees of school district No. 5 in the town of Ripley, ex parte. After a lapse of months proceedings will not be disturbed on a mere allegation of irregularity. School district No. 5 in the town of Ripley, having become disorganized, and no competent authority existing therein to call a meeting of the inhabitants, the commissioners of common schools prepared a notice appointing time and place for a district meeting, and delivered it to one of the taxable inhabitants, who served it on the others. The meeting was held in pursuance ot the notice, district officers chosen, and a tax voted to build a new school-house, the old one having become dilapidated. The construction of the school-house was immediately commenced, and the tax was assessed ; but objections having been raised by some of the inhabitants to the regularity of the proceedings ot the commissioners, the trustees, with the hope that the opposi- tion would ere long be abandoned, neglected to issue a warrant for the collection of the tax. The exception taken to the pro- ceedings of the commissioners was, that their notice did not con- tain a complete description of the boundaries of district No. 5, but merely referred to them as before established and described in the town records. Under these circumstances, and after the lapse of several months, the direction of the Superintendent was solicited by the trustees. By JOHN A. Dix, August 1, 1833. If all the inhabitants of your school district received proper notice of the meeting called by the commissioners, I will not allow a mere irregularity in the form of the notice to vitiate the subsequent proceedings. Where an irregularity occurs in the proceedings of school officers, exception should be taken to them by appeal within thirty days. But if the defect is not taken advantage of, a party cannot be permitted to come in after a lapse of months and object to pro- ceedings on account of a mere irregularity. If the commissioners had acted wholly without authority, the case would be different; but as they had full power to act, and as the district has been SUPERINTENDENT OF COMMON SCHOOLS. 117 regularly organized, a tax voted, and the construction of a school-house commenced, and no exception taken to the pro- ceedings by the parties concerned within the time limited by re- gulation, I will not allow the district to be disturbed by inquir- ing into the correctness of those proceedings upon a bare allega- tion of irregularity. If the inhabitants, or any part of them, re- fuse to pay on demand their portion of the tax voted for erecting the school-house, I will, on application, grant an order authoriz- ing the amount due to be collected, unless cause to the contrary shall be shown. In case of such an application, it will be pro- per to notify the persons who refuse to pay.* The Trustees of school district No. 12 in the town of Williamson, ex parte. Taxes ought to be assessed within the time prescribed by law. But quere? Whether trustees may not assess them after the expiration of the time? If the inhabitants of a district direct a tax to be collected in a mode not recog- nized by law, and the trustees execute such direction, the Superintendent will not interfere. In the year 1833 a tax was voted in school district No. 12 in the town of Williamson, to build a school-house. For the pur- pose of saving the collector's fees it was agreed, at the same time, that the trustees should not make out a formal tax-list, but that each individual should pay the amount due from him into their hands, when the money should be required for constructing the house. It was, however, understoood that in case any one re- fused to pay, a warrant should be made out, and the collection of his portion of the tax enforced against him. All the inhabi- tants paid their proportion of the tax voluntarily, excepting A. H. who repeatedly promised to pay, but after the lapse of a year re- fused to do so. In this state of things the trustees applied to the Superintendent for his direction. By JOHN A. Dix, August 1, 1833. The Revised Statute re- lating to common schools, provides, that every district tax shall be assessed and the tax-list thereof be made out by the trustees with- in one month after the tax shall have been voted ; a warrant directed to the collector must also be annexed thereto, and the col- lector must make his return within a certain time. If all this be not done within the time limited, the tax should be voted anew. Property in school districts is frequently changing hands, and a tax levied for the benefit of a district should be paid by those who * If the circumstances under which the decision of the supreme court in the case of Ring vs. Grout, (see page 18, note,) are correctly apprehended, the case above reported is identical with it. That the principle of the decision of the su- preme court is applicable to this case there can be no doubt. 118 CASES DECIDED BY THE vote it. If trustees may defer making out an assessment more than a month, they may for a year, and purchasers may fre- quently find themselves burdened with a tax in laying which they had no voice, and from which they can derive no benefit, as in the case of a sum raised to pay for fuel, which has been consumed. The directions of the statute ought, therefore, lobe strictly pursued, and no agreement among the inhabitants can have the effect of superseding those directions even with the assent of all the individuals affected by such agreement. If A. H. pro- mised to pay his portion of the tax, and the trustees relied on his promise instead of enforcing the collection of the tax in the manner prescribed by law, it is at their peril, or at the peril of the district, if the understanding was that the collection might be deferred beyond the time limited, and made in a mode not re- cognized by the statute. The parties have undertaken in this case to set aside the requirements of the law altogether. They have done so for the purpose of avoiding the payment of the collector's fees, and the matter must now be arranged among themselves. The authority of the trustees to make out a tax-list after the lapse of a month, may not, in strict construction of law, be vacated by their neglect to do it within that time. The general lule is, that " where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the na- ture of the act to be performed, or the language used by the le- gislature shows that the designation of the time was intended as a limitation of the power of the officer." 6 Wendell, page 487. Neither the nature of the act to be performed, nor the language of the law in respect to the assessment of taxes in school districts, may be such as to render it an exception to the general rule ; but when it is considered that the remedy in enforcing the col- lection of such taxes, is solely against the personal property of the individuals on whom they are assessed, that it does not reach the real estate lying in the district, and that "the taxable inha- bitants residing in the district at the time of making out the tax- list," are the only persons who can be included in it, certainly every principle of equity demands that there shall be no delay in enforcing the collection. But independently of any considera- tion affecting the right of trustees to make out a tax-list after the time prescribed, there are difficulties in this case which are, in the opinion of the Superintendent, insuperable. If the trustees were to be authorized to make out a tax-list now, they would be compelled to assess the whole tax upon " all the taxable inhabi- tants residing in the district at the time of making out the list," and they must, of course, add five per cent for collector's fees on the whole amount. They might, in their direction to the collec- SUPERINTENDENT OF COMMON SCHOOLS. 119 lor, give credit to all the inhabitants who have paid, and thus, in effect, make the warrant applicable to A. H. alone, he being the only delinquent. But after having deprived the collector of his fees on the greater part of the tax, it would be unjust to him to require him to collect a small balance. The Superintendent has decided that the vote of a district meeting reducing the fees of the collector has no validity ; that the law fixes his fees at five per cent on each dollar collected and paid over by him, and that this provision cannot be affected by the vote of a district meeting. He has also decided that trustees have no authority to receive taxes from individuals, and thus deprive the collector of the fees to which he is entitled.* To allow a warrant to issue for the pur- pose of collecting the amount due from A. H. would indirectly sanction a practice which has been uniformly condemned, and would give countenance to a laxity of proceeding, which is a perpetual source of embarrassment and controversy. Under all the circumstances of (his case, therefore, the Superintendent deems it most proper not to interfere ; and it is submitted to the inhabitants of the district whether they had not better make up the deficiency out of their own pockets, and learn from it the les- son that it is always most safe to pursue the course pointed out by the law instead of attempting to set aside its requirements. The absence of a legal remedy against A. H. constitutes no jus- tification of his conduct. He who will avail himself of a techni- cal advantage to violate his repeated promises and evade his pro- per share of a burden so essential to the well being of his neigh- borhood as the support of the district school, will be likely to lose in character much more than he will gain in pecuniary benefit. The inhabitants of school district No. in the town of Cairo, ex parte. No child residing in a school district can be excluded from the school on account of the inability of the parent to pay his tuition. Sekct schools cannot be kept in district school-houses. This was a case in which the trustees of a school district au- thorized a teacher to open a select school in the district school- house, giving notice that no child would be admitted unless hie parent or guardian became a subscriber at a stipulated price for ^ach scholar. By JOHN A. Dix, August 13, 1833. The trustees of a school district are by the statute charged with "the custody and safe keeping of the district school-house ;" but they are not to em- ploy it for any other uses than such as conduce to the benefit of * See the case of Isaac Sherman, collector of school district No. 4 in the town of Spencer, against the trustees of said district, page 54. 120 CASES DECIDED BY THE the district. The school-house is provided by a tax upon the dis- trict, and it should not be used for private purposes. If a school is opened in it, every inhabitant of the district is entitled to send his children to it, for which privilege he must pay his proportion of the teacher's wages. No child residing ini the district can be excluded from it on account of the inability of the parent to pa} for his tuition. Every school which is opened in a district school- house is to be considered as a public school,, so far as the right of the inhabitants to send to it is concerned ; and this right cannot be impaired by the manner in which the school has been got up. Select schools should not be kept in district school-houses. The teachers of such schools can, of course,, receive none of the public money. If the practices alluded to in your letter prevail in your district, I will on complaint to me, with notice to the trustees, make an order directing them to-be discontinued. The Trustees of school district No. io- the town of Hornellsville, exparte. Certificates of qualification given after the commencement of a term, are good in some cases. The inspection of a teacher after the close of a term, with a view to enable him to receive the public money, is inadmissible, excepting under extraordi- nary circumstances. This was an application for tire opinion of the Superintendent in a case where the trustees of a school district employed a fe- male teacher who had received certificates of qualification from the inspectors of two different towns during the two preceding years, neither of which certificates, however, were dated within a year from the time when she commenced her school. Before the close of the term, she applied to the inspectors for an exami- nation, which they refused to grant, upon the ground that she was not a qualified teacher at the commencement of the term, and that they could not render her so by giving her a certificate then. By JOHN A. Dix, September 14, 1833. Teachers of coin mon schools should, at the time they are engaged, hold a certifi- cate of qualification, dated within a year, from the inspectors ol common schools of the town in which they are employed. In extraordiaary cases (and I consider the case stated by you to be such a one,) certificates have been given and accepted a? sufficient, though dated subsequently to the commencement of the term. The inspectors were in duty bound to inspect the teacher, and to give her a certificate dated on the day of her examination, leaving the sufficiency of the certificate for any pur- pose to be determined by the proper authority. Trustees are in- excusable for neglecting to ascertain when they employ a teacher SUPERINTENDENT OF COMMON SCHOOLS. 121 that he or she holds a sufficient certificate ; but at the same time, if the teacher is qualified excepting in the mere form of holding a certificate dated previous to the commencement of the term, I should deem it my duty on appeal to protect the rights of the teacher and the district, by giving effect, so far as may be done with propriety, to a certificate dated subsequently to the com- mencement of the term.. But I should not consider it proper to treat a teacher as qualified, according to the intention of the law, who had not obtained a certificate till after the expiration of the term, unless the inspectors, as in this case, had refused to examine him or her on application to them for that purpose, or unless some overruling necessity had prevented a compliance with the conditions of the law. (ANONYMOUS-.) Teacher may dismiss his school on Saturday afternoon. By JOHN A. Dix, September 18, 1833. In reply to the que- ries contained in the statement left at my office some weeks ago. I now proceed to give the required information. 1st. If a teacher is employed by the week, he is bound to keep his school open from Monday morning until Saturday noon. He is not bound to keep school on Saturday afternoon, unless he has expressly agreed so to do. 2d. A teacher has a right to dismiss his school on Saturday afternoon under a contract to teach by the month or week, and still he is to receive credit for an entire day, unless by the terms of the contract he has engaged to teach on Saturday afternoon. There is no inconsistency in decision 81 of the Superintendent of Common Schools, published with the common school law.* "If the school is dismissed on the afternoon of Saturday, the teacher is not required to make up the time after the expiration of his month." In other words, he may dismiss his school on Saturday afternoon, and yet each Saturday is to be reckoned as a whole day in making up the twenty-six days which constitute the month. " If he keeps the whole day, he does not gain time thereby, but must continue his school until the month is fully ended." That is, although he has a right to dismiss his school on Saturday afternoon, yet if he does not choose to do so, Sa- turday is still to be reckoned as one day, precisely in the same manner as if he had dismissed his school for the afternoon. This rule does not conflict at all with that part of the decision which declares 26 days to be a school month. A quarter of 26 days is a quarter of a school month, but a quarter of a month is * See a cage decided January 20, 1830, by A. C. Flagg, page 57. 122 CASES DECIDED BY THE not a week. A week is not, a component part of a calendar month, which is computed altogether by days. Where a teacher contracts to teach a school for one month, he is to keep his school open 26 days, with the exception that it may be dismissed on Sa- turday afternoon, and yet he will receive credit for a whole day. 3d. The right to dismiss a school on Saturday afternoon re- sides with the teacher. It depends, however, wholly upon iisage, and the trustees of a school district may entirely control it by in- serting in their contract with the teacher, a provision which shall make it obligatory on him to teach during the whole day on Saturday. Such a provision I should consider unwise. It children study diligently during five days and a half in the week, they ought to be allowed half a day for amusement and recreation. The Commissioners of Common Schools of the town of Marbletown, ex parte. r Where a new district is formed, and the trustees of the district from which it is taken do not consent to the alteration, no act can be done in pursuance of it until three months after notice. In the spring of 1832 the commissioners of common schools of the town of Marbletown formed a new school district, by the consolidation of two existing districts, and prepared a notice for a district meeting within 20 days, and delivered it to a taxable inhabitant. The trustees of neither district consented to the consolidation, but notice in writing was given to them. A meet- ing was held, in pursuance of the notice given by the commis- sioners for the purpose, and the district was organized by ap- pointing officers. In the fall of 1832, in consequence of some objections to the former proceedings, the commissioners issued a second notice for a district meeting, which was held accordingly, and another set of officers elected. The question submitted to the Superintendent was, which set of officers was legally chosen. By JOHN A. pix, September 18, 1833. It has always been held by the Superintendent of Common Schools that no act could be legally done towards the organization of a new school district, by the inhabitants thereof, (unless the consent of the trus- tees of the district or districts from which it was taken had been obtained,) until three months after service of a notice in writing upon the latter. The reasoning upon which the rule is founded is this. The law provides that no alteration in a school district, made without the consent of the trustees, shall take effect until after three months, &c. No competent authority, therefore, can exist in a new district to hold meetings and elect officers until after the three months have expired. The commissioner-; of SUPERINTENDENT OP COMMON SCHOOLS. 123 common schools, after forming a school district must issue a notice within twenty days describing the district and appointing time and place for the first district meeting. But, unless the con- sent of the trustees of the district out of which the new one was formed has been obtained, the time appointed for holding the meeting ought not to be within three months from the time of serving notice of the alteration upon them. Although the warrant for holding an election, (i. e. a notice for the first district meeting,) was issued within 20 days after the formation of the district, it does not appear whether the election was appointed on a day within three months from the time of serving a written notice on the trustees of the two districts af fected by the consolidation. If the first election was held after the expiration of three months from service of such notice, it was valid and the second election was void. Joseph Allen and others, against the inhabitants of school district No. 11 in the town of Oppenheim. An error being shown in counting the votes at a district meeting, for a tax fo building a school-house, a new meeting will be ordered. The facts of this case are given in the Superintendent's order. By JOHN A. Dix, September 20, 1833. On examination of the appeal of certain inhabitants of school district No. 11 in the town of Oppenheim, from the proceedings of a district meet- ing held on the 15th July last, it appears that a vote was taken to build a new school-house, and was declared by the moderator to be carried. The moderator swears to these facts, and adds, that he kept minutes on paper of the votes taken at the meeting, and that, from an examination of said minutes afterwards as well as from other circumstances, he is satisfied there was an error in his decision ; that there was an equal number of votes for and against building a new house, although he supposed when he announced the vote that there was a majority of one in favor of it. Without regard to any other testimony this alone is sufficient, in the opinion of the Superintendent, to require that the question should be again submitted to the district. In the adoption of a measure so important to a school district as that of building a school-house nothing should be left to uncertainty. The opinion of the parties should be so clearly expressed that it cannot be drawn into dispute and thus made a source of controversy. It is therefore ordered, that the proceedings of the meeting held in district No. 11, on the 15th July be set aside, and that the question of building a new school-house be submitted (o a 124 CASES DECIDED BY THE meeting of the taxable inhabitants of the district, to be called for that purpose at an early day by the trustees. Amos Haskins, against the Trustees of school district No. 5 in the town of Ripley. Trustees have no right to include in a rate bill a sum of money to procure pre- miums for scholars; nor can a tax be laid for the purpose. This was a case in which a sum of money to procure pre- miums for the most meritorious scholars was included in a rate bill for the teacher's wages,, made out by the trustees in pursu- ance of a vote of the inhabitants of the district. By JOHN A. Dix, September 20, 1833.. The trustees had no right to include in the rate bill a sum of money for the pur- pose of giving premiums to the scholars, whether directed so to do or not by the inhabitants of the district. The inhabitants of the district had no right to give such a direction or to lay a tax for the purpose. The objects for which a tax may be laid by the inhabitants of school districts are specified by law, and a tax cannot, therefore, be lawfully voted for any other purpose what- ever. The Commissioners of Common Schools of the town of Edmeston, ex parte. The school fund of Edmeston must be applied exclusively for the benefit of the common schools of the town. This was an application for the opinion of the Superintendent as to the propriety of applying the moneys derived from the Ed- meston school fund foe the indiscriminate benefit of all the children attending school in a joint district lying partly in the town of Edmeston and partly in the town of Plainfield, or whether it should be applied exclusively for the benefit of such children attending school in said joint district as resided within the town of Edmeston. By JOHN A. Dix, September 21, 1833. The sixth section of the act of the 26th February, 1828, laws of N. Y. sess. 51. chap. 44, provides that the interest of the common school fund of the town of Edmeston "shall invariably be applied to the support, use and benefit of the common schools of the said town." The llth section of the same act provides in like manner that the interest of the common school fund aforesaid "shall be applied to the support of common schools therein," i. e. in the town of Edmeston, and shall be distributed in the same man- SUPERINTENDENT OF COMMON SCHOOLS. 125 ner as the public money appropriated for the support of common schools is now distributed by law. The true interpretation of these provisions seems to be, that ihe interest of the fund referred to shall be applied exclusively to the use of the common schools in the town of Edmeston, and that it shall be distributed among those schools as the public money is distributed among them. Thus, it would be the duty of the commissioners of common schools of the town of Edmes- ton itt the case of your district, part of which lies in Plainfield, to pay over to the trustees such a sum only as they would be entitled to receive upon an enumeration of the children between the ages of 5 and 16 years residing in the town of Edmeston; and the trustees would be bound, under the express provisions of the act above quoted, to apply it to the benefit of those chil- dren. Otherwise, it would be applied to the " support, use and benefit" of children in the town of Plainfield, which was clear- ly not intended. Independently of the express provisions of law, to which I have referred, it seems to me that on the score of jus- tice such should be the application of the interest of the Edmes- ton school fund. In joint school districts, the public moneys are shared equally by all who attend school, and this is equitable, as each part furnishes its quota of public money, although the proportion, compared with the number of children in each part, may not always be exactly equal. But in this case the children attending school from Plainfield would have the benefit of the Edmeston school fund without furnishing any equivalent, un- less it has also a common school fund. But if it has such a fund, I think the manifest intention of the law should prevail, and the proceeds of the fund of each town be applied exclusively to its own schools. As the matter stands, I consider it perfectly clear that the children of your district residing in Edmeston and attending school, should have the exclusive benefit of the sum, which your trustees receive from the commissioners of common schools as interest of the common school fund of that town. The Trustees of school district No. 4 in the town of Coble skill, ex parte. When a new district is formed, the public moneys on hand in the old district should be equitably divided. The facts of this case are fully stated in the Superintendent's decision. By JOHN A. Dix, October 3, 1833. I have received affida- vits in support of, and in opposition to, an application from school district No. 4 in the town of Cobleskill, for its proportion 126 CASES DECIDED BY THE of the school moneys apportioned, on the first Tuesday of April last, to district No. 8, from which the former was taken. It appears that district No. 4 was formed by the commission- ers on the 30th of March, and that the trustees of district No. 8 did not consent to the alteration, which was made in the latter district. The new district could not, therefore, go into opera- tion, nor could the inhabitants thereof do any act with a view to its organization, until three months after notice in writing to some one or more of the trustees of No. 8. At the time the pub- lic moneys were apportioned by the commissioners of common schools, district No. 4 did not exist as an independent organiza- tion, and they would have been altogether inexcusable in re- cognizing it as such by allotting to it any portion of those mo- neys. They were right in the execution of their duty. But district No. 4 having soon afterwards been organized, with the consent of the trustees of district No. 8, who admit that they gave their consent in order that the former might go into immediate operation, a new question is presented, which has a very material bearing upon the merits of the application. Is not the new district entitled to receive from No. 8 such propor- tion of the public money as it would have been entitled to, if its organization had been perfect on the day of the apportionment. There is no doubt on this subject, unless the public moneys have already been expended for the common benefit of both districts or appropriated by vote of the district to a previous term. On every ground of equity No. 4 is entitled to a just proportion of the public moneys, unexpended or unappropriated as aforesaid, in the hands of the trustees of district No. 8 at the time the former became a separate district. The public moneys are ap- portioned for the benefit of all the children in a school district, and if a portion of the children are, by an alteration of the bounds of the district, annexed to a new one, an equitable propor- tion of the public moneys on hand and unappropriated as before stated, must be paid over for their benefit to the trustees of the new district, to which they are transferred. This rule appears to me to be just and in accordance with the intention of the sta- tute in relation to the common schools. It will be proper, therefore, for the trustees of district No. 8, un- less they have been otherwise instructed by a vote of the district, to pay to any qualified teacher, who has been employed in the district previous to its division, so much of the public money as shall be necessary to compensate him for his services. But if they had in their hands at the time district No. 4 went into ope- ration, any public money not essential to that object, they must divide it between their own district and No. 4 according to the SUPERINTENDENT OF COMMON SCHOOLS. 127 number of children over 5 and under 16 years of age remaining in one and set off to the other. The inhabitants of school district No. 7 in the town of Carlisle, ex parte. Trustees cannot be compelled to pay interest on school moneys in their hands, nor can the inhabitants cause it to be taken out of their hands and loaned at interest. .ftpfoil This was an application from the inhabitants of school district No. 7 in the town of Carlisle, for the opinion of the Superinten- dent as to their right to require the trustees, by a vote at a dis- trict meeting, to loan at interest the public moneys received by them, until wanted to pay teachers' wages. He was also desired to state whether the trustees could be compelled to pay interest during the time those moneys remained unexpended in their hands. By JOHN A. l)ix, October 16, 1833. The statute places the public moneys belonging to school districts in the hands of the trustees, and gives to the inhabitants the power of dividing it into portions to be applied to particular seasons of the year. Beyond this the latter have no power to control it. The trustees must keep the money safely, and pay it out as authorized by the inhabitants, or as the law requires if the inhabitants give no direction in relation to it ; but they cannot be made to pay inte- rest on it, nor can the inhabitants direct it to be taken out of their hands and loaned at interest to any other person or per- sons. The Trustees of school district No. 3 in the town of Chenango, ex parte. A school-house cannot be sold under execution on a judgment against the trustees of the district. George W. Drew, a teacher in school district No. 3 in the town of Chenango, commenced a suit before a justice of the peace against the trustees for the recovery of wages due him on a contract, with their predecessors in office. No defence was in- terposed by the trustees, and judgment was rendered against them. Execution was issued, and the school-house, worth from $1,200 to $1,500, was advertised for sale by the sheriff, the amount of the judgment being somewhat more than $30. The question submitted to the Superintendent was, whether the school house could be sold to satisfy the judgment against the trustees? By JOHN A. Drx, November 4, 1833. No case like the one stated has come under the notice of my predecessor or myself. 128 CASES DECIDED BY THE But it seems to me to be clear, from an examination of the law. that a school-house cannot be sold under execution on a judg- ment obtained against the trustees of the district. Although they are invested with certain corporate capacities, they are not in law a corporation with general powers. Their liabilities would not therefore be such as to authorize district property in their custody to be sold under executions against them, without some special provision of law to that effect. Besides, the Revis- ed Statutes, vol. 2, page 476, sec. 108, have made provision with regard to the collection of judgments against trustees of school districts, which are altogether inconsistent with such a proceed- ing. The trustees are made individually liable for judgments rendered against them, and the amount collected of them is to be allowed in their official accounts. If the sheriff goes on to sell, the sale will be void. The best mode of settling the con- troversy will be for the trustees to pay out of any moneys in their hands belonging to the district, the amount of the judgment. If their predecessors have misapplied, or have failed to account for the moneys which came into their possession while in office, they should be prosecuted by the present trustees, under sections 100, 101 and 102, 1 R. S. page 486, The Trustees of school district No. 35 in the town of Manlius, ex parte. Purchases of land subsequent to the formation of a new district do not affect its boundaries. In the spring of 1833, school district No. 12 in the town of Manlius was divided, and district No. 35 formed by setting off a part of the former. A. B. owned and occupied a farm, which by the division remained in No. 12 ; but immediately after the division he purchased a farm lying in No. 35, and annexed it to the farm he occupied, which was adjacent to it. The question submitted to the Superintendent was, whether the farm so pur- chased in No. 35 was liable to be taxed in that district for a school-house, or whether by annexing it to his own farm in No. 12 it formed a part of the farm, so as to become taxable in the latter district. By JOHN A. Dix, November 4, 1833. The farm purchased by A. B. in school district No. 35, Manlius, must be taxed in that district. If he had purchased it previous to the division of school district No. 12, and annexed it to his home farm, the case would be somewhat different. But as the matter stands, it seems to me that there can be no doubt about it. The farm was a part of district No. 35 when he purchased it. He cannot by purchasing and annexing it to a contiguous farm in another SUPERINTENDENT OF COMMON SCHOOLS. 129 district, release it from its pre-existing liability to taxation in the district of which it was a part at the time of the purchase.* Robert Platt and others, against the inhabitants of school district No. 8 in the town of Peru. The clerk of a school district cannot designate a place for an annual meeting when it has been omitted at the previous annual meeting. Two meetings being held at different places on the same day as an annual meet- ing, a new one will be ordered. The facts of this case are stated in the Superintendent's deci- sion. By JOHN A. Dix, November 4, 1833. On examination of the appeal of certain inhabitants of school district No. 8 in the town of Peru, it appears that the annual meeting of the inha- bitants of that district, on the 1st Monday of October, 1832, was adjourned to the 1st Monday of October, 1833, at 4 o'clock, P. M. without appointing the place of meeting as required by law. It also appears that for many years the annual meetings of the inhabitants have been uniformly held at the district school-house. On the 28th of Sept. last the district clerk gave notice of the an- nual meeting for the day specified, to be held, " at the store-house of widow Craig, Peru landing," in consequence of the unfinish- ed state of a new school-house erected on the site of the old one. Notwithstanding this notice nine of the taxable inhabitants met at the new school-house, organized, and elected district officers, while another portion of them, fourteen in number, met at the place specified in the notice, and also elected officers for the dis- trict. It is clear that the clerk of the district had no right to supply an omission in the proceedings of the previous annual meeting by appointing a place for holding the next. This duty is spe- cially enjoined by law upon the inhabitants of the district, assem- bled at their annual meeting; and if neglected, the defect can only be supplied by meeting at the usual place, or by the inter- position of the Superintendent of Common Schools, on applica- tion to him. If any place had been named by the clerk in his notice it should have been the usual place for holding the annual meetings ; for this, if any, must have been intended by the in- habitants. The proper mode, therefore, of remedying the omis- sion in this case was for the inhabitants to meet at the school- house, and if found in an unfit condition for holding the meet- ing, they should have adjourned, after organizing, to some other place. In this manner the intention of the last annual meeting would have been satisfied, though the requirements of the law * See a case decided by A. C. Flagg> October 18, 1830, p. 69. 9 ion CASES DECIDED BY THE would not have been strictly fulfilled. The clerk of the district acted without authority in appointing a place for the meeting; for he is only authorized by law to give notice of time and place when appointed by the competent authority. Yet, if the inha- bitants had assembled at the time and place specified in his no- tice; if there had been no surprize on the part of any, and no exception had been taken at the time, by objecting to the pro- ceedings, or by refusing to attend the meeting, it might be a question whether the result should be disturbed by the Superin- tendent on appeal, even though the requirements of the law had not been fulfilled, with regard to a designation of the place of meeting by the inhabitants at their last annual meeting, and though their intention had not been satisfied by holding it at the usual place. But as two meetings have been held, and as exception has been taken to one of them by a formal appeal to him, the question now presented is, whether he can, upon refe- rence to the provisions of the law, pronounce the proceedings ef either to be valid. For the reasons already assigned, neither of the meetings appears to him to have been held with such con- formity to the requirements of the law as to give validity to its proceedings. The one held at the school-house, (the usual place,) though held both without notice and in direct disregard of the notice given by the proper officer, might have been sus- tained if generally attended; but it was attended by a small num- ber only, with surprize on the part, of many, who attended the other meeting under the misdirection of the clerk. On the other hand, the meeting at the store-house of the widow Craig was held in pursuance of an unauthorized notice, so far as the desig- nation of place is concerened. It was but partially attended, and with surprize on the part of some, who attended the meeting at the usual place, or at all events without their assent. Neither of these meetings can, therefore, be considered such a one as is contemplated by law. If the annual meeting had been altogether neglected, the Su- perintendent would not, without strong reasons, interpose; and the trustees in office would, in pursuance of a rule already esta- blished, hold over another year. But in annulling the proceed- ings of the two meetings referred to, it seems proper that the choice of officers should be again submitted to the inhabitants of the district, and their preferences fairly ascertained. It is therefore decided, that the proceedings of the two meet- ings of the inhabitants of school district No. 8 in Peru, held on the 1st Monday of October last, are void and of no effect; and it is ordered, that a special meeting of the inhabitants of said dis- trict be held on the fourth Monday of November instant, at the new school-house, at 4 o'clock in the afternoon of that day, for SUPERINTENDENT OF COMMON SCHOOLS. 131 the purpose of electing district officers, and for transacting any other business which may be brought before them. They will also appoint the time and place for holding the next annual meeting. The clerk of the district will give to the inhabitants such a notice of the meeting hereby appointed as is required by law when a special meeting is called by the trustees. William Ross and others, against the inhabitants of school district No. 4 in the town of Mentz. If at an annual meeting a reasonable time is not allowed to the inhabitants to as- semble, a new meeting will be ordered. The facts of this case are stated in the Superintendent's or- der. By JOHN A. Dix, November 5, 1833. On the seventh day of October ult, the inhabitants of school district No. 4 in the town of Mentz, held their annual meeting at the school-house in said district. The hour appointed at the previous annual meeting was four o'clock in the afternoon, and regular notice thereof was given by the clerk of the district. About twenty minutes past four, when eight of the taxable inhabitants were assembled, it was proposed to organize and proceed to business, as the weather was unpromising, and it was desirable to close the proceedings before it was dark. To this proposition objec- tions were made by William Ross, who stated that much excite- ment prevailed in the district, and that there would undoubtedly be a general attendance of the inhabitants. He, therefore, urged that a reasonable time should be allowed for them to assemble. Notwithstanding these objections, the meeting proceeded to busi- ness, and when the trustees were chosen, only nine voters were pre- sent. Immediately after the election seven or eight more made their appearance, and before 5 o'clock 24 taxable inhabitants were present Some of the latter, took part in subsequent proceedings, and a motion was made to reconsider the choice of officers, but the moderator refused to put the question to the meeting. Thus it appears, that the officers of the district have been chosen by nine persons, although by a delay of a few minutes the wishes of a large majority of all the taxable inhabitants might have been ascertained; and this in opposition to the remonstrance of one, if not more, of the voters present at the organization of the meeting, Although it was the duty of all the voters to attend punctually at the hour appointed; yet it seems to the Superintendent that the haste with which the choice was made, and the refusal of the persons who made it, to admit of any participation in it by those who arrived subsequently and ex- pressed a wish to vote, evince a disposition to take an undue CASES DECIDED BY THE advantage of their neighbors, who were equally interested with themselves in the prosperity of the district. At all events the wishes of the district have not been expressed ; and he feels sa- tisfied that the district officers, thus chosen by a small minority of the inhabitants, will, on reflection, see, as he does, the pro- priety of submitting their claims to the clearly expressed will of the majority. It is, therefore, ordered, that the choice of district officers made at the annual meeting of the inhabitants of district No. 4 in the town of Mentz aforesaid, on the 7th day of Oct. ult. be, and it is hereby set aside. And it is further ordered, that a special meet- ing of the inhabitants of said district be held on the fourth Mon- day of November instant, at the school-house in said district, at 6 o'clock in the afternoon, for the purpose of choosing district of- ficers, and for the transaction of any other business which may come before it. The clerk of the district will give the inhabi- tants such a notice of the meeting hereby appointed, as is re- quired when a special meeting is called by the trustees of a school district. J. C. Van Buskirk and others, against the inhabitants of school district No. 1 in the town of Aurelius. Sites for school-houses should not be fixed without a fair expression of the opi- nions and wishes of the inhabitants. If the title to the site of a school- house fails, the inhabitants may select another precisely as though the district had never possessed one. The toll-house and lot of a bridge company are not taxable as real estate. The facts of this case are fully stated in the Superintendent's order. By JOHN A. Dix. November 6, 1933. On the 7th of Oc- tober ult. the inhabitants of school district No. 1 in the town of Aurelius, Cayuga county, held their annual meeting in pursu- ance of adjournment and public notice as required by law, seven voters being present. After the election of district officers the meeting proceeded to vote a new site fora school -house, the build- ing used for that purpose having been consumed by fire, and the title to the former site having, as is alleged, proved defective. It was then resolved to build a new school-house, a tax of two hundred and fifty dollars was voted for the purpose, the dimen- sions of the building were prescribed, and the meeting was ad- journed to the 9th of the same month. To the proceedings of this meeting it is objected : That the vote given for changing the site of the school-house was in violation of the provisions of the Revised Statutes, vol. 1. page 479, sec. 66. By reference to the act of Feb. 17, 1831, sec. 6 r (laws of SUPERINTENDENT OP COMMON SCHOOLS. 133 N. Y. sess. 54, chap. 44,) it will be perceived that the provisions of the section above referred to are repealed, although they are re-enacted, with modifications, in the preceding sections of that act. The intention of the act of 1831, is, that the site of the school- house when it is once procured and fixed, and the house has been built or purchased, shall not be changed, excepting in the mode therein prescribed. But if a site has never been procured, none of the provisions of the act apply. It may be selected at any meeting of the inhabitants of the district, without such a special notice as is required by the 3rd section of the act of 1831. In like manner, if a site has been established and the title to it fails, the same principle must apply. The district is absolutely without a site. The site is not to be changed, but it is to be chosen, precisely as though the district had never possessed one. To such a case it is manifest that the provisions of the act of 1831 cannot be applicable. It could never have been intended that the commissioners of common schools should, when the ne- cessity of the case is inevitable, be required to consent to the change or state it to be necessary; nor could it have been intend- ed that a vote of two-thirds of the persons present at a special meeting called for the purpose and qualified to vote therein, should l>e required to select a site when the district is without any, or even to remove the school-house, when the title to the ground has failed. The provisions of the act of 1831 being intended lor a particular case, none of them are to be considered applicable where the case in point has not occurred. It has been shown to the Superintendent of common schools by the affidavit of five persons, that the land on which the school-house of district No. 1, recently consumed by fire, stood, is " now owned by Henry Hopper, and that the school district have no title or claim to the land on which the said school-house was situated, by lease, deed, or otherwise." The district can- not therefore be considered as having such a site for a school- house as is contemplated by law, and the provisions of the act of 1831 before referred to are wholly inapplicable to the case. The inhabitants of the district at any meeting when they are legally assembled, whether the notice for the meeting states a special purpose or not, may, by a majority of votes, select a site and lay a tax for purchasing it. If, however, there has been surprise on the part of any of the inhabitants, or if there is rea- son to believe that the sense of the majority has not been fairly expressed, it is in the discretion of the Superintendent of Com- mon Schools, on appeal to him, to set aside the proceedings complained of, and order the question to be submitted anew to the district. 134 CASES DECIDED BY THE It appears by the testimony of the applicants in this case, and by the admission of the appellees, that there were but seven per- sons present at the annual meeting on the 7th October, although as is stated by the former, the number of taxable inhabitants belonging to the district is between thirty-five and forty-five. The omission of voters to attend district meetings, where the le- gal notice has been regularly given, constitutes no just ground in ordinary cases for vacating the proceedings of such meetings. If the parties concerned will not 'attend, they have no right to complain that their business, through their own inattention, has been transacted by others, however small the number of persons who have disposed of it. The Superintendent will not, there- fore, disturb any portion of the proceedings of the annual meet- ing which relates to business ordinarily transacted at such meet- ings, such as the choice of district officers. But he deems it .due to the quietude, if not to the permanent prosperity, of the district, that the choice of a site for a school-house should be again sub- mitted to the inhabitants. The position of the school-house is a matter of interest to the whole district, more especially as a change in the site, when it has been once permanently fixed, is embar- rassed by great difficulties; and it is due to all concerned that full opportunity should be given for making a fair and deliberate choice. The Superintendent would consider it unjustifiable on the score of equity alone, without reference to its bearing upon the tranquillity of the district, to allow a question of this magni- tude to be settled by a majority of seven persons, when at least thirty more have an equal interest in it. There are several minor objections to the proceedings of the meeting, which it is unnecessary, for the purposes of this deci- sion, to notice. To the assessment made by the trustees of the taxes voted for building a school-house and purchasing a site, it is objected that the Cayuga Bridge Company has been taxed $41.90 upon its property, valued at $7,000, in school district No. 1. On referring to the act of incorporation, and the several acts amending it, it appears that the Cayuga Bridge Company were authorized to construct a bridge " over the Cayuga Lake on the outlet thereof," and also to erect a permanent bridge across the Cayuga Lake between the villages of East and West Cayuga, in addition to their bridge built over the outlet of said lake. These bridges are both in use. The tolls of one are collect- ed in Aurelius within the bounds of school district No. 1, and the tolls of the other are collected in the town of Seneca Falls. The Revised Statutes, vol. 1. page 390, section 6, provide that " when the tolls of any bridge, turnpike, or canal company are collected in several towns or wards, the company shall be as- SUPERINTENDENT OF COMMON SCHOOLS. 135 sessed in the town or ward in which the treasurer or other offi- cer authorized to pay the last preceding dividend, resides." This provision, however, does not include the real estate of the com- pany. For it is provided at the beginning of the section that "the real estate of all incorporated companies liable to taxation shall be assessed in the town or ward in which the same shall be, in the same manner as the real estate of individuals." The affidavit of John C. Van Buskirk sets forth that "the treasurer of the" Cayuga Bridge " Company, authorized to pay the last dividend, resides at Seneca Falls in Seneca county." The personal property of the company therefore, and the amount of its capital, exclusive of its real estate lying in other towns, is taxable in the town of Seneca Falls, although the value of the bridge terminating in Aurelius be included in that amount. However inequitable the operation of the rule in this instance may be, it is clearly a case within the provisions of the Revised Statutes above quoted. The property of the company, exclusive of its real estate in other towns, must be taxed in the town of Seneca Falls. It only remains then to be considered whether the company has any property in district No. 1, which comes within the definition of real estate. If it has nothing more than a house for the use of the toll gatherer, and a lot no more than sufficient for his accommodation, I am of opinion that they are to be considered, like the toll-house and gate of a turnpike com- pany, as a necessary appendage to the franchise, almost equally indispensable to its enjoyment with the bridge itself. The affi- davit of John C. Van Buskirk puts the value of the house and lot at $200 or $250, according to the ordinary standard of valu- ation adopted by the assessors of the town, an amount so small that it would be hardly reasonable to treat it as representing real estate distinct from the capital stock of the company. Upon a full view of the case, therefore, I think the property of the Cay- uga Bridge Company is not liable to be taxed at all in the town of Aurelius. As upon these points the whole case may be disposed of, it is unnecessary to take notice of the remaining objections to the proceedings of the two meetings from which the appeal under examination is brought. It is accordingly ordered, that the proceedings of the two meet- ings in school district No. 1, Aurelius, held on the 7th and 9th October ult., excepting so far as they relate to the choice of dis- trict officers, be and they are hereby annulled ; and it is further ordered, that all subsequent proceedings by virtue of the votes taken at said meetings for selecting a site for a school-house, for laying a tax for the purchase of said site, and for laying a tax for building a school-house, be, and they are hereby set aside. 10/ 136 CASES DECIDED BY THE And the trustees of said district are hereby required to call a spe- cial meeting of the inhabitants at an early day, for the purpose of announcing this decision, and of giving them the opportunity of taking such measures in the premises as upon reconsideration may appear to them to be due to the quietude and prosperity of the district. The inhabitants of school district No. 14 in the town of Richland, against the Commissioners of Com- mon Schools of said town. School districts should not be so reduced in strength as to be unable to maintain respectable schools- Dissensions in school districts cannot be allowed to be made a ground for alter- ing or breaking them up. This was an appeal to the Superintendent under circumstan- ces which are fully stated in his decision. By JOHN A. Dix, November 11, 1833. On the 31st day of August last, the commissioners of common schools of the town of Richland, Oswego county, formed a new district of a part of district No. 14 and other contiguous territory. From this pro- ceeding, the inhabitants of the latter appeal to the Superinten- dent of Common Schools. District No. 14, before it was divided by the commissioners, had 40 children between the ages of 5 and 16 years, and a tax- able property amounting to $4,370. By the alteration referred to, the number of children is reduced to 29, and the taxable property to $3,250. The Superintendent is decidedly of the opinion that the district, with such a reduction of its wealth and of the children upon whom the public money is apportioned, would hardly be adequate to the support of such a school as is indispensable to the proper education of their children. It is the great evil of the common school system that the teachers are not always so well qualified as they should be. It is obvious that their qualifications will generally be in proportion to their compensation ; and it is an object of the highest importance to secure to every district the ability of maintaining a respectable school, by employing a teacher of the requisite learning and abi- lity. By preserving the district as it existed previous to the di- vision made by the commissioners, some of the inhabitants may be compelled to send a greater distance to school, and they may even be unable to send at all during some days in winter by rea- son of the state of the roads. But admitting all this to be true, the evil will be far less than that of reducing the strength of dis- trict No. 14 so much as to disable it for maintaining a respectable school. The Superintendent has no means of knowing the situ- SUPERINTENDENT OF COMMON SCHOOLS. 137 ation of the inhabitants who were taken to form district No. 22, excepting those who were set off from district No. 14. But he cannot consistently with what he deems due to the latter, sanction the alteration made by the commissioners. It is alleged that a personal difficulty has existed between some of the inhabitants of district No: 14, and that the district has thereby been kept in a^erpetual ferment for sometime past. Al- though these dissensions are exceedingly to be regretted when they are allowed to influence the conduct of individuals in rela- tion to the education of their children, it would be extremely dangerous to allow them to be made a ground for altering or breaking up school districts. It is far better to trust to the good sense and sober reflection of the parties concerned, and to believe that they will, ere long, in a matter so deeply affecting the cha- racter and interest of their children, come together under the guidance of more rational counsels, and sacrifice their private animosities to considerations of their own, as well as the common good. They cannot fail to see that without a spirit of modera- tion and forbearance the good order of society could not long be maintained, and that the benefits it is designed to secure could not be enjoyed in comfort or safety. It is hereby ordered, that the proceedings of the commission- ers of common schools of Richland, in the formation of school district No. 22, be set aside, and that the said district be, and it is hereby, annulled. The Trustees of school district No. 8 in the town of Cobleskill, ex parte. Public moneys are to be equitably divided when a new district is formed. The facts of this case are the same as stated in the Superin- tendent's opinion on the application of the trustees of school dis- trict No. 4 in the town of Cobleskill, page 125. By JOHN A. Dix, November 12, 1833. By a rule heretofore established by the Superintendent of Common Schools, whenever a new school district is formed after the public moneys are dis- tributed, the inhabitants who are taken to constitute it, are en- titled to receive from the districts from which they are set off, their just proportion of the school moneys apportioned to said dis- tricts, according to the number of their children between 5 and 16 years of age. Although this division of the public moneys is not made obligatory by law, it is in accordance with the whole tenor of its provisions, and a different rule could not be set up without manifest injustice and an entire abandonment of the principle upon which the proceeds of the common school fund are distributed. The right to receive the school money as above 138 CASES DECIDED BY THE stated may be waived by the parties concerned, but it cannot be taken away without their consent. You will understand me as referring only to such portion of the public moneys" in the hands of the trustees as is unexpended or unappropriated by vote of the inhabitants to a term preceding the division of the district. The new district (No. 4,) will, therefore, be entitled to receive from you $4.34, unless some portion of the school money, which you received, was appropriated to the payment of a qualified teacher for his services after the first of January last, and be- fore the division of your district. The inhabitants of school district No. in the town of Petersburgh, ex parte. School may be kept on Sunday for the benefit of persons who observe Saturday as holy time, and the teacher must be paid for that day by those who send to school. A teacher may receive the public money if he dismisses his school on Saturday and keeps it open on Sunday. This was an application to the Superintendent for his direc- tion in a case in which a large majority of the inhabitants of the district observed Saturday as holy time, and the teacher being of the same religious sect, kept his school open on Sunday and dis- missed it on Saturday. By JOHN A. Dix, November 18, 1833. The laws of this state recognize Sunday as a day of public observance, by prohibiting the execution of civil process, pastimes, &c.. and travelling, ex- cepting for necessary or charitable purposes. Servile labor is also interdicted, excepting to those who uniformly keep the last day of the week (Saturday) as holy time. Such persons may undoubted- ly have a school on Sunday, provided it is kept under such circum- stances as not to disturb other persons in their observance of the first day of the week (Sunday) as holy time ; but they cannot under the provisions of the law, compel the latter to contribute in any manner to ite support. If a teacher keeps his school open on Sunday, those whose children attend pay him for that day ; but if he teaches from Monday morning till Friday night, he ought not to be deprived of the public money because he teaches on Sunday also. This is altogether too unimportant a matter either for the interposition of the Superintendent, or for any con- tention among yourselves. The teacher would be entitled to the public money for five days in the week, and as the inhabitants pay towards the balance of his wages, after applying the public money, for so much time only as their children attend school, if seems to me that there is no hardship or injustice in the matter. SUPERINTENDENT OP COMMON SCHOOLS. 139 (ANONYMOUS.) On certain holidays schools may be dismissed. By JOHN A. Dix, November 21, 1833. The holidays ou which a teacher may dismiss his school, are such as it is custo- mary to observe throughout the country: as the fourth of July, Thanksgiving and New- Year. But these matters are not, it seems to me, of sufficient importance to give rise to any contro- versy between the trustees and teacher, by insisting on either side with too much tenacity upon any particular day beyon 1 those above mentioned. If it were usual, for instance, in the neigh- borhood, to dismiss school to enable the children to attend some local celebration, a proper liberality should be exercised towards the teacher in that respect. The inhabitants of school district No. 1 in the town of Hunter, against the Trustees of said district. Coloured persons ought not to be employed to teach white children. This was an appeal by some of the inhabitants of school dis- trict No. 1 in the town of Hunter, from the proceedings of the trustees of said district, in employing a coloured man to teach the district school, which was attended almost exclusively by white children. By JOHN A. Dix, November 25, 1833. The law is silent as to the description of persons to be employed as teachers, and it is, therefore, a matter wholly in the discretion of the trustees. At the same time I consider the employment of a coloured per- son to teach a school of white children as an unjustifiable exer- cise of authority, unless the parties concerned waive their objec- tions to it. It is unnecessary to inquire whether public opinion, with regard to the admission of these persons to the enjoyment of all the social privileges of the whites, is well grounded or not. It is enough that a distinction exists; that they are disqualified by the laws of the United States for the performance of services in the militia, and by the constitution of this state for the exercise of the right of suffrage, without a qualification of property. Under these circumstances the trustees of school districte, whose duty it is to cultivate a spirit of harmony and good feel- ing, by carrying into effect as far as is proper the wishes of th inhabitants, should abstain from employing them in the capacity of teachers. If the trustees persist however, notwithstanding the objections on the part of the inhabitants, I see no remedy for it, until the annual election of district officers occurs, when others may be elected in their place. They may pay the teacher the public money for his wages as far as it goes, and the residue must 140 CASES DECIDED BY THE be collected from those who send to school. No inhabitant can of course be compelled to send his children. The Clerk of school district No. 9 in the town of Penfield, ex parte. Rule of taxation in relation to real estate purchased after the formation of a school district applied to certain cases. By JOHN A. Dix, November 25, 1833. I have received your letter of the 12th inst. containing certain queries, which are here- with subjoined, together with the answers required. 1st. " Since the last alteration in our district lines a person living in another district purchased a small farm, about 40 acres, adjacent to our district line, having thereon a log house, in which no one now resides: he afterwards purchsed a small farm not far from the same size, adjoining said 40 acres on our side of the line, which had on it a frame barn and log house, which is also with- out an occupant, all of which he cultivates by his own and hired labor, and the whole of the land being only contracted to the original settlers has been since conveyed to the present purchaser in one deed. Query. Where is that part of said land which lies in No. 9 taxable? in number 9, (our district,) or in number 12, (the residence of the owner?)" Answer. That part of the land which lies in No. 9 is taxable in that district. The rule has long been established by the Su- perintendent of Common Schools that the lines of school districts, when once fixed, cannot be altered by subsequent purchases. 2d. " The owner of a farm in another district adjoining our district line purchased a farm of 100 acres in our district adjoin- ing his farm, then sold the buildings and about half the land, retaining that part adjoining his own and working it as a part of his farm: are said lands still taxable in our district?" Answer. This question is also answered by the principle above referred to, in my answer to query No. 1, if, as stated in the postscript in your letter, the purchase was made after the orga- nization of your school district. 3d. "A piece of land, say 20 acres, in our district, adjoining the district line and cornering on a farm out of this district, was purchased and is now occupied by the owner of said farm, living in another district: where is said 20 acre piece to be taxed?" Answer. This land, like the lots referred to in the two pre- ceding queries, is taxable in your district, if, as is stated in the postscript of your letter with regard to this also, the purchase was made after the formation of the district. The object of the rule, which applies equally to all these cases, and which is considered not inconsistent with the provisions of the statute, was to prevent SUPERINTENDENT OF COMMON SCHOOLS. 141 small districts from being broken up by those changes which are constantly occurring in the ownership of real estate. The Trustees of school district No. 6 in the town of Lincklaen, ex parte. A certificate of qualification signed by two inspectors is good, if there are only two persons in the town authorized to act as such. This was a case in which two of the commissioners of com- mon schools of the town of Lincklaen had removed out of town, and two of the inspectors were engaged in another town in keep- ing school, so that there were in the town but two persons who were authorized to inspect teachers. The question submitted was whether a certificate signed by them was a sufficient com- pliance with the law. By JOHN A. Dix, December 11, 1833. A teacher's certifi- cate should be signed by three inspectors. But where there are only two individuals in the town authorized to act as such, their certificate as to his qualifications must, from the necessity of the case, be deemed sufficient, and he will be considered to all in- tents a qualified teacher. John Oakley, a Trustee of school district No. 12 in the town of Schroon, ex parte. The time and place for the annual meeting not having been fixed, it may be held' at the usual time and place. Trustees may give notice of a meeting when the clerk refuses to do so. John Oakley was elected clerk of school district No. 12, in the town of Schroon, at the annual meeting for the year 1832; when by mistake the time and place for the next annual meeting were not appointed. As the usual time approached, the trustees di- rected Mr. Oakley to give the customary notices, which he de- clined to do, on the ground that a special meeting was necessary m consequence of the omission of the inhabitants, at their last annual meeting, to designate the time and place for the next. The trustees then put up notices themselves for an annual meet- ing, and it was held at the usual time and place, and Mr. Oak- ley, contrary to his earnest remonstrances, was elected a trustee. The opinion of the Superintendent, as to the legality of the pro- ceedings referred to, was solicited. By JOHN A. Dix, December 12, 1833. If at an annual meeting of the inhabitants of a school district, the time and place for holding the next are not fixed, and if at the expiration of the year for which the district officers were elected, a meeting is held and an election had at the usual time and place, the Super- 142 CASES DECIDED BY THE intendent has always treated the proceedings as valid, notwith- standing the want of formality in the adjournment at the previ- ous annual meeting. There should, however, be no surprise on the part of the inhabitants : otherwise he would, on applica- tion, set aside the proceedings and afford the necessary relief by ordering a new election. Although the law does not expressly provide that the trustees of a school district may give notice of a meeting when the clerk refuses, yet I think this one of those ca- ses, in which they may act with propriety. The law does not, of course, suppose that the clerk will refuse to act, even though the cause should be a doubt as to the propriety of acting in a given case. In strictness the trustees should have given the clerk a written direction to issue notices for the meeting, but the law does not make a written order necessary, and so far as the clerk is concerned, he would have been justifiable in acting and giving a written notice upon the verbal order, which he received. Upon the whole, although Mr. Oakley may appeal, and if he should do so I shall investigate the case and decide it upon the proof, as strict justice may require, yet as there is no special grievance or injury, I think he had better acquiesce in the proceedings. He may not be very much benefited by the trust to which his neighbors have elected him, and perhaps the discharge of his duties may give him some small inconvenience; but these trifling sacrifices should be met in a spirit of accommodation ; and certainly an election to an office which enters so much into the interests of one's neighbors, is a mark of confidence, however little it may be appreciated, for which the individual thus complimented has no right to take of- fence. I think Mr. Oakley had better offset the compliment to the grievance and let the matter rest. The Trustees of school district No. 7 in the town of Lexington, ex parte. A trustee of a school district cannot be clerk or collector. The officers of clerk and collector may be held by the same person, although the intention of the law would be better answered by conferring them on different individuals. A person exempt from a tax by reason of performing military services, may vote at school district meetings notwithstanding such exemption, if the payment of the tax would have given him a right to vote. A distinct possession carries with it a liability to taxation. A school-house being abandoned, and the right of occupancy failing with it, a new site may be chosen by a majority of votes. This was an application to the Superintendent for his opinion as to several questions, the subject matter of which will be appa- rent from the answers. By JOHN A. Dix, December 30, 1833. A trustee of a school district cannot be clerk or collector. The law does not in ex- SUPERINTENDENT OF COMMON SCHOOLS. 143 press terms disqualify a trustee for holding either of those offices ; yet it is manifest from the nature of the duties annexed to them that they must be held hy different persons. The same objec- tion does not apply to the offices of clerk and collector, which may be held by the same person ;* but at the same time as the law has created separate offices, it is better to carry out its inten- tion strictly by conferring them on different individuals. If a person is exempted from the payment of a tax by reason of having performed certain military duties, he is not to be deem- ed disqualified thereby for the exercise of any right which the payment of the tax would have secured to him. He is to be considered as having paid it in another mode, the exemption be- ing in fact the price of other services rendered by him. If a man has a farm lying in two school districts, and has se- veral tenants, paying him a specific rent, residing on different parts of it, the tenants must be taxed in the districts in which they reside respectively, for so much as is possessed by them. Whether the owner pays the tax to the town on the whole, or not, is of no consequence. A distinct possession carries with it a liability to taxation for school district purposes in the district in which the part separately possessed lies. It is, for all such pur- poses, to be deemed a distinct farm. If a school-house becomes unfit for use, and is abandoned, and the right to the site determines with such abandonment of the building, the district is to be regarded as destitute of a site, and a new one may be designated by a majority of votes. The Trustees of school district No. 4 in the town of Butternuts, ex parte. Warrants annexed to tax -lists and rate-bills, are to be executed in the same man- ner as warrants issued to the collectors of towns. Any goods and chattels lawfully in possession of a person assessed to pay a tax, may be taken by the collector of a school district. This was an application to the Superintendent for his con- struction of the laws referred to in his answer. By JOHN A. Dix, December 30, 1833. All warrants, whe- ther issued for the collection of school bills or taxes are to be made out in the same manner as is provided by section 2, of the act of April 21, 1831, and by the act of April 26, 1832, they have the same effect. Property exempt from taxation under the general law is ex- * The supreme court in the case of Howland vs. Luce, 16 Johnson, 135, held that there was no prohibition in the common school act " to confer the offices of district collector and clerk on the same person," and that there was " no in- compatibility in the offices." 144 CASES DECIDED BY THE empt from taxation for common school purposes; but any goods or chattels lawfully in the possession of the person on whom a a tax is assessed, may be taken by distress and sold for non- payment of the tax under a warrant issued for its collection, al- though the person be not the owner of the goods or chattels. There is no distinction as to extent and effect between a warrant issued by the supervisors of a county to a collector of a town and a warrant issued by the trustees of a school district to the collec- tor of the district.* The Commissioners of Common Schools of the town of Fishkill, ex parte. In appraising the school-house and property of a district lying partly in two towns the commissioners of both must unite. The apportionment of the value of the school-house and other property of a dis- trict need not be filed with the town clerk in order to give validity to the pro- ceedings. This was an application for the opinion of the Superintendent in relation to two enquiries, the subject matter of which is ex- plained by his answer. . By JOHN A. Dix, January 2, 1833. If a joint district is di- vided for the formation of a new district, the commissioners of both towns should appraise the property ; or if a new district is formed from districts lying in two or more towns, a majority of the commissioners of all the towns must appiaise the property of the districts affected by the alterations made. The act relat- ing to common schools, seciions 67 and 68, requires that the value of the property shall be ascertained u at the time," &c. by the commissioners. The formation of the new district, the ap- praisement, ellants as unauthorized and void under the act of 17th Februa- ry. 1831, depends wholly upon the fact whether the district has been altered since the school-house was built or purchased, for if it has been, a change of the site by a majority of votes is valid, without the consent of the commissioners of common schools. It appears by the old record of the town of Marcellus in the office of the town clerk of Skaneateles, that Zail Conover was taken from district No. 13, Skaneateles, on the 12th of March, 1830, and annexed to district No. 14. The existence of this re- cord is admitted by the appellants. The persons who were trus- tees of district No. 14 at that time, swear that they were notified of the alteration and consented to the same, and the consent of the trustees of district No. 13 is a part of the record referred to. The admission on the part of the appellants taken in connexion with the testimony of the trustees, is conclusive against the ap- pellants on the first point. It is alleged, it is true, that the order making the alteration does not appear in the office of the town clerk of Marcellus; but the old record of the town shows that it was recorded at the proper time ; and if the record was transfer- red to the town of Skaneateles, it was not necessary that the or- der should be recorded in Marcellus after its organization as a new town. The fact that it was recorded in the old town, a fact admitted by the appellants, is sufficient evidence of its having been regularly made by the commissioners of common schools. 1 40 *4, 148 CASES DECIDED BY THE The right of the commissioners of common schools of Marcellus to make the alteration, was perfect. The act of February 26. 1830, organizing the town of Skaneateles, provided that the first town meeting in the town of Marcellus. after its division, should be held on the last Tuesday of April, 1830, and that the first town meeting in the iown of Skaneateles should be held on the same day. The Revised Statutes, vol. 1, page 157, sec. 12, provide that every law, unless a different time shall be designated therein, shall commence and take effect on the twentieth day after its passage. The act of the 26th February, 1830, referred to, is silent as to the time when it was to go into operation, and it would, therefore, take effect on the 18th of March. For some purposes Skaneateles would be considered a separate town on that day: but it raay be fairly contended that the local authori- ties of the town of Marcellus might exercise jurisdiction over both towns until new officers were chosen for both. Otherwise it is manifest that no competent authority would exist in the former town during the period intervening the time at which the law erecting it went into effect, and the day appointed for the town meeting, to provide for the execution of the laws. But even if the authority of the commissioners of Marcellus over the com- mon schools in Skaneateles ceased on the day the act erecting the latter took effect, they were competent to act until the 18th, and, therefore, the alteration referred to on the 12th was valid and went into operation immediately, the trustees of the districts having given their consent. A legal alteration in the boundaries of district No. 14 having thus been made after the school-house was built, the provisions of the act of February 17, 1831, are inapplicable to the case. 2d. It is objected by the appellants, that Merick Bradley and Henry Ellery, two of the trustees of said district, (Benjamin Nye, the third trustee, dissenting,) sold the school-house on the ninth November last, pursuant to a vote of the inhabitants on the 7th of October. No testimony is produced to show that the proceedings of tke meeting at which the vote to sell the school-house was taken ; were irregular or void, and it is clearly shown that public notice of the sale was given, though such notice is not required by law. It is objected, however, that Ellery, being an alien, was inca- pable of holding office, that his acts were void, and as a ne- cessary consequence that the sale by Bradley against the con- sent of Nye, was not valid. Whether Ellery was incapable of holding office or not, is of no consequence so far as the validity of his acts is concerned. It is sufficient that he was elected a. SUPERINTENDENT OF COMMON SCHOOLS. 149 trustee at a regular meeting of the district. He was an officer de facto, and his acts, so far as the public and third persons having an interest in them are concerned, were good, until his incapacity to hold office was determined, and a new election or- dered by some competent authority. The sale of the school- house by Bradley and Ellery, in pursuance of the vote of the meeting was, therefore, valid. "With regard to the eligibility of ElTery to hold the office of trus- tee, the Superintendent concurs with the commissioners in the opinion expressed by them, although the question is not without difficulty. It is provided by the Revised Statutes, vol. 1, p. 721, sec. !20, that " every alien who shall hold any real estate, by virtue of any of the foregoing provisions, shall be subject to duties, assess- ments, taxes and burthens as if he were a citizen of this state ; but shall be incapable of voting at any election, or of being elect- ed or appointed to any office, or of serving on any jury." The provisions of this section relate to aliens, who, under certain cir- cumstances, are authorized to hold real estate, and they have in several instances been construed with very considerable limitation of their terms. Although the persons embraced by it are " sub- ject to duties, assessments, taxes and burthens" as if they were citizens of this state, it has been decided by the proper military authority, that they cannot be lawfully enrolled in the militia, because the law prescribing the organization of the militia does not include them in the class designated as subject to military duty. Military service is a " duty" as well as a " burthen ;" yet the general provisions of the section above quoted have been so construed as not to conflict with the special provisions of law re- gulating the enrolment and organization of the militia. In like manner it has been decided by the Superintendent, that aliens may vote for school district officers, notwithstanding the gene- ral terms of the section above quoted, because the chapter re- lating to common schools prescribes the qualifications of voters, and does not in terms exclude aliens ; and because it was con- ceived that the statute, in referring generally to elections, must be construed to intend such as are provided for in the case of state, county or town officers, and not to include jurisdictions merely local and organized for special purposes. If the chapter re- lating to common schools had expressly declared what the quali- fications of the officers of school districts should be, the question might arise whether the same rule of construction should not be adopted with regard to the general provision in the section above quoted, as to the capacity of the persons referred to in it, to hold office by limiting it to such " public or civil offices" as are pro- vided by the Revised Statutes. But as the chapter relating to common schools is wholly silent with regard to the qualifications i~n CASES DECIDED BY THE . of school district officers, it would be assuming too broad a con- struction to reject, as inapplicable to this case, a provision so com- prehensive in its terras as necessarily to inclnde all offices which are in any manner recognized by law as connected with the ad- ministration of the municipal or local concerns of the citizens of the state. Independently of the limitations above referred to, it is also to be considered that the section in question applies only to those aliens " who shall hold any real estate by virtue of" certain pro- visions therein referred to, and was obviously designed to pre- clude the inference that the class of aliens to which it applied should, as a consequence of the duties and burdens of citizenship which it imposed, be entitled to the exercise of any rights not spe- cially conferred on them. If the exclusion of aliens from the en- joyment of the rights of citizenship denied by this section depended upon this provision alone, it is not perceived why all other aliens excepting the class referred to might not exercise such rights, un- less they were specially withheld by other provisions. The inca- pacity of aliens, excepting the class embraced in the section above quoted, to vote, hold offices or serve as jurors, must be found in other provisions of law; and indeed it may be shown that the incapacity of the class referred to, so far as voting or holding office is concerned, would have been the same if the lat- ter part of the section had been wholly omitted. Their incapa- city to vote at elections of public officers is provided for by sec- tion first, title first, chap, sixth, and section first, title second, chap, eleventh, of the first part of the Revised Statutes. Their incapacity to hold office is provided for by section first, title sixth, chap, fifth, and section eleventh, title third, chap, eleventh, of part first of the Revised Statutes. It is also a principle of com- mon law that aliens shall be incapable of holding office or of serv- ing on juries; and if, as before observed, their capacity or incapa- city depended upon the section above quoted, they might be deem- ed capable both of holding office and serving on juries, unless they were of the particular class to which that section refers. The disqualification, therefore, contained in that section must be on- stnied to intend merely that the particular class referred to shall not, as a consequence of the duties of citizenship imposed on them, be deemed to have acquired any of the rights denied to them by that section. The necessity of such a disqualification, so far as serving on juries is concerned, is manifest, since such service is as much " a duty and a burthen" as a right; and might have been exacted under the first part of the section but for the special disqualification provided for by the latter part, or unless, upon the general maxims of law, it was wholly inadmis- sible. SUPERINTENDENT OF COMMON SCHOOLS. 151 It is therefore conceived that the broad question whether alienism is a disqualification for voting at elections, holding of- fice or serving on juries, is not determined by the section under nsideration, the provisions of that section being applicable only f.o a special class of cases ; but that it must be answered by a re- sort to other provisions of law of greater scope. For the present purpose it is only necessary to consider the capacity of aliens to hold office. It is a well established principle of the common law, confirmed by many statutory provisions, that an alien is incapable of holding an office. This principle was a part of the common law at the time the colonial dependence of this state upon Great Britain was thrown off, and it has not been rescinded by any constitutional or legislative provisions since that period : although many acts have been passed in confirmation of it in spe- cial cases. It may, perhaps, be questioned whether school district offices are of such public concern as to come within the principle of exclusion referred to; and the Superintendent has not with- out difficulty come to the conclusion that they are properly em- braced by it. But although they may not be of the class of public or civil offices for which the statute intends to provide ; yet as the disqualification of aliens at common law is without limita- tion, and as the qualifications of officers of school districts are not prescribed by statute, it is deemed most consistent with the rules of construction to consider the disqualification referred to as ex- fending to every office which has a connexion, however remote, with the municipal or local concerns of the citizens; and such a connexion may be found in the duty confided to the trustees of school districts, in receiving and applying to the specified objects the revenues of the school fund. On these grounds, therefore, the Superintendent concurs with the commissioners in the opinion given by them with regard to the ineligibility of Ellery to the office of trustee. It appears by the affidavit of two of the trustees of district No. 14, that application was made, by the said Ellery and other inhabitants of the district, to the commissioners of common schools of Skaneateles to give their opinion thereon, (his capacity (a serve,) and to appoint a new trustee in case it was necessary or r proper ; 2nd that the commissioners decided that the said Ellery was incompetent, and that the office of trustee which he filled had in fact been vacant from the time of the annual meet- ing at which he was elected; and thereupon the said commis- sioners proceeded to fill the vacancy. If the commissioners had a right to declare the office vacant, it is the opinion of the Superintendent that they should have waited one month after announcing their decision, for the inha- bitants of the district to supply the vacancy. The intention of 152 CASES DECIDED BY THE the 71st section of the act relating to common schools is to con- fer on the commissioners the power of filling vacancies by ap- pointment, where die inhabitants of the district have neglected to avail themselves of the right to fill them by election. The construction given to this section by the Superintendent renders the course above indicated the proper one to be pursued in all cases where, vacancies- exist. Ellery was elected without any suspicion, so far as is shown,, that he was incapable of holding office; and it, is^ manifest from the application subsequently made to the commissioners of Skaneateles for their opinion,, that his incapacity was a matter of doubt among the inhabitants of the district. The spirit of the provisions of the section above refer- red to certainly requires that a district should have one month to fill a vacancy after knowing that it has occurred. But in undertaking to make the appointment at all, the com- missioners of Skaneateles exceeded their poweisv The manifest intention of the title of the Revised Statutes relating to common schools is, that in all matters affecting a district lying partly in. two or more adjoining towns, the commissioners of. common schools of all the towns r or the major part of them, shall con- cur. The 71st section of the tkle referred to, it is true, does not in express terms require the concurrence of such, commissioners in filling a vacancy under the particular circumstances specified therein, for it does not take notice of joint districts at all ; and yet by giving the right of filling vacancies, under certain restric- tions, to the "commissioners of the town" in which the district lies, the inference is a reasonable one that in the case of a joint district the commissioners of all the towns concerned should have a voice in the proceeding. A different construction would be at variance with the whole policy of the law in relation to such districts ; and whenever a doubt arises as to the intention of the law in a case not specially provided for, the general provision in which it is embraced must be so construed as to consist with the tenor of other provisions affecting the exercise of the same class of powers. The Superintendent is therefore decidedly of the opinion that the jurisdiction of the commissioners of the two towns was a concurrent and not a separate jurisdiction, and that the act of the commissioners of Skaneateles in the case referred to was null and void. The fact that Ellery resided in the town of Skaneateles does not affect the principle. It is due to the commissioners of Skaneateles to add, that the Superintendent can discover nothing in the testimony presented by the appellants to justify the imputation of any design on their part to assume a power not expressly given to them. The case was one in which they might not unreasonably consider them- selves authorized to interpose. Nor was the provision of law un- SUPERINTENDENT OF COMMON SCHOOLS. 153 der which they acted in appointing Wyckoff, altogetheF clear in its terms; its true meaning was to be settled by construction, and the error on their part consisted in construing it in a manner not consistent with other provisions relating to the exercise of the same class of powers. 3d. It is a matter of complaint on the part of the appellants that the trustees of district No. 14 have refused to call a special meeting of the inhabitants for the purpose of consulting with regard to the selection of a new site and the erection of a new school-house-. As this grievance will be remedied by the deci- sion of the Superintendent on other points, it is only necessary to remark that it is the duty of the trustees to call a special meeting ia all cases whenever it \ requested by a reasonable number of the inhabitants ; and if such request is refused, the Superintendent will on application to him direct a meeting to be held. It is hereby ordered tliat the sale of the school-house by the trustees of said school district No. 14 be confirmed. And it is declared, that the appointment of Jonathan Wyckoff as trustee of said school district by the commissioners of common schools of the town of Skaneateles, on the 19th day of November last, is null and void. And it is further ordered,, that the trustees of said school district proceed to call a special meeting of the tax- able inhabitants for the purpose of filling the vacancy occasioned by the incapacity of Ellery to hold office, and for transacting such other business as the said inhabitants shall, when so assem- bled, deem necessary and proper. *f <' The Trustees of school district No. 2 in the town of Bethel, ex parte. It a school has nt r in consequence of any overruling necessity, been kept three months by a qualified teacher, the district will be allowed a share of the pub- lic money on application to the Superintendent. In district No. 2 in the town of Bethel the school-house was accidentally destroyed by fire. A tax was immediately voted to build a new one, and a contract made to have it cempleted in time for the fall term ; but in consequence of the failure of the contractor to fulfil his engagement, a school was only kept in the district two months and twenty-two days by a qualified teacher. By JOHN A. Dix, February 7, 1834. Where it has been impossible, in consequence of any overruling necessity, to have a school taught in a district the prescribed period of three months by a qualified teacher, the Superintendent has directed that the public money should, notwithstanding, be paid to the district as though there had been a strict compliance with the provisions of 154 CASES DECIDED BY THE the law.* The destruction of a school-house by fire may not be precisely such a case, because a room might possibly have been hired, and a school kept the prescribed period. But as the defi- ciency is for a very few days, I should be disposed, on a forma! representation of the facts, to direct the commissioners of common schools to allow the district public money next spring, unless there appears to have been negligence on the part of the district or its officers. The Trustees of school district No. 4 in the town of Maryland, ex parte. The assessment roll kept by the town clerk is the one to be followed in assessing taxes. In December, 1833 ; the trustees of school district No. 4 in the town of Maryland, called on the assessors and procured a copy of their last assessment roll for the purpose of assessing a tax to build a school house. On this copy they found the name of one Pitts, a resident of said district No. 4, whose property was assessed at $600, and he was included in the tax list. Soon af- terwards it was discovered, by referring to the original roll in the town clerk's office, that Pitts had been accidentally omitted ; and the question presented to the Superintendent was, whether he was properly included in the tax list made out as aforesaid by the trustees. By JOHN A. Dix, February 17, 1834. The last assess- ment roll of the tflwn, which is to be consulted when taxes are to be assessed for school district purposes, is the one required by law to be kept by the town clerk for the use of the town. If this roll is departed from in assessing a tax upon the inhabitants of a school district, notice must be given, as directed in section 80, page 483, 1. R. S. Mr. Pitts, if a resident of the district and holding property, is clearly liable to taxation, whether he is on the "last assessment roll of the town" or not ; but if he was omitted on that roll, the value of his property must be ascertain- ed by the trustees in the manner specified in the section above- referred to. " I think the warrant ought not to be executed ac- cording to the present tax list, the assessment on Mr. Pitts not having been made in the manner prescribed by the statute, un- less on a more careful examination of the roll in the town clerk's office his name appears on it. But unless Mr. Pitts waives ob- jections, and consents to pay the amount assessed on him, (which he may as well do, as he must pay at last,) you will be empow- * See the case of the trustees of school district No. 4 in the to'.rn of Somerset, page 34. SUPERINTENDENT OF COMMON SCHOOLS. 155 ered to make out the assessment anew on application to the Su- perintendent, with notice to him, (Mr. P.) In doing so, you will ascertain the value of his property from the best evidence in your power, giving notice as required by sec. 80. The lapse of time will work no prejudice to you, as the decisions of the Su- perintendent are final, and under the authority given by the sta- tute he has always exercised a discretion in allowing errors of proceeding to be corrected with a view to accomplish the ends of justice. . ': II - The Trustees of school district No. 1 in the town of Redhook, ex parte. A tenant is taxable, whether a householder or not, for land occupied and im- proved by him. The following question was submitted to the Superintendent by the trus:ees of district No. I in the town of Redhook. Is a man that resides in a district taxable for a non-resident piece of land leased and improved by him in the same district, he at the same time, not being a householder, but working with his father and others as it appears? By JOHN A. Dix, March 3, 1834. If a man is in the ac- tual occupation of a lot, belonging to a non-resident, as tenant of the latter, he is taxable for it. His liability to taxation does not depend upon his being a householder. He may board out. and yet if he hires the lot. and improves it as tenant of the non- resident owner, he is taxable for it. The Trustees of school district No. 2 in the town of Kingsbury, ex parte. The annual report of school districts should be made out by the 1st of March. If trustees neglect, without good cause, to make their annual report before the apportionment of the school moneys, they are without remedy. This was an application to the Superintendent to allow school district No. 2 in the town of Kingsbury, out of the school mo- neys to be distributed in the year 1834, the amount of its share for the year 1833, which was lost by the neglect of the trustees to hand in their annual report before the first Tuesday of April, the day the apportionment was made by the commissioners. By JOHN A. Dix, March 3, 1834. The 91st section of the act relating to common schools requires the trustees of school districts, on or before the 1st day of March in every year, to make their annual reports to the commissioners of common schools. The commissioners, if they do not receive all the re- ports, are in duty bound to wait until the first Tuesday of April 156 CASES DECIDED BY THfi before they apportion the public moneys ; but it is not the less imperative on the trustees to make their reports by the 1st of March. The 23rd section provides that "In making the appor- tionment of. moneys among the several school districts, no share shall be allotted to any district, part of a district, or separate neighborhood, from which no sufficient annual report shall have been received, for the year ending on the last day of December, immediately preceding the apportionment." You do not say on what day your report was handed to the commissioners or on what day they made the apportionment. If they received it be- fore the 1st Tuesday of April r it was in time, and they were wrong in excluding your district from the apportionment. But if they apportioned the public money on>the first Tuesday of April, and your report was not handed in until the next day, you are witlir out remedy, unless you were prevented by some cause which you could not control. If your report was handed in before the 1st Tuesday of April, or if from any accident it was not handed in until after that day, I will, when you shall have ve- rified the fact by affidavit, direct the commissioners to supply the deficiency out of the public moneys to be distributed next April. The Trustees of school district No. 14 in the town of Catlin, ex part e. Fuel provided for school districts must not be used for meetings held in the school-house. This was an> application for the direction of the Superinten- dent in a case where temperance and other meetings had, by general consent, been held in the district school-house during the winter ; the fuel provided for the school having, on such occa- sions, been used for the purpose of warming the house. By JOHN A^Dix, March 6, 1834. It- is extremely impro- per to allow the fuel which is provided and paid for by the inha- bitants of school districts for common school purposes, to be used for any other purpose whatever. If the use of the school-house is solicited for the accommodation of temperance OP other meetings, and if it is by general consent so used, the persons to whom the favor i^extended must see that the district is not charged with the expense of warming or lighting the house. The custody of th school-house is committed by the statute to the trustees, and it is their duty to see that the interests of the district are protected. If they allow the fuel provided for the use of the school to be consumed for other purposes, they will be personally responsible for it. Whether the fuel is paid for by a tax, or whether it is provided by those who send their children to school, is of no SUPERINTENDENT OF COMMON SCHOOLS. 157 consequence. The principle is the same in both cases. But in the latter the individual grievance is undoubtedly greater, and the trustees must see that it is redressed. Those who have used the school-house should be required to pay for or replace the wood they have consumed, before they are allowed to use it again. The Trustees of school district No. 8 in the town of Rensselaerville, ex parte. Executors are to be taxed where they reside for the personal property in their possession or under their control. D. d, an inhabitant of school district No. 8 in the town of Rensselaerville, died in June, 1833, leaving a large personal property. There were four executors under the will, one resid- ing in the city of New- York, one in Albany, and two in the district, having severally personal property belonging to the es- tate in their hands. The question submitted was in what man- ner they should be assessed for a tax voted to build a school- house. By JOHN A. Dix, March 6. 1834. The two persons refer- red to in your letter as residing in your district, are to be jointly assessed as executors for all the personal estate which they pos- sess or control in their representative character. Their names must be entered, on the tax list as follows : A B ) p T-V' > Executors of, .&c. The tax must be upon the whole amount of property in the possession or under the control of the executors residing in the district. If there were assets in the hands of one of the non- resident executors, those assets could not be taxed in your dis- trict. The number of executors has nothing to do with the rule of taxation. Only so much of the personal estate as is in the possession or under the control of the resident executors is to be taxed. It is true that in contemplation of law the property re- ferred to may be equally under the control of all the executors; but for the purposes of taxation, the construction Which I have given to it is indispensable to give effect to die provisions of sec- tion 5, page 389, 1 R. S. Your attention is called to section 10, page 391, same volume. The debts referred to in this sec- tion are such as are specified in sec. 27, page 87, 2 R. S. It is ia the power of the executors to claim a reduction, under the provisions of sec. 79, page 482, 1 R. S.; and under sec. 16., page 392, same vol. they may reduce the amount by a specifi- cation of the value of the property. 158 CASES DECIDED BY THE The Trustees of school district No. in the town of Greenfield, ex parte. Two taxes voted at the same time may be included in the same tax list. In school district No. in the town of Greenfield r a tax was voted to purchase fuel, and at the same time another tax was directed to be levied to repair the school-house. The trus- tees proceeded to make out the tax list, including in it both sums. The question presented was whether the proceeding was legal. By JOHN A. Dix, March 7, 1834. There is no objection to including in one tax list two or more sums voted at the same time to be raised by a tax on a school district for different objects. It is merely necessary that the trustees, when the whole amount is collected, appropriate the several sums to the purposes for which they are authorized to be raised. The Trustees of school district No. 8 in the town of Little-Falls, ex parte. If an individual acquires or parts with property after the last assessment roll of the town is made out, the roll must not be followed in making out a tax list. In school district No. 8 in the town of Little-Falls, an indivi- dual sold the farm, for which he was assessed in the last assess- ment roll of the town, after the roll was made out, but still re- mained in the district, and made other investments. The ques- tion presented was whether the last assessment roll was to be followed in such a case. By JOHN A. Dix, March 7, 1834. When a resident in a school district acquires additional property, or parts with property after the town assessment roll is completed, it is such a case as is contemplated by the words " where the valuation of taxable pro- perty cannot be ascertained from the last assessment roll of the town," in sec. 80, page 483, 1 R. S. unless it is a simple pur- chase or sale of a farm or lot, the value of which is separately fixed and shown by the assessment roll. If the trustees depart from the last assessment roll of the town, for the reason above assigned, they must give notice and proceed in the manner pre- scribed in that section. SUPERINTENDENT OF COMMON SCHOOLS. 159 John Haywood and William Hay wood, against the Trustees of school district No. 6 in the town of Gates. To subject the unimproved part of a lot belonging to a non-resident to taxation, the improved part must be occupied by an agent or servant. The facts of this case are fully given in the Superintendent's order. By JOHN A. Dix, March 3, 1834. On the fifth day of No- vember last, a tax was laid by the inhabitants of school district No. 6 in the town of Gates, to build a new school-house, and on the third of December following the tax list was made out by the trustees. John Haywood and William Haywood were taxed twenty -three dollars and between sixty and seventy cents, on ac- count of two lots, which are partly cultivated and partly unim- proved. The Messrs. Haywoods are both non-residents of the district, and appeal from the assessment made upon them. It appears by the affidavit of John Haywood, that the first lot consists of about thirty-three or four acres, about one half of which is improved by the owners; that a man by the name of Mans- field occupies a small log house and a small patch as a garden,, that he occupies the same at sufferance, has paid no rent, is not charged with any rent, that he is in no respect an agent for the said owners, and that he has never been employed by the own- ers in any way. These facts are not denied by the trustees of the district in their answer to the appeal of said Haywoods from the assessment made upon them. The second lot contains about ninety acres, about twenty- five of which were cultivated in October or November last, when said Haywoods purchased it of one Charles Green, and took from him a deed of conveyance of the same. At the time of the purchase it was agreed between the parties verbally that Green might remain on the lot and occupy it till April next. John Haywood swears that Green was in no respect an agent or te- nant of the owners, except as before stated, and that he left the lot in January, since which time no other person has occupied or resided on the lot. These facts are not denied by the trustees. The Superindendent is of opinion that there is in neither of these cases such an occupancy as to subject the non-resident own- ers to taxation on the whole of either lot. The law provides ex- pressly that no more than the cleared and cultivated part of a lot shall be taxed to a non-resident owner, unless he improves it by an agent or servant; and it would be a total departure from the spirit of its provisions to tax the unimproved part of a lot on the ground of a temporary occupancy of the improved part by the sufferance of the owner, without any benefit on his part, by 160 CASES DECIDED BY THE reason of sach occupancy, the occupant neither paying him rent nor being in any way employed in liis service. So far as the second lot is concerned no reason is perceived why it may not have been assessed to Green, the vendor, who remained in pos- session. Two of the trustees swear that the Haywoods were informed of the amount of their tax and promised to pay it. It does not appear, however, that they were aware that they had been tax- ed for the whole of the lots ; nor can such a notice or assent de- prive them of the right to appeal in the manner designated by law, and resist an assessment which is wholly without authority. The trustees object to the appeal that they had only six days' notice of its presentation, instead of ten as required t>y regula- tion. But they have, by answering, waived the objection, and rendered it unnecessary for the Superintendent to allow the ap- pellants to amend their notice. It is therefore ordered, that the trustees of school district No. 6 aforesaid, amend their assessment so as to include only the value of such parts of the lots in question as are cleared and cultivated ; and that their tax list be made out and the tax collected in con- formity thereto. The Trustees of school district No. 2 in the town of Rhinebeck, ex parte. A sloop must be taxed where the owner resides. Messrs. Schryver & Bergh owned a landing and a sloop in district No. 2 in the town of Rhinebeck, and carried on the bu- siness of freighting. In the last assessment roll of the town the property was assessed to Williamson & Bergh, Schryver being a non-resident of the district, and Williamson being in the occu- pation of the landing as lessee. Bergh, the other partner, was a resident of the district. A tax was soon afterwards voted to build a school-house, and in the mean time Williamson's inte- rest in the concern ceased and he left the district. The question presented to the Superintendent was in what manner the pro- perty should be assessed. By JOHN A. Dix, March 17, 1834. Taxes for school dis- trict purposes are to be assessed upon the taxable inhabitants re- siding in the district at the time the tax list is made out. Non- residents can be taxed only for real estate in the district in which such real estate lies. The owner of the dock, whether a resi- dent or not, may be taxed for it, unless it is in the occupation of a resident lessee or tenant, in which case the latter would be taxable for it if the owner is a non-resident But the owner of SUPERINTENDENT OF COMMON SCHOOLS. 161 the vessel must be taxed for it in the district in which he resides. If Mr. Bergh resides in your district the firm may be taxed for the sloop, and the tax collected from the resident partner. If you cannot, as I suppose, follow the assessment roll of the town in this case, you must give the notice required by sec. 80 of the act relating to common schools. The Trustees of school district No. 30 in the town of Johnstown, against the inhabitants of said dis- trict. If trustees are directed by a vote of the district to make such repairs as they may think proper on the school-house, and the district afterwards refuses to lay a tax for the purpose, the Superintendent will order an amount sufficient to cover the reasonable expenditures of the trustees to be raised. The facts connected with this appeal are stated in the order of the Superintendent. By JOHN A. DJX, March 17, 1834. On the 20th of April, 1833, at an annual meeting of the taxable inhabitants of school district No. 30 in the town of Johnstown, it was resolved that <: the trustees should make what repairs they thought proper and necessary on the school-house some time before the winter school commenced." In thus giving to the trustees an unlimited dis- cretion over the repairs to be made in the school-house, the in- habitants virtually pledged themselves to raise by a voluntary, imposition upon their property such a sum as should be neces- sary to defray all expenditures made in good faith by the trus- tees in executing their directions. In pursuance of the authority given to the trustees they entered into a contract with William Lewis to make certain repairs therein specified, and stipulated to pay him the sum of thirty dollars for his work. On the 7th January last, at a special meeting of the inhabi- tants of said district it was resolved to allow the trustees twen- ty-five dollars for the carpenter's work done to the school-house. It was also resolved to allow them ten dollars and twenty-two cents for a stove and pipe, and two dollars and fifty cents for building a chimney. From these sums, amounting to thirty-se- ven dollars and seventy-two cents, was to be deducted the sum of two dollars and thirty-two cents, the amount for which the brick and iron of the old chimney sold, leaving a balance of thirty-five dollars and forty cents to be collected by the trustees for the pur- pose of defraying the expenses incurred in pursuance of the vote of the inhabitants on the 20th of April. From these proceed- ings the trustees appeal to the Superintendent of Common Schools, on the ground that the expenditures having been made in good faith, and they being personally responsible to Lewis for 11 162 CASES DECIDED BY THE the amount contracted to be paid to him, the district ougTit to hare voted a tax equal to the amount of the pecuniary liability incur- red by them in carrying into effect the directions of the inhabi- tants; and (hey pray that an order may be granted directing thirty instead of twenty -five dollars to be levied on the district to satisfy Lewis' claim. The Superintendent is of opinion that the inhabitants are bound to exonerate the trustees from the responsibility which they have incurred, and nothing but an abuse on the part of the latter of the authority conferred on them could justify a refusal to raise the amount stipulated to be paid to the person by whom the work has been performed. The discretion imparted to the trustees was unlimited, and it is too late for the inhabitants when the trust has been executed, to undertake to limit the amount for which they are answerable, unless abuse can be shown. The trustees, in executing the contract with Lewis, acted as their agent ; and if Lewis should prosecute and recover the amount contracted to be paid to him, it would be the duty of the trustees to pay the amount so recovered out of any moneys belonging to the district in their hands. To avoid such an alternative, and to release the trustees from the responsibility which they have in- curred, the Superintendent deems it proper that the whole amount necessary to satisfy the demand of Lewis should be levied upon the district. The district has had notice of the application by service of a copy of the papers on which it is founded, on the clerk, and no objection to the relief prayed for has been made. It is, therefore, ordered that the trustees of said school district No. 30, proceed to make out the tax list so as to levy on the taxable inhabitants the sum of forty dollars and forty cents, in- stead of thirty-five dollars and forty cents, as directed by the vote of the district on the 7th of January last. (ANONYMOUS.) If a child attends school half a day, it is to be reckoned as half a day. By JOHN A. Dix, March IS, 1834. If a child attends school part of a day only, it is to be reckoned as half of a day. Noth- ing less than half a day can properly be recognized by a teacher in making out his school list. Joseph Budd and others, against the inhabitants of school district No. 5 in the town of Murray. Public money should be fairly divided between the summer and winter terms. In school district No. 5 in the town of Murray, at the annual meeting in October, 1833, it was voted that two-thirds of the SUPERINTENDENT OF COMMON SCHOOLS. 163 public money to be received in the spring of 1834, should be ap- plied to the winter school, and one-third to the summer school. On the 25th November, 1833, Daniel Wellman was employed as teacher, and continued till about the last of December, when he was dismissed, and another teacher was employed early in January, who continued to teach until spring. Mr. Wellman was inspected and received a certificate of qualification before he commenced, but the certificate was annulled in about two weeks afterwards by the inspectors. Soon after the second teacher commenced his school, a number of the inhabitants of the dis- trict withdrew their children and sent them to a select school. In February, 1834, the vote passed at the annual meeting in October preceding, in relation to the public money, was annulled, and the whole voted to be applied to the winter term. From these proceedings an appeal was brought. By JOHN A. Dix, March24, 1834. On examination of the appeal of certain inhabitants of school district No. 5, Murray, Or- leans county, from the proceedings of two special meetings, held on the 3d and 10th of February last, it appears that at the an- nual meeting of the inhabitants of said district, on the 26th of October last, it was resolved unanimously, that two-thirds of the public money for the year 1834, be applied to the winter school, and the remaining third to the summer school. It also appeal's that a meeting of the inhabitants of said district was called on the third of February last, " for the piirpose of regulating the district school," and that said meeting was adjourned to the tenth of the same month, at which time it was resolved that the vote of the 26th October, with regard to the application of the public money, should be repealed, and that all the public money should be applied to the winter school, commencing 9th January, 1834. To these proceedings exception is taken upon several grounds, which, for the purposes of this decision, it is unnecessary to spe- cify. The principal and the only substantial objection to the pro- ceedings of the meeting on the 3d February, is, that the notice did not set, forth in specific terms the object in view. In a mat- ter so important as that of annulling a previous vote of the in- habitants in relation to the public money, it is due to all con- cerned that ample notice should be given of the intended pro- ceeding. This was not done in the case under consideration. The notice set forth merely that the object of the meeting was to regulate the district school ; and it is manifest that without some other intimation, an intention of making a new appropriation of the public money would not readily have been inferred from the terms of the notice. The same objection applies to the adjourn- 164 CASES DECIDED BY THE ed meeting on the 10th February, of which no notice was given, as the adjournment was for less time than one month. So far as the inhabitants resolved to apply none of the public money to be received this year to the payment of teachers' wa- ges for services rendered previous to the first of January last, they acted in conformity to the requirements of the law. The money apportioned in 1834, must be applied during the year, and Mr. Wellman, who taught school in November and December, 1833. cannot, under the provisions of the law, receive any portion of it. It is undoubtedly most proper that a fair division of the public money should be made between the winter and summer terms, as the children of indigent persons are often, for the want of com- fortable clothing, unable to attend the winter school. But in thi? case a large number of children residing in the district have been withdrawn from the school, the maintenance of which falls upon comparatively few persons, and the Superintendent deems it no more than just to direct, as a fair support has not been given to the school, that two-thirds of the public money received in 1834. shall be applied to the winter term commencing on the 9th January last, and to submit to the inhabitants of the district whether the remaining third shall be applied to the winter or .summer term. . It is accordingly ordered, that the proceedings of the meeting? of the 3d and 10th February, be set aside ; that two-thirds of the public money, which the trustees of said district No. 5 may re- ceive during the present year, shall be applied to the term com- mencing on the 9th January last ; and that the trustees proceed forthwith to call a special meeting of the taxable inhabitants for the purpose of deciding whether the remaining third of the said money shall be applied to the term last mentioned, or to the school which may be kept next summer. The inhabitants of school district No. 14 in the towns of Marcellus and Skaneateles, ex parte. Suits for penalties against district officers for neglecting to perform the duties of their office, must be brought by commissioners of common schools. The penalty provided in case district officers neglect to perform the duties of their office, is intended for cases of total neglect. If a clerk neglects to keep a book ef minutes, he is not responsible unless a book is provided for him. This was a case in which the clerk of a school district had neglected to keep any record of the proceedings of the district. The questions presented to the Superintendent were, whether he could be prosecuted for neglect to perform the duties of his office if so, by whom, and if there was any limitation of time in bringing such suit. SUPERINTENDENT OF COMMON SCHOOLS. 165 By JOHN A. Dix, March 28, 1834. Suits against school district officers for penalties for neglecting to perform the duties of their office must be brought by the commissioners of com- mon schools of the town; but there is no special limitation of such actions in point of time. They may perhaps be considered as coming within the general provision of the Revised Statutes contained in the 31st section, 2d vol. page 298, by a construc- tion which should regard the town as the party aggrieved, and the commissioners as the representatives of the town in bringing the suit. A suit could, in that case, not be brought after three years. / Before the clerk of the district is prosecuted, it might be well to refer to the case of Spafford and Hood in the sixth volume of Cowen's Reports, page 478, in which the court held that the penalty provided by sec. 22 of the common school act, passed in 1819,* could not be exacted for an omission of duty in an indi- vidual instance, but was intended for cases where there had been a total neglect of the duties of the office. If you will refer to section 74 of the Revised Statutes, vol. 1, page 480, you will perceive that the district is to provide a book for the clerk to re- cord its proceedings, &c. Without reference to the principle of the decision above referred to, it would be necessary, in order to make him answerable, to show that such a book had been pro- vided. The Trustees of school district No. 2 in the town of Clarkstown, ex parte. If trustees contract to pay a teacher a specific sum per month or per scholar, .the mode of providing for the payment of -his wages must be the same in either case. This was a case in which the trustees contracted to pay a teacher a specific sum for each scholar attending during the term, and the question presented to the Superintendent was in what manner his wages should be paid. * Sec. 72, page 480, vol. 1, R. S. In the case referred to, Judge Sutherland, who pronounced the decision of the court, said, " Where it is the intention of the legislature to impose a penalty on an officer for the omission of any particu- lar duty, they use language which is clear and explicit. Thus in relation to the overseers of highways (2 R. L 274, 14) it is provided, That every overseer of highways who shall neglect or refuse to warn the people assessed to work on the highways, &c. , or to collect the moneys that may arise from fines or commuta- tions, or to perform any of the duties and Services required by the act, or which may be enjoined on him by the commissioners, &c., shall forfeit for every such neglect or refusal, the sum of $10,' &c. The difference in the phraseology of these acts is very striking, and in my judgment affords strong confirmation of the correctness of the construction we rme given to the section of the school act under consideration." 166 CASES DECIDED BY THE By JOHN A. Dix, April 21, 1834. The trustees of a school district may make a contract with a teacher to pay him by the month, the week, or at so much a scholar; but in raising the sum necessary for his compensation, they must proceed as the law directs. Subdivisions 8, 9, 10, 11, 12, 13 and 14, of section 75, 1 R. S. pages 481 and 482, point out their duty, and they cannot by any contract with a teacher, impose upon the inha- bitants of the district an obligation to pay him in any other man- ner. To agree to pay so much per scholar can therefore have no other legal effect than to furnish a rule for ascertaining the amount of the teacher's wages. The inhabitants must still pay according to the rule established by subdivision No. 12 of the section above referred to. (ANONYMOUS.) If two farms are set off from one school district to another, and contain within them a third not included in the order of the commissioners, the latter must nevertheless go with them. By JOHN A. Dix, April 4, 1834. A question has been sub- mitted to me with regard to two farms set off from one district to another. As I understand the case, these two farms contain- ed within them another farm which did not touch on the exter- nal boundaries of either. The question was, whether this farm, thus enclosed by the others, was set off with them, or whether it continued to be a part of the district from which they were ta- ken. The answer is, that it must be considered as set off with them, although it be not expressly named. By setting off the farms referred to, the districts acquire new boundaries, and all the farms lying on either side, of the new line of division must belong to the district within the limits of which it is includ- ed. School districts must consist of contiguous territory, and no arrangement which violates this rule can be sanctioned. The case submitted to me probably originated in error; and it would be well for the commissioners of common schools to amend their record, and specify the farm which has raised the question, as one of those set off, although it must go along with the oth- ers by force of the rule above stated. The Trustees of school district No. 11 in the town of Harpersfield, ex parte. A tax cannot be voted to pay costs of suit recovered against the trustees of a school district. In this case a suit was commenced by the trustees against an individual on a contract for building a school-house. Before bringing the suit, the trustees consulted the inhabitants, and SUPERINTENDENT OF COMMON SCHOOLS. 167 were directed to proceed. The suit failed, and the question pre- sented was in what manner the costs could be paid. By JOHN A. Dix, April 5, 1836. The inhabitants of a school district cannot vote a tax to pay costs of suit recovered against the trustees. By referring to the 2d volume of the Re- vised Statutes, page 476, section 108, you will perceive that trus- tees may charge in their official accounts, the amount of debt, damages, or costs recovered against and collected of them. They would not be authorized to pay the amount so recovered out of any moneys received by them for the payment of teachers' wa- ges ; but they would be justifiable in paying it out of moneys in their hands levied upon the taxable property of the district for any of the objects specified in sub. 5 of sec. 61, 1 R. S. page 478. If no such moneys were in their hands, they would be com- pelled to resort to the legislature for relief. In this case the district is bound by every equitable considera- tion to save the trustees harmless, and the inhabitants ought, if there is no other method of doing so, to raise by subscription the amount necessary to pay the costs for which they are liable. The Trustees of school district No. 10 in the town of Gainesville, against the Commissioners of Com- mon Schools of said town. In appraising a school-house, when a new district is formed, the commissioners must deduct debts due from the district retaining the school-house. This was an application for the decision of the Superintendent on a statement of facts agreed to and submitted by the parties. In forming a new district, by a division of school district No. 10 in the town of Gainesville, the commissioner's appraised the school-house remaining in the latter at its full value, without making any allowance for a debt of $25.15 due for the con- struction of the house, the person who erected it not having been fully paid. The debt thus due arose from the inability of the collector to collect a portion of the tax equal to that amount from inhabitants of the district, who were included in the assessment roll of the town, but who had no property on which he could levy; and in the mean time they had removed from the district, with the exception of one of the individuals who was set off to the new district. By JOHN A. Dix, April 28, 1834. The commissioners do not, upon the statement of facts presented, appear to have done what the law requires. They should deduct all debts due from district No. 10. See sec. 68, 1 R. S. page 479. The taxes re- ferred to as unpaid by the persons on whom they were assessed are a charge on the district, as they cannot be collected of the per- 168 CASES DECIDED BY THE sons from whom they are due, and the whole amount should be deducted from the value of the school-house. . The commissioners must amend their appraisement by de- ducting from the value of the school-house $25.15. (ANONYMOUS.) The wages of two teachers employed for different terms cannot be included in the same rate bill. By JOHN A. Dix, May 7, 1834. If two teachers are em- ployed in succession for different terms, at different rates of com- pensation, they should receive for their wages an equal amount of the public moneys on hand, and the residue of the wages of each should be paid by a rate bill made out against those who patronized their schools, respectively. It is wholly inadmissible to provide by the same rate bill for the compensation of two teachers for different terms of instruction. The Trustees of school district No. 7 in the town of Marcy, ex parte. A tax to build a school-house may be raised, but should not be expended, before the district has acquired such an interest in the site as to be able to control the house. (A tax cannot be raised to build a school -house on a site selected without le- gal authority. See note.) In this case the agent of a glass factory gave the inhabitants of school district No. 7 in the town of Marcy, permission to build a school-house on the corner of the land belonging to the com- pany, and engaged to use his exertions to procure a conveyance of the site free of expense to the district. The question submit- ted was whether the district should build the school-house under these circumstances. By JOHN A. Dix, May 7, 1834. I have received a state- ment of facts respecting a tax voted by the inhabitants of school district No. 7 in the town of Marcy, for the purpose of building a school-house. The right to collect the tax is perfect, without re- gard to the condition of the lot on which it is proposed to build the school-house; and no person can refuse to pay his tax because the district has not procured a conveyance of the lot.* At the * In the case of Baker vs. Freeman, 9 Wendell, 36, the supreme court decided that a tax was unauthorized and void, where it had been voted for the purpose of building a school-house on a site which had been selected without any legal authority. In this case the district had a school-house, and the site was changed without taking the steps required by law. So in the case of the trustees of school district No. in the town of Winfield, page 60, the Superintendent would not allow a tax to be collected to repair u SUPERINTENDENT OF COMMON SCHOOLS. 169 same time a school-house must not be built without some legal right to control it. There ought to be at least a written agree- ment on the part of the agent of the glass factory company that the district may remove the school-house, unless a title to the land shall be procured. If such an agreement cannot be obtain- ed the district should build the house elsewhere, although the tax may be collected notwithstanding. (ANONYMOUS.) A Tote to divide public money into portions may be taken at any time before the money is expended. By JOHN A. Dix, May 7, 1834. The inhabitants of a school district, may at any time before the public money is expended, vote that it be divided into portions, provided that by such vote it is all to be expended during the year in which the money was re- ceived. The vote may be taken at any meeting, annual or ipecial. (ANONYMOUS.) A district cannot make a second division of the public money after a rate bill has been made out and delivered to the collector. By JOHN A. Dix, May 7, 1834. Where the public money has been appropriated by a vote of the inhabitants of a school dis- trict to the payment of a teacher's wages for particular terms, and the trustees have gone on in pursuance of such vote to make out a rate bill for the amount necessary to make up the deficiency of the public money to pay said teacher's wages for one term, if said trustees have delivered the rate bill and warrant to the collector, and the latter has actually commenced collecting upon such rate bill, the inhabitants have no right to make a different division of the public money by a subsequent vote, and thus render it ne- cessary to make out a new rate bill. (ANONYMOUS.) . '*> ' ' ; . ' Parents cannot be compelled to send their children to school. By JOHN A. Dix, May 19, 1834. Trustees cannot compel any inhabitant of the district to send his children to the district school. They are of course entitled to receive and apply, for the school-house to which the district had no title, and which the owner had forbid- den the trustees to repair. In these two cases the money to be raised could not be properly expended. In the case above reported there was no violation of law in voting the tax, and the proposed site was to be occupied with the consent of the person having charge of the land for the time being. 170 CASES DECIDED BY THE support of the district school, all the public money apportioned to the district ; but if any person chooses to send his children to a private school he has an undoubted right to do so. The Trustees of school district No. 3 in the town of Gainesville, ex parte. Fuel, when furnished in kind, must be in proportion to the number of children sent to school and the number of days' attendance. This was an application for the opinion of the Superintendent in a case where the trustees had made out, at the beginning of the term, an. estimate of the quantity of wood to be furnished by each inhabitant, according to the number of children proposed to be sent to school, and had afterwards altered the amount, in seve- ral cases, to meet changes in the school. By JOHN A. Dix, May 20, 1834. There is some difficulty in furnishing fuel in kind for school districts, and it can only be obviated by a willingness on the part of all concerned to do justice to each other. The statute provides that the proportion to be furnished by every person sending to school shall be " ac- cording to the number of children sent by each." But the lan- guage of this provision is clearly to receive such a reasonable construction as will make each inhabitant contribute in propor- tion to the benefits he has received. Suppose a school is opened for a term of three months, and the trustees, in making out the apportionment of fuel according to the form provided for such cases, (see Appendix,) set down A. B. and C. D. for three children each. At the end of one week two of the children of A. B. are taken sick and are unable to at- tend during the residue of the term, while the three children of C. D. continue during the whole period of three months. Ought the apportionment made at the commencement of the term to be enforced, when a change of circumstances has rendered it whol- ly unequal and inequitable? Clearly not. It must be corrected according to the directions of the Superintendent of Common Schools, under the form above referred to ;* and the principle of the apportionment must be, as nearly as possible, in a compound ratio of the numberof children sent to school, and the time during which they are sent. This is the only, construction of the law which can make it equal and just in practice. As I have already ob- served there is some difficulty in making the relative contribu- tions of the patrons of the school exact in all cases ; but the ap- proximation to exactness must be as near as possible. If this difficulty cannot be adjusted amicably, and upon fair principles, See decision by A. C. Flagg, April 28, 1831, page 39. SUPERINTENDENT OF COMMON SCHOOLS. 171 it is better hereafter to vote a tax, and let the property of the dis- trict provide the fuel. The Trustees of joint school district No. 11 in the town of Deerfield and No. 14 in the town of Marcy, ex parte. 'ommissioners of common schools have no authority to designate a site for a school-house, or to give a conditional consent to a change of the site. In this case the commissioners of common schools of the towns of Deerfield and Marcy gave their consent to change the site of the school-house in a joint district in said towns. The inhabi- tants of the district immediately assembled, pursuant to a notice regularly given, and fixed a new site. Soon afterwards, on the application of some dissatisfied persons, the commissioners re- voked their former proceedings and gave a written consent to a change of site, provided it should be fixed by the inhabitants of the district at a particular place. An application was made to the Superintendent under these circumstances for his opinion as to the regularity of the proceedings of the commissioners. By JOHN A. Dix, June 12, 1834. Commissioners of com- mon schools have no right to designate the site for a school- house,* nor do I think it proper that they should give a condi- tional consent to a change of site. If such a change is required by the convenience of a district, they may give their consent ; but they have no right to say where the new site shall be fixed. This is a matter which has been left by the law to the decision of the inhabitants. If the facts stated in your letters were satisfactorily shown, I should most certainly hold the revocation of their consent as first given by the commissioners to be wholly nugatory. Their consent having once been given, and the inhabitants having fixed the site, the matter was ended. If any person considered himself aggrieved, the proper course was an appeal to the Super- intendent of Common Schools. The Commissioners of Common Schools of the town of Pitcher, ex parte. When a town is divided and a new one formed, or when two existing towns are altered, the public moneys are apportioned between them according to the number of children between 5 and 16 years of age. In this case several lots having been transferred by an act of the legislature from the town of Lincklaen to the town of Pitcher, * See the case of the commissioners of common schools of the town of Burns, page 13. 172 CASE* DECIDED BY THE the commissioners of the latter applied to the Superintendent to be instructed as to the manner in which the public moneys should be re-apportioned between the two towns. By JOHN A. Dix, June 12, 1834. Whenever a town is di- vided there must be a new apportionment of school moneys, so that the parts separated from each other may have, in this re- spect, the same exact justice to which they were entitled when they were together. The apportionment would naturally be made upon the basis of the population of the respective parts; but as it is not easy, when a town is altered or a new one form- ed, to ascertain the number of inhabitants in the divided territo- ry, the apportionment has usualty been made with reference to the number of children between five and sixteen years of age. As they are annually enumerated, a ready mode is presented of ascertaining, (by a standard too which is as just as the other,) what each part of the divided territory is entitled to. The process is so simple that it has usually been attended to by the commissioners of the two towns without any reference of the subject to the Superintendent of Common Schools, except in case of a disagreement, which very rarely happens. The same course can be pursued by you, with regard to the lots transfer- red from Lincklaen. You can agree on the apportionment and file a copy of the agreement with the county treasurer and another with the clerk of the board of supervisors. Nothing further will be required until the next census is taken. The Trustees of joint school district No. 6 in the towns of Tyrone and Barrington, against the com- missioners of common schools of the latter town. Joint districts can only be altered by the concurrence of the commissioners of all the towns of which they constitute a part. The orders of the commissioners altering joint districts must be put on record in all the towns of which the districts are a part. The regulation of the Superintendent requiring an appeal to be made within thir- ty days after the proceeding complained of, Is not to be enforced against an aggrieved party having no knowledge of such proceeding. The facts of this case are recited in the Superintendent's or- der. By JOHN A. Dix, June 12, 1834. This is an appeal by the trustees of joint school district No. 6 in the towns of Tyrone and Barrington, from the proceedings of the commissioners of com- mon schools of the town of Barrington in refusing to pay over to said trustees the public money due from the town last men- tioned for the present year. From the representations of the parties it appears that district No. 6, aforesaid, was formed in the year 1819, as a school district SUPERINTENDENT OP COMMON SCHOOLS. 173 in the town of Wayne. This town was a few years afterwards divided into the towns of Wayne, Tyrone and Barrington. and dis- trict No. 6 became a joint district of the two latter towns. On the 5th day of January, 1833, the commissioners of common schools of the town of Barrington met at the Baptist meeting house in said town, and formed a new school district by the designation of district No. 8. This district was formed wholly of territory belonging to the town of Barrington, but included several inha- bitants of joint district No. 6. On the first Tuesday of April last, the report of the last mentioned district for the year 1833 was presented to the commissioners of Barrington, who refused to apportion any public money to said district, on the ground that the report was false, as it included four children residing with Jonathan Silsbee, and one residing with Dennis Sunder- lin, both of whom had been included in district Ne. 8 at the time of its formation. The trustees of joint district No. 6 allege, that Sunderlin belongs to said district, but it does not appear, except by inference, from the answer of the commissioners, that Silsbee was also included in said district previous to the forma- tion of district No. 8. The alteration made in joint district No. 6 was clearly unau- thorized by law. and is therefore void. It has been repeatedly decided by the Superintendent of Common Schools, that the alte- ration of a town line does not affect the organization of a school district. Decision 87,* to which the commissioners have refer- red in their answer to the appeal, expressly declares, that "where the line of a new town runs through a school district, the com- missioners of the old and new town should regard a district thus intersected by a town line, as a joint district." In the original formation of school districts, if the lines of towns and counties can be made also the lines of school districts with convenience to the, parties interested, it is desirable to adopt them, as the af- fairs of single districts are more easily conducted than those of joint districts. But a district being once formed, it cannot be al- tered without some action on the part of the authority appointed by law to make such alterations. Where a new town is formed and the line intersects a school district, it becomes, as a matter of course, a joint district, for it is only as such that it can re- ceive from both towns the public money, to which it is entitled. The moment a single district becomes joint, the action of the commissioners of all the towns of which it is a part, is indis- pensable to give validity to any alteration in its boundaries. The commissioners of Barrington had, consequently, no right to " See the case of the commissioners of common schools of the town of Star- key, page 1. 174 CASES DECIDED BY THE .% I : set off an inhabitant from joint district No. 6, without the con- currence of the commissioners of Tyrone. The commissioners of Barrington object to the regularity of the appeal, that it contains no map exhibiting the sites of the school-houses of the districts concerned. Such a map is not in this case necessary. The question presented is not whether an alteration in joint district No. 6 ought or ought not to be made as a matter of convenience to the parties, but whether the alte- ration made is valid, and if so, whether the ground assumed by the commissioners in refusing to apportion to that district its oro- per share of the public money can be maintained upon legal principles. Section 21st of the 1st vol. of the Revised Statutes, page 471, and decision No. 77* of the Superintendent, intend clearly that no alteration shall be made in a joint district, unless such alte- ration has the concurrence of a majority of the commissioners of each of the towns interested. Whether the district remains a joint district after such alteration, or whether the effect of such alteration is to make it a single district, is of no consequence. The rule is the same in both cases. This construction is in en- tire accordance with the whole tenor of the Superintendent's de- cisions ; and if it is not clear from the language of section 21 that such is the true meaning of that section, all doubt on this point will be dispelled by a reference to section 65, 1st vol. Re- vised Statutes, page 479, which provides for the case of a refu- sal on the part of the commissioners of one town to act with the commissioners of another for the purpose of altering a joint dis- trict. The true course to have been pursued in this case was, for the commissioners of Barrington, on the application of some of the persons interested in the new school district to have sum- moned the commissiouers of Tyrone, to attend a joint meeting of the commissioners of both towns for the purpose of setting off to the new district the persons residing in Barrington, and belonging to joint district No. 6. In this alteration the com- missioners of both towns must have concurred, and the pro- ceedings should have been made a matter of record in both towns. Beyond this the commissioners of Tyrone had no au- thority to act. The formation of a new school district lying wholly within the town of Barrington and composed of persons not belonging to a joint district was a matter for the determi- nation of the commissioners of that town only ; but no person belonging to a district lying partly in Tyrone could be set to such new district without the concurrence of the commissioners * See the case of the inhabitants of joint school district No. 15 in Warwick and Gosh en, page 23. SUPERINTENDENT OP COMMON SCHOOLS. 175 of the latter towji. It follows, of course, that all orders making alterations in joint districts must be put on record in all the towns of which such districts constitute a part, even though such alte- rations do not directly affect persons residing in all the towns in which they are recorded. Thus, although no inhabitant of Ty- rone was taken from district No 6 to form district No. 8, the or- der signed by the commissioners of both towns should have been recorded in Tyrone, because No. 6 lies partly in that town. It is clear that unless such records are made, the commissioners of one town can never know the boundaries of a joint district without resorting to records in another town, over which they have no control. The objection made by the commissioners, that their proceed- ings in altering joint district No. 6 were not appealed from within thirty days, the time limited by the regulations of the Superin- tendent, has no force. Proceedings wholly without authority will at any time be declared void by the Superintendent on ap- plication to him, with notice to the party interested in sustaining them. The proceeding under consideration is not only void for want of authority in the commissioners of Harrington to make an alteration in a joint district without the concurrence of the commissioners of Tyrone, but it is wholly inoperative for want of the legal notice required by law to be served on the trustees of a district when an alteration is made in it without their con- sent. It does not appear that any such notice was ever given ; and it would surely conduce very little to the ends of justice to sustain a void proceeding, if such an exercise of power were pos- sible, on the mere ground that it had not been made a subject of appeal within the time prescribed by regulation, when the party interested in vacating it had no notice of such proceeding. Re- gulations prescribing the period within which proceedings shall be objected to, necessarily suppose a notice to the party thus re- stricted by the limitation of time. The same observations apply to the failure of the appellants to object to the refusal of the commissioners to apportion to joint district No. 6 its proper share of the public money. It does not appear that the trustees had any notice of that proceeding until they made application for the money, to which they consider- ed the district entitled; and it is sufficient that the appeal was made within thirty days after the facts came to their knowledge. The course of the commissioners of Barrington appears to the Superintendent to have been irregular from beginning to end. They will find in the law no authority for depriving a school district of its share of the public money, because the trustees have not made an accurate report. If the commissioners be- lieved that the trustees of joint district No. 6 had made a false ;** '%v '. v 176 CASES DECIDED BY THE report, with the intent of procuring- for the district more than ita just proportion of the public money, tjiey should have commenc- ed a prosecution for the penalty annexed to the offence by sec. 96, page 485, 1 R. S. If they deemed the report merely inac- curate, without any intention to defraud, they should have re- served the money, to which the district was entitled, until the trustees had an opportunity of correcting the error. If a school district has forty scholars, and the trustees report forty-five, the district ought not to be deprived of its public money, nor should its equitable rights be disregarded. It should receive so much as its actual number of children entitle it to ; and the trustees should be prosecuted for rendering a false report, unless the error was unintentional, in which case an opportunity should be given to correct it. Upon a full view of all the circumstances of the case it is de- cided, that the proceedings of the commissioners of common schools of the town of Barrington, in annexing to school district No. 8, certain inhabitants belonging to joint district No. 6 in Barrington and Tyrone, on the 5th January, 1833, were void and of no effect, and that said inhabitants still belong to said joint district. And it is ordered, that the commissioners of common schools of said town of Barrington do apportion to said joint district, out of the next public moneys which shall come/into their hands the sum which said district should have received on the first Tuesday of April last, according to the principles o this deci- sion. This order is not intended to prevent such transfer of the in- habitants of. joint district No. 6 to district No. 8, Barrington, as the convenience of the former or the interest of the latter may require. No alteration, however, can be made, except with the concurrence of the commissioners of Tyrone. Should the lat- ter refuse, on application to them, to do what justice requires, an appeal may be made to the Superintendent, and he will take care that the rights of the parties are not prejudiced by such re- fusal. The Trustees of school district No. 2 in the towns of Italy and Prattsburgh, against the inhabitants of said district. Illegal votes not affecting the result do not render proceedings void. Commissioners cannot give a second notice for the organization of a new district where a meeting has been held and officers chosen under the first notice. The facts of this case are given in the Superintendent's order. SUPERINTENDENT OF COMMON SCHOOLS. 177 By JOHN A. Dix, June 13. 1834. On the 8th of March last, the taxable inhabitants of school district No. 2 in the towns of Italy and Prattsburgh, at a meeting held for the purpose of organizing said district, proceeded to the election of district of- ficers, and fixed a site for the school-house. The site was se- lected by a vote of thirteen to nine. Adjourned meetings were held on the 15th and 29th March, and on the 19th April, for the purpose of making arrangements to build a school-house, furnish it with necessary appendages, &c. At the meeting last mention- ed, a contention arose as to the legality of the proceedings of the meeting on the 8th March, on account of certain votes alleged to have been given by persons not qualified to take part in said proceedings. Of these votes two were said to have been given in favor of, and one against the site selected. IH consequence of this objection to the proceedings of the 8th March, application was made to the commissioners of common schools to renew their notice for a meeting to organize the district, and to treat the previous proceedings as null and void. The notice -was giv- en by the commissioners pursuant to the application -to them, and on the 29th April a meeting was held, new district officers with one exception were chosen, and another site fixed for the school- house. To these proceedings certain inhabitants object, on the ground that the first meeting was legal notwithstanding that illegal votes were given as alleged. The appeal has been regu- larly served on the parties interested in sustaining the proceed- ings of the last meeting and noticed for a hearing on the fourth of June. No answer having been received, the case is now de- cided on the testimony produced by the appellants. The first question to be determined is, whether the alleged illegal votes, if given as is stated, would have rendered the pro- ceedings of the meeting on the 8th March void. The rule is well settled that proceedings will not be vitiated by illegal votes unless a different result would have been pro- duced by excluding such votes. If the illegal votes could not foy possibility affect the result, the proceedings, in relation to which they were given, will not be disturbed on account of such votes. In this case there were thirteen votes in favor of the site selected and nine against it. Deducting from the former the two illegal votes alleged to have been given, and there would still be a majority of two votes in favor of it. The result would have been the same, whether the illegal votes had been taken or not. There is no pretext, therefore, for disturbing the proceedings for the reason assigned ; and the act complained of on the part of the commissioners of common schools, with a view to annul them, was wholly unauthorized and void. In undertaking to renew the notice to the inhabitants to hold a meeting for the 12 178 CASES DECIDED BY THE * H ^ purpose of re-organizing the district, re-appointing district offi- cers and selecting a new site, the commissioners have altogether mistaken and exceeded their powers. The only cases in which such a notice could be lawfully renewed, are those specified in sec. 57, page 477, 1 R. S. that is, where the inhabitants refuse or neglect to assemble on the first notice, or where a district hav- ing been formed and organized, is afterwards dissolved, so that no competent authority exists therein to call a special district meeting. Neither of these cases have occurred, and the com- missioners had, therefore, no authority to act. If any person was aggrieved by the proceedings of the meet- ing on the 8th March, he should have appealed to the Superin- tendent of Common Schools for redress, and there would be no just cause of complaint if in setting aside the proceedings of the 29th April no opportunity should be given to reconsider those of the 8th March. The right of the inhabitants to review their proceedings, so far as to change the site selected for the school-house, was per- fect. The act of Feb. 17, 1831, provides that "whenever a school-house shall have been built or purchased for a district, the site of such school-house shall not be changed/' &c. except in a certain manner. In this case a school-house had neither been built nor purchased, and the taxable inhabitants had an undoubt- ed right to change, by a majority of votes, the site originally select- ed. But as the meeting on the 29th April was illegally called by the commissioners and cannot, therefore, be sustained, and as the site may have been fixed at the first meeting without due de- liberation, the Superintendent deems it due to a regular obser- vance of the requirements of the law, as well as to the best in- terests of the district, which are intimately connected with a ju- dicious selection of a site for a school-house, to submit the ques- tion again to the inhabitants. It is accordingly decided, that the proceedings of the meeting held on the 29th April aforesaid are void and of no effect, and that the officers chosen on the 8th March are the proper officers of said district No. 2. And it is ordered that the trustees of said district proceed forthwith to call a special meeting of the inhabi- tants for the purpose of considering whether any change ought to be made in the site of the district school-house. SUPERINTENDENT OF COMMON SCHOOLS. 179 John Owens, against the Commissioners of Common Schools of the town of Galen. If a district fills a vacancy in the office of trustee after one month, by an elec- tion, the election is valid, and the commissioners cannot at a subsequent tim make an appointment to the same vacancy. The facts of this case are fully stated in the Superintendent's decision. By JOHN A. Dix, June 14, 1834. On the 14th day of March last Joseph Pettis, one of the trustees of school district No. 12 in the town of Galen, Wayne county, removed from said town; and on the llth of April ensuing the two remaining trus- tees called a special meeting, for the purpose of filling the vacan- cy occasioned by his removal. On the 17th of April the meeting was held, in pursuance of the notice given by the trustees, and John Owens was duly elect- ed to fill the vacancy occasioned by the removal of said Pettis. On the 28th of April the commissioners of common schools of Galen, having been applied to for the purpose, appointed John Richmond a trustee to fill said vacancy, on the ground that John Owens was not elected within one month after the removal of Pettis, and that his election was consequently void. From this proceeding John Owens appeals. The Superintendent is of opinion that the election of Owens was valid. The right of the commissioners to make an appoint- ment at any time after the expiration of one month, and before the inhabitants had filled the vacancy by election, was perfect. But it was necessary, in order to give validity to the appoint- ment, that the power conferred on them should be exercised pre- viously to any action in the premises on the part of the district. The intention of the law was to provide for supplying vacancies, in case it were not done in the usual manner; and it was for this reason only that a conditional authority to fill them was confer- red on the commissioners. The trustees should have provided for an election within one month after the occurrence of the va- cancy ; but the Superintendent deems it inconsistent with the spirit of the elective system as well as the intention of the com- mon school acts, to construe the limitation of time into an ab- solute forfeiture of the right of choice. The forfeiture would have been absolute if the commissioners had made an appoint- ment after the lapse of a month and before an election by the^dfe- trict; but they neglected to do so, and as the action of the district was not inconsistent with any positive prohibition, the proceeding must be sustained. It is therefore ordered, that the election of John Owens be con- firmed, and the appointment of John Richmond be, and it is hereby declared to be null and void. 180 CASES DECIDED BY THE The Trustees of school district No. in the town of Warren, ex parte. The power of inspectors over the course of studies in schools should, ordinarily, be confined to a general supervision of such studies. This was an application from the trustees of a school district in the town of Warren, for the Superintendent's directions, in a case where the inspectors, in examining into the condition of the district school, had given special directions as to the number of hours during which individual children should be instructed in particular branches. By JOHN A. Dtx, June 30, 1834. The inspectors of com- mon schools are expressly authorized by law to " give their ad- vice and direction to the trustees and teachers of such schools, as to the government thereof, and the course of studies to be pur- sued therein." This authority cannot very well be limited in its exercise by any general rules. If it should be abused in such a manner as to oppress the teacher or the scholars, the Superinten- dent of Common Schools has unquestionably the right, on ap- plication to him, to inquire into the facts and redress their grievances; and I should deem it my duty to institute such an inquiry, on a complaint regularly made in the manner specified by the regulations of the Superintendent. With regard to the extent of the inspectors' authority, this can only be determined in each case, with a reference to the attend- ing circumstances. The intention, however, so far as it can be gathered from the language of the law, was to give them a ge- neral supervision of the course of studies; and I think they should not, in ordinary cases, consider themselves called on to regulate mere details. Whether a child should read in one book or another, or write one line or six per day in his copy book, are matters which should be left to the teacher. The functions of the inspectors are of a higher order, and they should be content with exercising them according to the spirit of the law, from which their authority is derived. If the teacher is incompetent or unworthy of his place, they may annul his certificate ; but they ought not to strip him of all authority by entering into the little arrangements of his school, and undertaking to determine the ability of each scholar to accomplish the particular task assigned to him. I do^qt wish to be understood, however, as intimating that the inspectors may not, in case of any error on the part of the teacher in this respect, point out and require him to correct it. The propriety of their interference must, as I have already ob- served, depend on the circumstances of the case. But ordinarily their duty would consist in a general supervision of the govern- SUPERINTENDENT OP COMMON SCHOOLS. 181 ment and course of studies established in the schools within their jurisdiction. The Trustees of school district No. 15 in the town of Cicero, against the Commissioners of Common Schools of said town. When defective reports are made by trustees of school districts, commissioners should give time to correct them, and retain a portion of the public money in their hands to abide the result of such correction. The facts of this case are stated in the Superintendent's order. By JOHN A, Dix, June 30, 1834. On the first Tuesday of April last the commissioners of common schools of the town of Cicero apportioned the public moneys allotted to said town among the school districts therein. From this apportionment school dis- trict No. 15 was excluded, in consequence of the omission of the trustees to state in their annual report for 1833 the time, during which their school had been taught by a qualified teacher. Al- though the commissioners acted strictly according to law, in with- holding the money from district No. W f by reason of the defect referred to, they should have retained the money in their hands to be distributed ultimately among the other districts in the town, or to be given to No. 15, in case the trustees on notice to them, had satisfied the commissioners that the mistake was inadverteut. The commissioners will see, on reflection, the propriety of afford- ing time to make explanations, where any doubt exists with re- gard to the defects which frequently exist in the reports of school districts, by adverting to the course which has been pursued in the present case. The trustees have made oath that the error was unintentional, and that their school was actually taught six months during the year 1833 by a qualified teacher. But in or- der to remedy the defect, and procure their proper share of the pub- lic money, they are under the necessity of making application to the Superintendent of Common Schools ; and will, perhaps, be deprived of the benefit of the common school fund for a whole year. Although the commissioners have acted strictly according to the letter of the law, they might, in equally strict accordance with its spirit have avoided the inconveniences referred to by re- taining the money, and making its eventual application depen- dent on the testimony of the trustees, with regard to the excep- tionable part of their report. These remarks are not designed to censure the course pursued by the commissioners, but merely to intimate that they may, in the exercise of that guardianship over all the districts within their jurisdiction with which the law faas clothed them, spare themselves, as well as the districts, in- O V :.Xn"Mjfi) Oftt'01 VT -/ ; -;'T ... : ' ~ : ;i {,'- 182 CASES DECIDED BY THE convenience by supposing unintentional error in returns, which are on their face defective. It is ordered that the commissioners of common schools of Ci- cero pay to the trustees of school district No. 15 in said town, out of any public moneys now in, or which shall hereafter come into, their hands, such sum as said district would have been en- titled to receive in April last, if the report of the said trustees for the year 1833, had set forth that a school had been regularly taught in said district six months during the year by a qualified teacher. The Trustees of school district No. 2 in the town of New-Lisbon, ex parte. When the site of a school-house has been fixed, it may be changed by a majori- ty of votes at any time before the school-house is built or purchased. A site for a school-house was fixed by vote of the inhabitant? of school district No. 2 in the town of New-Lisbon; but, before the school-house was built, a special meeting was called, and the site was changed to another place by the votes of a majority of the inhabitants. The question raised in this case was, whe- ther the site, having been once selected, could be changed by a majority of votes. By JOHN A. Dix, July 5, 1834. A majority of the inhabi- tants of a school district may fix the site of the school-house where there is none, to which the district has a legal title, and a majority may change it at any time before the school-house has been purchased or built. No school-house having been built in this case, and the district being without one, the resolution chang- ing the site by a majority of votes was legal. The Trustees of school district No. 3 in the town of Clayton, ex parte. Trustees cannot sue an associate trustee for neglecting to discharge the duties ot his office. In this case one of the trustees of a school district wholly ne- glected to perform the duties of his office, though not having re- fused to accept it. The two associate trustees commenced a suit against him for the penalty provided in such cases, but a ques- tion having arisen as to their right to bring the action, the Su- perintendent's opinion was solicited by them. By JOHN A. Dix, July 14, 1834. I am of opinion that the 109th sec. page 487, IKS. gives the trustees of common schools no power to sue an associate trustee for neglecting to perform his duties. This case appears to me to be one not ex- SUPERINTENDENT OF COMMON SCHOOLS. 183 pressly provided for, and therefore, comes within the provisions of the 8th sub. of sec. 20, page 470, 1 R. S. The suit must therefore be brought by the commissioners of common schools. The Trustees of joint school district No. 2 in the towns of Fishkill and Poughkeepsie, ex parte. When an old school-house is sold and a new one built, a district cannot raise by tax $400 in addition to the avails of the sale of the old house. Persons authorized to vote for district officers, may vote for a tax though they may not be liable to be assessed for it. In joint school district No. 2 in the towns of Fishkill and Poughkeepsie, a tax of $400 was voted to build a new school- house. The trustees were then authorized to sell the old house and to apply the proceeds of such sale, together with the $400 to be raised by tax, to the erection of the new building. The opinion of the Superintendent as to the validity of this proceeding was requested ; and also as to the right of persons, not liable to be assessed for a tax, to vote for it. By JOHN A. Dix, July 15, 1834. I am of opinion that you cannot raise four hundred dollars in addition to the avails of the sale of the old school-house, for the purpose of building a new one. without first obtaining the consent of the commissioners of common schools. The intention of the law is clear, and where- ver taxation is in question it must be strictly followed. If more than $400 is necessary, the commissioners can say so by giving it as their opinion that a larger sum will be required, which sum they must specify. The most simple mode of proceeding would be to sell the old school-house, and after ascertaining the amount of the avails, vote the requisite additional sum. But, if such requisite sum, together with the avails of the sale exceeds $400, the certificate of the commissioners must be procured agreeably to the provisions of sec. 64, page 479, 1 R. S. When the site of a school-house is changed the avails of the sale of the school-house, and of the site on which it stands, must, by the act of Feb. 17, 1831, be applied to the payment of ex- penses in procuring a new site, erecting a school-house, eyond his own proportion of such property. Each person, who is set from an old district having a school-house or other property to a new district, may be said to carry into the latter his propor- tion of the value of such school-house or property, and he is to have the benefit of it to the amount of his tax for a school-house in the new district. But he cannot have the exclusive benefit of that portion of the value of the school-house or property in the old dis- SUPERINTENDENT OF COMMON SCHOOLS. 197 trict, which is awarded to the new district as the proportion of other persons. If the latter are not, from peculiar circumstances, liable to be taxed for a school-house, their proportion goes to the reduction of the whole tax for a school- house, and enures to the benefit of all the inhabitants of the new district. In this bene- fit the individual first referred to participates equally with all others, but no farther. If he were to be allowed, by way of re- ducing his tax, any thing more than was received from the old district on his account, he would acquire a benefit to which he has no more claim than any other inhabitant of the district, and have an advantage over others which could not be recognized without a subversion of that plain rule of equal justice, which it is the intention of the law to maintain inviolate. I therefore, decide that the four persons who consented to be an- nexed to the new district, are to have so much of the forty dollars applied to the reduction of their taxes respectively, as was award- ed to the new district upon the taxable property of each : and that so much of the forty dollars as was awarded to the new dis- trict on account of the two persons, who did not consent to be set off, is to be applied to the reduction of the whole tax voted for a school-house, so that all who are to pay the tax may have the benefit of it.* The Inhabitants of joint school district No. 13 in the towns of Rome and Lee, against the Commission- ers of Common Schools of said towns. If a school district has been recognized as legal for a length of time, regularity in its organization will be presumed in the absence of the proper record, and the commissioners of common schools cannot form the district anew and order an election of officers under such circumstances. The facts of this case are stated in the Superintendent's o r - der. By JOHN A. Dix, December 13, 1834. On the first day of October last the annual meeting was held in joint school district No. 13, in the towns of Rome and Lee, and officers were chosen for the ensuing year. To the regularity of the proceedings, ex- ceptions were taken, and an appeal was presented to the com- missioners of common schools of the two towns, who met and decided that they had no power to entertain the appeal. On ex- amination of the records of the towns, it appeared that district No. 13 was not recorded, with a proper designation of bounda- ries, in either; whereupon the commissioners proceeded on the * See the case of the trustees of school district No. 13 in the town of Cas- tile, page 64. 198 CASES DECIDED BY THE first day of November, (that day having been previously appoint- ed for the purpose,) to form a new district by making addition? to the district in question, and by making a specification of its boundaries. The district was then put on record in both towns, and a meeting was called in pursuance of the provisions of sec- tion 55, page 477, 1 R. S. to choose district officers. The meet- ing was held on the 12th of November, and district officers were chosen. To this proceeding exception is taken by the officers elected at the annual meeting on the 1st of October. By an examination of the reports made by the commissioners of common schools of the towns of Rome and Lee, in the office of the Superintendent, it appears that joint district No. 13 has been regularly returned by the commissioners of those towns since the year 1822 as an organized district, lying partly in both towns, and that the public money has been apportioned to it according to law. A recognition of the district for so long a period, cannot with propriety be disregarded in consequence of a failure on the part of the proper officers to have it recorded. It was the duty of the commissioners, on being apprized of the fact, to meet to- gether and declare the boundaries with a view to have them made a matter of record : but it cannot be admitted for a mo- ment, that the omission of the proper officers to comply with provisions of law, which are merely directory, is to vacate pro- ceedings regularly conducted by the competent authority. It is true it does not appear, by the records, that the- district was ever regularly organized in the manner prescribed by law ; but not- withstanding the statement given by the commissioners with re- gard to certain proceedings in both towns in selling off a part of each to the other, the Superintendent cannot now permit the original formation of the district to be enquired into for the pur pose of invalidating any thing that has been done within it since its organization. After the lapse of twelve years, during which the district has been returned by the commissioners of both towns to the Superintendent of common schools, and has complied with the directions of the statute so as to become en- titled to the public money, regularity in its organization will be presumed; and the commissioners will be so far bound by the re- ports of their predecessors that they will not be allowed to impeach the accuracy of those reports. It has been repeatedly decided that a district, which has been for a series of years recognized as valid, is to be regarded as such, although no record of it can be found ; and in such cases the commissioners have been direct- ed, whenever the interposition of the Superintendent of Com- mon Schools has been required, to meet and declare the boun- daries of the district, and put them on record. In this case the commissioners have overstepped the limits of their authority, by SUPERINTENDENT OF COMMON SCHOOLS. 199 treating the district as null, and ordering an election after form- ing it anew. They had power to annul the district ; but with- out doing so in a formal manner, it could not be reorganized and treated as a new district. They could not give the notice pro- vided for in section 55 before referred to, because it was not a new district ; nor could they issue a notice under the provisions of section 57, (same page) because neither of the contingencies, on which the right to issue such a notice is dependent, had oc- curred. It is alleged that several of the appellants, who were the officers chosen on the 1st of October, were present and ac- quiesced in the proceedings of the commissioners. Admitting the fact, the difficulty still remains. There was a want of juris- diction, so far as the order for a new election is concerned, and their consent could not give jurisdiction. ' They might have re- signed, but could not by their consent give validity to any act on the part of the commissioners, not authorized by express provi- sions of law, which would abridge the period of their election to office. Notwithstanding the error of the commissioners, the Superintendent is well satisfied that they intended to act for the best good of the district, and without any doubt as to the extent of their powers. It is hereby ordered, that so much of the proceedings of the commissioners aforesaid on the first of November last, as relates to the boundaries of district No. 13 in Rome and Lee, be con- firmed, and that said boundaries be continued as established by them on that day. And it is hereby declared, that the proceed- ings of the meeting in said district on the 12th of November, held in pursuance of the order of the commissioners, are null and void ; and that the persons chosen on the 1st of October last are and will continue to be the officers of said district until the next annual meeting, or until vacancies occur. (ANONYMOUS.) Certificates of qualification to teach a particular school cannot be given. By JOHN A. Dix, December 26, 1834. Inspectors of common schools have no right, in giving a teacher a certificate of qualifi- cation, to be governed by a consideration of the particular circum- stances for which it is wanted. The certificate is good for one year to teach any school in the town, unless it is previously revoked ; and it would certainly be not only a very inconvenient, but a very erroneous, practice to give a certificate to a teacher to enable him to receive the public money for teaching one school and to revoke it if he undertook to teach another. The law makes no distinction, and the inspectors should not. They must be " sa- tisfied" as to "the qualifications of the candidate in respect to 200 CASES DECIDED BY THE moral character, learning and ability," not to teach a particular school, but " for teaching common schools " in their town. The Trustees of school district No. 6 in the town of Rensselaerville, ex parte. If a teacher is examined and the inspectors are satisfied, but neglect to give a certificate at the time, it may be given at a subsequent time and take effect from the date of the examination. In this case the commissioners of common schools examined a female teacher and expressed their satisfaction with her quali- fications, but neglected to give her a certificate at the time. On application to them at a subsequent period of her term, the certi- ficate was given to her. The question presented was, whether she was to be deemed a qualified teacher from the time of the examination or from the date of her certificate. By JOHN A. Dix, January 6, 1835. The teacher in your district should have received a certificate of qualification at the time she was examined ; but if the certificate which she received was given upon the strength of the examination in the spring, she ought to be considered a qualified teacher from the date of such examination. The omission of the inspectors to give her a cer- tificate at the time, if they were satisfied with her qualifications, should not be allowed to operate to her prejudice. (ANONYMOUS.) The site of a school-house, if actually owned by the district, is a part of its pro- perty, subject to appraisement when a new district is formed. By JOHN A. Dix, January 6, 1835. The value of the lot on which a school-house stands, or. as it is usually termed, the site of the school-house, is to be considered as a part of the pro- perty of the district, subject to appraisement under section 67 of the act relating to common schools, if the district is divided and a new one formed from part of it. It is to be understood, however, that the site must be the absolute property of the district, and not, as often happens, occupied at sufferance, or OH condition of being used as a site for a school-house. (ANONYMOUS.) The assessment roll of the town is not complete until it is signed and certified. By JOHN A. Dix, January 12, 1835. The assessment roll of the town is not complete, and cannot, therefore, be considered as the "last assessment roll of the town," until after it is signed SUPERINTENDENT OF COMMON SCHOOLS. 201 and certified as required by section 26, title 2, of the act for the assessment and collection of taxes.* The President and Directors of the Bank of Orleans, against the trustees of school district No. 1 in the town of Barre. There can be no partnership in the erection of a district school-house. The facts of this case are stated in the Superintendent's order. By JOHN A. Dix, January 12, 1835. The Superintendent of common schools has examined the statement of facts agreed on by the trustees of school district No. 1 in the town of Barre, and the president and directors of the Bank of Orleans, in rela- tion to the assessment of a tax on the property of said district for the purpose of erecting a school-house. The proposed school-house is intended to be part of a building to be used as an academy as well as a school-house, and the sum of $2,000 is intended to be raised by subscription to complete it. Much as the Superintendent is disposed to confirm the pro- ceedings of the inhabitants of the district, by whom they have been adopted with great unanimity, he is constrained to set them aside by a rule, which cannot, in his opinion, be safely departed from in any case, without authority from the legislature. By a decision of the Superintendent heretofore published with the school laws, it is settled that there can be no partnership in the erection of a school-house which will prevent the district from controlling it entirely for the objects of the district school. This principle he feels bound to enforce in all cases which come before him. To sanction a departure from it would establish a prece- dent which might lead to great embarrassment and possibly to abuse. If in any case the interest of a district should require such an arrangement as is contemplated by the inhabitants of this district, application must be made to the legislature for the proper authority. The Superintendent deems it proper to add, that he should have confirmed the tax but for the single fact that the school- house is proposed to be united with an academy. The wealth of the district justifies the amount of the proposed expenditure ; and it is no objection, in his mind, that a large proportion of the tax falls on a moneyed institution, which not only has the ability but the directors of which express a willingness to, contribute to the erection of a school-house for the district. * For the liabilities of trustees in deviating from the last, assessment roll of the town in assessing a tax, see the decision of the Superintendent of December 1, 1835, in the case of the trustees of school district No. 5 in the town of Catlin . 202 CASES DECIDED BY THE It is hereby ordered, that so much of the proceedings of the special meeting in school district No. 1, on the 23d December last, as authorizes a tax of fifteen hundred dollars to be levied, with a view, as is admitted, to be applied to the erection of a building v for a school-house and academy, in pursuance of a re- solution passed at a meeting of* said district on the 7th October last, be and it is hereby set aside. This decision is not intended to affect the right of the inhabitants of said district, by virtue of the certificate of the commissioners of common schools heretofore given, to meet again and vote the same amount for the purpose of erecting a building to be used solely as a district school-house. The Trustees and inhabitants of school district No. 20 in the town of Bethlehem, ex parte. The annual election in a school district having been neglected for two years, the Superintendent will order one to be held. This was an application to the Superintendent by the inha- bitants of school district No. 20 in the town of Bethlehem, to or- der an election of district officers, the annual meeting having been omitted for two successive years. In this application the trustees last elected united. By JOHN A. Dix, January 14, 1835. The annual meeting for the election of officers in school district No. 20 in the town of Bethlehem having been neglected for two successive years, and application having been made to the Superintendent of Common Schools for his direction: It is hereby ordered, that the trustees now serving, viz. G. H. Birch, John P. Brayton and Bretton Udell do proceed to call, at the earliest practicable day, a meet- ing of the taxable inhabitants of said district No. 20, at some convenient place therein, for the purpose of electing officers for said district for the ensuing year, and for the transaction of such other business as the inhabitants, when so assembled, may deem necessary. The notice will set forth the objects of the meeting, and state that it is called by authority of the Superintendent of Common Schools ; and it will be served in the manner requir- ed by law when special meetings are called by the trustees. After the election of district officers the time and place for hold- ing the next annual meeting will be fixed by vote of the inha- bitants assembled in pursuance of the notice so to be given. SUPERINTENDENT OF COMMON SCHOOLS. 203 The Trustees of school district No. 1 in the town of Castile, ex parte. No more money can be expended on a school-house than is necessary for com- mon school purposes. The school-house in district No. 1 in the town of Castile having been consumed by fire, it was proposed by some of the inhabitants to build a house large enough for the purposes of the district school, with one or two additional rooms to be rented for select schools or such other purpose as might be acceptable to the district. The question presented was whether a tax to construct such a building could be legally voted. By JOHN A. Dix, January 15, 1835. The inhabitants of school districts have no right to lay a tax for any amount to be expended on a school-house, excepting what is absolutely neces- sary for common school purposes. They may have a house with two or more rooms, if such a one is necessary, for the con- venience of the district. But the idea of having a room to rent, even for a select school, is wholly inadmissible. Edmund Baldwin, Jr. and others, against the inha- bitants of school district No. 11 in the town of Lawrence. If a school district is broken up, the persons belonging to it are liable to be taxed for a school-house in the districts to which they are annexed, though they may have paid a tax for the same purpose within four years. Notices for special meetings must be personally served. The principal facts of this case are stated in the Superinten- dent's order. The only material point not fully set forth in his order is the ground on which the appellants relied in claiming an exemption from a tax for building a school-house in district No. 11 after the dissolution of the district to which they belong- ed, and their transfer to the former. This point was in sub- stance that they were set off from the other district without their consent, and that having paid a tax in it for a school-house with- in four years, they were not liable to be taxed for the same pur- pose in district No. 11. By JOHN A. Dix, January 17, 1835. This is an appeal by Edmund Baldwin, junior, and others, from the proceedings of a district meeting held on the tenth day of December last, in school district No. 11 in the town of Lawrence, at which meeting a tax of $318 . 50 was laid for building a school-house, &c. ; and also from the proceedings of the trustees of said district, in as- sessing the appellants for their portion of said tax. The principal grounds on which exception is taken to the pro- ceedings before mentioned are the following: 204 CASES DECIDED BY THE 1st. That the appellants have, within four years, paid a tax towards building a school-house in another district, from which they were set off without their consent; and, 2d. That the meeting on the 10th of Dec. ult. was not call- ed in pursuance of the notice required by law. The last exception is well taken, and the proceedings must be set aside on this ground. In calling meetings for special objects the trustees of school districts should pursue the directions of the statute strictly. This observation applies most emphatically to cases in which the object of the meeting is to impose a tax. The notice should properly specify the object of the meeting; but it is indispensable that it should be personally served, as is re- quired by sub. 2, of sec. 74, and by sec. 56 of the act relating to common schools. The notice for the meeting on the tenth Dec. was in proper form, as appears by the affidavit of the clerk, but instead of being served on each taxable inhabitant, it was mere- ly posted up as in the case of an annual meeting or a meeting ad- journed for a longer time than one month. The notice was not sufficient, no attempt having been made to give it in the man- ner required bylaw; and a new meeting must be called, and the tax voted again before it can be collected. The case being thus disposed of, it is unnecessary, for the pur- poses of this decision, to consider the first ground of objection. But to avoid future embarrassment it is proper to say that the Superintendent deems it wholly untenable, if, as is alleged, the appellants became inhabitants of district No. 11 by virtue of the dissolution of district No. 8 under an order of the commissioners of common schools. The provision of law which exempts from the payment of a tax for building a school-house individuals who have, within four years, paid a tax for the same purpose in another district, from which they have been set off without their consent, is not applicable to cases in which a district is wholly broken up, and the inhabitants who composed it are arranged to others. The intention of that provision was to provide an ex- emption where a person is taken from a district which continues in existence after he is annexed to another, and not where he is, from the necessity of the case, attached to another, because the district to which he belonged is dissolved. The appellants are, therefore, liable to be taxed for building a school-house in district No. 11, inasmuch as they became inhabitants of that district by virtue of the dissolution of district No. 8. It is hereby ordered,. that the proceedings of the meeting held on the tenth of December last, in district No. 11, be, and they are hereby annulled. SUPERINTENDENT OF COMMON SCHOOLS. 206 (ANONYMOUS.) If a teacher is engaged at a given sum per month, and the public money 'is paid to him, it is to be in part payment of his wages. The tuition of indigent pupils cannot be paid out of the public money. There is but one legal mode of paying teachers. Two questions were submitted to the Superintendent for his opinion. They are given as presented to him, and his answers are annexed. By JOHN A. Dix, January 17, 1835. Question 1. If a teacher is engaged by the trustees of a district at a certain sum per month, does he receive the public money in part pay, or is he entitled to it exclusive of his wages ? Answer. He is to receive the public money in part payment of his wages. If he were to receive it exclusive of the sum agreed on as his monthly wages, he would be paid more than the trus- tees are bound to give him, and it would be a fraud upon the district. Question 2. If he (the teacher) takes charge of any district school at a fixed price per scholar, (say two dollars,) have the trustees the power of distributing the balance of the public mo- ney (after paying him the full price for poor pupils,) among those who send children to school ; or. has the teacher a right to de- mand the residue without distribution, after having been paid the full price for all the poor pupils who have attended through the quarter ? Answer. Trustees have no right to make a direct payment of the tuition of poor pupils out of the public money, or to make any formal distribution of the public money for the benefit of the children attending a school. The law is clear and explicit on all these points, and if it is followed, no embarrassment or diffi- culty can possibly arise. Let us see what the law requires. 1. The trustees are to pay the wages of the teacher (he being duly qualified,) "out of the moneys which shall come into their hands from the commissioners of common schools, so far as such moneys shall be sufficient for that purpose." 2. " To exempt from the payment of the wages of teachers such indigent persons within the district as they shall think pro- per." 3. To collect the residue of the teacher's wages, after paying him the public money, " excepting such sums as may have been collected by the teachers, from all persons liable therefor." These are the three steps authorized by law, and they are above stated in the order in which they should be taken. Let us look at the practical effect of these provisions by sup- posing a case and applying them to it. A teacher may be hired by the trustees at so much per month or at so much per scholar. 206 CASES DECIDED BY THE The only difference is, that the amount of his compensation MS, in one case, reduced to certainty, and in the other, it is contingent on the number of scholars. Either may or may not be most ad- vantageous to those who pay, according to circumstances. The first mode is the most simple, and is, therefore, preferable. Let us suppose the last case. A teacher is hired to instruct a school at two dollars per scho- lar for the term. He has forty scholars, of whom five are the children of indigent parents. He is entitled at the close of the term to $80, and the trustees have on hand $20 of public mo- ney applicable to the term. Now, what is the duty of the trus- tees? It is very plain. 1. They pay him the public money, $20. 2. They exempt the parents of the five indigent children. 3. They make out a rate bill for $60 with the collector's fees (five per cent) added thereto, assessing each of the parents of the thirty-five scholars with his just proportion of the amount accord- ing to the number of his children who have been instructed and to the time during which they have received instruction. This is the only mode of proceeding recognized by law, and it must be strictly followed. Whether the teacher is engaged at so much per month or so much per scholar makes no difference. These are different modes of ascertaining the amount of his com- pensation. In the first case it is ascertained at the beginning, and in the second at the close, of his term. The Trustees of school district No. in the town of White Creek, ex parte. Teacher's board bills cannot be included in a rate bill, or paid out of the public money. In this case the teacher was boarded by one of the trustees of the district, and in making out a rate bill for his wages his board bill was included in it, the inhabitants having agreed to provide his board. By JOHN A. Dix, January 19, 1835. Board bills for teach- ers cannot be allowed to be connected in any manner with the payment of their wages. The whole thing is wrong and unau- thorized by law. .Their board must be paid by themselves, or by the inhabitants by subscription. It cannot be paid out of the public money, or included in a rate bill. There is no safety but in a strict adherence to the course pointed out by law. Whether the particular mode of payment is the same in the end or not to the inhabitants of the district, is not the question. The impor- tant point is, whether the trustees have proceeded according to law. They have not, and they should make some prompt ar- SUPERINTENDENT OF COMMON SCHOOLS. 207 rangement of the matter for the satisfaction of the parties con- cerned. Trustees have no more right to include a teacher's board bill, or any part of it, in a rate bill, than they have to in- clude it in a bill for a pair of shoes or any other article for his personal use. The Trustees of school district No. in the town of Locke, ex parte. Non-residents are taxable for fuel if they own improved lands in the district. The following question was proposed for the opinion of the Superintendent. At a district meeting a tax is voted to procure fire wood for the school, and for the purpose of making some necessary repairs in the school-house. The tax is assessed. A, B and live in an adjoining district, but each own land, which they themselves im- prove, within this district, and which is not taxable in the dis- trict where they live. Their land is taxed, and they decline pay- ing the tax on the ground that they can not be legally taxed for fire wood; the tax is quite inconsiderable. Is it a legal tax? By JOHN A. Dix, January 19, 1835. Answer. The tax is legal and may be collected. A tax for repairing a school- house or for fire wood, where fuel is not furnished in kind, is im- posed in the same manner as a tax for building a school-house. Non-residents may be included in the tax list in either case if they have lands in the district cleared and cultivated, which are not taxable in another district. The Trustees of school district No. 1 in the town of Castile, ex parte. If two teachers are employed at the same time, the rate bill for their wages must be graduated by the number of days of attendance, without reference to the studies or branches in which different children may have been instructed. Scholars may be divided and put in different rooms. The Superintendent having decided on a question presented from this district, (see ante page 203,) that a school-house should not be made larger than necessary for common school purposes, he was desired to state whether a school could be divided into departments, and different rates of tuition charged for different branches of instruction. By JOHN A. Dix, January 23, 1835. I have already said that a school district may levy such a tax as is necessary for con- structing a building suited to the purposes of the district, and no more. The amount of the tax is, of course, subject to the le- gal limitation of $400, unless the commissioners of common 308 " CASES DECIDED BY THE schools certify a larger sum to be required. Whether the build- ing shall have three rooms or one, or whether it shall have two stories or one, is a matter for the determination of the inhabi- tants. If two or more teachers are employed in a school district, the amount of compensation, which each shall receive, may be re- gulated by agreement in the manner best suited, in the opinion of the trustees, to the interest of the district. But the inhabi- tants cannot be required to pay different rates of tuition accord- ing to the branches of study in which their children are instruct- ed. The law has settled the rate of contribution for the pay- ment of teachers' wages. It must be according to the number of days, during which each person has sent to school. A man- who sends two children to school for thirty days, will pay precise, ly as much again as a man, who has sent only one child to school for thirty days. A rate bill made out on any other principle would be illegal and could not be collected. It is manifest, therefore, that any distinction as to the rate of tuition to be paid in different departments of your proposed school is wholly inad- missible. I see no objection to dividing the scholars and putting them in different rooms under separate instructors. This is in effect a division into classes for study and recitation. Every child in the district would have an equal right to be instructed in either and all of the departments. The only principle on which the division can be made, is the proficiency of the pupils in the stu- dies respectively pursued in each. Let these matters be tho- roughly understood, and I apprehend no difficulty, if your ar- rangements are commenced with the general concurrence of the inhabitants.* The Commissioners of Common Schools of the town of Madison, ex parte. The children of laborers temporarily employed on canals are not to be included in school district reports. This was an application to the Superintendent for his opinion as to the propriety of including in the annual reports of school districts the children of such laborers on the Chenango canal as were actually at work in the districts on the last day of Decem- ber, 1834. By JOHN A. Dix, January 24. 1835. I have received your ,_...: : : ' ' . * See the cases of Zeno Allen and others against the trustees of school No. 1 in the town of Hounsfield, page 4, and a decision bv A. 0. Flagg on the 16th July 1829, page 43. SUPERINTENDENT OF COMMON SCHOOLS. 209 , letter stating that you understand the trustees of one or more school districts in your town are about to include in their annual reports the children of laborers on the Chenango canal. I am of opinion that these persons have not such a fixed resi- dence, as the law intends, to justify the enumeration of their children among those residing in the district on the last day of December. School districts are formed with a view to the accom- modation of the inhabitants residing permanently within them, and with a regard to the number of children who may be conven- iently instructed in the schools. The arrangements of the inhabi- tants are made in conformity to the actual condition of the districts, of possibly, with reference to such increase as in the ordinary progress of settlement may be reasonably anticipated. If the children of persons coming in large numbers to sojourn tempo- rarily in the district for tKe purpose of constructing roads or ca- nals leading through it, are to be deemed residents, they would have a privilege in the schools which might become so crowded as to prejudice seriously the interests of the permanent inhabi- tants. and might, indeed, for all practical purposes, work a dis- organization of the district for the time being. A construction of the law which leads to such consequences, would certainly not consist with its intention, and under any view of the subject it seems to me that the children of the persons referred to cannot be regarded as coming within the provision, under which the an- nual enumeration is made, Should the trustees of any of the school districts include the children of laborers on the Chenango canal in their reports, it will be your duty to see that the proper deduction is made. I can readily conceive that a difference of opinion may exist with regard to the propriety of including them ; and therefore I would suggest that the trustees of the districts to which you refer should be immediately advised of my construction of the law, in order that their reports may be made out in conformity with it A. G. H. a teacher, against the Inspectors of com- mon schools of the town of Petersburgh. Inspectors are inexcusable for giving incompetent teachers certificates of quali- fication. The facts of this case appear by the Superintendent's order. By JOHN A. Di3t, January 24, 1835. The Superintendent of Common Schools has had under consideration the appeal of A. G. H. from a decision of the inspectors of common schools of the town of Petersburgh in the county of Rensselaer, in refusing to grant him a certificate of qualification after having examined him as a candidate for teaching a school in said town. 14 210 CASES DECIDED BY THE On the 17th inst. the Superintendent addressed a letter to the above mentioned inspectors, calling on them for their reasons in re- fusing Mr. H. a certificate. This communication was made upon an examination of two certificates of qualification from the inspec- tors of the towns of Hoosick and Sand-Lake, and without a close inspection of Mr. H's. letter of appeal, in which the certificates were enclosed. The Superintendent having received a state- ment from the inspectors of Petersburgh, and having carefully examined all the papers submitted to him y is of opinion that they were perfectly right in withholding a certificate of qualification. Without any reference to the errors which the inspectors allege were made by Mr. H. in parsing a plain sentence, the Superinten- dent perceives that the word please is three times spelt " pleas" in his letter of appeal, and that the appeal is addressed to the " Superintended of Common Schools. An individual who is so plainly ignorant of the English language is surely unfit to Ix- charged with the management of a school; and the Superinten dent is at a loss to conceive how the inspectors of Hoosick and Sand-Lake amid have granted him a certificate of qualifica- tion. The state has provided liberally for the support of the r system of common school education; but if the officers, who are entrusted by law with the examination of teachers, will not consider it their duty to exclude from the direction of the schools individuals wholly incompetent to give instruction in the most simple branches, the public bounty will not only be expended in vain, but it will be made instrumental to a misdirection of the intellectual faculties. It is a subject of general complaint that the standard of qualification for teachers in the common schools is extremely low; and this evil must continue to exist, if the in sectors, on whose decisions the standard in a great measure de pends, will not perform their duty rigidly and with proper firm- ness. All that the state exacts is. that a school shall be kept thiee months per annum in each district by a teacher properly qualified. The requisition is by no means unreasonable, and the inspectors should consider it a solemn duty, not only to with- hold a certificate when the individual is not fully competent to teach, but to institute a rigid scrutiny into the qualifications of all who present themselves as candidates for examination a& teachers. The Superintendent is willing to believe that in this case the inspectors of Hoosick and Sand-Lake have granted Mr. H. a certificate on a very superficial examination. He trusts. however, that a similar case will not again occur, but that they will consider it due to themselves to withhold certificates, except ing where they are satisfied, from careful examination, that the propriety of granting them is in no danger of being impeached and their decisions brought into disrepute by the un worthiness ol ^ SUPERINTENDENT OF COMMON SCHOOLS. 211 ^A " T^ those in whose favor they are made. It is due to Mr. H. to state that his moral character is not called in question. The only ground of objection to him is his want of the necessary learning and ability to teach a school. The Trustees of school district No. 8 in the city of Albany, ex parte. Evening schools may be kept in school districts in Albany, under certain restric- tions. By JOHN A. Dix, January 30, 1835. A question having arisen in school district No. 8 in the city of Albany, with regard to the propriety of enumerating, under section 11 of the act of 17th April, 1830 7 relating to common schools in said city, chil- dren who have attended an evening school kept in said district under the direction of the trustees for the instruction of appren- tices and others, who are obliged to labor during the day, and who would, if such enumeration were not admissible, be wholly excluded from a participation in the benefit of the common school fund : The Superintendent of common schools is of opinion that the attendance of the pupils in such evening school may be included in the account kept by the teacher pursuant to the provisions of the section and act above referred to: Provided, 1st. That such evening school shall have been kept under the direction of the trustees, and put in all respects on the same footing as the day school. 2d. That no pupil attending said evening school shall have been included in the account of those who attend the day school: and, 3d. That said school shall have been kept each evening as many hours as shall make each school time equal in duration to the average length of the school time of the day school. C. W. M . a teacher in school district No. 1 in the town of Turin, ex parte. If a teacher's certificate is annulled, the trustees may dismiss him. C. W. M. was employed by the trustees of school district No. I in the town of Turin, to teach the district school four months. At the time he was so employed, he held a certificate of qualifi- cation from the inspectors of common schools of the town. At the expiration of three months the inspectors annulled his certifi- cate, and the trustees dismissed him. The question submitted was, whether they could dismiss him before the expiration of the time for which he was engaged. By JOHN A. Dix, January 31, 1835. I am of opinion that it S 1 " + V'* w * : * u* * 212 CASES DECIDED BY THE the act of annulling a certificate of qualification by the inspectors ot common schools releases the trustees of a school district from all obligation to continue in employment the teacher whose certifi- cate is so annulled. If the trustees have entered into a contract with him for a specific term, and his certificate is in the mean time annulled as the law provides, the trustees are, in my opinion, at liberty to rescind the contract. They engaged him as a qua- lified teacher, and the moment he ceased to be so there was a failure of the consideration, which was at the foundation of their contract with him. If the trustees allow him to teach the school after notice from the commissioners that they have annulled, his certificate, it is a continuance of the contract, and they will not, at a subsequent period, be allowed to dispute it. But I think they may dismiss him for the reason assigned. Otherwise a district might forfeit its right to a share of the public money for want oi the requisite period of instruction by a qualified teacher. In this construction of the law there is no hardship, as the teacher enters into the contract with full knowledge of his liabilities. The Trustees of school district No. 2 in the town of Summit, ex parte. Persons set off from a school district without the consent of the trustees do not cease to belong to it until three rrxonths after notice in writing to the trustees. A collector has thirty days from the delivery of a tax list and warrant to collect a tax. On the 7th Nov. 1834 the commissioners of common schools of the town of Summit, served on the trustees of school district No. 2 in said town, a notice that they had set off' five inhabi- tants at their request, to district No. 1. On the 31st Dec. ensu- ing a tax of $130 was voted to build a new school-house. The question proposed was, whether the persons thus set off from district No. 2, the trustees not having consented to the alteration, were liable to pay their proportion of the tax. By JOHN A. Dix, January 6, 1835. An alteration in a school district does not take effect unless the trustees consent, until three months after notice to them. The three persons set off from your district will therefore continue to be inhabitants oi the district until three months from the day on which one of the trustees had notice in writing of the alteration. Until the three months have fully expired, they are to be treated in all respect* as inhabitants of the district : their children are to be enume- rated in it, and they must pay their proportion of all taxes assess- ed on the district in the mean time. The tax voted on the last of December to build a school-house was, I suppose, assessed as required by law within one month ^. SUPERINTENDENT OP COMMON SCHOOLS. 213 after the vote taken ;" but the collector has thirty days from the delivery of the tax list and warrant to him to make the col- lection. If the tax list is made out according to law, and the three persons are included in it before the time when they will become inhabitants of the district to which they are set off, they are bound to pay the tax. All tax-lists are to include the name of every taxable inhabitant residing in the district at the time they are made out. This settles the whole question of liabi- lity. The Inspectors of common schools of the town of Otsego r ex parte. If the annual report of a school district includes pfttt of two years, it is a false report. The wages of a 1 teacher not qualified according to law maybe collected by a rate bill, but he cannot receive the public money. If trustees pay public money to a teacher not qualified, they may be prosecuted for the amount as for a balance in their hands; By JOHN A. Dix, February 23, 1835. The inquiries con- tained in your letter are given below at length, and the answers required of me annexed. 1st. A. B. and C., trustees of school district No. in the town of , employ D. to teach their school from November 1st, 1834, to April 1st, 1835. He teaches one or more weeks and presents himself to the inspectors for examination, obtains a certificate, and continues his school. The trustees in their re- turn state, " Our school has been taught five months by a quali- fied teacher." Is it a true or false return? Answer. It is unquestionably a false return, unless the dis- trict school was taught a sufficient time during the year 1834. previous to the inspection of the teacher referred to, by some other teacher qualified according to law. The annual report of the trustees must be dated on the first day of January of the year in which it is transmitted ; and it must specify the whole time any school has been kept in the district during the year ending on the day previous to the date of such report, distinguish- ing what portion of the time such school has been kept by quali- fied teachers. If, in the case stated by you, no school was kept during the year 1834 by a qualified teacher, excepting the one specified, the report is false in stating that a school has been taught five months by a qualified teacher, as it includes part of the year 1835, when it professes to be a report for the year 1834. 2nd. They pay the public money as far as it will go towards the wages of the teacher, and then assess the parents of the chil- dren for the remainder, as if the school had been taught the CASES DECIDED BY THE whole time by a qualified teacher. Is it legal or illegal? If il- legal, what is their liability? Answer. If the public money paid to him does not exceed the amount of his wages during the time he held a certificate, the payment is legal; and the balance of his wages may be collected of those who sent children to school. Suppose for in- stance, that a teacher is employed on the first day of January for three months at $15 per month, without a certificate of qual-i fication. He is inspected and receives a certificate on the lei day of March. At the end of his term, the last of March, the trustees may pay him $15, a sum equal to his wages for the month of March, during which time he held a certificate, out of the public moneys in their hands; but they cannot pay him more. The balance, $30, must be collected by a rate bill, in- cluding all persons who have sent children to school during any part of the term of three months, excepting such as may be exempted by the trustees on account of their inability to pay. Whether the teacher holds a certificate or not, the right of the trustees to collect his wages of those who have sent children to school is the same ;* but unless he does hold a certificate, they cannot pay him any portion of the public money. If they pay him his wages out of the public money during any period of time when he was not qualified, it is illegal, and they are liable to a prosecution as will be seen hereafter. 3J. Have the trustees a right to appropriate the public money to the payment of the wages of a teacher who has no certificate dated within a year: and if they have not and do it, how are iey to be made answerable? Answer. They have no right to pay public money to a teacher, who has not received a certificate of qualification from the in- spectors of common schools of the town within a year. If they do so, and make a report, on which the district will be entitled to receive its portion of the public money from the commission- ers of common schools, the report must necessarily be false, as it must set forth that all moneys, received during the year re- ported, have been applied to the payment of the compensation of a qualified teacher : and no teacher is qualified, unless he holds a certificate dated within one year from the inspectors of the town. Should such a report be made, the trustees signing it would forfeit the sum of twenty-five dollars, and be guilty of a misdemeanor by virtue of the provisions of section 96, page 485, 1 R. S. It has been supposed that trustees of school districts might be prosecuted under section 39, page 696, 2 R. S. for paying pub- lic money to a teacher not qualified according to law ; but al- though the act relating to common schools intends that the pub SUPERINTENDENT OF COMMON SCHOOLS. 215 lie morfeys shall not be paid to teachers who do not hold certifi- cates of qualification from the inspectors, the prohibition does not appear to be so clear and express as to be made the ground of a criminal prosecution. But I am decidedly of opinion that an action for money had and received by trustees of school districts against their predeces- sors will lie under section 102, page 486, 1 R. S. which gives successors the same remedies for the recovery of an unpaid ba- lance in the hands of a former trustee or his representatives, as are given to commissioners of common schools in such a case. See section 40, page 474, same volume. Although trustees of school districts are not prohibited in so many words from paying public money to a teacher not qualified, yet the intention of the law is clear. It is the duty of the trustees to pay the wages of ; ' teachers when qualified, out of the moneys which shall come into their hands from the commissioners," &c. by virtue of sub. 8, of sec. 75, page 481, 1 R. S. Under section 24, same vol. page 471, no moneys can be paid to a school district, unless during the previous year a school has been kept therein three months by a qualified teacher, and unless "all moneys received from the commissioners during that year, have been applied to the payment of the compensation of such teacher." The pay- ment of public moneys, as the school moneys received from the mmissioners are usually called, to a teacher not qualified, in- volves therefore a forfeiture to the district, in which such pay- ment is made, of its right to receive any public money the next year. Such payment by trustees I consider just as unauthoriz- ed and illegal as if it had been applied to the erection of a school- house or the purchase of fuel. It is not a payment in law, and a recovery may be had against them, as I have before stated, for the amount as an unpaid balance in their hands. This is my opinion on full consideration, and I think any court would so decide. The inhabitants of school district No. 12 in the town of Genoa, ex parte. If inspectors examine a teacher, and refuse to give him a certificate of qualifi- cation, the Superintendent will not interfere without very strong reasons. In this case a teacher was presented to the inspectors of com- mon schools of the town of Genoa for examination. The three inspectors of the town, and two of the commissioners, attended for the purpose. The teacher passed an examination in several branches, but declined answering any questions in grammar or geography. The inspectors therefore refused to grant him a cer- tificate of qualification. The inhabitants of the district being 216 CASES DECIDED BY THE desirous of continuing him in employment, and of pay4ng him the public money, applied to the Superintendent to know whe- ther he would review the decision of the inspectors. By JOHN A. l)ix, February 24, 1835. The statute has con- fided the power of examining teachers and granting them certi- ficates of qualification to the inspectors of common schools, and with the exercise of this power I could not with propriety inter- fere, excepting in a very strong case. It would be extremely difficult for me at a distance to ascertain whether the individual, who had been refused a certificate of qualification, ought to re- ceive it. I did, on a recent occasion, sustain the decision of the inspectors of common schools of the town of Petersburgh, in re- fusing to certify to the qualifications of a teacher. He appealed to me, and I dismissed his appeal on the evidence furnished by the appeal itself that he was not qualified.* But the case stated by you presents much greater difficulty.- I could take notice ot it on an appeal regularly presented, but I should hardly deem it proper to set aside the decision of the inspectors and pronounce the person referred to a qualified teacher, if he had been consider- ed deficient in a knowledge of any branch of instruction usually taught in the common schools, or if he had refused to be examin- ed in any such branch ; for his refusal could only be regarded as a tacit confession of his incompetency to sustain an examination. The Trustees of school district No* in, the town of Hoosick, ex parte. If a man removes from a district on the last day of December, his children are to be enumerated in the district into which he moves. A. B. removed on the 31st day of December, 1834, from one school district in the town of Hoosick into another district hi the same town. The removal was commenced and completed on that day. The question proposed was, in which district his chil- dren were to be enumerated. By JOHN A. Dix, February 26, 1835. The rule is settled that the children of a man removing on the last day of Decem- ber from one school district to another, are to be enumerated in the district into which he moves. The equity of the rule is this: the enumeration is made with a view to the apportionment of the money for the use of schools for the succeeding year, and it is proper that the money drawn upon the basis of that enumer- ation, should as far as possible, go to the district in which the children enumerated are to reside, and in which the money re- * See the case of A. G. H. against the inspectors of common schools of the town of Petersburgh, page 209 SUPERINTENDENT OF COMMON SCHOOLS. 217 ceived for their benefit is to be expended. I have, therefore, de- cided that if a man changes his residence at any time during the day on the 31st of December, his children shall be enumerat- ed in the district into which he moves. The Collector of school district N"o. II in the town of Farmington, ex parte. If a collector takes and sells property to pay a tax, and the owner refuses to re- ceive the excess, the collector must retain the amount in his hands. This was a case in which the collector of school district No. 1 1 in the town of Farmington had sold, under a warrant issued by the trustees for the collection of a tax to build a school-house, a wagon belonging to A. B., a taxable inhabitant of the district. The amount of A. B.'s tax was $7 . 98, and the wagon was sold for $20. On the ensuing day the collector tendered to A. B. the balance, amounting to $12.02, which he refused to take, and had continued so to refuse, although he had been repeatedly re- quested to receive it. Under these circumstances, the opinion of the Superintendent was asked as to the disposition to be made of it. By JOHN A. Dix, February 26-, 1835. Warrants for the collection of taxes for school district purposes, are to be exeeuted in the same manner as warrants issued by boards of supervisors to town collectors. There is no law directing what appropriation shall be made of money in the hands of a town collector arising from the sale of property, when the proceeds of the sale exceed the amount of the tax and the person to whom the property be- longed refuses to receive the excess. The statute directs such excess to be paid to the owner of the property, if no other person claims it. But if any other person claims it, it is to be paid to the supervisor of the town. If it is not so claimed, and the owner of the property refuses to accept, the excess aforesaid, the law makes no provision for the government of the collector. A tender of the money is sufficient to justify him in retaining it in his hands until it is demanded. If the demand should be made by the owner, you will be bound to pay it to him. In the mean time, you have nothing to ap- prehend. In six years from the time you last tendered payment his right to bring an action will expire by limitation. If he brings an action for the excess of the proceeds of the sale, you can pay it into court, and by pleading and proving a tender, he must pay costs. If he brings an action of trespass, you will stand on the same ground as you would if the money were not in your hands : the result will depend on the sufficiency of the 218 CASES DECIDED BY THE process, which is a question altogether distinct from the posses- sion of the money. The Trustees of joint school district No. 17 in the towns of Catharine and Catlin, ex parte. A tax must be for a specific object. A collector is not bound to take any particular article of property at the request of the owner ; but if he does so it will be an answer to the charge of taking an excesssive distress. At the annual meeting in joint school district No. 17 in the towns of Catharine and Catlin, a tax of twenty dollars was vot- ed to purchase fuel, one hundred and thirty dollars for enlarging the district school-house, and five dollars and fifty cents for reim- bursing the trustees for moneys expended by them. The ques- tion proposed was whether the tax was legal. By JOHN A. Dix, February 26, 1835. The proceedings of your annual meeting appear to be legal with a single exception. The notice for the meeting was sufficient ; but there is an item of five dollars and fifty cents to reimburse the trustees for a simi- lar amount expended by them over and above the amount of moneys belonging to the district, which came into their hands. The right of inhabitants of school districts to vote taxes is restrict- ed to certain specified objects, and it should always appear by the proceedings that the tax is intended for one of those objects. See sec. 61, common school act, and decision No. 15 of the Superin- tendent of Common Schools, heretofore published with the school laws.* The reimbursement of moneys expended by trustees over and above their receipts, is not among the enumerated objects for which a tax may be voted, although it is possible that the expenditure may have been made for some authorized purpose. For instance, if the amount of the excess had been paid by them' for fuel, the inhabitants might have voted a tax for fuel to cover it. But if it had been to pay the wages of a teacher, or for any object not specified in section 61, it could not be legally voted. The item of the tax in question seems to me objectionable now for want of that specific designation of the object in view, which is indispensable to show that the inhabitants have not exceeded their powers. If an appeal had been presented to me I might have prevented difficulty, but without an appeal I cannot in- terpose. If the case were to be brought before a court of law, I should apprehend that the proceedings would be set aside on the ground above stated. By reference to the case of Baker vs. * See the case of the trustees of school district No. 1 in the town of James- town, page 27. SUPERINTENDENT OF COMMON SCHOOLS. 219 Freeman, 9 Wendell 36, you will perceive the supreme court has, in effect, decided that if in voting a tax a sum is included for an object unauthorized by law, the whole proceeding is viti- ated and no part of the tax can be collected. The proceedings in your case may now be abandoned, a special meeting called and a tax voted anew. I see no other certain mode of avoiding litigation, which will be vexatious even if successful. A collector should aim to take property amply sufficient to sa- tisfy the tax to be paid, and no more. He is not bound to take the particular article of property offered by the person on whom the tax is assessed. For instance, if a canal boat is offered, he may decline it and take a cow or a dozen sheep ; but if he were to take arid sell, at the request of the owner, property worth ten times the amount of the tax, it would be an answer to the charge of making an excessive distress. Elihu Tilden and others, against the inhabitants of school district No. 27 in the town of Onondaga. If at a meeting called to fix the site of a school-house a reasonable time has not been given for all the inhabitants to assemble, a new meeting will be ordered. The facts of this case are stated in the Superintendent's or- der. By JOHN A. Dix, February 26, 1835. This is an appeal by certain inhabitants of school district No. 27 in the town of On- ondaga, from the proceedings of a special meeting held on he 5th of February instant, at which the site of the school-house was fixed. It is alleged by the appellants that the site has been fixed at an inconvenient place, and that several of the inhabitants of the district were deprived of the opportunity of voting by the refusal of those who were assembled at the hour appointed for the meet- ing to wait a short time for others, who were expected, before they proceeded to business. In the answer to the appeal it is alleged that there was a majority of the inhabitants residing in the dis- trict present at the time the site was fixed ; but the allegation with regard to the refusal of those present to wait for others who wish- ed to have an opportunity of voting, is not negatived by the re- spondents. There is no matter more deeply affecting the interests of a school district than the act of fixing a site for the school-house. So long as a district remains unaltered the site cannot be chang- ed, when the school-house has been built or purchased, but upon conditions, which almost always interpose an insuperable obsta- cle to such change. It is of the utmost importance, therefore, that the wishes of all the inhabitants should be clearly ascertained, 220 CASES DECIDED BY TttE TF*^ and that every opportunity which can be desired should be afford- ed for comparing their views. Deliberation, and a full and fair expression of opinion should be secured before a decision, which it is extremely difficult to reverse,. is pronounced. Under the circumstances of the case, and under the influence of the considerations above mentioned, the Superintendent is of opinion that the matter in dispute should again be presented for the determination of the inhabitants. It is, therefore, ordered, that the proceedings of the meeting aforesaid, held on the 5th instant, be and they are hereby set aside. And it is further ordered, that the trustees of school dis trict No. 27 proceed forthwith to call a special meeting of the inhabitants for the purpose of fixing a site for a school- house, specifying in the notice the object of the meeting, and that it is called by the direction of the Superintendent of Common Schools. The inhabitants of school district No 2 in the town of Stamfordy. and of joint district No. 12 in Stam- ford and Harpersfield, against the Commissioners of Common Schools of said towns. School districts should not be formed with less than forty children between five and sixteen years of age. The facts of this case are stated in the Superintendent's or- der. By JOHN A. Dix, February 27, 1835. THe Superintendent of common schools has carefully examined the appeal of certain inhabitants of school district No. 2 in Stamford, and of school district No. 12 lying partly in said town and partly in the town of Harpersfield ; and also the answer of the commissioners of common schools of said towns, and the papers submitted by the inhabitants of a new school district formed out of the two dis- tricts before mentioned and No. 4 in Stamford, said appeal hav ing been brought from the proceedings of the commissioners in forming the new district aforesaid. The Superintendent is well aware that the commissioners have acted in this case with a sincere desire to promote the inte- rest of all concerned and to advance the cause of education ; and he regrets that he is compelled from regard to principles, which can rarely be departed from with safety, to set aside their pro- ceedings. The commissioners have not perhaps had so frequent occasion as the Superintendent to remark, that almost all the ex- isting evils of the common school system have their origin in the limited means of the school districts. The tendency is to sub- NDENT OF COMMON SCHOOLS division and to a contraction of their territorial boundaries. This consequence must follow in some degree from the increase of po- pulation; but the subdivision of school districts tends to advance in a much greater ratio. The average number of children in our school districts is about fifty-five. No school district should number less than forty children between five and sixteen years of age. From the observations he has made the Superintendent deems it due to the common school system, that no new district shall be formed with a much smaller number, unless peculiar circumstances render it proper to make it an exception to the ge- neral rule. In feeble districts cheap instructors, poor and ill fur- nished school-houses, and a general languor of the cause of edu- cation, are almost certain to be found. In the case under consideration a district is formed with a tax- able property of about eight thousand dollars, and children va- riously stated from twenty-two to thirty in number. One of the districts, (No. 12,) out of which the new distiict is formed, is re- duced from 53 children between 5 and 16 years of age to 38; and district No. 2 is reduced from 40 to 33. District No. 4 is not injuriously affected by the alteration. But the Superinten- dent does not perceive that he can, consistently with the rule al- ready suggested, sanction the formation of a new district unless the accommodation of the inhabitants renders it indipensable, when the consequence is to reduce two existing districts below the pro- per standard, and create another which, both in point of property and children, is also far below the average ability of the school districts throughout the state. There is nothing in the local situ- ation of the territory taken to form the new district which ren- ders the creation of another district necessary. The school-houses in the adjacent districts are near, and, with the exception of dis- trict No. 4, the schools cannot be so crowded as to be inconvenient. The number of scholars reported as having received instruction during the year 1834 in district No. 2 is 62, and in district No. 12 the number reported is 59; but it by no means follows that the whole number in either case was receiving instruction at the same time. The whole number of scholars reported in the new district is but 32, whereas the number of children between 5 and 16 years of age is somewhat less. The erection of.*. school-bouse by a part of the inhabitants of a district at their own expense ought not to be allowed to in- fluence the commissioners in forming them into a new district. Should such a rule be adopted, a few persons would always have it, hi their power to break up the district. The only questions are whether the parties interested are so inconviently situated as to need a separate organization, and whether they can be so or- 222 CASES DECIDED BY THE ganized without doing injustice toothers and prejudicing the in- terests of education. The Superintendent regrets that he is constrained to differ in opinion with the commissioners of common schools; but after full consideration he deems it his duty to set aside their proceed- ings. It is therefore ordered, that the new district, formed as afore- said out of districts No. 2, 4 and 12, be, and it is hereby annulled. The Trustees of school district No. in the town of Huntington, ex parte.. Trustees cannot levy a tax without a vote of the district. Trustees being authorized by a vote of the district to do any act involving an ex- penditure of money, must be indemnified by the district. In this case a vote was passed at a district meeting to take down the school-house and put it up at a different place, the site having been legally changed. No tax was voted to pay the ex- pense of removal. After the house was removed, the inhabitants of the district refused to vote a tax to cover the expenditures of the trustees. The question proposed was whether the trustees could levy the necessary sum for the purpose, without a vote of the inhabitants, and if not, what was the proper remedy. By JOHN A. Dix, March 5, 1835. The trustees of a dis- trict have no right to make out a tax list and levy a tax, unless the inhabitants vote a specific sum so to be levied. The com- munication heretofore made by me on this subject presumed that such a tax would be voted by the inhabitants; and I said, that in case of their refusal to vote it, I should consider it my duty to direct to be levied on the property of the district a sum sufficient to cover any expenditures which may have been incurred in pursuance of a vote of the inhabitants to remove or repair the house. If trustees undertake to remove a school-house, buy a lot for a site, or do any other act which they are not by law au- thorized to do without a vote of the inhabitants of the district, it is at their own peril. The inhabitants may ratify their pro- ceedings by a subsequent vote ; but if they do not choose to do so, the trustees are without remedy. I have, however, uniform- ly directed, where the inhabitants of a school district have, by a vote to that effect, authorized their trustees to go on and make repairs, or do any other lawful acts involving an expenditure of money, that the districts should save the trustees harmless, if the latter have acted in good faith. The inhabitants may al- ways limit an expenditure in contemplation by voting a specific sum for the purpose: they should always do so; but if they neglect it, and give a general direction to the trustees to go on SUPERINTENDENT OF COMMON SCHOOLS. 223 and make repairs, or do any other act authorized by law, with- out limiting the amount to be expended, I shall always deem it my duty, in case the inhabitants refuse, after the work is done, to vote an amount sufficient to cover the expenditure, to direct such amount to be levied, on receiving proof that it is no more than has been reasonably expended.* But the trustees cannot, without a vote of the district, or without an order from the Su- perintendent, levy a tax on a district, excepting in the special manner provided by law in case of a division of a school district, where the property of the district is to be divided, and has for that purpose been appraised by the commissioners of common schools. The Trustees of school district No. in the town of Patterson, ex parte. If the clerk gives a verbal notice for a special meeting to part of the inhabitants and a written notice to the residue, the proceedings are not void, but may be set aside on showing cause. Iii this case the clerk of school district No. in the town of Patterson, commenced giving verbal notices for a district meet- ing, but after having notified a few persons he served a written notice on the residue of the inhabitants of the district, as requir- ed by law. The question submitted was whether the proceed- ings of the meeting held in pursuance of such a notice were le- gal? By JOHN A. Dix, March 6, 1835. If the clerk of a school district warns a few of the inhabitants verbally to attend a meet- ing and afterwards notifies the residue by a written notice as re- quired by law, the proceedings may not be void, but may be set aside on showing cause. 1 have always held that the inhabi- tants of a school district, coming together without any attempt on the part of the clerk or trustees to give a legal notice, could not act; their proceedings would be void, as they would not be legally assembled. But if some of the inhabitants have been notified as required by law, and the notice is defective as to the others, the proceedings are not void, but voidable on showing sufficient cause to the Superintendent. It may be in the case referred to by you that the persons who received a verbal notice were present at the meeting. If so, I would not allow them to object to the insufficiency of the notice. It may be that they were all present but one or two: in this case I should not disturb the proceedings, unless the omission to give the proper notice was wilful and fraudulent. There are many circumstances to be * See the case of the trustees of school district No. 30 in the town of Johns- town, against the inhabitants of said town, page 161. 224 CASES DECIDED BY THE taken into consideration in such cases, in coming to a decision : and, therefore, it is impossible to give to the general proposition contained in your letter an answer which would be applicable to every case. The clerk should undoubtedly, when he received the written order referred to, have retraced his steps and given every voter a written notice, by reading it to him or leaving a copy ; and yet the reasons in favor of setting aside the proceedings may not be strong enough to justify such a measure. The Trustees of school district No. 7 in the town of Philadelphia, ex parte. A minister of the gospel, being a freeholder, may rote at school district meetings. The following question was proposed for the Superintendent's opinion: Has a minister of the gospel, residing in a school district and owning property therein, but not to the amount for which min- isters of the gospel are exempt by law from taxation, a right to vote at a meeting of the inhabitants of the district? By JOHN A. Dix, March 6, 1835. A minister of the gospel if he is "a freeholder in the town," although his freehold may not be equal in value to the amount exempt from taxation, may vote at the meetings of the school district in which he resides. But if he is not a "freeholder in the town," and if his property is all personal, he cannot vote, for his personal property being wholly exempt from taxation under the general provision rela live to the assessment of taxes, is not " liable to taxation in the district ;" nor is he liable to be assessed to work on the highway, as there is a special exemption in his favor. See 1 R. S. sec. 24, page 506. If he has been assessed to pay taxes in the town dur- ing the present or the preceding year, he may voie ; but I infer from your inquiry that he is not liable to taxation at all. The whole question, therefore, turns on his being " a free- holder in the town." If he is, he can vote ; if nol, he cannot vote without incurring a penalty of ten dollars. The Commissioners of Common Schools of the town of Georgetown, ex parte. If one district is united to another, the public money belonging to either must be applied for the common benefit of all. In consequence of a dispute as to the boundaries of school dis- tricts No. 2 and 8 in the town of Georgetown, a small balance of the public moneys distributed in April, 1834, was retained by the commissioners of common schools. Near the close of the SUPERINTENDENT OF COMMON SCHOOLS. 225 year 1834, district No. 2 was annexed to No. 8, and after their union the balance so retained was adjudged to belong to the former. The question proposed was whether it could be applied exclusively for the benefit of the individuals formerly belonging to that district, or whether the whole united district should par- ticipate in its application. By JOHN A. Dix, March 9, 1835. The propriety of paying over to the trustees of late district No. 2 the small balance of public money in your hands which was appropriated to that dis- trict, must, it seems to me, depend on a single circumstance. The district is now united to another. If the money is paid to the trustees of late district No. 2, have they authority to make a lawful disposition of it? Certainly not, unless they are bound, as former trustees of the district, to pay the wages of a qualified teacher, under a contract which has been fulfilled on his part. If they employed a teacher, and he is entitled to a balance for teaching, and has received a certificate from the inspectors in the town, then the public money ought to be paid to the trustees for the discharge of that balance, as far as it will go. But if there is no such balance due, the money should be paid to the trustees of district No. 8, and appropriated to the benefit of the whole district. There is no law by which the moneys derived from the common school fund can be applied to the benefit of a part of a school district, and it is only as an independent district that the inhabitants of No. 2 could be exclusively benefited by the money. From the moment, therefore, that they were united to another district the public money belonging to No. 2 became ap- plicable to the benefit of the united district, to be expended as the law directs, unless there was a balance due a qualified teach- er in No. 2. In that case the inhabitants of No, 2 might be ex- clusively benefited by the application of the balance in your hands to the discharge of the debt. Francis Clarke, against the Trustees of joint school district No. 12 in the towns of Shelby and Ridge- way. Trustees, in making out a tax list, are bound to know who are and who are not taxable inhabitants of the district. The lastassessment roll of .the town is the proper guide to trustees in making out a tax list as to the valuation of property, but not as to ownership. The appellant was an inhabitant of that part of joint school district No. 12 in the towns of Shelby arid Ridgeway which was included within the boundaries of the latter town. On the 1st of September, 1834. he disposed of his stock in trade, and remov- ed with his family, on the 19th of October ensuing, to the city 15 226 CASES DECIDED BY THE of New- York, with the intention of making it his place of resi- dence. On the 16th of December he returned to Ridgeway to clo 'e his unsettled business, and remained there nine days, and he again returned to Ridgeway in February for a few days. On the 27th of January a tax was laid in district No. 12 to build a school-house, and he was included in the tax list as an inhabitant of the district. The questions proposed were, whe- ther he could be taxed as such on his personal property, and whether he could be taxed for several lots of land in the district, which he had sold since the last assessment roll of the town was made out ? By JOHN A. Dix, March 10, 1835. This is a case submit- ted by Francis Clarke and the trustees of joint district No. 12 in the towns of Shelby and Ridgeway, in relation to the assessment of the former to pay a tax for building a school-house in said district. The statement contained in the affidavit of Francis Clarke, which affidavit is referred to in the statement signed by him and the trustees, and is not disputed by the latter, is conclusive as to the fact that he was not, at the time the tax list was made out, a resident of the district. So far, therefore, as the assessment of his personal property is concerned, he was not lawfully in- eluded in the tax list, which could only embrace " the taxable inhabitants residing in the district at the time of making out the list." He might be included in it as a non-resident owner of property, and was therefore justly taxable for all the cleared and cultivated lots of which he was the owner at the time the tax list was made out. The trustees were bound to know who were and who were not taxable inhabitants of the district, and they were also bound to know who were and who were not owners of property within the district. The last assessment roll of the town was their pro- per guide only as to the valuation of the property, and not as to the ownership. Mr. Clarke swears that he was at the time the tax was made out the owner of lots No. 15, 16 and 83 only, and that the valuation of said lots, according to the last assessment roll of the town, was $1500. On those lots aa exemption is not claimed. It is hereby decided, that Mr. Clarke be released from the tax on all his personal property, and that he be taxed on $1500, the value of the real estate possessed by him at the time the tax list was made out. The circumstances connected with the removal of Mr. Clarke were such that a difference of opinion with regard to his residence might weir be entertained, and as the trustees have acted in good faith, it is further ordered that they be, and they are hereby authorized to assess upon the owners of SUPERINTENDENT OF COMMON SCHOOLS. 227 lots No. 25, 33, 42, 77, 272, 274 and 275, so much of Mr. Clarke's tax as was assessed to him on account of those lots, and to reassess the deficiency upon the whole taxable property of the district* The Clerk of school district No. 23 in the town of Orleans, ex parte. If an alteration is made in a school-district, without the consent of the trustees, and without the knowledge of the parties interested, an appeal to the Super- intendent will be allowed after three months. In this case it was alleged that the commissioners of com- mon schools had made an alteration in school district No. 23, and given a notice to one of the trustees, who was desirous that the alteration should take place, and who concealed his know- ledge of it from his associate trustees and from the parties im- mediately interested, until after the expiration of three months. By JOHN A. Dix, March 12, 1835. The question submit- ted to me is, whether an appeal will be allowed where a new district has been formed by the commissioners of common schools, and a notice in writing read to one of the trustees of a district, from which such new district has been partly taken, and the trustee, to whom the notice was so read, refused or neglected to give notice to the other trustees of the district until after the expiration of three months, and neither the inhabitants, nor the two trustees last referred to, had any knowledge that such al- teration was contemplated. In such a case I should certainly allow an appeal. The par- ties interested should be apprized of the proposed alteration ; and if notice has not been given, or if the person to whom it is giv- en, has intentionally withheld it from others, who would have availed themselves of it to resist the measure in contemplation, * In the case of Easton and others vs. Calendar, 11 Wendell 90, the Supreme Court held that the trustees of a school district were not answerable as trespassers in omitting to insert the names of all the taxable inhabitants in a tax list, the omis- sion being an error in judgment, and there being no evidence of bad faith. The court also said, " The plaintiff below was not without his remedy, 1 R. S. 487, 110, 111, and the amendment of the law, 26tfi April, 1836, provides that any person conceiving himself aggrieved in consequence of any decision made by the trustees of any district, in paying any teacher, or concerning any other matter, under the present title, (which includes the whole of the school act,) may ap- peal to the Superintendent of Common Schools, whose decision shall be final. This provision was intended for what it practically is, a cheap and expeditious mode of settling most, if not all of the difficulties and disputes arising in the course of the execution of the law. A common law certiorari would no doubt lie from this court, to the trustees to bring up and correct any erroneous pro- ceeding not concluded by an adjudication of the Superintendent, or in a case where his powers were inadequate to gire the relief to which the party was en- titled.** 228 CASES DECIDED BY THE and the latter have no knowledge of it, I should deem it due to every consideration of equity to allow the parties aggrieved to come in and show cause why the proceeding complained of should be set aside. (ANONYMOUS.) A tax cannot be voted to buy a record book for a school district. (But see note.) In voting a tax to purchase a site, a sufficient sum maybe included to pay for recording the deed. By JOHN A. Dix, March IS, 1835. No authority is given by the statute to the inhabitants of a school district to vote a tax to buy a record book for the use of the district.* The intention was that such a book should be provided, but it was not includ- ed in the enumeration of the objects for which a tax may be voted. When a tax is voted to purchase a site for a school-house, a sufficient sum may be included in it to pay for recording the deed : for this is necessary to perfect the title, and it is, therefore a part of the expense of procuring the site. The Commissioners of Common Schools of the town of Norwich, ex parte. The funds arising from the gospel and school lots belonging to the twenty town- ships on the Unadilla river are to be applied exclusively to the benefit of the inhabitants of such townships. rs'one but inhabitants of the township can participate in the election of a town agent, or in directing the application to be made of the funds arising from thr gospel and school lots. In this case the direction of the Superintendent was requested as to the proper couise to be pursued, the inhabitants of township No. 15, one of the twenty townships on the Unadilla river, and constituting part of the town of Norwich, having failed to elect an agent for said township, in the manner required by law. ilc was also desired to state in what manner the proceeds of tho funds arising from the gospel and school lots were to be applied. By JOHN A. Dix, March 26, 1835. The gospel and school lots belonging to the twenty townships on the Unadilla river, were set apart for the benefit of the inhabitants of those town- >!iip.=. The act of 13th April, 1819, Laws of N. Y. 42d ses- sion, chapter 224, makes a special provision for the manage- ment and appropriation of the funds derived from the lots be- * By an act passed the 22d April, 1837, the inhabitants of school districts are authorized to vote a tax for the purpose of purchasing a book to record their proceedings. This provision was made to remedy the defect in the law, to which the above decision refers. SUPERINTENDENT OF COMMON SCHOOLS. 229 longing to the 1 Oth and 15th townships. This act was not re- vised ; see page 655, 3 R. S. but continues in full force. By the fourth section of the act the interest arising from the moneys de- rived from the sale of lots belonging to either of the townships- is to be applied to the support of common schools " in such man- ner as the inhabitants of such township" or a majority of them shall direct The second and third sections of the act, direct the manner of proceeding in the appointment of a town agent. The in- habitants of the 10th township are required to meet annually (until the township shall be erected into a separate town) on the rirst Tuesday of June, and elect an agent for said township. There is no authority to proceed in any other manner, nor would any proceedings in contravention of these provisions have any validity whatever. The 4th title of chap. 15, part 1, R. S. has no application to this case. By the note of the Revisers at the bottom of page 499, 1 R. S. it appears that this title was compiled from laws which had no reference to the townships in question, as may be seen by an examination of those laws. It, will, therefore, be the duty of the inhabitants of the 10th town- ship to meet on the 1st Tuesday of June next, elect an agent, and vote what disposition shall be made of the interest arising from the sale of lots belonging to said township. The inhabitants of the 15th township should have met on the day of the annual town meeting for the town of Norwich, separate and apart from the other inhabitants of that town, elected an agent, and voted what application should be made of the interest arising from the sale of the lots belonging to the 15th township. If they have not done so, I see no alter- native but for the agent elected last year to hold over and apply the moneys, which may come into his hands, as he did last year. The directions of the inhabitants as to the application of the moneys, whenever those directions are given in the manner specified in the act of 13th April, 1819, are binding and must be carried into effect. But none but the inhabitants of the town- ship (not the inhabitants of the town of which the township is a part) can participate in the proceedings. The Trustees of a separate neighborhood in the town of Southport, ex parte. Children residing in other states when attending schools in separate neighbor- hoods within this state cannot share the public moneys. In this case children from the state of Pennsylvania had at- tended school in a separate neighborhood in the state of New- York, and the question proposed was whether the children so 230 CASES DECIDED BY THE attending school could share the public moneys derived from the New-York school fund. By JOHN A. Dix, March 31 r 1835. Children residing in other states and admitted to schools within this state cannot par- ticipate in the distribution of the school moneys. Subdivision 2, of section 20 ? page 470, 1 R. S. authorizes the establishment of separate neighbourhoods where it is convenient to unite with the inhabitants of an adjoining state for the support of a school : But by the 25th section of the same title, the public moneys are required to be faithfully applied for the instruction of children residing in such neighbourhood. These provisions are so clear in their language that no doubt can exist as to their intention. (ANONYMOUS.) Trustees, guardians, executors and administrators, are taxable in their represen- tative character where they reside for personal property in their possession, whether the real parties in interest are benefited by the expenditure of the tax or not. By JOHN A. Dix, April 2, 1835. Trustees, guardians, exe- cutors and administrators, are taxable for all personal estate in their possession, or under their control, in the town or ward where they reside. See 1 R. S. p. 389, sec. 5. I have decided that the same principle applies to school districts.* The personal proper- ty so possessed or controlled is taxable in the district in which the trustee, guardian, executor or administrator resides. Under sec- tion 10, same vol. page 391, a deduction is to be made by the assessors for debts due from the individual assessed in his repre- sentative character. The debts referred to in the section last mentioned, aie such as are specified in section 27, 2 R. S. page 87. The question whether the real owners of the property are di- rectly benefited by the expenditure of the tax assessed upon it, does not appear to have been one of the considerations in view of the provisions referred to, for it is manifest that the personal property in the hands of a trustee, guardian, &c., in Buffalo. is liable to be taxed there, although the real parties in interest may live in Albany. After the administration of an estate in the hands of an exe- cutor or administrator, upon the rendition and settlement of a final account of his proceedings, the personal property is, of course, not liable to taxation where he resides ; but so long as it is in his possession or under his control, it is so liable as before mentioned. In this case a reduction may be claimed from the last * See the case of the trustees of school district No. 8 in the town of Rensse- laerville, page 167. SUPERINTENDENT OF COMMON SCHOOLS. 231 assessment roll of the town under the provisions of section 79, page 482, 1 R. S. The Commissioners of Common Schools of the town of Windham, ex parte. A minister of the gospel cannot be an inspector of common schools. At the annual town meeting in the town of Windham in the year 1835, three clergymen were elected inspectors of common schools. The Superintendent was requested to state whether they were elegible to the office to which they had been elected, and whether the town would in that case forfeit its right to a share of the public money. By JOHN A. Dix, April 13, 1835. By the constitution of this state, art. 7, sec. 4, no minister of the gospel or priest of any denomination whatsoever, is capable of holding " any civil or military office or place within this state." This exclusion clearly extends to town officers : they are public officers with au- thority by law to execute certain civil functions. An inspector of common schools is a town officer, and the in- habitants of your town having appointed to that office persons not eligible, the case occurs in which three justices of the peace may appoint. Jf, however, these persons have entered on the duties of their office their acts are, under the decisions of the su- preme court of this state, valid, so far as the public and third persons are concerned. Thus, if they have examined teach- ers and given certificates of qualification, the certificates are good, so as to justify the trustees of school districts in paying the pub- lic money to teachers holding them. The right of your town to receive the public money cannot be affected in any manner by the fact that they have been improperly elected.* * In the case of Wilcox vs. Smith, 5 Wendell 231, the supreme court held, that " an individual coming into office by color of an election or appointment, is an officer dv facto, and his acts in relation to the public or third persons, are va- lid until he is removed, although it be conceded that his election or appointment was illegal." So in a case in Massachusetts, referred to by the court in the above mention- ed case, the acts of a sheriff de facto were held valid as to third persons, though his appointment was subsequently declared to have been made " without con- stitutional and legal authority." 232 CASES DECIDED BY THE The Trustees of school district No. in the town of Burlington, ex parte. Mode of paying the public money to a teacher in a special case explained. The number of children attending school during the year, must be ascertained from the teacher's lists. This was an application for the direction of the Superinten- dent in certain cases, the nature of which will appear by his an- swer. By JOHN A. Dix, April 16, 1835. I endeavored in my communication to the inspectors of common schools of the town of Otsego. who addressed some inquiries to me,* to be so expli- cit with regard to the application of the public money to the payment of teachers' wages, that no misapprehension should ex ist in relation to it. This letter you say you have seen, but as you do not consider it as meeting your inquiries, I proceed to an- swer them. The public money must be wholly expended for services refi- dered during the year in. which it is received. Suppose a teacher is engaged in November and teaches from the 1st of December to the end of February, three months. Out of the school mo- neys received in April ensuing he may be paid two months Ava- ges r and the balance must be assessed on those who sent chil- dren to school during any part of the three months. Although he is to be paid for the services rendered in January and Febru- ary out of the public money, his wages for December must not be assessed exclusively on those who sent children to school dur- ing the month of December. This would be unequal and un- just. He can receive only two months' wages out of the public money, because he only taught two months during the year in which it was received ; but the money being paid to him the ba- lance must be considered as spread over the whole term of three months, and paid by those who sent children to school during any part of it. If the teacher should leave the school on the let of January, after teaching through the month of December, and an- other should be employed in his place to teach through his term, the same course can be pursued and the three months may be regarded as a single term. The money being provided as before stated, their respective dues would be paid out of the amount so provided. But if it becomes indispensable to settle with the first teacher when he leaves the school, the necessity of the case will require that he be paid by a rate bill made out against those who sent their children to school, unless the trustees have in their See the case of the inspectors of common schools of the town of Otsego, page 213. SUPERINTENDENT OF COMMON SCHOOLS. 233 hands public moneys received during the preceding year to be expended for services rendered in that year. Teachers must keep a list containing the name of every child attending school during each term. The trustees should take these lists at the end of each term, or obtain and preserve copies of them, and at the end of the year the exact number of chil- dren who have attended school may be obtained by correcting the lists, so that no name shall occur more than once. There is no other mode of attaining a tolerable degree of accuracy in enumerating children who are sent to school. The inhabitants of joint school district No. 2 in the towns of Unadilla and Sydney, ex parte. . Money cannot be raised by tax in a school district for contingent uses. If part of the inhabitants of a district separate from the rest, and build a private school-house, it will not be deemed a reason for organizing them into a sepa- rate district. In this case a portion of the inhabitants of joint school district No. 2 in the towns of Unadilla and Sydney, without applying to the commissioners of common schools of those towns built a school-house in one corner of the district, and set up a private school. Having done so, they applied to the commissioners of common schools to be set off as a separate district, and the appli- cation was refused. The applicants then applied to the Super- intendent to know whether, under the circumstances, he would not direct a new district to be formed. The Superintendent was also requested to state whether in his opinion a tax of ten dollars could be raised for repairs in district No. 2,. when it was admit- ted that only five dollars were required for the purpose. By JOHN A. Dix, April 17, 1835. No tax should be raised in a school district unless it is absolutely necessary for a specific object. It is wholly irregular and unauthorized to raise moneys upon the taxable property of a district and keep them on hand for contingent uses. If five dollars are wanted for repairs, it is altogether wrong to raise ten dollars on the alleged ground that the balance may be wanted at a future day. The inhabitants of school districts are not restricted in the amount which they may raise for repairing a school-house, but they ought not to vote a larger sum than is required for the immediate purpose in view. I have always refused, excepting for the strongest reasons, to direct the formation of a school district on an appeal from the refusal of the commissioners of common schools, where a por- tion of the inhabitants of an established district separate them- selves from it and build a private school-house for themselves, without any previous attempt to procure a separate organization. 234 CASES DECIDED BY THE The fact that they have built a school-house at their own ex- pense cannot be allowed to have any weight in such a case. The commissioners of common schools of the towns of Unadilla and Sydney might have erected a new district if application had been made to them. But it will be perceived at once that if a portion of the inhabitants of a district, without applying to the commissioners as the law provides, set up for themselves, and thus disregard the provisions of the law, the example cannot be otherwise than pernicious, and may lead to the disorganization of any district in the state. I shall deem it rny duty, therefore, to discountenance all proceedings of this sort. If a portion of the inhabitants of a district require a separate otganization, let them apply to the commissioners. If the commissioners deny the application, let them appeal to the Superintendent, who will do them justice. But if they disregard the authority of both in the first instance, they must not deem it unjust if their applica- tion at a subsequent time is refused. The application will not be denied if it is manifestly proper to grant it; but, as I have already said, the fact that a school-house has been built will have no influence in favor of it. The Commissioners of Common Schools of the town of Worcester, ex parte. If a commissioner of common schools absconds with school moneys in his hands, it is a loss to the town. A commissioner who has signed a receipt for schooljnoneys, in conjunction with his colleagues, is not answerable unless the moneys actually come into his hands. was an application to the Superintendent for his opinion in a case the facts of which appear by his answer. By JOHN A. Dix, April 20, 1835. Jonas Chapman, Seneca Bigelow and Abraham Becker were appointed commissioners of common schools of the town of Worcester in March, 1834. In March, 1835, Jonas Chapman, Abraham Becker and Joshua K. Champion were elected to the same office. Before the town meeting in March, 1835, Jonas Chapman obtained from the collector of the town the amount raised on the town for common school purposes in the year 1834, being $109.15, and gave the collector a receipt signed by himself and Seneca Bigelow. The sum before mentioned as received by Chapman remained in his hands until about the 1st of April instant, when he ab- sconded without paying over any part of it to his associates ; and no part of it has at any time been in the hands of either of the other commissioners. The equal sum of $109 . 15, derived from the common school SUPERINTENDENT OF COMMON SCHOOLS. 235 fund, has been received from the county treasurer, and appor- tioned according to law by the commissioners. The question now occurs, whether the town or the commis- sioners must sustain the loss occasioned by the absconding of Chapman ? I take it for granted that the payment to Chapman was made by the town collector under the warrant of the supervisors, pur- suant to the provisions of sec. 18, page 469, 1 R. S. If so, the loss must fall on the town. The commissioners are severally responsible only for such portion of the public moneys as actu- ally come into the hands of each. The fact that Bigelow sign- ed a receipt in conjunction with Chapman is of no consequence It is competent for Bigelow to show that none of the moneys neys thus receipted for came into his hands. The Trustees of school district No. 12 in the town of Glen, ex parte. A fence is a necessary appendage to a school-house. This was an application to the Superintendent for his opinion in a case in which a tax had been voted to build a fence around the district school-house and lot. By JOHN A. Dix, April 23, 1835. I have received your letter inquiring whether a necessary, wood-house and fence are to be deemed appendages of a school-house, so as to bring them within the enumeration of objects for which the inhabitants of school districts are authorized to lay a tax on the taxable inha- bitants of such districts. My predecessor decided several years ago that a wood-house and necessary were appendages to a school-house within the meaning of the statute; and in my opinion a fence around the school-house lot may with equal pro- priety be so considered. The legislature has given the inhabi- tants of a school district power to purchase a site for a school- house, and to expend four hundred dollars on the house, and certainly a fence may be justly regarded as a necessary appen- dage for the purpose of enclosing and securing the lot and build- ings from depredation. You may proceed and collect the tax laid for this purpose. The Trustees of school district No. in the town of Lansing, ex parte. A certificate from the inspectors of common schools that the candidate gave them good satisfaction in particular branches, is not a legal certificate of quali- fication for a teacher. The inspectors of common schools in the town of Lansing gave a teacher a certificate in the following words: 236 CASES DECIDED BY THE "Having examined A. B. with a view to his obtaining a cer- tificate to teach a common school in this town, we do certify that said A. B. gave us good satisfaction in reading, writing, arith- metic, accent, cadence, emphasis and orthography, and we be- lieve him to be a man of good moral character." The question proposed was whether this was a sufficient cer- tificate of qualification. By JOHN A. Dix, April 25, 1835. A certificate of qualifi- cation for a teacher must be in the form " prescribed by the Su- perintendent of Common Schools." See the statute entitled " Of Common Schools," sec. 47. The Superintendent has prescribed the form, see page 43, pamphlet edition of the common school laws, published by the Superintendent in 1831. (See appendix.) The inspectors are wrong in giving a certificate in any other form, as it is not a compliance with the statute, and may mislead those who do not examine the subject with scrutiny. A certificate, therefore, setting forth that A. B. gave the inspectors good satis- faction in particular branches, and that his moral character w good, does not conform to the law, and it should not have been given by the inspectors. The law authorizes them to give a certificate in a certain event, and then it must be in the form specified. If they are satisfied as to the qualifications of the tea- cher, in respect to moral character, learning and ability, they are bound to give him such a certificate as the Superintendent shall have prescribed. If they are not satisfied, they should give him no certificate. They are wholly without authority to take a middle course by giving a qualified certificate.* The Trustees of school district No. 1 in the town of Cohocton, exparte. If the annual repoit of a school district is lost and the district does not receive the public money, application must be made to the Superintendent of Com- mon Schools to have the deficiency supplied out of the moneys to be distri- buted the next year. The trustees of school district No. 1 in the town of Cohocton prepared their annual report for the year 1834, in February, 1835, and handed it to A. B. one of their neighbors, who pro- mised to deliver it to the town clerk. A. B. handed it to another neighbor, who made a similar promise, and the report was lost before it reached its destination. The commissioners of common schools not having received it, did not include the district in the apportionment of the public moneys. The Superintendent was * See a case decided by A. C. Flagg, Dec. 16, 1827, page 24; also the case of the trustees of school district No. 4 in the town of Lenox, page 76, and a deci- sion dated December 26, 1834, page 199. SUPERINTENDENT OF COMMON SCHOOLS. 237 deaired to state in what manner the loss could be made up to the district. By JOHN A. Drx, May 1, 1835. Your annual report fail- ed to reach its destination through your own negligence. You should have handed it to the town clerk yourselves, or have as- certained, before the time appointed for the annual apportion- ment, that it had reached him. There is no remedy for the neglect on your part but to allow the district, out of next year's moneys, the sum it has lost. This can only be done by order of the Superintendent of Common Schools, on an application setting forth all the facts of the case, under oath. Copies of the affidavits must be served on the com- missioners, with notice of the time when the application will be made. A copy of the last annual report must also be sent to the Superintendent, or in default thereof an affidavit setting forth all the facts necessary to entitle the district to participate in the distribution of the public moneys. When the whole case is presented, it will be considered whether, under all the circumstances the district should not be allowed, out of the moneys to be apportioned next year, the sum it would have received this year if the report had been delivered to the proper person, so as to secure the equitable rights of the inhabi- tants from the consequences of the neglect of the officers of the district. The Trustees of school district No. 4 in the town of Massena, against the Commissioners of Common Schools of said town. Whea a new district is formed and goes into operation before the apportionment of school moneys is made it must receive its share of those moneys. The facts of this case are stated in the Superintendent's order. By JOHN A. Dix, May 4, 1835. On the fifth day of March last a division of school district No. 4 in the town of Massena, went into effect. By this division a new district was created and called district No. 15. On the 7th day of April the com- missioners of common schools of the town of Massena appor- tioned to district No. 15 so much of the public money allotted to the two districts according to the annual report of district No. 4 as the first mentioned district appeared to be entitled to, according to the number of children between 5 and 16 years of age residing in it. From this apportionment the trustees of district No. 4 appealed. It is alleged in the affidavit of John E. Perkins, one of the trustees of district No. 4, that by a vote of the district, before its division by the commissioners, three-quarters of the public money 238 CASES DECIDED BY THE were to be applied to the winter school, which commenced on the first day of December and continued three and a half months ; and that as the commissioners apportioned to No. 15, $19.82, and to district No. 4, $22 . 59, the latter will only be able to apply to the winter school, which has been kept for the common benefit of all,three-quartersof $22 . 59, instead of three-quarters of $42 .41. It may be proper to remark, for the information of the trustees of district No. 4, although it does not touch the main question to be disposed of by the Superintendent, that they have no right to apply to the payment of the teacher any portion of the public money received in April, as a compensation for services rendered previously to the first day of January last. The Superintendent has repeatedly declared that the public money must be paid to qualified teachers for services rendered during the year in which the money is received. As to the duty of the commissioners to make the apportion- ment as they have done there can be no doubt. This is a case arising under the provisions of sec. 26 of the statute entitled " Of Common Schools." Although the commis- sioners may have issued their order previous to the first of Janu- ary last the alteration did not, as is admitted by the trustees of No. 4, take effect until the 5th of March. District No. 4 was not duly altered within the meaning of the statute until that day. This is, therefore, a case in which a new district was formed after the annual reports from the districts were received, or before the apportionment of school moneys was made. It was the imperative duty of the commissioners to make the ap- portionment to these districts, according to the number of chil- dren in each over the age of five and under sixteen years; and they have discharged the duty in a manner which must be ad- mitted to be just, according to the evidence furnished by the trustees of district No. 4 in their annual report. The amendment of the 26th section of the statute referred to by the act of 21st April, 1831, is intended to apply to cases in which a school district has gone into operation before the first of January, but in which there has not been time, previous to that day, to have a school taught for three months. The case under consideration does not come within the amendment; and if it did the duty of the commissioners would be precisely the same, as the amendment merely extends the provisions of section 26 to a new class of cases. The Superintendent regrets that he cannot issue an order ia accordance with his own views of the equity of this case; but the requirements of the law are so clear that he cannot venture to make a decision which conflicts with them. SUPERINTENDENT OF COMMON SCHOOLS. 239 It is accordingly ordered, that the appeal of the trustees afore- said be dismissed, and the apportionment made by the commis- sioners be, and it is hereby sustained. The Trustees of school district No. 2 in the town of Eaton, ex parte. If a trustee refuses to serve, the district may elect another person to the office- The facts of this case are stated in the opinion of the Super- intendent. By JOHN A. Dix, May 5, 1835. At the annual meeting in district No. 2 in the town of Eaton, held in October last, three trustees were elected for the ensuing year. Two of the persons elected were present and accepted, and the meeting was regu- larly adjourned to a day in the next week. At the adjourned meeting, Bartholomew, the third person elected trustee, came in and declined serving. The inhabitants present at the meet- ing, on a motion to that effect, voted unanimously that he should be excused, and they then proceeded to elect Samuel Sherman to fill the vacancy. The question submitted is, whether the election of Sherman is legal? lam of opinion that it is. Sec. 71, page 480, 1 R. S. pro- vides for filling vacancies in school district offices in the usual manner, in case such an office is vacated by death, " refusal to serve," &c. I consider this a vacancy caused by the refusal of the individual elected to office to serve therein, and it was filled in the mode provided by law. The inhabitants of a school dis- trict have, it is true, no authority, after filling an office, to ex- cuse the individual chosen to it from serving therein : and I re- gard the vote to that effect in the case of Bartholomew, as no farther material than as affording a justification for him, in case he should be prosecuted for the penalty annexed by sec. 72 (vol.- and page before referred to) to a refusal to serve. In such a case' the vote of the meeting would doubtless go far in the mind of the court, before which such prosecution should be made, to show a "sufficient cause" for refusing to serve, although he might be put upon showing reasons for so refusing, independent- ly of any action of the meeting in the case. The legality of Sherman's election depends altogether on the existence of a vacancy. On this point I entertain no doubt. He was lawfully elected ; and if another vacancy has occurred by a removal out of the district, he and the remaining trustee should call a special meeting of the inhabitants to fill it. '*. ?-' r'*'. *' . --:.! - 240 CASES DECIDED BY THE The Trustees of school district No. in the town of Smyrna, ex parte. Trustees may require a bond of the collector whenever a warrant is delivered to him for collection. If the trustees do not require a bond of the collector he may execute a warrant without giving one. Quere. Whether the bond given by a collector when about to execute a war- rant, is a security for the faithful execution of the duties of his office generally. The Superintendent was desired to state in this case whether a collector could execute a warrant without giving a bond, and whether the trustees were bound to exact a bond from him when- ever a warrant was delivered to him to collect a tax. By JOHN A. Dix, May 9, 1835. The collector of a school district must give a bond to the trustees whenever required by them, "conditioned for the due and faithful execution of the du- ties of his office." The exaction of the bond would seem, from the language of the law, to be a matter of discretion with the trus- tees ; and if it is not required by them, the collector may go on and execute warrants entrusted to him without giving security. They may require a bond to be given by him whenever any war- rant is delivered to him for collection ; and although the bond i conditioned generally for a due and faithful execution of the du- ties of his office, it may be questionable whether it is binding, excepting for the specific purpose for which it is given, that is, to secure the execution of the warrant about to be received by him. It is therefore clearly proper to exact a bond whenever a warrant is to be delivered to him, provided the sum to be collected is of such an amount as to render it of any consequence; and if, through the omission of the trustees to require It, any moneys should be lost, they would be wholly inexcusable for failing to take a precaution, which the law has provided for the express purpose of affording entire security to the district. The Trustees of school district No. 2 in the town of of Pendleton, ex parte. If a collector gives a bond, and after collecting part of a tax resigns, quere, whe- ther he is not liable, if the whole amount is not collected. In this case it was stated to the Superintendent that the col- lector of the district had given a bond and received a warrant for execution, and that, after having collected part of the tax, he had resigned his office. The opinion of the Superintendent, as to the liability of the collector for the balance, and the course to be taken by the trustees, was requested. By JOHN A. Dix, May 11, 1835. If the collector of your district has resigned, you have a right to call a meeting to SUPERINTENDENT OF COMMON SCHOOLS. 241 Appoint another person to fill his place. Has he resigned agree- ably to section 33, page 348, 1 R. S.I that is, has his resig- nation been accepted by three justices of the peace of the town? ] f not, he is not out of office. Even if his resignation has been so accepted, it may be worthy of consideration, whether, after having given bonds to collect and pay over a specific lax, he is not liable, under those bonds, in case any moneys should be lost to the district by a failure to collect, them within the time limited in the warrant delivered to him. The case is still stronger against him, from the fact that he has partially executed the warrant by collecting a portion of the tax. If there has been any neglect on his pail, he is clearly liable under sec. 108 of the act relating to common schools (even if his resignation has been legally accepted) for the whole amount of moneys which might have been collected within the time limited in the warrant deli- vered to him for their collection, unless those moneys shall here- after be collected; and the trustees may prosecute his bond to recover the amount. (ANONYMOUS.) The exemption of indigent persons from the payment of rate bills is a matter of discretion with trustees. The following question was submitted for the opinion of the Superintendent : " Are not all persons who have not more property than the law exempts from execution, indigent or poor persons, according to the intent of the school act?" By JOHN A. Dix, May 19, 1835. Persons who have not more property than the law exempts from execution, are not ne- cessarily indigent persons. By existing laws, warrants annexed to rate bills are to have the effect of warrants fesued by the board of supervisors to the collectors of towns. Such warrants reach property which is by law exempt from execution. The exemption of indigent persons from the payment of the wages of teachers is a matter of discretion with the trustees, not regulated by any specific restriction, but entrusted to them to be disposed of in good conscience, and with a just regard to the rights of all concerned. ' _ - . *i The Trustees of school district No. 7 in the town of Spencer, ex parte. If the annual meeting in a school district is neglected, the district officers hoiJ over until the next annual meeting. By JOHN A. Dix, May 19, 1835. I find on the records of my office a communication in the following words: "If the usual 16 242 CASES DECIDED BY THE time for an annual meeting in a school district passes by, the dis- trict officers elected the year before hold over another year. No meeting can be called (until the usual time comes round again) for electing district officers unless vacancies occur, except by or- der of the Superintendent of Common Schools." This opinion, which was given to you in answer to an inqui- ry addressed to me. is in conformity with the repeated decisions oi my predecessor in office, and is founded upon the construction given by him to certain provisions of law, to which I will pro- ceed to refer you. It is proper to add that I have concurred in this construction, and thus it has become a rule for the determi- nation of all questions of the same nature, arising under the common school act and brought before the Superintendent for adjudication. The 70th sec. page 480, 1 R. S. provides that "the clerk, trustees, collector," een able to make out an.annuai report, on which it would have been entitled to receive a distributive share of the public moneys for the year 1835. District No. 2 was not and is not able to make an annual re- port for the year 1834, on which it could have received or can receive a share of the public money for the year 1835. The questions submitted to the Superintendent arc, 1st. Whe- ther district No. 2 is entitled to receive any public money for the present year? and 2d. Whether, if it is entitled to receive any. the apportionment should be made in reference to the whole number of children residing in it. or to the number set to it from district No. 10? The equity of this case is clear. District No. 2 ought to re- ceive the public money, which the children, set to it from No-. 10 would have received had the latter district not been annulled, and the money should be appropriated solely to the benefit of those children. But it unfortunately happens in this case, as in others of equal hardship, that the express provisions of the sta- tute, which the Superintendent has no power to supersede by a construction at variance with the terms of those provisions, ren- der any allowance of public money to district No. 2 impossible. District No. 10 was not in existence on the first of January last. It was wholly dissolved and merged in other districts, the arrange- ment having taken effect immediately, by consent of all the parties concerned. The portion of the district, which was added to No. 2, became a part of the latter on the day it was so added, and by virtue of* the union it was entitled to participate m all its rights and became subject to all its liabilities. These rights and liabilities should have been ascertained before the arrangement was entered into and assented to by district No. 10: but either through neglect or inadvertence that portion of it belonging to No. 2 has been thus divested of a right, which it might un- questionably have asserted as a part of the former, had it re- tained its organization. There is now no remedy. The statute provides that " in making the apportionment of moneys among the several school districts, no share shall be allotted to any dis- trict," &c. " from which no sufficient annual return shall have been received," 3 ito'ifla.OJ WCf If . t SUPERINTENDENT OF COMMON SCHOOLS. 255 The Trustees of school district No. 20 in the town of New-Paltz, against the Commissioners of Com- mon Schools of said town. The bad management of the affairs of a district is not a sufficient reason for set- ting off an inhabitant. A district ought not to be altered for the temporary convenience of an individual. The facts of this case are given in the Superintendent's order. By JOHN A. Dix, June 24, 1835. The Superintendent of Common Schools has examined the appeal of the trustees of school district No. 20 in the town of New-Paltz, from the pro- ceedings of the commissioners of common schools of said town, in setting off Josiah Dubois from said district to district No. 14, on the 31st day of March last. The Superintendent has also examined the answer of the commissioners to said appeal, and the accompanying affidavit of Josiah Dubois, setting forth his reasons for desiring to be annexed to district No. 14. The principal reasons assigned by Mr. Dubois for desiring to be set oft from No. 20 are; 1st, That the affairs of the district are badly managed; and 2d, That the school-house in No. 14 is near the New-Paltz academy, and that as he sends his elder children to the academy, it is more convenient to send his younger children with them to the school-house referred to than to send them into No. 20. The first of these reasons is wholly inadmissible as a ground for setting off a single inhabitant to another district. If the af- fairs of a school district are improperly managed, the true remedy is to elect new trustees, and confide the trust to abler or more faithful hands. If a school-house has an inconvenient position, the site should be altered in the mode prescribed by law. But it is manifest that if individuals may be set off from one district to another for such causes, there would be no assurance that any district would retain its organization from year to year. The second reason, though it has more weight, is not, in the opinion of the Superintendent, sufficient to warrant a change in the boundaries of a school district. The condition of Mr. Du- bois' family is accidental, and can be but temporary. The time will conae, and it may be near at hand, when his older children will have completed their education and his younger children be old enough to attend the academy. If this were now the case, he would have no interest in being set off from district No. 20. If he were to remove from his present residence, and an inhabi- tant were to succeed him with children too young to be sent to the academy, the latter would undoubtedly desire to continue in No. 20, as the school-house is much nearer than that of district No. 14. The organization of school districts should not be disturb- 256 CASES DECIDED BY THE cd for light or temporary causes. As population increases and set- tlement extends, alterations in their boundaries frequently be- come necessary. But a single individual ought not to be set oil" from one district to another for his temporary accommodation, excepting in cases where the condition of the two districts to be affected by the change concurs in demanding it. Let us see whether this case comes within the class of excep- tions referred to. District No. 20 has a taxable property of $>4 8,641, and 63 children between 5 and 16 years of age. If Mr. Dubois should be set off to district No. 14 from No. 20, the latter will be re- duced to 59 children between the ages referred to, and to a taxa- ble property of $42,491, and the former will have 71 children and $,102,526 of taxable property. Although both districts would, after the alteration, be capable of maintaining a respecta- ble school", the circumstances of the case are not, in the opinion of the Superintendent, so strong as to warrant a change, which is on its face unequal as between the two districts. The Superintendent regrets that he is compelled to differ with the commissioners of common schools in the view he has taken of this case. But. after conceding to them the advantage of a more familiar acquaintance with the local condition of the dis- tricts and the parties interested in the matter submitted to him. he cannot, consistently with the principles which have govern- ed his decisions in like cases, confirm their proceedings. He has no doubt that they have acted in obedience to the sugges- tions of duty, and under the conviction that Mr. Dubois might be accommodated without prejudice to the just rights of district No. 20. But after giving to every case presented to him the best examination of which h& is capable, he is bound, like them- selves, to act in accordance with his own convictions of duty. The proceedings referred to are set aside, and Mr. Josiah Du- bois is restored to district No. 20. The Commissioners of Common Schools of the town of Cohocton, ex parte. Trustees are bound to send or deliver their annual reports to the town clerk. Quere ? Whether two commissioners can make a valid apportionment of the school moneys? An apportionment of the school moneys after the time prescribed by law is good. In this case the trustees of a school district handed the annual report to one of the commissioners of common schools, who ne- glected to attend the meeting for the apportionment of the pub- lic moneys. The moneys were apportioned by two of the com- missioners, and the report of the district referred to being in the SUPERINTENDENT OF COMMON SCHOOLS. 257 hands of the absent commissioner, no money was allotted to the district. The opinion of the Superintendent as to the legali- ty of these proceedings was solicited. By JOHN A. Dix, June 30, 1835. It is the duty of the trus- tees of school districts to deliver their annual reports to the town clerk, (sec. 92, page 484, 1 R. S.) who is, by the provisions of sub. 1, of sec. 43, page 474, 1 R. S. authorized, and indeed bound as a matter of duty, to " receive and keep all reports made to the commissioneis from the trustees of school districts," &c. The mere delivery of a report to one of the commissioners would not, I should think, make him legally liable for any loss which might result to a district from a failure or omission on his part to present it at the meeting of the commissioners, on the first Tues- day of April, for the apportionment of the public moneys. The trustees themselves are in default for putting it into his hands ; they should deliver it to the town clerk, and in order to make the commissioner, with whom it is left, responsible, it would be ne- cessary to show a special undertaking on his part to have it pre- sented to the commissioners at their meeting to distribute the public moneys. The question whether two of the commissioners of common schools, without the attendance or consent of the third, can le- gally apportion the public moneys is a delicate one, and may fairly give rise to a difference of opinion. If the third commis- sioner has notice of the meeting and his attendance is required, and from any unavoidable circumstance he is unable to attend, or if he absolutely refuses to attend, I think an apportionment by the other two having knowledge of the facts, would be valid.* It seems to me, however, that it is useless to raise this ques- tion in the present case. The moneys have been apportioned, and probably for the most part expended by this time. To agi- tate the question of authority to make the apportionment can, clearly, answer no purpose of justice or equity. An apportion- ment may, under certain circumstances, be made after the first Tuesday of April. The specification of time is not intended to limit the exercise of the authority of the commisssioners. The statute is directory to them ; but if the apportionment from any cause is not made on the day specified, it may be made subse- quently, and the proceeding will be deemed valid. * See a case decided 23d July, 1835, next page, 17 258 CASES DECIDED BY THE (ANONYMOUS.) Rate bills for teacher's wages should be promptly made out and collected. Trustees must make out rate bills from the lists kept by the teacher. If one of the trustees refuses to unite in making out a rate bill, the other two may act without his concurrence. If a warrant for the collection of a tax is signed by two trustees only, the pre- sence of Ihe third at the issuing of the warrant will be presumed By JOHN A. Dix, July 23, 1835. There is no provision of law by which a rate bill for teacher's wages is required to be made out at the expiration of his term. All school bills should be promptly made out and paid, but the time is not limited by law. The teacher must deliver the list of scholars and their attendance kept by him to the trustees, and the latter must make out the rate bill and annex to it their warrant for its col lection. If one of the trustees refuses to unite in making out the bill, or to pay his part of it, the other two may act, and the amout due may be collected of him as of any other individual. The supreme court has decided in the case of McCoy vs. Curtice, 9 Wendell 17, that a contract made by all of the true- tees of a school district, and " signed by two, would be binding; or that two could contract against the will of the third, if he was duly notified or consulted, and refused to act." The deci- sion of the court seems also to sustain the doctrine, that if a war- rant be issued by two trustees for the collection of a tax, the pre sence of the third at the issuing of the warrant will be presumed until the contrary be shown. The Commissioners of Common Schools of the town of Fort-Edward, ex parte* Commissioners of common schools may certify that more than $409 is necessary for a school-house, after that su-m has been expended. The inhabitants of a school district in the town of Fort- Ed- ward voted a tax of $400 to build a school-house. The tax was raised and expended, and the amount was found insuffi- cient to finish the building. The trustees of the district then called on the commissioners of common schools to certify that an additional sum was necessary, in order to procure a vote of the inhabitants to levy it. The commissioners desired to be in- formed whether they had authority to make the requisite eerti iicate in such a case. By JOHN A. Dix, August 15, 1835. The commissioners of common schools have an undoubted right, under section 64 of the statute entitled "Of common schools/' to certify that a larger sum than four hundred dollars is necessary and ought to be raised for the purpose of building a school-house, in cases where that amount has been already expended. In the case SUPERINTENDENT OF COMMON SCHOOLS. 259 stated in your letter, the true course would be, if the propriety of the measure is clear, to grant a certificate setting forth that the sum of four hundred dollars has been expended on the school- house, that a further surn (specifying it) is necessary to complete it, and that such sum ought to be raised for the purpose. On the exhibition of this certificate at a special meeting of the in- habitants of the district, they may vote the additional sura spe- cified. It is always desirable that the amount to be expended should be clearly ascertained before the building is commenced, in order that the full sum required may be stated to the inhabitants be- fore they are committed to any expenditure whatever. At the same time the most judicious calculations may be disappoint- ed ; and as the authority of the commissioners in the matter referred to is not restricted to any particular point of time or any particular stage of the proceedings, I consider them fully em- powered to act in the case stated by you. The inhabitants of a district cannot, of course, vote a sum exceeding 400 dollars for a school-house until after the commissioners have made the necessary certificate, *# The Trustees of school district No. 8 in the town of New-Haven, against the Commissioners of Com- mon Schools of said town. In apportioning the value of a school-house when a new district is formed, the omission of one of the persons set off cannot be made a ground ef objection to the proceeding by an inhabitant of the old district. If a written notice of the time, place, and object of a meeting called to organize a school district, is left at the house of one of the inhabitants in 1iis absence, all the ethers being notified according to law by personal service of the notice, it is sufficient, though the notice so left does not show that the meeting is call- ed by the commissioners af common schools. if through an erroneous impression as to the title to the sit of the school-house, the commissioners appraise it at too low a sum, the proceeding is not void, but may be vacated on an appeal. Trustees are not entitled to notice of an appraisement until after k is made. In forming a new district, notic of the alteration may be served on a trustee set off to the new district. If all the persons set off to a Hew district relinquish their interest in the school- house in the old district, it need not be appraised. This was a statement of facts submitted by the commission- ers of common schools of the town of New-Haven and the trus- tees of school district No. 8 in said town, for the Superintendent's opinion. By this statement it was shown that on the llth of November, 1834, the commissionets of said town divided school districts No. 3 and 5, and formed a new district under the desig- nation of district No. 8, from parts of those districts. The school- house in each district was appraised, and an order made out and ' '260 CASES DECIDED BY THE directed to the trustees requiring them to levy on their respective districts the amount to which No. 8 was entitled. A notice for a meeting of the inhabitants of the new district was issued, the meeting was held, and the district organized. The objections to these proceedings were as follows-: 1. One of the inhabitants of school district No. 3 was omitted hi apportioning the value of the school-house between that dis- trict and the new oae. In consequence of this omission the ne\v district received a less amount, by a very trifling sum, than it was entitled to receive from No. 3. No exception was, however, taken by the new district, nor by the inhabitant to whose credit the small sum thus lost would have been passed. 2. In serving, the notice issued by the commissioners for the- first meeting in the new district, the person serving it not finding one of the inhabitants at home, left a note at his house inform- ing him that a meeting was to be hekl at a certain time and place to organize the district, but without stating that the commission- ers of common schools had called the meeting. & When the commissioners apportioned the value of the school-house in> district No. 3, they supposed the site was held under a lease for so long a time as the district should vse it at such ; but it was ascertained subsequently that the fee was in the district. Had this fact been known to the commissioners at the time they made the valuation, they would have put a higher estimate upon the value of the lot. 4. The trustees of districts No. 3 and 5 were not informed of the amount of the valuation of the school-houses until notice of the alteration was served on thera. 5. Notice of the alteration was served on one of the trustees of No. 5 who resided within the territory set oft" to form the ne\s district. By JOHN A. BIX, September 18, 1835. I have carefullv examined the statement of facts submitted to me, and am of opinion that the proceedings of the commissioners of common schools in the organization of your school district (No. 8) were legal. Certainly k does not appear to me that there will be any hazard in going on and collecting any tax which may be final- ly imposed on the district.* The omission of one of the inhabitants of No. 3, who was set off to No. 8 T in the assessment of the value of the school-house and property of the former, is not a good ground of objection on In the case of Reynolds vs. Moore, & WendeH, 35, the Supreme Court de- cided that in an action of trespass against a collector for taking and setting pro- perty under a warrant regularly issued by the trustees of a school district, the plaintiff would not be allowed to show that all the forms prescribed by the statute, had not been observed in organizing the district SUPERINTENDENT OF COMMON SCHOOLS. 261 ihe part of any inhabitant of No. 3 as now organised, for the omission was not an injury to that district. Such an objection -can only be raised by some person aggrieved, i. e. some inhabi- tant of the new district. The notice given by the person who was required to notify the inhabitants of the new district to meet and organize, was sufficient. The notice set forth the time, place and object of the meeting, and this is all the law requires. The erroneous impression which prevailed with regard to the (enure of the site of the school-house at the time the appraise- ment was made, does not impair the legality of the appraise- ment. It might be a good ground of application to the Super- intendent to order a new one ; but the appraisement now made cannot be set aside in any other manner. Trustees need not be notified of the appraisement of the pro- perty of their district previous to the formation of a new district, out of a part of it. It is desirable that they should know when the commissioners meet for the purpose of forming the district but an omission to notify them does not affect the validity of the proceedings. It makes no difference whether notice of an alteration' made without the consent of trustees, is served an a trustee residing within the territory remaining in the old or that set off to the new district He continues to be trustee of the former until three months after service of such notice. When all the inhabitants of a new district voluntarily relin- quish their right to a portion of the value of the school-house and property of the district from which they are taken, an appraise- ment is unnecessary. The appraisement is to be made for their benefit, and if they relinquish their right, there can be no reason for making the appraisement. (ANONYMOUS.) Commissioners of common schools cannot fix a site for a school-house. If the inhabitants agree that the commissioners may select a site, the selection ought to be acqaiesced in. A district may repeal a vote to raise a tax if no proceedings have been commenc- ed in pursuance of such vote. By JOHN A. Dix, September 19, 1835. Commissioners of common schools have no authority to fix a site for a district school-house under any circumstances. The inhabitants of a district may, for the purpose of ending a controversy, agree to re- fer the matter to them ; but in such a case they would act as in- dividuals, and not as official agents of the town or the district, nor would their decisions under such circumstances be final. Sites can only be fixed by vote of the inhabitants, and it appears to 262 CASES DECIDED BY THE uie that such a vote is necessary after the commissioners have selected a point for a site, on a reference of the matter to them, in order to give the proceeding validity and make the site legal. The inhabitants may, after agreeing to such a reference of the question, refuse to ratify the selection or determination of the commissioners. I speak now of the legal right. But certainly after consenting to such an arrangement to terminate a contro- versy, good faith demands that they should abide the result. The inhabitants of a district have a right to reconsider former proceedings, and repeal them if they think proper. They may legally repeal the vote of a tax to build a school-house, if no pro ceedings in relation to its collection have been commenced, and ao contracts entered into or responsibilities assumed by the trus tees in behalf of the district in pursuance of such vote. (ANONYMOUS.) Persons worth fifty dollars may vote and must be taxed, though they may have been omitted in the town assessment. It may happen that persons not liable to be taxed in a school district, are entitled to vote to raise taxes on the district. By JOHN A. Dix, September 24, 1835. It is submitted whe- ther persons not on the assessment roll of the town, who have personal property of the value of fifty dollars over such as is ex- empt from execution, may be taxed, or may vote at school district meetings? Such persons are undoubtedly liable to contribute their proportion of any tax levied on the district for common school purposes, and should be included in the tax list made out by the trustees in every such case, although they may have been omitted in the assessment roll of the town. They are also en- titled to vote if they have personal property, over such as is ex- empt from execution, to the amount of fifty dollars liable to tax- ation in the district, whether they are included in the town as- sessment or not. So it may happen that persons in a school dis- trict may be entitled to vote to lay a tax on it, although they cannot be compelled to pay any part of it, as persons who have paid a highway tax, but have no taxable property. The Clerk of school district No. 4 in the town of Colesville, ex parte* School district libraries are designed both for those who hare completed their common school education and those who have not. The inhabitants of school districts may appoint a librarian, and adopt regulations for his government. In the selection of books, sectarian and controversial subjects should be exclud- ed. This was an application to the Superintendent for informatioo SUPERINTENDENT OF COMMON SCHOOLS. 263 with respect to the law authorizing the inhabitants of school dis- tricts to raise money to purchase common school libraries, with the request that he would fur.iish a catalogue of books suitable for the purpose, and a system of regulations for the government of the librarian. By JOHN A. Dix, October 25, 1835. In reply to your in- quiries, I do not see that I can at this moment say more than this, that the establishment of school district libraries was design- ed for the benefit of all the inhabitants of the district, youths aa well as adults. The act authorizing the establishment of school district libra- ries was passed in pursuance of a recommendation contained in my annual report, as Superintendent of Common Schools, foe the year 1334. The annexed extract from that report will ex- plain my own views on this subject, and furnish ground of in- ference with regard to the intention of the legislature. You will perceive that one of the contemplated objects was to furnish the means of improvement to those who have finished their common school education as well as to those who have not. " If the inhabitants of school districts were authorized te lay a tax upon their property for the purpose of purchasing libraries for the use of the districts, such a power might, with proper restric- tions, become a most efficient instrument in diffusing useful knowledge and in elevating the intellectual character of the peo- ple. By means of the improvements which have been made in the art of printing, a volume bound in boards, containing as much matter as the new testament, can be sold at a profit for ten cents. The sum of ten dollars would, therefore, furnish a school district with one hundred volumes, which might be kept under such regulations as the inhabitants should adopt for their common use. A vast amount of useful information might in this manner be collected, where it would be easily accessible, and its influence could hardly fail to be in the highest degree saluta- ry, by furnishing the means of improvement to those who have finished their common school education, as well as to those who have not. The demand for books would ensure extensive edi- tions of works containing matter judiciously selected, at prices which competition would soon reduce to the lowest rate at which they could be furnished. By making the imposition of the tax wholly discretionary with the inhabitants of each district, and leaving the selection of the works under their entire control, the danger of rendering such a provision subservient to the propaga- tion of particular doctrines or opinions would be effectually guard- ed against by their watchfulness and intelligence." The law authorizes the inhabitants to appoint some person to be "the librarian of the district," and to adopt such reguia- 264 CASES DECIDED BY THE tions for his government as they may think proper. These re- gulations may, from local and other causes, be somewhat diffe- rent in different districts; arid I would not undertake at this time to recommend any system as applicable to all cases. The great object should be to secure the safe custody and preservation of the books, and to give the greatest possible facility to their circulation for perusal among the inhabitants of the district. The regulations may be few and simple. I had intended ere this to procure a list of books for such persons as might think proper to ask my advice on this subject, but have not yet done so. In a few months purchases may pro- bably be made to better advantage than at this moment, as there are now in a course of preparation at least two series of publica- tions with a view to meet the objects of the law. As a general principle I would recommend,, that in the selection of books all sectarian and controversial subjects should be excluded. It is for the inhabitants of the district to choose the works to be pur- chased, and it must depend much on their discretion in the exe- cution of this trust, whether all the benefits in contemplation ot the law will be secured. A liberal regard must be paid to opi- nions, even though they have their foundation in prejudice. With respect to certain subjects, no difference of opinion can well exist, so far as unexceptionable works on those subjects are proposed to be purchased. Among them may be enumerated History, ancient and modern, Biography, Geography, Natural Philosophy, Astronomy, Chemistry, Mineralogy, Botany, Moral and Political Philosophy, Political Economy, Agriculture, the Mechanic Arts, Statistics, &c. I do not intend this as a com- plete enumeration of subjects, but as comprising a class of the character above referred to. The inhabitants of school district No. 9 in the town of Fabius, ex parte. Commissioners of common schools have no authority to receive and decide upon appeals from school districts. Inhabitants of school districts cannot by a vote to that effect, authorize their trus- tees to provide fuel in any other mode than that prescribed by law. The following statement was presented to the Superintendent for his decision, pursuant to a vote taken at the annual meeting in 1835, in school district No. 9 in the town of Fabius. fan?. <' ' -.'..' '. SUPERINTENDENT OF COMMON SCHOOLS. 265 "SCHOOL DISTRICT, No. 9, Fabius, ^ " Annual meeting, Oct. 5, 1835. ^ : < To the Superintendent of Common Schools of the State of New- York. " For a number of years past we have uniformly voted at our annual meetings, that the amount of wood used for the winter school be put into the school bill, and apportioned according to the number of days each proprietor sent, for the purpose of sav- ing the trustees the trouble of calling upon each individual to furnish his quota of wood, as well as to save each individual the trouble of furnishing so small an amount of wood; and further, for the purpose of avoiding a new apportionment in the spring 1 , as the number of scholars and days proposed vary essentially from the number of scholars and days actually sent. "At our annual meeting in 1834, the following votes were passed : " That there be twenty cords of good hard wood, eighteen inches long, furnished for the ensuing year, &c. " That E. P. Howe have the contract for procuring the above mentioned wood at five shillings per cord, &c. " That the bill for wood shall be included in the school bill. " At the expiration of the school the trustees made out the bill for tuition, and also in a separate column levied the wood on the taxable property of the district, and carried out the tuition and wood in a 'sum total.' Some of the inhabitants paid their bills, and others refused to pay for the wood when assessed on taxable property: and as the tax list was not made out in thirty days after the vote was taken, the trustees called a special meet- ing ' for the purpose of choosing a collector in the place of Fran- cis Batin removed, and transacting such other business as may come before said meeting.' Said special meeting was held on the 13th day of June last, at which time the following votes were passed by a majority of two : " That E. P. Howe be chosen collector, &c. " That the vote taken at the last annual meeting relative to procuring wood, be rescinded. < : That the sum of $15 . 18 be raised by tax on the taxable in- habitants of said district, for the wood the winter past and re- pairs last spring, .j-jj "The trustees immediately made out the tax list for the wood, and gave the twenty days notice required by law when the valu- ations cannot be ascertained from the last assessment roll of the town ; but previous to the expiration of the twenty days a num- ber of the inhabitants of our district appealed from the decision of xaid special meeting to the commissioners of common schools of m 266 CASES DECIDED BY THE our town, on the ground that the object of the meeting was not explicitly stated in the notice ; that if it had been stated in the notice that other business would positively come before the meet- ing, and especially that a tax was proposed to be raised, some in- dividuals would have attended who did not attend. "The commissioners of common school* appointed a time for hearing the case, and accordingly met at the time appointed. After hearing the arguments for and against said appeal, the commissioners decided ' that in their opinion the proceedings of said special meeting were illegal,' since which time the trustees have continued to collect the bill for tuition, but the wood re- mains uncollected and unpaid, except a very small share. " The objections urged against paying for the wood by a tax on taxable property, are the following : " 1st. A long standing custom by compromise and general consent to the contrary. "2d. One of the taxable inhabitants of our district since the winter school closed has removed into an adjoining district, and is now liable to be taxed there for the property which he held here. ".3d. Two taxable inhabitants of our district have moved from another county into this district since our winter school closed, and paid a tax in that county for school wood the winter past, on the same property on which they would now be taxed here, the law making it the duty of the trustees to levy the tax on al! the property owned or possessed in said district at the time of making out the tax list. " The objections urged against apportioning the wood accord- ing to the number of days sent, are the following: " 1st. Some of the inhabitants who sent a number of children to the winter school, have since removed out of town, and one family out of the state, and the wood could not be equitably ap- portioned in this way, unless the present residents who sent to that school should be willing that the wood be paid for by them in proportion to the days sent, to which some would not, now consent. " 2d. The teacher of the winter school lost his roll during the winter, and it has recently been ascertained that he made out a new one ' by guess' or supposition. This fact is now known to the district generally, and many who are in favor of having the wood apportioned according to the number of days sent, might not be willing to pay an account of the defect in the roll ; at least some of the district would probably take exceptions on that account. " It was generally expected that, after the decision of the com miasioners, the trustees would either call another special meeting SUPERINTENDENT OP COMMON SCHOOLS. 267 or else make out a tax for the wood in proportion to the number of days sent, agreeably to the vote taken at the annual meeting last year, neither of which has been done. "All parties agree that the individual who furnished the wood ought to have his pay, and are anxious to be at peace in the dis- trict, but as yet have failed to devise a plan to suit every indi- vidual in the district. 'The trustees contend, that the manner in which wood has usually been furnished for the district, is illegal; that the law provides only two ways to obtain the wood, and that the district, by agreeing in school meetings for a certain quantity of wood at a certain price, deprived the trustees of taking the second course pointed out in the law, and consequently they were compelled to make out the wood tax on the taxable property. " On the other hand it is contended, that the uniform course heretofore pursued in our district was virtually the second course pointed out in the law; that by common consent it has been the opinion of the district generally, that the wood should be appor- tioned ' on the scholar,' and that the course usually pursued in our district has been resorted to solely for the purpose of saving trouble. " At this, our annual meeting, we have agreed to the forego- ing statement of facts, and voted unanimously that it be signed by the officers of the meeting, submitted to you for your decision thereon, and agree to abide the result. " By order and in behalf of the meeting. " JOSIAH ANDREWS, Moderator. "SENECA SMITH, Clerk. " For further information we will state (without particular di- rection from the district,) that at this, our annual meeting, we have agreed not to furnish wood the ensuing winter by a tax on the taxable property of the district, by a vote of 13 to 9, but that we will procure the wood in the manner formerly done in our district. " You are requested not only to decide in what manner we shall raise the pay for the wood used last winter under existing circumstances, but also to say whether it is legal for us to fur- nish our wood as we have usually done, when at school meet- ings we surrender into the hands of the trustees our privilege and right of being called upon to furnish our quota of wood : the dif- ference of opinion never having been about the particular man- ner in which wood shall be assessed on the scholar, but whether it shall be assessed on the scholar in any way, or by tax on the taxable property ? " You are requested, if possible, to attach your decision to this application and return the whole." 268 CASES DECIDED BY THE By JOHN A. Dix, October 28, 1835. I have examined the statement of facts presented by you in pursuance of a vote at the annual meeting for the year 1835, in school district No. 9 in the town of Fabius, with a view to a decision of the ques- tions submitted to me. I cannot comply with your request to return the statement. It must be preserved in my office, in con- formity with a rule adopted by my piedecessor, and invariably adhered to by me, with respect to all communications to which answers are given. The mode in which, the trustees undertook to provide for the payment of the fuel consumed in your school district last winter, was altogether illegal, and it should not be attempted again. The amount due for that object might have been included in the rate bill, if, on being called on, the inhabitants had not provided it, but the proportion to be paid by each inhabitant of the dis- trict should have been determined by the number of days his children were sent to school, and not by the amount of his tax- able property. This is the mode prescribed by law, and there can be no excuse for departing from it. There is but one way in which the fuel provided last winter, can now be paid for, and that is by the collection of the tax vot- ed on the 13th June last. I consider the proceedings of that, meeting legal. The notice for a special meeting should specify all the objects of the meeting; but the omission to set them forth does not render the proceedings absolutely void, all hough it af- fords a ground of application to the Superintendent of Common Schools to set them aside, on showing surprise on the part of any of the inhabitants. If the omission was intentional, the pro- priety of his interposition will be still more apparent. But no such allegations are made in this case. The appeal to the commissioners of common schools was al- together unauthorized by law. The Superintendent is the only tribunal to which an appeal from the proceedings of school dis- trict meetings will lie. It appears that a tax levied on the taxable property of the dis- trict now, will subject two inhabitants, who have recently mov- ed into it, to an imposition from which in equity they should be exempt. But this inconvenience cannot be obviated. The fuel cannot now be paid for by a rate bill ; and if it could, equity would not be done, as some who ought to contribute to that ob- ject have removed out of the district, to say nothing of the man- ner in which the teacher's lists were made out. The trustees, as the representatives of the district, are answerable for the amount of the fuel ; they may be sued ; the amount recovered against them would, by the Revised Statutes, be allowed in their official accounts; and if they had no funds belonging to the district SUPERINTENDENT OF COMMON SCHOOLS. 269 out of which they could indemnify themselves for the amount paid by them, the legislature would doubtless direct it to be levi- ed on the taxable property of the inhabitants. Thus the result would be the same. The inhabitants may, if they please, make up the amount now due for fuel by voluntarily contributing what each one fair- ly owes. If they refuse, the tax must be levied on the taxable property of the district. The tax list was not made out within one month, but there is good cause for the omission in the ap- peal, which, though misdirected, must, as was supposed, be deem- ed to operate as a stay of proceedings. If you provide fuel hereafter, as you have done heretofore, there may or may not be difficulty, according to circumstances. The established usage in the district, if it be a substantial, is not a rigid, compliance with the law. The vote of the inha- bitants at the annual meeting, proposes to dispense with that provision of the statute which requires the trustees to call on each inhabitant for his quota of fuel. It is certainly not binding on the trustees, nor does such a vote authorize them to proceed in any other manner than that which is pointed out by the law. They may still make the call, and strictly it is their duty to do so. If they neglect it, and any inhabitant should refuse to pay his proportion of the amount due for fuel, I doubt whether the col- lection could be enforced against him. It certainly could not, unless his consent to the proceeding could be shown. In de- parting from the course prescribed by the statute, the successful execution of a trust becomes dependent on the acquiescence of others ; and when a public agent undertakes to enforce an au- thority, he should be careful that he has himself taken all the steps enjoined on him by the statute, which confers the au- thority so to be enforced. The object in giving notices to each inhabitant of the quota of fuel to lie provided by him, is to ena- ble him .to furnish it in kind, if he chooses, and (unless a tax is voted,) the right to collect the amount in money does not exist until that option has been presented to him in the mode indi- cated by the statute. You will perceive, therefore, that you will be liable to difficulty whenever an inhabitant thinks proper to create it, by refusing to pay for his fuel, and shelters himself under the irregular proceeding on the part of the trustees ; for the vote of the inhabitants of a district cannot render legal a depar- ture from the mode of procedure prescribed^ by law. So long as all acquiesce in a course which is certainly the most convenient, and may be altogether unobjectionable on the score of equity, no trouble is to be apprehended; but if any one chooses to contest (he legality of the proceeding, the trustees will be involved in dif- ~ 270 CASES DECIDED BY THE ficulty. The only course, therefore, which is safe, under all cir- cumstances, is the one pointed out by the law. The Trustees of school district No. 6 in the town of Yates, ex parte. Non-residents are taxable for lands used as pastures. The facts of this case are stated in the Superintendent's opinion. By JOHN A. Dix, October 29, 1835. Mr. C. lives in the town of Ridgeway, and owns a farm there, pays taxes, &c, but owns a piece of land in the town of Yates, which he occupies for pasturing, ploughing, &c. separate and distinct from his farm. He has no house, servant or agent upon it, but whatever is done upon it he does himself. The question is ; Has the school district in the town of Yale?, in which said piece of land lies, a legal right to tax it for building a school-house? Answer. There is no doubt about it. The owner may be taxed for so much of it as is cleared and cultivated ; and the Su- perintendent has always held that a piece of cleared ground used for pasturing, was of that class of lands for which a non-resi- dent owner may be taxed. The Commissioners of Common Schools of the town of Alexander, ex parte. When a school district is dissolved, the value of the school-house and other pro- perty ought to be distributed among the inhabitants according to their taxable property In this case a school district was annulled and set off to other districts, all of which were furnished with school-houses. The question submilted was, in what manner the school-house an -j ,nj . 81 SUPERINTENDENT OF COMMON SCHOOLS. 275 (ANONYMOUS.) Errors in assessing taxes may be corrected after one month. By JOHN A. t)ix 3 November 17, 1835. Errors in the air- ^essment of taxes for school district purposes may be corrected after the expiration of the month within which the tax lists are required to be made out. The Commissioners of Common Schools of the town of Candor, ex parte. An alteration in a school district, made without evidence of the consent of the trustees, or of notice to them, wit! be held not valid, if all concerned have for five years acted as though it had not been made. In this case an alteration in a school district was made by the commissioners of common schools of the town of Candor and re- corded, but without any evidence of the consent of the trustees or of any notice to them ; and for five years no notice had been taken of the alteration by the trustees or any of the parties con- cerned. The question proposed was. whether -it was to be re- garded as a valid alteration. By JOHN A. Dix, November 19, 1835. An alteration in a school district regularly made and recorded, but without any evidence of the consent of the trustees or of any otice to them, will not, after the lapse of five years, be deemed valid, if during that time all concerned have acted as though no alteration had been made. The fact that the proceeding lias been wholly dis- regarded, is sufficient to raise a presumption that inconsequence of the informality referred to o attempt was made to carry it into execution. ;oi The Commissioners of Common Schools of the town of Orleans, ex parte. Commissioners >of common schools are entitled to such compensation for their services as may be voted by the inhabitants of the town. (But see note.) Commissioners of common schools cannot charge a percentage on the school mo- neys received and paid over by them, and deduct such per centage from those moneys. The following is a communication addressed by the Superin- tendent to tue commissioners of common schools of the town of Orleans, on discovering by their annual report that they had deducted from the public moneys received and paid over by them a commission for their services. By JOHN A. Dix, November 21, 1835. I perceive, by an examination of your annual report of the common schools for the present year, that you have charged a commission of $2 . 42 276 CASES DECIDED BY THE on the moneys received by you for distribution to the districts in the town of Orleans in April last. Such a charge is altogether illegal and without precedent, excepting in the case of your pre- decessors in 1834. On referring to last year's report signed by Messrs. D. A. Aid rich, Charles Sexton and H. W. Bushnell, 1 find a charge of $3, as a commission for receiving and distri- buting the school moneys. This fact escaped my notice last year ; but in the examination of more than 800 reports it is, per- haps, not singular that it was overlooked. I, of course, do not doubt that this commission was charged un- der the misapprehension on your part that you were entitled to it . I therefore trust that it will be promptly refunded as soon as you are apprized that it was illegally taken. The only mode of rec- tifying the error now is to add the amount charged in the two years 1834 and 1835, ($5.42,) to the moneys to be apportioned and distributed in April next to the school districts in your town. I shall expect to find this item in the next annual report of the town of Orleans. You are entitled to such compensation foi your services as the inhabitants of the town think proper to al- low;* but you cannot pay yourselves out of the school moneys, and there is no authority to charge a commission for receiving and paying out those moneys. The Trustees of school district No. 3 in the town of Le Ray, ex parte. .m-> ^ Tf a district is divided immediately after the school moneys are distributed, and the persons set off continue to send to school in the district, those moneys should be applied for their benefit in common with other*. This was an application to the Superintendent for his direc- tion under circumstances explained in his order. In addition to the facts contained therein, it was also stated by the trustees of dis- trict No. 3 that the inhabitants of the new district, (No. 7,) who had continued to send their children to school in the former, re fused to pay their tuition bills unless the public money was ap- plied in reduction of their dues; and the question was submitted, whether the collector could distrain their property, (they being la- habitants of another district,) in case they were included in the rate bill? By JOHN A. Dix, November 23, 1835. A statement has been presented to the Superintendent of Common Schools by the trustees of school district No. 3 in the town of Le Ray, setting forth the following facts, and requesting his decison thereon. * By an act passed 22d April, 1837, commissioners of common schools are al- lowed one dollar per day for every day actually and necessarily devoted to their duties. SUPERINTENDENT OF COMMON SCHOOLS. 277 **$ > ^.u^t^^-, ' On the 14th of April, 1835, a new district was formed by the commissioners of common schools under the name of district No. 7, by setting off a part of districts No. 3 and No. 8. The pro- perty of district No. 3 was appraised and apportioned, and the amount due the new district was paid. No division was made of the public money, which had just been paid by the commis- sioners to district No. 3. The school-house in the new district is not yet completed, and the inhabitants of No. 7 formerly be- longing to No. 3 have continued to send their children to school in the latter district A rate bill to pay the wages of the teacher. who has been employed during the summer, has been made out, and the whole of the public money appropriated to the summer rerm has been applied for the benefit of the inhabitants of No. 3. The Superintendent of Common Schools has repeatedly de- cided that the public money in the hands of the trustees of a school district, at the time such district is divided to form a new one, must be equitably shared by the respective parts thus sepa- rated from each other. It should have been treated as a com- mon fund, in the case under consideration, and divided accord- ing to the number of children between 5 and 16 years of age. There is no law which makes such a proceeding a part of the duty of the commissioners of common schools in the division of a school district, and it is, therefore, not to be regarded as an error on their part. Public money is not to .be considered as <: property" within the meaning of section 67 of the statute re- lating to common schools. If it were so, the amount due the new district would, under section 69, be levied upon the taxable property of the district possessing it, which would be manifestly unjust. But it has always been treated by the Superintendent as a fund held in trust for the benefit of all the inhabitants of the district, until it is legally expended, and, therefore, proper to be equitably divided, (although there is no express legal provi- sion to that effect,) whenever a part of the inhabitants are set off to form a new district.* The principle, however, does not extend to cases where the mo- ney has been appropriated by a vote of the inhabitants to a term which has expired previous to the division of the district. The case under consideration is not of this character. The question concerns the disposition of public money applicable, at the time of the division, to the term next succeeding it. The mode of providing the necessary relief in this case would be obvious, if there was not a disposition on the part of the trust * See the cases of the trustees of school district No. 4 in the tiwn of Cobles- kill, page 125, and the trustees of school district No. 8 in the same town, page - *: , ': ,- ** * " 278 CASES DECIDED BY THE ..%. tees of district No-.. 3 to do all that justice demand?. The Su- perintendent would require the amount to which district No. 7 i* fairly entitled to be deducted out of the next public moneys to be apportioned to No. 3, and paid to the trustees of the former dis- trict. But the whole question having been submitted t>o him by the trustees of No. 3 he will proceed to direct what justice seems to him to require. It may not be improper to say, before giving the necessary di- rection, that the right of the collector to execute a warrant with out the bounds of his district in this ease is justly called in ques- tion by the inhabitants of No. 7.* If this position is correct, the only remedy will be for the trustees of No. 3 to prosecute the non-residents in their name of office, unless they pay volunta- rily the amount due from them respectively. This course will Ije extremely troublesome, and may not, in every case, accom plish the ends of justice. On the other hand, it is supposed that the inhabitants of No, 7, who have sent their children to school in No. 3 during the summer term, will pay the amount of their school bills without objection, if they are allowed to participate equally with the in- habitants of No. 3 in the benefits of the public money, and thu indirectly to enjoy what they were fairly entitled to receive. Should any refuse to pay, there will be no alternative left to the trustees of No. 3 but to prosecute them for the amount of their bills. It is accordingly ordered, that the trustees of district No. 3 proceed immediately to make out a new rate bih 1 for the collec- tion of the wages of the teacher who taught the summer term. The public moneys will first be applied to the object, and th* residue will be assessed equally upon all who have sent children to school, in proportion to the number of days so sent. If any of the inhabitants of No. 3 have made payments under the rate bill already made out, credit will be given to them for the amount of such payments on the new rate bill, and a direction will be given to the collector accordingly. The Commissioners of Common Schools of the town of Sodus, ex parte. Treasurers of counties cannot deduct from the school moneys the commission oi one per cent to which they are entitled. 1 The treasurer of the county of Wayne had for several years, as appeared by testimony produced before the Superintendent. See the case of the trustees of school district No. in the town ef Wilte- borough, decided March 6, 1837. X* SUPERINTENDENT OF COMMON SCHOOLS. 279 been in the habit of deducting from the school moneys paid over by him to the several towns in his county, the commission al- lowed him by law. The opinion of the Superintendent as to his right to do so was requested. By JOHN A. Dix, November 26, 1835. Treasurers of coun- ties have no right to deduct from the amount of the school mo- neys apportioned to each town by the Superintendent of Com- mon Schools a commission of one per cent. They are unques- tionably entitled to such a commission, under sec. 26, page 370, L R. S., on the moneys received and paid by them for the use of the common schools, but they have no right to diminish the amount of the moneys placed in their hands for distribution, un- der a special apportionment by the Superintendent. The commis- sion referred to is a charge upon the county, and not upon the common school fund. See sub. 1, sec. 3. p. 385, I R. S. County treasurers are required to hold " the amount apportioned" to each town, subject to the order of the commissioners df common schools of such town. See sec. 14, page 469, 1 R. S. By the order of apportionment, the town of Sodus in Wayne county, is entitled to $183.80 per annum. Has the town received that amount? Certainly not; and the requirements of the law have not been fulfilled. In providing for raising on the towns a sum equal to that which they severally receive from the common school fund, the fees, which the collector is to receive as his compensation, are to be added to the sum first mentioned. See sec. 17, page 469, 1 R. S. This is clearly intended to guard against any diminu- tion of the amount to go into the hands of the commissioners of common schools, and thus to make the sum levied on the town and paid to them precisely equal to the sum received by them from the county treasurer. If the county treasurer retains his commission out of the moneys received by him from the com- mon school fund, the amount paid by the town will exceed the amount paid by the common school fund ; whereas it was in- tended that they should be equal. Without a special provision, therefore, authorizing the county treasurer to retain his commis- sion out of the moneys appropriated to and paid into his hands for the support of the common schools in the county, he can- not do so consistently with the requirements of the statute before cited. The commission charged by the treasurer on moneys re- ceived and paid by him, is his compensation for the services which he renders as a county officer. The amount of the commission is a charge upon the county treasury ; and the board of super- visors should add it to the amount to be raised for defraying ac- counts chargeable against the county. The amount retained by the treasurer of Wayne county for several years past out of 280 CASES DECIDED BY THE the school moneys, ought to be refunded to the towns, and i have no doubt the board of supervisors would, on a representa- tion of the facts, cause to be levied by tax an amount sufficient for the purpose. The Trustees of school district No. 4 in the town of Darien, ex parte. District officers duly elected cannot be displaced at an adjourned meeting on a reconsideration of the choice before made. In this case the annual meeting in school district No. 4 in the town of Darien was held at the appointed time and place, offi- cers for the district were chosen for the ensuing year, and the meeting was then adjourned for five days. At the adjourned meeting the choice of officers was reconsidered and rescinded, and other persons were chosen in their place. The Superinten- dent was requested to state whether the proceedings at the ad- journed meeting were legal. By JOHN A. Dix, November 27, 1$35. The district officers elected at your annual meeting on the 5th October are lawfully in office, if that meeting was legally organized and conducted, and they cannot be displaced by a reconsideration of their ap- pointment at an adjourned meeting. The inhabitants had a right to adjourn to another day, if they could could not complete their business. But a legal election once consummated cannot be brought up for reconsideration at a subsequent meeting of the inhabitants and set aside. The Trustees of school -district No. in the town of Arkport, ex parte. A tax cannot be voted for globes and school apparatus. This was an application to the Superintendent for his opinion as to the propriety of raising a tax for purchasing globes and school apparatus under the provision of law which authorizes the inhabitants of school districts to furnish school-houses with necessary appendages. By JOHN A. Dix, November 27, 1835. The inhabitants of school districts have no right to lay a tax upon their property lor purchasing globes and apparatus for the use of their schools. These are not among the enumerated objects for which they are authorized by law to vpte taxes ; nor can globes and school ap- paratus be considered, however desirable they may be, as "ne- cessary appendages" to a school-house. I regret that you should have any difficulty on this score, as the spirit which the inhabi- tants of your district have manifested in attempting to elevate SUPERINTENDENT OF COMMON SCHOOLS. 281 the character of their school, reflects great credit upon them. They must, however, go a step further, as the statute affords them no aid, and carry out by voluntary contribution what they have commenced. The Trustees of school district No. 5 in the town of Catlin, ex parte. From the 1st of September to the meeting of the board of supervisors the assess- ment roll of the town in the hands of the supervisor must be consulted in as- sessing taxes in school districts. If a warrant is issued to collect a tax which has not been assessed according to the last assessment roll of the town, and property is taken and sold, the trus- tees who issued the warrant are answerable as trespassers: but the warrant is a complete protection to the collector who executes it. On the first Tuesday of October, 1835, a tax was voted in school district No. 5 in the town of Catlin to purchase a district library, and the tax list was made out by the trustees from the town assessment roll for the year 1834. The question submit- ted was, whether this could be deemed the last assessment roll of the town? By JOHN A. Dix, December 1, 1835. Tax lists must be made out according to the last assesment roll of the town. The Superintendent of Common Schools has decided that the assess- ment roll of the town, when signed and certified according to the provisions of the 26th section of title 2d, chap. 13, 1 R. S. page 394, is to be considered as " the last assessment roll of the town." This roll is, by the provisions of section 27, same page, to be de- livered to the supervisor of the town, on or before the first day of September, to be delivered by him to the board of supervisors at their next meeting. From the first of September, therefore, to the day on which the supervisors meet, the roll can be consulted in the hands of the supervisor of the town, by the trustees of school districts. The board of supervisors meets in your county the Tuesday next after the general election, which is in No- vember. The meeting at which the tax referred to in your letter was voted, was held on the first Tuesday of October. The assessment roll in the hands of the supervisor should have been consulted. The supreme court in the case of Alexander and others vs. Hoyt, 7 Wend. 89, held that trustees of school districts were an- swerable as trespassers where property had been taken under a warrant issued for the collection of a tax, which was not assessed according to the last assessment roll of the town. It is extreme- ly important, therefore, that they should, in the assessment of tax- es, confine themselves strictly within the directions of the statute. 282 CASES I>CIDED BY THE IflflT It is proper to add that the court held in the same case tha? the warrant was a complete protection to the collector in a suit brought against him for taking and selling the property, on the principle tbat a ministerial officer executing process issued by a tribunal having jurisdiction of the subject matter is not a tres- passer though that tribunal err in the exercise of its duties.* , V (ANONYMOUS.) Contracts by trustees with a teacher for his wages are binding on their sucees- sors in office. By JOHN A. Dix, December 16, 1835. Contracts between the trustees of a school district and a teacher for his wages are binding on the successors of swch trustees. Thus a contract with a teacher to instruct the district school for six months is not vacated if the trustees who made it go out of office before the expiration of that period, aud : their successors are bound to see it fulfilled.t There may be cases of gross misconduct on the part of a teacher which would justify the latter in dismissing him; but this depends on a different principle. . The Trustees of school district No. 9 in the town of Otstflic, ex parte. Taxes should be promptly collected. If a tax is voted in express terms, and a direction subsequently given as to tb time and manner of collecting it r the direction is void. In this case a tax of $120 was voted to build a school-house, m October, 1835. After the tax was voted a resolution was of- * In the case of Suydam and Wyckoffvs. Keys, 13 Johns. 444, it was held by the supreme court, that the collector of a school district was liable as a trespasser in taking property under a warrant issued by the trustees for the collection of a tax , where certain non-residents not liable to taxation had been included in the tax list. The principle on which this decision was made was, that the authority of the trustees was special and limited, and that the subordinate officer was bound to see that he acted within the scope of the legal powers of those who commanded him. This doctrine has been overturned by the decision of the court in the case of Sacavool vs. Boughton, 5 Wendell 170, in which it is settled that " if the sub- ject matter of a suit is within the jurisdiction of a court, but there is a want of jurisdiction as to the person or place, the officer who executes process issued in such suit is no trespasser, unless the want of jurisdiction appears by such pro- cess." Thus if the trustees of a school district should include in a tax list persons not liable to be included in it, and the collector should take and sell the property of such persons by virtue of the warrant directed to him for the collection of tho tax, the warrant would be a protection to him, although the trustees would be answerable in trespass to the injured parties. f This principle is settled by the supreme court, in the case of Silver vs. Cum- mings and others. 7 Wendell, page 181. SUPERINTENI>ENT OF COMMON SCHOOLS. fered and carried that the tax should not be collected until the ensuing 1st of AprH r and that lumber delivered before that time on the site of the school-bouse might be received in part payment of the tax. The legality of this direction to the trustees being- doubted, the opinion of the Superintendent was asked. By JOHN A. Drx, December 31, 1835. Taxes for school district purposes should always be promptly collected. They bind only goods and chattels in possession of the taxable inha- bitants residing in the district at the time of making out the tax list, which must be completed within one month after the tax is voted. If the collection of the tax is delayed six months as pro- posed in your district, and any of your taxable inhabitants should move out of it,, the property on which the taxes of such persons were estimated could not be reached, and the district might lye without remedy against them or the persons coming into posses- sion of that property. The Superintendent has,, therefore^ al- ways required taxes to be collected immediately when questions of this sort have been brought before him. If a tax is voted un- conditionally and in express terms, and the inhabitants proceed afterwards to give their direction to the trustees as to the time or manner of collecting it, the latter are not bound by such direc- tion. The law points out the mode in which the tax shall be col- lected. and the trustees must be governed by its requirements. A vote to pay a tax in any thing but money is void and of no effect. , If a condition as to the mode of collecting it is annexed to the vote or resolution by which it is authorized, so as to constitute a part of such vote or resolution, I incline to think the whole pro- ceeding void. ..'V 8 ' VWfe" - (ANONYMOUS.) * t Trustees should call a special meeting when requested by a resp ------------- her of the inhabitants. By JOHN A. DJX, January 1, 1836. Trustees should al- ways call a special meeting of the inhabitants of a school dis- trict when requested by a respectable number of the inhabitants. The latter have a right to repeal, alter or modify their proceed- ings at district meetings; but how shall they exercise this power if the trustees refuse to call them together for the purpose? The Superintendent will always, on showing sufficient cause, order a meeting when the trustees refuse to do so. In case of an appli- oation to him for the purpose, the trustees must have notice of it.* - i - , - : - _ * See the case of Caleb N. Potter and others, page 147. ,.-,.,..,.., 284 CASES DECIDED BY THE The Trustees of school district No. in the town of Concord, ex parte. If trustees neglect to raise and pay over the amount apportioned to a new district, their successors in office must make out a tax list and collect the amount so apportioned. School district Na in the town of Concord was divided and a new district formed. The school-house in said district was appraised by the commissioners, and the amount to be paid to the new district as its proportion of the value of the school- house was ascertained. The trustees neglected to collect the amount due to the new district during their continuance in of- fice ; and the question proposed to the Superintendent was, whether it was the duty of their successors in office to make out a tax list for the purpose, and pay over the amount so due? By JOHN A. Dix, January 6 r 1836. Where the trustees in office, at the time the school-house and property of a district are appraised by the commissioners of common schools in forming a new district, neglect to make out a tax list and collect the amount apportioned to such new district, their successors in office are bound to do it, precisely as though the apportionment had been made during the term of service of such successors. T A. B. a taxable inhabitant of school district No. in the town of Vienna, ex parte. The provision exempting from taxation for building a school-house persons who have within four years paid a tax for the purpose in another district, from which they have been set off without their consent, does not extend to taxes voted to furnish a school-house with necessary appendages. In this case A. B. was set off without his consent from a school district, in which he had paid a tax for building a school- house within four years. A tax was immediately afterwards laid in the district, to which lie was annexed, for purchasing a stove and some other necessary appendages to the school-house. The question presented to the Superintendent was, whether A. B. was exempt from a tax voted for such a purpose under the provision exempting persons set off under similar circumstances from contributing to the erection of a school-house? By JOHN A. Dix, January 7, 1836. I am of opinion that the provision of sec. 81, page 483, 1 R. S. which exempts from the payment of any tax for building a school-house, every taxa- ble inhabitant who shall have paid such a tax within four years, in a district from which he has been set off without his consent, does not extend to appendages to a school-house. I am disposed to construe the provision liberally ; but I do not think the exemp- tion can be extended so far as to include the objects of taxation SUPERINTENDENT OF COMMON SCHOOLS. 285 referred to, when the language of the statute in all cases, relat- ing to school-houses and their appendages is taken into consi- deration. In every such case appendages appear to be dis- tinctly mentioned when they are intended to be referred to, and I am not aware of any instance, in which they can be deem- ed to be included in a provision in which the school-house on- ly is named. This position is confirmed by the language of section 83, (the second section following the one before referred to,) in which a tenant may charge the owner of the land occu- pied by him with the amount of a tax paid by him, under cer- tain circumstances, for building, repairing or purchasing a school house, or for furnishing it with necessary fuel and appendages. It appears evident to me, therefore, that the law exempts you from nothing more than a tax for the school-house, and that you may be required to contribute for every other authorized object of taxation. (ANONYMOUS.) - The Superintendent will not give opinions to be used in court By JOHN A. Dix, January 8, 1836. The Superintendent is requested to answer certain questions in such a manner that his opinion may be used in court. He cannot comply with this request. If the questions in dispute had been brought before him for adjudication, he would dispose of them at once ; but as they have been carried into the courts, he has no control over them, nor would it be decorous on his part to give an opinion in a special case for the purpose of influencing the judicial de- cision about to be pronounced upon it. The Trustees of school district No. 17 in the town of Le Ray, ex parte. If a taxable inhabitant sells his farm and remains in the district, he i3 liable to be taxed on the amount of the purchase money paid or secured to be paid as personal property, and the purchaser is taxable for the farm according to its assessed value on the last assessment roll of the town. . On the 30th of November 1835, Mr. Walker moved into school district No. 17 in the town of Le Ray, and purchased of Mr. Lawrence, for the sum of $3,600, a farm which on the last assessment roll of the town was valued at $'750. Mr. Wal- ker paid $1,500, at the time of the purchase, and gave securities for the balance, $2,100. Mr. Lawrence continued to reside in the district. On the 19th of December, 1836, a tax was voted to build a school-house. In making out the tax-list, the trustees of the district assessed Walker for $750, the value of the farm as ascertained by the last assessment roll of the town, and Law- ' ? . L. >' *< 286 CASES DECIDED BY THE rence for ^3,600 the amount of the purchase money paid and secured to be paid to him for the farm. The Superintendent was requested to state whether the assessment was properly made. By JOHN A. Dix, January 11, 1836. The assessment of the property of Messrs. Lawrence and Walker is according to the requirements of the law, and I see no reason, either in law or equity, for reducing the amount as to either. The only in- justice in the case is that Mr. Walker should be taxed to the amount of $750 only, for property which he has just purchased for .$3,600. But this cannot be avoided, the value being fixed by the last assessment roll of the town. So much of the purchase money as has been paid, and the mount of the securities in Mr, Lawrence's possession tor the yraent of the balance, are personal property, and are liable to taxed as such. The district has gained by the sale of his farm the amount of the purchase money in taxable property : but if Mr. Lawrence had removed from the district after selling out, there would have been nothing gained, and, indeed there would have been a loss, if Mr. Walker's personal property, after deducting his debts, (and the balance of $2,100 due for the farm is to be considered as a debt,) were less than Mr. Lawrence's per- sonal property deducting his debts. The only way in which the district could be a gainer, would be by Mr. Lawrence's remaining in it, as he has done. (ANONYMOUS.) A warrant runs from its delivery and not from its date. A collector cannot sell property afler the expiration of his warrant By JOHN A. Dix, January 11, 1836. The time for execut- ing a warrant runs from the time of its delivery to the collector, and not from its date. See sec. 8H, page 484, 1 R. S. If a collector makes a levy before the expiration of the time limited for the return of the warrant, he cannot sell after the expiration of that time, unless the warrant is renewed. Thus if he takes property on the twenty-eighth day after the delivery of the warrant to him, and immediately gives six days' notice of sale, he cannot sell at the end of the six days, unless he pro- cures a renewal of the warrant, as he is commanded to make his return within thirty days. The Trustees of school district No. in the town of Stillwater, ex parte. A tax to purchase a school district library rannot be voted at a meeting of which no notice is required by law to be given. At the annual meeting in school district No. in the town i "W<^ SUPERINTENDENT OF COMMON SCHOOLS. 287 of Stilhvater, the propriety of raising a sum of money by tax for the purpose of purchasing a library for the district was informal- ly considered, and after some discussion the meeting was ad- journed for two weeks. In the mean time, the clerk of the dis- trict put up notices, stating that a meeting would be held at the appointed time and place for the purpose of voting a tax to pur- chase a district library. The meeting was held, and a tax of $20 was voted for the purpose. The question presented to the Superintendent was, whether a tax could be legally voted at such a meeting ? By JOHN A- Dix, January 13, 1836. The proceedings of the meeting at which a tax was voted to purchase a school dis- trict library were illegal, so far as that vote is concerned, for want of a proper notice. The provision in the act relative to the purchase of school district libraries requiring a notice of intention to lay a tax to be given, was not in the bill as originally reported, but was insert- ed by way of amendment, and the effect of it appears to me to be, that no tax for that purpose can be laid excepting at a meeting, of which a notice is required by law to be given. Thus, such a tax cannot be voted at an adjourned meeting, unless the adjournment is for more than one month, because no notice is required to be given for a meeting adjourned for a shorter time. The notice given in this case not being in pursuance of any legal requirement, cannot be considered as having any valid effect. Such a tax may be voted at an annu- al meeting, if the intention to propose it be inserted in the notice, or it may be voted at an adjourned meeting for more than one mouth, provided such notice of intention is given. It may of course be done at a special meeting, the notice in this case being by personal service. The meeting at which the tax was voted in your district, is precisely the meeting, at which such a tax cannot be voted at all. The Inspectors of Common Schools of the town of Coxsackie, ex parte. Commissioners and inspectors of common schools are entitled to such compen- sation as may be voted by the electors of the town at their annual town meet- ing. (But see note.) This was an application to the Superintendent for his opinion as to the authority of the board of supervisors of a county to make an allowance to commissioners and inspectors of common schools for their services. By JOHN A Dix, January 15, 1836. The electors of each town have power at their annual meeting, to establish the com- 288 CASES DECIDED BY THE pensation of commissioners and inspectors of common schools. See laws of 1830, chap. 320, sec. 1. Has your town passed a vote on this subject? If so, the amount fixed by it, must govern the board of supervisors in auditing- your account. If no such vole has been passed, it should be done at the next annual meet- ing of the town ; for I doubt whether the supervisors can allow any thing as a compensation to commissioners and inspectors of common schools, unless the rate is established as provided by law. With respect to the collector of the town, it is different. He cannot have more than five, nor less than three per cent. But in reference to the officers before mentioned, the law has fixed no minimum rate of compensation. It is, therefore, left wholly to the discretion of the electors of the towns; and if they vote nothing, I do not see how those officers can be allowed any thing.* (ANONYMOUS.) Trustees cannot transfer to teachers the authority of prosecuting individuals for tuition bills. But trustees must collect their dues by a rate bill, notwithstand- , ing an agreement *n the part of the teacher to collect them himself. By JOHN A. Dix, January 20, 1836. Trustees of school districts cannot transfer to teachers the right of prosecuting indi- viduals for their tuition bills. The trustees are responsible for the payment of their wages, and the teachers should look to them alone. If the teacher agrees to collect his own dues, it is right that he should do so to the extent of his ability ; but I have always held that, in case of a refusal on the part of the individuals indebted to him to pay their dues, the trustees should issue a rate bill, and direct the amount so due to be collected, notwithstanding any agreement with the teacher to the contra- ry. The justice of such a decision is manifest. The teacher contracts with the trustees to teach the district school, and he is entitled to the aid of the authority which the law has deposited with them, for the purpose of enforcing the payment of his dues from the inhabitants of the district. They will not be allowed to make a contract with a view to transfer this responsibility to the teacher, and deprive the latter of the legal remedies which the law has provided for him. If those who are indebted to the teacher do not pay him voluntarily, the sums due him must be collected in the mode prescribed by law. ^ _ ^ * By the 5th section of the act of 2?d April, 1837, commissioners of common schools are allowed " one dollar per day for every day actually and necessarily devoted by them in their official capacity to the service of the town for which they may be chosen, the same to be paid in like manner as other town officers are paid." *t SUPERINTENDENT OF COMMON SCHOOLS. 289 The Trustees of school district No. 3 in the town of Walkill, ex parte. Annual meetings need act be precisely one yew apart to a day. This was an application to the Superintendent for his opinion as to the power of the inhabitants of school districts, to fix the time for their next annual meeting on a day more or less than a year from the day on which the last was held. By JOHN A. Dix, January 23, 1836. I have received your letter inquiring whether an annual meeting can be fixed at a shorter period than one year from the time at which the previ- ous annual meeting was held ? I do not think it indispensable that annual meetings should be exactly a year apart to a day. The time may be a few days or weeks more or less than a year if the inhabitants think it necessary. For instance, an annual meeting held on the first Tuesday of October may be adjourned to the second Tuesday of October of the next year. The proprie- ty of the act in every case must depend upon the circumstances attending it. No general rule, as to the extent of the variation from a year, can be laid down as applicable to all cases, The Trustees of school district No. 9 in the town of Paris, ex parte. The inhabitants of school districts cannot vote a tax to provide fuel for singing schools. Ill school district No. 9 in the town of Paris, a singing school was held in the school-house two evenings in the week, and k had been customary in warming the house on those evenings to use the fuel provided for the school. The propriety of using the fuel for this purpose was discussed at a meeting of the inhabi- tants, and a tax was voted by a large majority to furnish as much wood as was required for the purposes of the district school and the singing school. To this proceeding objections were made by a few of the inhabitants, and the opinion of the Su- perintendent was solicited as to its legality. By JOHN A. Dix, January 30, 1836. There is no authority to use fuel provided by tax on the inhabitants of school districts, for any other purpose than that of the district school. If every inhabitant in a district were to vote in favor of raising a tax to buy wood for singing schools, it would be illegal. The law has specified the objects fojp which the inhabitants of school districts may vote taxes on their property, and they cannot exceed the limits of the authority thus conferred on them. 19 290 CASES DECIDED BY THE The Trustees of school district No. in the town of Fallsburgh, ex parte. A tax cannot be laid to erect a building to be occupied jointly as a school-house and a meeting-house. In this case a tax of $400 was voted to aid in the construc- tion of a house to be occupied during week days for the purpo- ses of the district school, and for holding religious meetings on Sunday. The balance of the sum required to construct it was to be raised by subscription. Doubts having arisen as to the le- gality of this proceeding, the opinion of the Superintendent wae requested. By JOHN A. Dix, March 9, 1836. The resolution of the inhabitants of your school district to unite with certain persons to build a house for the joint purpose of keeping a school and holding religious meetings, and to lay a tax on the district for the purpose, is illegal, and cannot be carried into execution. The Superintendent of Common Schools has long since decided that there can be no partnership in school-houses, which will prevent their being controlled entirely for common school pur- poses. The Commissioners of Common Schools of the town of Greene, ex parte. School district libraries are intended for the use of all the inhabitants of the dis- trict. The right of taking books from the library cannot be restricted to scholars at- tending the district school. The inhabitants may direct the librarian not to deliver a book to a person who has not returned one previously taken out by him, or until he has paid for any injury it may have sustained. The following questions were proposed for the decision of the Superintendent by the commissioners of common schools of the town of Greene: 1. Are school district libraries intended for the common schools primarily, or for the inhabitants of the districts ? 2. Can the inhabitants of a district, at a legal meeting, re- strict the use of the books to the scholars attending the district school? 3. If a book be lost, or destroyed, or so damaged as to render it unfit for use, can the value of the book be collected from the person in whose possession it was when it was lost, destroyed, or damaged ? By JOHN A. Dix, March 9, 1836. School district libraries are intended for the inhabitants of school districts ; as well for those who have completed theit common school education, as SUPERINTENDENT OF COMMON SCHOOLS. 291 for those who have not. The primary object of their institution was to disseminate works suited to the intellectual improvement of the great body of the people, rather than to throw into school districts for the use of young persons works of a merely juvenile character. The books being procured by a tax on the property of the district, no unnecessary restriction should be imposed on their circulation among the inhabitants. The regulations to be made by the inhabitants should relate principally to their custody arid preservation. I doubt, therefore, the right of the inhabitants to restrict the choice of books, to be taken from the library for perusal, to scho- lars attending the district school. They may have the privilege of drawing them, if the inhabitants adopt such a rule ; but I think any such rule must be subject to the right of any inhabi- tant to take from the library for perusal any book in it the time and manner of taking and returning it to be regulated by the voice of the district. If a book be destroyed or damaged, there is no power in the district to make the person so destroying or damaging it pay for it. It would, however, be competent for the inhabitants to di- rect the librarian not to deliver a book to a person who had not returned one previously taken out by him, or until he had made reparation for any injury it may have sustained while in his hands. The Trustees of school district No. in the town of Homer, ex parte, Taxable Inhabitants only can be included in tax lists. If a person moves into a district after a tax list is made out, he cannot be includ- ed in it. If a person removes from a district after a tax liet is made out, he may be prose- cuted for his part of the tax if -he does not pay voluntarily. In school district No. in the town of Homer, a tax of $100 was voted to build a school-house, and at a subsequent meeting of the inhabitants an additional tax of $120 was voted for the same purpose. After the tax of $100 was assessed, and before the tax of $120 was voted, A. B. sold his farm to C. D., and moved out of the district. C. D. moved into the district af- ter the tax of $100 was assessed and before the tax of $120 was voted. The question proposed was, whether A. B. and C. D. were liable to pay their proportion of either or both taxes ? By JOHN A. Dix, March 14, 1836. No person can be in- cluded in a tax list unless he is a taxable inhabitant residing in the district at the time the tax list is made out. Thus, if two . taxes are voted at different times, one of $100 and another of 292 CASES DECIDED BY THE $120, and after the first is assessed an inhabitant removes from the district, and before the second is assessed his place is suppli- ed by another inhabitant, the person moving out of the district cannot be made to pay any portion of the second tax of $120. nor can the person taking his place be made to pay any portion of the first tax of $100. But the person first referred to, al- though he has removed from the district, can be prosecuted (un- less he pays voluntarily) for that portion of the tax of $100 as- sessed on him while he was an actual inhabitant of the district. ; The Commissioners of Common Schools of the tow n> of Westfield, ex parte. If there are but two commissioners of common schools in office, they may act as such until a third is appointed. In the town of Westfield one of the persons elected as com- missioners of common schools declined serving. The vacancy was not supplied by the proper authority, and the two other com- missioners transacted the ordinary business of the town in rela- tion to the common schools during the year. Among other act?- performed by them, was the organization of a new school dis- trict. The right of two commissioners to act until a third was appointed having been called in question, the opinion of the Su- perintendent was solicited. ni By JOHN A. Dix, March 14, 1836. When one of the com- missioners of common schools refuses to serve, the two others may act until a third is appointed. The vacancy should have been filled in the mode prescribed by law ; but you are not re- sponsible for the omission, and your powers, with respect to all matters within your jurisdiction, are as ample as they would be if the board was full in point of numbers. Any attempt to va- cate your proceedings on that ground will be fruitless. The Trustees of school district No. in the town of Petersburg!), ex parte. A person hiring out his services for a limited period to an inhabitant of a school district, must, if of age, be deemed a resident of the district, unless he has a family and domicil elsewhere. The last assessment ro)l of the town is not a guide, in making out a tax list, as to a person who became an inhabitant of the district after the roll was made out. In this case an individual came into school district No. in the town of Petersburgh, and hired out his services for a limited period to an inhabitant of the district. The individual so hir- ing out his services had no family or domicil elsewhere, but had personal property worth more than fifty dollars over and above ^ ./*k SUPERINTENDENT OF COMMON SCHOOLS. 293 such as is exempt by law from execution. He moved into the district after the last assessment roll of the town was completed, and was not, of course, included in it. The question presented to the Superintendent was, whether he could be included in the assessment of a tax voted to build a school-house ? By JOHN A. Dix, March 22, 1836. A person hiring out his services for a limited period to an inhabitant of a school dis- trict, must be considered as a resident of the district, if he is of age, unless he has a family and domicil elsewhere. It is not necessary that his name should be on the last assessment roll of the town, in order to make him liable to be taxed. The trustees must see that every taxable inhabitant residing in the district is included in the tax list. The last assessment roll of the town is o be consulted only so far as valuations of property are concerned: and it is not a guide, from the necessity of the case, where a person has become an inhabitant of the town and the district subsequently to the time of its completion. In every such case the trustees must make a valuation of the property of the per- sons coming into the district, giving notice in the manner re- quired of town assessors in making valuations of taxable pro- perty. The Trustees of school district No. 1 in the town of Nanticoke, against the Commissioners of Common Schools of said town. If a man is employed in a school district in taking care of a mill from tali till spring, his children must be enumerated in the district The facts of this case are stated in the Superintendent's opi- nion. The question submitted was, whether the children of the person referred to in the statement presented to the Superinten- dent could be enumerated in district No. 1 in the town of Nan- ticoke. By JOHN A. Dix, March 25, 1836. The Superintendent of Common Schools has received a statement submitted by the trustees of school district No. 1 in the town of Nanticoke, and the commissioners of common schools of said town, in the fol- lowing words : " In the aforesaid district is the following property, viz : A saw- mill and a dwelling-house owned by a non-resident of the town, the mill doing business say four months in a year. The owner employs a man in the fall to attend to the concerns about the mill, who occupies the house till spring, and then removes. Are the children of parents coming into the district under such circumstances, residents under the school law?" The children of the person living on the premises from fall CASES DECIDED BY until spring- must be enumerated in the district. Although hit. residence is not permanent, he is an actual resident of the dis- trict on the 31st of December, and if his children are not enume- rated there, it is manifest that they cannot be in any other dis- trict in the state. The Commissioners of Common Schools of the town of Corinth, ex parte. If a teacher is taken sick, and another cannot be procured in time to have the school kept three months, the Superintendent will, on showing the facts, al- low the district a share of the public money. la this case a qualified teacher was employed in the fall of 1835, in school district No. 7 in the town of Corinth, but after teaching several weeks he was taken sick, and was compelled to give up the school. The trustees immediately endeavoured to procure another teacher, but they did not succeed in time to have the school taught three months by a qualified teacher be- fore the 1st of January, 1836. The trustees made a full state- ment, of the facts in their annual report to the commissioners of common schools, who set apart and retained in their hands the amount of money to which the district would have been entitled if a school had been kept in it three months during the preced- ing year by a qualified teacher, and referred the case to the Su perintendent for his decision. By JOHN A. Dix, April 11, 1836. I have received your statement in relation to school district No. 7 in the town of Co- rinth. The case is one which demands the interposition of the Superintendent of common schools in order to save the equitable rights of the district. The deficiency in respect to the time dur- ing which a school was kept by a qualified teacher, was occa- sioned by a causxtfbver which the trustees of the district had no control. Their intention to comply with the requirements of the law was frustrated by necessity : no diligence or exertion on their part was wanting, and the district must not suffer. You were right in referring the matter to the Superintendent; and you are accordingly authorized to pay the trustees the public money re- tained in your hands. The Commissioners of Common Schools of the town of York, ex parte. Separate neighborhoods can only be set off to form districts with the inhabitant* of adjoining states. In consequence of a difficulty in one of the schools districts in the town of York, the commissioners of common schools of the &' at '*> SUPERINTElfDENT OF COMMON SCHOOLS. 295 town set off a part of the inhabitants as a separate neighborhood. No part of the town or the county of which it was a part wa8 adjacent to the territory of another state. The question present- ed by the commissioners to the Superintendent was, whether in this proceeding they had acted without legal authority? By JOHN A. Dix, April 12, 1836. Separate neighborhoods can only be set off for the purpose of forming districts with in- habitants of an adjoining state. The proceeding of the com- missioners in the case referred to, was, of course, illegal. They have a right to form a new district, and in such case, the school- house may be appraised, so that the persons set off to the new district may have their proportion of its value. The Trustees of school district No. 8 in the town of Nichols, ex parte. If a new district, formed with the consent of the trustees of the districts from which it was taken, has gone on in good faith to build a school-house, and a school has been kept ten months, irregularities in its formation will not be no- ticed, after the lapse of two years, if the record of the proceedings of the commissioners in forming it is regular, and no appeal has been made. Commissioners of common schools will not be permitted to deny the legal exist- ence of a district when their own records show it to have been regularly formed. In April, 1834, the commissioners of common schools of the town of Nichols formed a new school district by the designation of district No. 8. The trustees of the districts from which it was taken having consented to the alterations in their respective dis- tricts, it was immediately organized and a school-house built. The district was reported to the Superintendent of Common Schools as a regularly organized district in 1835 ; but on appor- tioning the public moneys in April, 1836. among the school dis- tricts in the town, No. 8 was refused a share by the commission- ers on the ground that it had not been regularly organized, and therefore had not a legal existence. The opinion of the Superin- tendent w r as desired as to the propriety of their course in thus excluding the district from the apportionment. By JOHN A. Dix, October 15, 1836. I have received your statement in relation to school district No. 8 in the town of Ni- chols. This district was formed, as is admitted, in April, 1834; but it is alleged that the commissioners did not in all respects pursue the course required by law. The proceedings of the commission- ers, as entered of record in the office of the town clerk, appear to be regular, and it seems that the consent of the trustees of the several districts out of which No. 8 was formed, was duly obtained and recorded. In the month of July ensuing, a com- r 296 CASES DECIDED BY THE munication was addressed to the Superintendent of Common Schools, complaining of the alteration in one of the districts by the formation of No. 8. To this application an answer was im- mediately returned, stating that it could not be received as an appeal, because the course prescribed by the Superintendent in such cases had not been pursued r and that the matter of com- plaint would be promptly investigated when it should be present- ed in proper form. The application has never been renewed ; the new district has been organized two years, a school-house has been built, and during the last year a school has been kept in it nearly ten months. Under these circumstances, the new district has acquired equitable rights which ought not to be dis- regarded in an examination of this subject. Although in form- ing the district all the formalities prescribed by law may not have been complied with, no irregularity is shown by the record, and its accuracy should have been impeached at the time it was made, if it was intended to disturb the proceedings. You state that some legal proceedings which were instituted in this case were settled by a decision adverse to the trustees of the district ; but it does not appear that the principles of the decision touched the question of the organization of the district. The commis sioners of common schools have no authority to pass judgment upon the legality of its organization, as they have done in direct opposition to the evidence furnished by their own record, and their reports to the Superintendent of Common Schools. They might have annulled the district; but so long as their own. records show it to have been regularly formed, they should not be allowed to dispute the feet. It is only by a direct adjudication by a court of law, upon the legality of their proceedings in forming the dis- trict, a decision of the Superintendent, or an order properly made by themselves rescinding their former proceedings and annulling the district, that its organization can be disturbed. The com- missioners may, when distributing the public moneys, exclude a district on the ground that it has not a legal existence ; but they cannot do so when their own records and reports show the con- trary. In such a case, the remedy must be provided in one of the modes before suggested. The Commissioners of Common Schools of the town of Spencer, ex parte. If the annual report of a school district is received by the eetnmissioners before the public moneys are distributed, it is in time, and the district should be included in the apportionment. The commissioners of common schools of the town of Spen- cer met on the first Tuesday of April, 1836, to make an appor- SUPERINTENDENT OF COMMON SCHOOLS. 297 tionment of the public moneys to the school districts in the town ; but the annual report of school district No. 3, which had been handed to the town clerk, having been mislaid, the final appor- tionment was postponed until the second Tuesday of April. Between the first and second Tuesday of April, the annual re- port of school district No. 2, which had not before been delivered to the town clerk, was handed in to the commissioners ; and the question presented by them was, whether district No. 3, the an- nual report of which had not been delivered before the first Tues- day of April, should be included in the apportionment? By JOHN A. Dix, May 7, 1836. If a report from a school district is handed in at any time before the commissioners have apportioned the public money, it is in time, and should be included in the apportionment. The law requires the reports to be made on or before the first of March, and yet they are to be received at any time before the apportionment. The apportionment is requir- ed to be made on the first Tuesday of April, whether all the reports are received or not; but if this duty is neglected, it must, from the necessity of the case, be discharged on a subsequent day. I consider the apportionment in your town as having been made on the second Tuesday of April ; and for the same reason that the report of No. 3 was acted on and a re-apportionment made after the proper time, the report of No. 2 should have been re- ceived, and the proper allowance made to that district. If the apportionment which was to have been made on the first Tues- day of April, had not been delayed by reason of a mistake on the part of the town clerk, No. 2 could not have come in and claimed an allowance ; but the distribution having been postpon- ed, its equitable rights ought to have been saved. The Trustees of school district No. 1 in the town of Lawrence, against the Commissioners of Common Schools of said town. *4 Errors committed by the commissioners of common schools in apportioning th school moneys, cannot be corrected by their successors in office, without an order from the Superintendent. The facts of this case are set forth in the Superintendent's order. By JOHN A. Dix, May 12, 1S36. This is a case submitted by the commissioners of common schools of the town of Law- rence, and the trustees of school district No. i of said town, with respect to an error in the report of that district for the year 1834. The principal facts are as follows : The trustees of said district in their annual report for that year omitted two of the inhabi- tants in stating the " names of parents," and their six children were consequently not included in the column of children be- 298 CASES DECIDED BY THE tween 5 and 16 years of age. The mistake occurred in copy- ing the original draught of the report, as the footing of the co- lumn referred to contained six more than the addition of the figures in the column amounted to. Soon after the apportion- ment of the school moneys in April following, the errc^ was dis- covered, and the trustees have regularly applied to the commis- sioners of common schools during each subsequent year to the present time to allow them the amount, to which they were equitably entitled, and which they would have received but for the mistake referred to. The commissioners have declined mak- ing the allowance, from the belief that they had no authority to do so. The whole matter is now submitted to the Superinten- dent for his direction. The commissioners of common schools decided correctly in declining to act for want of authority. They are authorized to correct errors in the reports, on which the apportionment is to be made by them ; but they have no authority to correct errors in the reports of preceding years, and thus modify the apportion- ments made by their predecessors in office. All such cases must be brought before the Superintendent for an equitable adjudica- tion. After the lapse of time which has occurred in this case, he would not interfere, if the trustees of No. 1 had not regularly presented their claim to the commissioners of common schools every year since the error occurred, with the supposition that the latter were authorized to correct it. As there has been no want of diligence on their part, and as the equity of the case is undenia- ble, it is Ordered, that the commissioners of common schools of the town of Lawrence pay to the trustees of school district No. 1 in said town, out of the next moneys which shall come into their hands for distribution, such sum as that district would have re- ceived in the year 1834, if the six children accidentally omitted had been included in the annual report of the district for that year. The Trustees of school district No. 9 in the town of Barre, against the Commissioners of Common Schools of said town. If public money is paid to a teacher not qualified, and the trustees or inhabitants replace, out of their private funds, the amount so paid, the district will be al- lowed to participate in the apportionment of the public moneys. The facts of this case are stated in the Superintendent's order. By JOHN A. Drx, May 14, 1836. The Superintendent of Common Schools has examined the statement of the trustees of school district No. 9 in the town of Barre, in relation to the pay- ment of a portion of the school moneys received by that district * SUPERINTENDENT OF COMMON SCHOOLS. 299 in 1835, to a teacher not qualified according to law. In the truth of the statement, so far as they know them, the commis- sioners of common schools of the town concur. By this statement it appears that the sum of $12 . 50, received from the commissioners of common schools in April, 1835, and being 1 a part of the school moneys apportioned to the district aforesaid, was paid to a teacher, who did not, during any part of her term of instruction, hold a certificate of qualification from the inspectors of the town dated within one year. She had, however, taught 8 seasons. During the year 1834, she taught the school in an adjoining district, and she had at different times received certificates of qualification. Under these circumstances, the trus- tees, who employed her, neglected to have her examined by the inspectors : and their successors in office, not being aware that this duty had been neglected, paid her the sum of $12.50 out of the public moneys on account of her wages, supposing her to be qualified. Soon afterwards it was discovered that she had not a certificate dated within a year. In their annual report for the year 1835, the trustees stated, that of the sum of $37.50, received from the commissioners of common schools, $25 had been paid to a teacher duly qualified, and $12.50 to a teacher not qualified ; and the commissioners of course refused to appor- tion to the district a share of the public money for the year 1836. The payment of any portion of the public money to a teacher who is not qualified as the law directs, is a violation of the sta- tute. It is, indeed, not a payment in law ; and the trustees, by whom it is made, may be prosecuted for the amount as for a balance remaining in their hands. But would the recovery of the amount so paid save the equitable rights of the district I Clearly not. If it was not a payment in law, an equal sum ought of right to be raised by a rate bill against those who sent their children to school during the term for which it was paid : and this would not, without the equitable interposition of the Su- perintendent, prevent a forfeiture of the right of the district to participate in the distribution of the public money for the present year. The equities of this case are clear. The teacher, though not legally qualified, was so in point of fact. The trustees who paid the money were not aware of the delinquency of their predeces- sors in office, until a short time before they made their annual report; and they have, by stating the whole truth in that report, given the strongest evidence of having acted ii good faith. Under all the circumstances, the Superintendent deems it equi- table to allow the district its share of the public money, if the sum of $12.50 shall be raised and replaced out of their private funds by the trustees or inhabitants. In this case, that amount Z^^Hi 300 CASES DECIDED BY THE must be held by the trustees as public money, and expended dur- ing the present year in payment of the wages of qualified tea- chers precisely as though it had been received from the commis- sioners of common schools ; and it must be accounted for in the next annual report of the district. It is accordingly ordered, that the commissioners of common schools of the town of Barre, on receiving satisfactory evidence that the foregoing requirements have been complied with, ap- portion to said district No. 9, out of any school moneys in their hands, or to be in their hands, such sum as that district would have been entitled to receive for the present year, if the amount apportioned to that district in 1835 had been applied to the pay- ment of the wages of a qualified teacher. The Commissioners of Common Schools of the town of Harrisburgh, ex parte. Permanent town funds must be applied exclusively for the benefit of the com- mon schools in the town. In this case the opinion of the Superintendent was requested by the commissioners of common schools of the town of Harris- burgh, as to the proper application in joint school districts of mo- neys derived from permanent town funds. The town of Harris- burgh had a local fund, which was once a poor fund, but which, when the town poor became a county charge, was appropriated to the use of common schools in the town. The adjoining towns had no such funds; and the question proposed was, whether the inhabitants of those towns belonging to joint districts lying partly in the town of Harrisburgh could be benefited by the town fund of the latter. By JOHN A. Dix, May 31, 1836. It has been settled, in several cases, by the Superintendent of Common Schools, that the proceeds of school lands must be applied exclusively for the benefit of the inhabitants of the town to which the lands belong. Thus, if a joint school district receives from one of the towns oi which it constitutes a part, a portion of the proceeds of the school fund belonging to the town, the inhabitants of the other town or towns cannot be benefited by the amount so received. For the purpose of applying it exclusively to the use of the inhabitants of. that part of the district lying in the town to which the fund be- longs, two rate bills must be made out when the public money is insufficient to pay the wages of the teacher. One rate bill must be against the inhabitants of the district residing in the town to which the fund belongs, and the other against the inhabitants of the district residing in the other town or towns ; and the former must be credited with the amount derived from that fund. RINTENDENT OF COMMON SCHOOLS. 301 The rule with respect to all permanent town funds should be the same. Thus the poor fund which has, by a vote of the in- habitants of the town to which it belongs, been appropriated to the use of the common schools, in consequence of abolishing the distinction between town and county poor, should be faithfully applied to the use of the schools in the town. The act of 27th April, 1829, provides, (sec. 8,) that the interest of the common school fund established in this manner shall be " applied to the support of common schools of such town," that is, of the town to which the fund belongs. A different rule prevails with regard to the school moneys de- rived from the common school fund of the state, from taxation, and from accidental sources of contribution. In all such cases the general rule of apportionment and expenditure prevails. Thus if a joint district, lying partly in two towns, derives from those sources different sums of money in proportion to the number of children in each, the two sums must be applied equally to the benefit of all in the district, although one of the towns may have voluntarily raised twice the amount it derives from the school fund of the state, and the other only an equal amount. I do not see how these rules affect the apportionment to be made by the commissioners of common schools. They distri- bute the school moneys, in all cases, according to the number of children in each district, whether joint or single, residing in the town. But it is a matter relating solely to the application or expenditure of the money by the trustees of school districts, who must see that it goes to the benefit of those who are entitled to it. I suppose however, my opinion is desired by way of advice or direction to the trustees of school districts. The inhabitants of joint school district No. 2 in the towns of Otsego and Hartwick, against the trustees of said district. If trustees engage a teacher for a specified term, and the inhabitants of a school district, without good cause, withdraw their children from the district school, and send them to a private teacher, the Superintendent will allow the greater part of the public money to be applied to the term for which the teacher was engaged by the trustees. The inhabitants of school districts should sustain the trustees in employing com- petent teachers, and in their efforts to advance the standard of education. The facts of this case are stated in the Superintendent's order. By JOHN A. Dix. June 6, 1836. In the matter of the appli- cation of certain inhabitants of school district No. 2, lying partly in the town of Otsego and partly in the town* of Hartwick, for a division of the school moneys between the summer and winter terms, it being understood to be the intention of the trustees to 302 CASES DECIDED BY THE appropriate the whole amount to the summer school, it appears, that at the late annual meeting in the district no vote was taken with regard to the application of the public money ; and immediately afterwards the trustees hired a teacher for twenty dollars per month, the compensation usually paid to male teach- ers for winter schools. Some of the inhabitants of the district being dissatisfied with the proceedings of the trustees, on account of the high wages to be paid to the teacher, set up a private school, and engaged a female to teach it, thus withdrawing from the district school a large number of the children, who would otherwise have contributed to its support. This proceeding on the part of the persons who have sepa- rated themselves from the rest of the district, and are contri- buting to break down the common school, is highly censura- ble. The sole objection to the proceedings of the trustees is that they have agreed to pay higher wages than is necessary for a common school. It is not alleged that they have not engaged a competent teacher; on the contrary, it is stated that one of the ob- jects of employing a teacher at high wages is to enable some of the scholars to receive instruction in higher branches than are usually taught in the district. So long as this object does not conflict with the interest of those who are pursuing less advanced studies, it deserves to be encouraged; and the Superintendent is unable to perceive that the course of the trustees has been oppres- sive or indiscreet. The great evil of the common school system is the want of competent teachers. This deficiency could be readily supplied, if the inhabitants of school districts were willing to pay persons well qualified to teach, a sufficient compensation to secure their services. The trustees of this district have shown a desire to elevate and maintain the character of their school: and so far as is proper the Superintendent feels disposed to sustain them in the effort. The district receives between fifty and sixty dollars of public money; enough to pay the wages of the teacher for near- ly one-third of the entire year. Surely so liberal a contribution ought to secure a corresponding liberality on the part of those im- mediately benefited by it. It may seem unequal to pay at the same rate for children who study the common branches and for those who pursue studies of a higher grade. But from the na- ture of the common school system no distinction can be made. Ultimately all are equally benefited ; for as small children ad- vance, their contributions do not increase in proportion to the stu- dies which they pursue, and thus their tuition costs them less than they would be compelled to pay if such a distinction were made. Every inhabitant of a school district who has children is inte- rested in maintaining a respectable school. If the policy of a school district is to employ a teacher who is merely competent to SUPERINTENDENT OF COMMON SCHOOLS. 303 give instruction in the first rudiments, those whose children are young may be gainers, in a pecuniary point of view, by reason of the low wages paid ; but they should not lose sight of the fact, that if the same policy is pursued, their children, as they advance to manhood, will not enjoy those facilities for the acquisition of knowledge which are necessary to make them respectable mem- bers of society, and to enable them to enter into successful com- petition with others for its honors and emoluments. The Superintendent has always been accustomed to direct, when applications have been made to him for the purpose, that the public moneys received by a school district should be equally divided between the summer and winter terms. This case is distinguished from any other which has come before him. Al- though the trustees have acted in good faith, and have employ- ed a teacher, against whom no charge is brought, a portion of the inhabitants have set up a school in opposition to the one es- tablished by the trustees, because they are unwilling to pay their just proportion of his wages. If by allowing the whole of the public money to be applied to the summer term, the Superin- tendent were sure that the effects would fall on those only who have taken this course, he would not interfere. But as innocent persona might suffer, and as he is unwilling to abandon altoge- ther the principle of dividing the school moneys between sum- mer and winter terms : It is hereby ordered, that one-third of the public money receiv- ed by the trustees of school district No. 2 aforesaid, for the pre- sent year, be reserved for the fall or winter term ; and that the remaining two-thirds may, in their discretion, be applied in whole or in part to the summer term. (ANONYMOUS.) Children in county poor-houses cannot be sent to a district school, excepting by voluntary agreement with the trustees. By JOHN A. Dix, June 29, 1836. Superintendents of the poor cannot claim, as matter of right, the admission of pauper children into the common school of the district in which the county poor-house is established. If they are admitted, it must be by a voluntary agreement with the trustees of the district. (ANONYMOUS.) When trustees of districts find it necessary in assessing a tax to proceed in the same manner as assessors of towns, they are allowed twenty days in addition to the month within which the tax list is required by law to be made out. By JOHN A. Dix, June 30, 1836. When, in consequence of a claim by an individual to a reduction of his valuation, it be- 304 CASES DECIDED BY THE <\ - comes necessary to proceed in the same manner as the assessors of towns are required by law to do, the trustees of a school dis- trict are allowed, according to the construction which I have given to the statute, twenty days to complete the assessment of a tax in addition to the month within which the tax must be assessed and the tax list made out. Suppose trustees assess a tax twenty-five days after it is voted, and on that day a person claims a reduction. It is their duty to give a notice of twenty days, and then to meet and review their assessment. But if their right to complete the assessment expires at the end of the month after the tax is voted, it will be necessary to call another meeting with a view to vote the tax anew. By the construction above given, the two provisions are reconciled, and the embarrassment referred to can never occur. The law gives a twofold direction to the trustees, and both must be obeyed. The tax list must be made out within one month, but the meeting for reviewing the assessment is an independent act, and the time allowed for per- forming it must be deemed to be exclusive of the time prescribed for assessing the tax. If a different construction were adopted, it would be necessary that every tax list should be made out within ten days after the tax is voted, in order to enable the trus- tees to be prepared for a claim to a reduction. An interpreta- tion which shall avoid this inconsistency and save both provi- sions of the law, is right in itself, and does not, as I perceive, violate any settled rule of construction. (ANONYMOUS.) If the assessment of a tax is delayed by an appeal, the time is not to be comput- ed as part of the month within which the tax list must be made out. By JOHN A. Dix, July 2, 1836. Where the assessment of a tax is delayed by an appeal, the time intervening between the presentation of said appeal and the decision thereon, is not to be computed as a part, of the month within which the tax list is re- quired to be made out. The regulations of the Superintendent relating to appeals, provide, that " after copies of the appeal in any case have been served, all proceedings, from the operation of which relief is sought, will be suspended until the case is de- cided." While an appeal is pending, the proper officers have no authority to act, and when that disability is removed, their rights and the rights of those whose agents they are, are not to be pre- judiced by a delay for which they are not answerable. ' SUPERINTENDENT OF COMMON SCHOOLS. 305 The Commissioners of Common Schools of the town of Chatham, ex parte. The number of a joint school district should not be changed without the concur- rence of the commissioners of all the towns within which the district partly lies. This was an application for the opinion of the Superintendent as to the authority of the commissioners of common schools of the town of Chatham, to alter the number of a school district ly- ing partly in that town and partly in an adjoining town. By JOHN A. Dix, September 1, 1836. The commissioners of common schools of one town should not alter the number of a school district lying partly in another town without the concur- rence of the commissioners of the latter. By referring to sub. No. 3 of sec. 19 of the common school act, (1 R. S. page 470,) you will perceive that the commissioners of common schools in each town are required " to describe and number the school dis- tricts, and to deliver the description and numbers thereof in writ- ing to the town clerk," &c. The specification of the powers of the commissioners under this section, has reference to single dis- tricts, or districts lying wholly within the limits of one town. But with respect to joint districts, or districts lying partly in several towns, none of those powers can properly be exercised, excepting with the concurrence of the commissioners of all the towns in which such districts partly lie., The numbering of a district may be considered as an act pertaining to the regula- tion of the district; and by reference to section 20, page 471, 1 R. S. you will perceive that in respect to joint districts, or districts formed out of two or more adjoining towns, the concurrence of the major part of the commissioners of each of such adjoining towns is necessary, in order to "regulate" or alter them. When, therefore, the number of a joint district is altered, the commis- sioners of all the towns of which such district constitutes a part, should meet together and concur in the alteration, and the new number must be delivered in writing to the town clerk of each towru Harvey Loomis, a taxable inhabitant of joint school district No. 1 in the towns of Milton and Ballston, against the Trustees of said district. If a person remores from one school district into another in the same village. and takes lodgings for his family until he can find a permanent place of resi- dence, to suit him, he is a taxabl* inhabitant of the district into which he has so removed. The facts of this case are stated in the Superintendent's or- der. 20 306 CASES DECIDED BY THE By JOHN A. Dix, Sejftenibcr 10, 1836. On the 16th day of January, 1836, the commissioners of common schools of the towns of Milton and Ballston divided joint school district No. 1, lying partly in both those towns, and comprising within its boun- daries the village of Ballston Spa, and formed a new district by the designation of district No. 12. By this division, Harvey Loomis, who had for several years been a resident of said dis- trict, and of that part of it which was set off to No. 12, became an inhabitant of the latter district. About the first of May, the said Loomis removed with his family into that part of the former district which retained its original number, and took lodgings at the house of his brother-in-law, Reuben Westcott, having sold his dwelling-house in district No. 12, and surrendered the posses- sion thereof to the purchaser oii the said first day of May. On the 7th of May a site was fixed, and a tax voted for a school- house in district No. 1. On the 26th of May, Harvey Loomi* gave notice that he should claim a reduction of the amount of his assessment. The trustees made out their tax list on the 6th of June, having given twenty days' notice of the time and place at which they would meet to review their assessment. At the time and place appointed, Harvey Loomis did not appear to claim a re- duction of the amount of his tax. He was therefore assessed on $20,000, the amount of his personal property as ascertained by the last assessment roll of the town, and was taxed $80, his just proportion of the whole tax. From this proceeding he appeals, and claims a total exemption on the ground that he was not a resident of the district at the time the tax list was made out. The liability of Mr. Loomis to be taxed in district No. 1 de pends altogether on the fact of his being a resident of the dis- trict at the time the tax list was made out. If he was so, he was liable to be taxed. If not. he was not taxable, and the trus- tees should not have included him in the tax list. The question of residence is one which is to be settled by the facts of the case, and with regard to these there is no dispute. Mr. Loomis went into district No. 1 with his family, and engaged rooms there un- til he could find a permanent place of residence. The act of removing from one house to another in the same village, even as preparatory to a future permanent removal from the county, did not, so far as regards the village and town, amount to a change of residence. The intention of establishing himself per- manently at some future time at a different place, if he should succeed in finding one to suit him, seems to the Superintendent to be conclusive against the position assumed by him, that he had changed his residence. The proposed change of residence is future and contingent, and must be consummated by an ac- tual removal ; and certainly such actual removal is altogether -SUPERINTENDENT OF COMMON SCHOOLS. 307 - 4: inconsistent with the intention to remove at a future time. Mr. Loomis is clearly taxable in the town. Did not the assessors in- clude him in the town assessment for the present year? Doubt- less they considered it their duty to do so. The fact that Mr. Loomis went to the city of New- York with his family shortly after he took rooms at the house of his brother-in-law, Mr. West- cott ; and afterwards travelled into the western part of the state, does not, when taken in connection with other circumstances, vary the case ; nor does the fact of going to Troy in quest of a ; suitable place for the intended permanent future abode of his family," amount to an actual change of residence. At the ter- mination of these several movements, he regularly returned to the village of Ballston Spa ; and if his intention can be inferred from the facts, it would seem to have been to make that village ihis temporary place of abode until he could find a permanent one. Certainly, there was not such an actual removal as to terminate his residence ia that village. The same reasoning is applicable to the -question of his resi- dence in district No. 1. He ceased to be an inhabitant of dis- trict No. 12 when he gave up the possession of his house and took rooms in the former district, and by virtue of this removal from a house in one district to a house in another in the same village, he became an inhabitant of the district into which he so removed, unless he lost his residence in the village altogether- This point having been disposed of, he must be considered an inhabitant of district No. 1 at the time the tax list was made out, and he was therefore taxable on his personal property for mmon school purposes He might have appeared and claimed a reduction of his tax, agreeably to his notice to the trustees ; but having failed to do so, the tax must be collected as assessed. It is hereby ordered, that the appeal of Harvey Loomis afore- said, be, and it Js dismissed. : (ANONYMOUS.) The collector of a school district is answerable for moneys lost to the district by his neglect, though he may net have given a bond to the trustees. If the term of service of the trustees and collector has expired, and a warrant for the collection of a school bill has run out in the hands of the latter, the successors of such trustees must renew the warrant and direct it to the suc- cessor of such collector. By JOHN A. Dix, September 12, 1836. If by the neglect of a collector, moneys which might have been collected by him within the time limited, are lost to the district, he is liable for the amount, whether he has given a bond or not to the trustees. The bond is an additional security ; but if it is not required of him, he is not released from any obligation which the law im- * CASES DECIDED BY THE poses on him. The trustees may require a bond of the collec tor or not, as they please. If they do, they may, in case of hi.-> delinquency, look to his sureties : If they do not, they must look to him for an indemnity against losses sustained by the district. If the term of service of both trustees and collector has expir ed, and a warrant for the collection of a school bill has run out in the hands of the latter, the successors in office of such trus- tees must renew the warrant, and deliver it to the successor of the collector ; but the collector in whose hands the warrant run* out is answerable if there is any loss through his neglect. The Trustees of school district No. "2 in the town of" Manheim, ex parie. Grass land and ploughed land, are taxable to the non resident owner r bat a woad lot used for manufacturing maple sugar is not taxable to- such owner. In school district No. 2 in the town of Mattheim, there were three pieces of land belonging to A. B, residing in another district. One piece was used for mowing, another for tillage, and the third was a wood lot used for manufacturing maple su- gar. The owner had no- agent or servant in charge of eithev piece. The question proposed was, whether either or all were taxable to the owner in district No. 2? By JOHN A, Dix, September 12, 1836. A. R is liable to be taxed 0*1 the piece of land li occupied as gtass- laad and plough land r ' r but not on the wood lot used foe manufacturing maple sugar. The latter not being cleared aad cultivated is not taxable to him, as lie is a non-resident,, and has no agent in tke district in ihe occupation of it. William H. Strunk, a taxable inhabitant of school district No. 18 in. the town of EiHcott,. against the Trustees of said district. Commissioners of common schools have no- authority to* declare void the pro- ceedings of school district meetings. If, through the neglect of trustees, a tax to build a school-house is not collected within a reasonable time,, and before the collection is made, anew district i> formed and an inhabitant set off to it, the Superintendent will remit so much of the tax to build a school-house in the district from which such inhabitant was taken as was assessed to him. The facts of this case are stated in the Superintendent's order. By JOHN A. Dix r September 12, 1836. On the 16th day of November, 1835, the inhabitants of school district No. 18 in the town of Ellicott, at a special meeting called for the purpose, voted that the site of the school-house should be changed and a new house erected. The meeting was then adjourned to the 16th SUPERINTENDENT OP COMMON SCHOOLS. 309 of November, and a notice given, by posting up the same, set- ting forth that the meeting would be held at the time and place agreed on, to meet the commissioners of common schools, for the purpose of establishing a site for the new school-house, and to attend to other business. At this meeting the commissioners de- clared the proceedings of the previous meeting void, and the inha- bitants voted to change the site of the school-house, and to raise a tax of $200 to build the new house. The tax was assessed ac- cordingly, and at the time it was so assessed. William H. Strunk, being a taxable inhabitant of said school district No. 18, was faxed $40. The tax has, however, not been collected of said Strunk. Subsequently to this proceeding, a new school district was formed by the commissioners of common schools, by the designation of district No, 3, and said Strunk was included in it. A tax has been laid in the latter for a school-house, and said Strunk has paid his proportion of it, amounting to $39.83. He is now called on to pay the tax of $40 which was assessed to him in district No. 18, in 1835, and he applies to the Superin- tendent to decide whether he shall pay it. The trusteess of No. 18 have presented their answer to the application, and it has l>een duly considered. The facts set forth by the appellant, not having been disputed in the answer of the trustees, are presumed to be truly stated. Mr. Strunk was clearly liable to be assessed in district No. 18. He was a taxable inhabitant at the time the tax list was made out, and there is nothing in the proceedings of the meeting, at which the tax was voted, to justify the Superintendent in set- ring them aside. The proceedings of the commissioners of com- mon schools, in declaring the meeting of the 16th of October void, were wholly without authority. They had no jurisdiction in the case ; and as the proceedings of that meeting were not appealed from within the time limited by regulation, they will be presumed to have been regular. Nor have the commission- ers any authority to fix a site for the new school-house, though they might as individuals, with a view to settle a controversy, act as umpires, at the request of the inhabitants, between the contend- ing parties. The notice for the adjourned meeting was regular, and there can be no good foundation for the pretence that the vote to raise a tax took any one by surprise. The vote to build a new school-house had been taken thirty days before, and the erection of the house given to the lowest bidder. The meeting was then adjourned for one month, and it was but reasonable to expect that at the time appointed the necessary sum would be voted for the erection of the house. Indeed, as the adjournment was for one month only, no notice was necessary. At all events^ * ' '. ' " ' . .I'M-. ."f'tfU 310 CASE* DECIDED BY THE ;.-* there was no legal defect, the proceedings will not, after the lapse of ten months, be disturbed. Mr. Strunk was, therefore, liable to pay his tax in district Nix IS, But it is now to be considered whether he has not equitable rights, which may fairly be set up in bar of the pay- ment of the tax. It is proper to remark, that the tax in No. 18 ought to have been promptly collected. In. deferring it for so long a period, the trustees have been guilty of neglect, and others must not be prejudiced by the delay. That Mr. Strunk will be so prejudiced, without the interposition of the Superin- tendent, will be manifest, when it is considered how he wou'd have stood if they had performed their duty. It is provided that the com mission ere of common schools, whenever a new district is formed,, shall apportion to it a just proportion of the value of the school-house "and other property" of the districts from which it is taken. District No. 18 had no school-house ; but if the trustees had collected, with proper promptitude, the tax voted to build one, they would have had a sum of money, of which Mr Strunk would have been entitled to a share, when he was set off to the new district. Tb rough the neglect of the officers of the district, that sum had not been collected ~ but in the equitable jurisdiction of the Superintendent over all such matters, a reme- dy may readtty be provided for those cases, in which, without his interposition, injustice would be done to third persons. It should be observed, in justice to the officers of the district, that the time for delivering to the collector a warrant for the collection of a lax is not prescribed. But the statute provides that every tax shall be assessed and the tax list made out- within one month aftei it is voted : and the Superintendent has always required that the warrant should be immediately delivered to the collector, If this had been done, apd the rax collected, it would have been the duty of the commissioners in forming district No. 3 and an- nexing Mr. Strunk to it, to apportion to that district so much of the. sum collected to build a school-house, as it would have been outilled to receive upon the basis of his property. According to the rule of apportionment provided by law, the sum *o allowed to district No. 3 would have been precisely what he would have paid, ($40,) and this sum would have been credited to him in re- duction of his tax in district No. 3 for building a school-house. The duty enjoined upon the Superintendent in this case, by every consideration of fairness and equity, is either to remit the tax altogether, or to provide for apportioning to No. 3 so much of the value of the school-house in No. 18, or so much of the amount raised to build one, as it is justly entitled to receive on account of Mr. Strunk's taxable property. Either course would have, so far as respects the latter district, the same result. The SUPERINTENDENT OP COMMON SCHOOLS. 311 amount of Mr. Strunk's ta_x would be raised upon the remain- ing inhabitants of the district. As the last of the two courses suggested would be attended with some embarrassment, and as the ends of justice will be equally attained by either, he prefers to remit the tax assessed on Mr. Strunk, and leave it to district No. 18 to make up the deficiency. It is accordingly ordered, that the tax assessed on William H. Strunk, for building a school-house in district No. 18 in the town of Ellieott, amounting to $40, be and it is hereby wholly remitted ; and the trustees are hereby authorized and required to re-assess the amount of said tax on the remaining inhabitants of said district. The Trustees of school district No. 6 in the town of Lowville, ex parte. When the site of a district school-house is changed pursuant to the act of 17th February, 1831, the inhabitants have power to direct the sale of the former lot and site. The site of the school-house in district No. 6 in the town of Lowville, was changed by a vote of two-thirds of the inhabitants, with the consent of the commissioners of common schools of the town, the district not having been altered from the time the school-house had been built. The question proposed to the Su- perintendent was, whether the trustees, under the act of llth May, 1835, chap. 308, laws of 1835, could dispose of the for- mer lot and site, or whether a vote of the inhabitants was neces- sary under the act of 17th Feb. 1831? By JOHN A. Dix, September 26, 1836. By the act of 17th Feb. 1831, the inhabitants of a school district may, whenever the site of the school-house has been lawfully changed as there- in provided, direct the sale of the former site or lot and the build- ings thereon, on such terms as they shall deem most advantage- ous to the district. They may of course exchange the old site for a new one, if they have an opportunity of doing so ; but a vote of the inhabitants is necessary to authorize the trustees to sell or convey it, the site having been changed pursuant to the act referred to. (ANONYMOUS.) Whenever the site of a district school-house is legally changed, otherwise than by the act of 17th February, 1831, the trustees have power to sell and con- vey the former lot and site without a vote of the inhabitants of the district. By JOHN A. Dix. September 27, 1836. The act of 17th of February, 1831, prescribes the mode in which a school- house and site shall be disposed of, when the latter is changed 312 CASES DECIDED BY THE W* ' in pursuance of the provisions of that act ; that is, where the district has not been altered after a school- house has been built or purchased. In every such case the inhabitants must give their direction as to the terms of the sale, and the trustees may convey the lot in pursuance of such direction. Section 4, of the act of May 11, 1835, chap. 308, laws of that year, authorizes the trustees of a school district, whenever the site of the school-house shall have been legally changed, to sell and convey the former site and the building or buildings thereon, on such terms as they shall deem advantageous to th district. This act was intended to reach cases which were not provided for by the act of 1831; as where a district has been altered af- ter a school-house has been built or purchased. In such a case, there was no power to dispose of the former site, as the provisions of the act of 1831 were applicable only to unaltered districts. The only question, which can arise is, whether the act of 1831 is so far modified by the act of 1835, that the latter has become applicable to cases arising under the former ? I am of opinion that the act of 1831 is not affected by the provisions of the act of 1835, The 3rd section of the latter, provides that " those parts of the provisions of the Revised Statutes which are inconsistent with the provisions of this act are hereby repealed." This section was originally reported as a separate bill, but on its final passage it was incorporated with the other sections of the act of 1835, so that in fact the repealing clause was intended to apply only to the subject matter of the 3rd section. This re- ference to the legislative history of the act would not be conclu- sive as to its intention, if its language was inconsistent with it. But it will be observed that the repealing clause is applicable only to such parts of the Revised Statutes as are inconsistent with the provisions of the act of 1835. The act of 1831 does not con- stitute a part of the Revised Statutes, although by that act one section of the statute entitled u Of common schools," was re- pealed. The terms of the act of 1835 are very comprehensive. They give trustees authority to sell and convey the former lot, &e. " whenever the site of the school-house in any district in this state shall have been legally changed ;" and yet, as the act of 1831 is neither referred to nor repealed, I am disposed so to con- strue the act of 1835 as to maintain the provisions of both in full force. There is no inconsistency in them. The former re- fers to a single class of cases, while the latter embraces all others. SUPERINTENDENT OF COMMON SCHOOLS. 313 (ANONYMOUS.) The public money cannot be paid to teachers for services rendered during the year preceding the receipt of such moneys. The expense of conveying a teacher home cannot be paid by tax, or included in a rate bill. If trustees refuse to prosecute their predecessors for an unpaid balance, there is no mode of compelling them to do so. By JOHN A. Dix, September 27, 1836. Trustees of school districts have no light to pay the public money received in April to teachers for services rendered before the preceding first of Ja- nuary. It must all be paid for services actually rendeied during the year in which it is received. The expense of conveying a teacher home is not a legitimate object of taxation, nor can the amount paid for that purpose be included in a rate bill. If paid at all, it must be by voluntary subscription. If a former trustee has money in his hands belonging to the district, the trustees in office should prosecute him for the amount as an unpaid balance, sec. 102, page 486, 1 R. S. If they re- fuse to do so, I know no way of compelling them. The only remedy is to turn them out of office at the end of the year, and put in others who will perform their duties. Every trustee who refuses or neglects to render an account of moneys received and expended, is liable to a penalty of $25, sec. 100, page 486, 1 R. S. The penalty may be recovered of each trustee separately. If trustees neglect to report at the proper time, a report ought to be received from them subsequently, without insisting on the forfeiture. The Commissioners of Common Schools of the town of Almond, ex parte. Trustees of school districts must eee to the execution of all contracts entered into by them; but this rule will not be allowed to interfere with the legal rights of third persons. Two trustees of a school district engaged a teacher for one year, in pursuance of the request of the inhabitants at a special meeting. Before the expiration of his term, new trustees were elected. The question arose whether the trustees who made the contract with the teacher should attend to the settlement of his accounts, or whether he must look to the trustees in office. By JOHN A. Dix, October 19, 1836. The Superintendent of Common Schools has always required that trustees should see to the execution of all contracts entered into by them. This rule was designed as a prudential regulation for their government, 314 CASES DECIDED BY THE and not to be carried so far as to interfere with the legal rights of third persons. Thus, if notwithstanding the directions of the Superintendent, trustees go out of office without settling with a teacher employed by them, he has no legal remedy against them ; and if he is compelled to seek redress through the judicial tribu- nals, he must bring his suit against their successors, or the trus- tees actually in office. The supreme court of this state (7 Wen- dell, page 181,) has decided that contracts for teachers' wage* by trustees of school districts are binding on their successors in office.* This settles the whole question-. The Clerk of joint school district No. 14 in the townfr of Marcellus and Skaneateles, ex parte. A. refusal to serve as an officer of a school district vacates the office. rA refusal to serve must be shown by an express declaration, and cannot be in- ferred from a neglect to perform the duties of the office. The following question was presented for the decision of the Superintendent by the clerk of joint school district No. 14 in the towns of Marcellus and Skaneateles : Does a neglect to act for any given time constitute a refusal to accept the office of trus- tee of a school district? For instance : A tax is voted, and the trustees omit to make out a tax list for one month. Can new trustees be then chosen? By JOHN A. Dix, November 14, 1836. If trustees and other district officers are regularly chosen at an annual meeting, others cannot be elected in their places until vacancies occur, or until their term of office expires. A refusal to serve constitutes a va- cancy. It appears to me that there must be an express declara- tion by the party of his determination not to act, in order to au- thorize a prosecution under the provision which annexes a pe- nalty of five dollars to a refusal to serve. Neglect of the duties of the office does not constitute such a refusal as is contemplated by the provision referred to : for to such neglect (which by a de- cision of the supreme court, must be a general neglect, and not an omission to perform any specific act,f) a penalty of ten dollars is annexed ; and this penalty is only incurred in- cases in which the party has not " refused to accept" A refusal to serve must therefore, I think, be shown by an express declaration to that effect, and cannot be inferred from a neglect to perform the du- ties of the office. * See a case reported at page 191. f See a case presented by the inhabitants of this district, page 164. * ; ..;( :' >'' ' -" .-.:.!;.-,* ,;t-- ..-' i' -.t>a.'*! :"<." Ii-.'n-j ~ , SUPERINTENDENT OF COMMON SCHOOLS. 315- The Commissioners of Common Schools of the town of Greene, ex parte. If a tax is raised in a school district for any object, and the whole amount is not required, the balance may be applied by vote of the district to any other au- thorized object. A tax was raised in a school district in the town of Greene for the purpose of building a school-house,, and on account of a re- duction in the amount paid on the contract, as an offset to a part of the work not properly executed, the whole sum collected tor the purpose was not expended. The question presented to the Superintendent was, whether the balance thus remaining in the hands of the trustees could, by a vote of the district, be appro- priated to any other object? By JOHN A. Dix, November 21, 1836. If a tax is voted for any object, and the whole amount raised is not expended, the inhabitants of the district may by vote apply it to any other ob- ject for which a tax may by law be voted. The trustees have no power to do so without such a vote. The Trustees of joint school district No-. in the towns of Locke and Groton, ex parte. Fn assessing taxes in joint school districts, the last assessment roll in each town must be followed with respect to the taxable property within it, although the assessors of the two towns may have different standards of valuation. This was an application to the Superintendent for his direc- tion in a case "in which the taxable property of a joint school district was unequally assessed in consequence of the different standards of valuation assumed by the assessors of the two towns in which the district was situated ; the assessors of one town having, as the trustees alleged, assessed the property within it at its full value, while the assessors of the other had estimated the property within it at about one quarter of its real value. By JOHN A. Dix, November 22, 1836. Taxes for common school purposes must be assessed according to the valuations of property as ascertained by the last assessment, roll of the town. There is no authority to depart from it excepting in two cases specified in the common school act, viz : where a reduction is claimed, and where the valuations cannot be ascertained from the last assessment roll of the town. In joint school districts the roll of each town must be consulted as to the persons residing in each. If the assessors of the two towns have different standards of valuation there is no remedy for it. I have no power to vary the assessments of town assessors, nor do I know any mode of correcting such inequalities excepting by the equalization to be 316 CASES DECIDED BY THE made by the boards of supervisors. I regard the practice of as- sessing property at one half, and sometimes one quarter of its real value, as one of the greatest abuses that exist ; and it is difficult to comprehend how assessors, sworn to discharge their duties faithfully, should totally disregard in many cases the legal requirement which makes it incumbent on them to estimate pro- perty "at its full value, as they would appraise the same in pay- ment of a just debt due from a solvent debtor." In most ca- ses, doubtless, assessors consider themselves justifiable in adopt- ing the standards of previous years; but usage certainly consti- tutes no justification of such a practice, nor is a public officer warranted in abusing his official trust because his predecessor has done so before him. The Trustees of school district No in the town of Bridgewater, ex parte. A tax cannot be voted for arrearages, or to reimburse trustees for moneys ex- pended by them, unless it appears by the vote that the money is to be applied to one of the objects for which taxes may by law be voted. This was an application for the opinion of the Superintendent with regard to the legality of a vote to raise a tax to pay certain arrearages due the trustees of one of the school districts in the town of Bridgewater, on account of fuel which they had provid- ed, and repairs made on the school-house and paid for by them. The vote did not specify the objects for which the expenditure was to be made, but stated generally that it was to reimburse the trustees for moneys expended by them. By JOHN A. Dix, December 12, 1836. A tax " for arreara- ges" or "to reimburse the trustees for moneys expended by them," is not legal. Taxes can only be laid by the inhabitants of school districts for certain objects enumerated in the statute entitled " Of common schools;" and it must appear by the re- solution or vote imposing the tax, that the amount to be levied is to be appropriated to one of those objects. If the trustees of a district expend money for repairs or fuel, and the inhabitants wish to reimburse them, a vote to that effect may be passed, and a tax raised ; but the vote must show that the money is to be applied to reimburse the trustees for a sum or sums expended for repairs or fuel.* * See the case of the trustees of joint school district No. 17 in the towns of Ca- tharine and Catlin, page 218. .-' '! -'{ SUPERINTENDENT OF COMMON SCHOOLS. 317 The Trustees of school district No. in the town of Maryland, ex parte.~ If a special meeting is called for the purpose of laying a tax to build a school- house, the notice is sufficient to justify the inhabitants in voting a tax to pur- chase a house already constructed. In this case a notice was given for a special meeting, setting forth that the object of the meeting was to raise money to build a school-house. The inhabitants being assembled, voted to pur- chase a house, which was offered to them for a school-house, and a tax was laid accordingly. The question submitted to the Superintendent was, whether the notice was sufficient to justify the proceeding? By JOHN A. Dix, December 12, 1836. The proceeding in your school district, in relation to voting a tax to purchase a school- house, was legal, and the money ought to be collected promptly. I suppose the only question is, whether the notice was sufficient? On this point there can be no reasonable doubt. A call of a meeting to raise money to build a school-house, so clearly indi- cates the object that no objection can properly be made, if, after full consideration at the meeting, it is determined to purchase a house, instead of building one. A. B. a non-resident owner of property in school dis- trict No. 21 in the town of Chemung, ex parte. The residence of the parent is the residence of the child. If a non-resident owner of taxable property sends his children into the district in which such property lies, for the purpose of attending school, they have a strong equitable claim to be received, unless by their admission the school would become too crowded. A. B. a taxable inhabitant of school district No. 21 in the town of Chemung, moved out of said district into an adjoining one, still retaining his property in the former, in which he had, during the preceding two or three years, paid for the erection of the school-house more than one-fourth part of its whole value. As he was desirous of continuing his children at the school in district No. 21, he sent them into the district and procured board for them in the neighborhood of the school-house, and sent them to the school until they were dismissed from it by the trustees, on the ground that their parents were non-residents. The ques- tion presented to the Superintendent was, whether this proceed- ing on the part of the trustees was legal? By JOHN A. Drx, December 12, 1836. I am sorry to say that accord ing to the whole course of the decisions of the Superin- tendent, your children have not a legal right to attend the school in district No. 21, though you are taxable in that district. Their 318 CASES DECIDED BY THE exclusion by the trustees cannot, however, be regarded otherwise than as exceedingly illiberal, unless the school would, by admit- ting them, become too crowded. The rule which the Superin- tendent established at a very early day, is that "the residence of the parent is the residence of the child, and that boarding children in a school district does not give them the right to at- tend the district school." The rule was considered to be in strict accordance with the intention of the law authorizing the con- venient division of towns into school districts, and was also deem- ed indispensable to guard against the evils of withdrawing from one school and conferring on another the support to which the former was justly entitled ; evils which would often be felt in the absence of such a rule. At the same time I have always consider- ed persons owning taxable property in a school district, though non-residents, as having a strong equitable claim to a privilege for their children in the school of the district in which they are tax- able. Their property contributes to support the school, and their children should equitably be allowed to attend, on paying their proper proportion of the teacher's wages. In this respect they stand on ground essentially different from that of persons send- ing children into districts in which they have no taxable pro- perty. This is one of the instances, however, in which a re- gard to the general design of the law cannot be made to bend to the equity of a particular case. Still I am sure that the exclu- sion of children from a school under such circumstances, though the trustees have the legal right, would be universally regarded as unjust and illiberal, unless by their admission the school would become so crowded as to interfere with the instruction of the chil- dren of resident parents. The taxable inhabitants of school district No. 10 ia the town of Schodack, ex parte. Colored persons may vote at school district meetings. This was an application for the opinion of the Superintendent by several of the taxable inhabitants of school district No. 10 in the town of Schodack, with regard to the right of colored per- sons, who had been assessed to pay highway taxes, to vote at school district meetings. By JOHN A. Dix, December 27, 1836. Colored persons have a right to vote at meetings in the school districts in which they reside, if they have the requisite qualifications of .property, or if they have been assessed to pay highway taxes in the tow during the year in which they vote, or (he preceding year. The construction which has been given to the statute relating to the qualifications of voters in school districts, with respect to aliens. SUPERINTENDENT OF COMMON SCHOOLS. 319 is considered equally applicable to this case.* Indeed, colored persons are permitted to vote at popular elections under certain circumstances, and the construction referred to may, perhaps, be urged with greater force in their favor than in the case of aliens, who are not allowed in any case to vote at such elections. The taxable inhabitants of school district No. 6 in the town of Clarkstown, ex parte. In assessing a tax for school district purposes, personal notice to the persons inte- rested need not be given where a reduction is claimed, or where the valuations of property cannot be ascertained from the last assessment roll of the town. This was an application by the taxable inhabitants of school district No. 6 in the town of Clarkstown for the opinion of the Superintendent, with regard to the nature of the notice to be given when the trustees of a school district, in assessing a tax, do not follow the last assessment roll of the town. By JOHN A. Dix, January 12, 1837. In assessing a tax, a personal, notice is not necessary where a reduction is claimed, or where the valuation of taxable, property cannot be ascertained from the last assessment roll of the town. The notice is such a one as town assessors are required to give: that is, a notice must be put up in three or more public places within the district. It might be supposed, at first glance, that under the provisions of sec. 80 of the revised statute in relation to common schools, a personal notice to the individuals immediately concerned was ne- cessary, as the trustees are required, in the cases for which those provisions are framed, "to ascertain the true value of the property to be taxed from the best evidence in their power, giving notice to the persons interested, and proceeding in the same manner as the town assessors," &c. But I am satisfied that the intention of the law was otherwise. If I err in this construction, it appears to me that a personal notice to every inhabitant would be neces- sary whenever a reduction is claimed. For if the property of an individual be assessed on the town roll at $10,000, and he claims a reduction to $5,000, all the other taxable inhabitants are in- terested in resisting the claim, because if it is allowed, their own assessments must be relatively increased. The imposition of taxes in school districts is usually a matter of notoriety; and if, in cases where the town assessment roll does not furnish all the facts necessary to enable the trustees to assess them, or where an individual claims a reduction of the valuation of his property as ascertained by that roll, a notice is put up in three public places in the district, it can rarely happen that all concerned are not ap- * See a decision by A. 0. Flagg, March 15, 1831, page 76. 320 CASES DECIDED BT THE prized of the proceedings of the trustees so as to have an oppor- tunity of protecting themselves against unjust assessments. Pomeroy Jones, a taxable inhabitant of joint school district No. 5 in the towns of Vernon and West- moreland, against the Commissioners of Common Schools of said towns and of the town of Kirk- land. Proceedings void for want of authority will be declared so, on application to the Superintendent, after the expiration of the time limited for bringing appeals. Trustees of school districts should not give a general consent before hand to al- terations to he made in their school districts, but such consent should be limit- ed to specific alterations. If parties are apprized that proceedings are to be objected to on the ground of ille- gality, it is their own fault if they do acts, by virtue of such proceedings, with- out assuring themselves that they are legal. The facts of the case are fully stated in the Superintendent'? decision. By JOHN A. Dix, January 23, 1937. This is an appeal by Pomeroy Jones, a taxable inhabitant of school district No. 5 ly- ing partly in the town of Vernon and partly in the town of West- moreland, from the proceedings of the commissioners of common schools of said towns and of the town of Kirldand, in annexing to it part of school district No. 6 lying partly in the town of West- moreland and partly in the town of Kirldand, and from the pro- ceedings of the commissioners of the two former towns in form- ing school districts No. 21 and 22. The facts of the case are as follows : On the 14th day of March, 1836, the commissioners of com- mon schools of the towns of Vernon, Westmoreland and Kirk- land set off to joint district No. 5 in Vernon and Westmoreland, all that part of joint district No. 6 in Westmoi eland and Kirk- land, which lies on the Seneca turnpike road. To the record of this alteration the consent of the trustees of neither of the districts is annexed. On the 22d day of March, eight days after the above altera- tion, orders were issued by the commissioners of common schools of the towns of Westmoreland and Vernon forming two new dis- tricts by the designation of districts No. 21 and 22. District No. 21 was formed from part of No. 5 and from part of No. 2 in the town of Westmoreland, together with that part of district No. 6, which, by the order of the 14th of March, was set off to No. 5. To this alteration the consent of the trustees of district No. 5 b given : but neither the consent of the trustees of No. 6 nor of No. 2 is made a part of the record. District No. 22 was formed from part of No. 5 and part of district No. 11 in Westmoreland. To SUPERINTENDENT OF COMMON SCHOOLS. 321 the record of this alteration the consent of the trustees of both districts is annexed. As a preliminary question it becomes necessary to inquire whether the rules of the Superintendent, in relation to appeals, have been complied with? It appears by reference to the papers submitted by the appellant that eight months were allowed to elapse before his appeal was presented. His excuse for so great a delay is, that he was absent in Albany when the proceedings complained of took place. And that he could not. for a long time after his return, procure such proof of the illegality of (he proceedings as to warrant an appeal. It is doubtless within the knowledge of the appellant that investigations are made by the Superintendent upon other grounds than an allegation of ille- gality. Proceedings, though strictly legal, may be set aside if found grievous to complainaats. When proceedings are object ed to because they are merely irregular, or because the objectors are aggrieved by them, appeals must be presented within thirty days. If HO other reasons were urged in this case, the excuse offered by the appellant would not be considered sufficient. The facts were all within the compass of a few laeighboring districts, and with due diligence it would have been extraordinary if they could not have been ascertained. But the appellant further al- leges that he has, since the last of October, discovered facts and proofs of which he had no previous knowledge; and which show the proceedings of the commissioners to be null and void. If this position can be established., the appeal will be entertained. Void proceedings, or acts done wholly without authority, will be pronounced void, when they are brought up for adjudication, although they may not have, been objected to within the time limited for presenting appeals. The first defect in the proceedings of the commissioners is the want of the consent of the trustees of school districts No. 5 and 6 to the alteration occasioned fey the addition of part of the latter to the former. This defect does not render the proceedings void. The commissioners of common schools had authority to make the alteration without such consent; but it could not take effect until three months after notice in writing to some one or more of the trustees of each district. It is alleged by the commissioners of common schools of the towns of Westmoreland and Vernon, that the formation of dis- tricts No. 21 and 22 was agreed on by them on the 14th of March, although the orders were not issued until the 22d. If this were so, the consent of the trustees of school districts No. 5 and 6 to the alteration occasioned by adding to the former part of the latter, was requisite, to enable the commissioners of the towns of Westmoreland and Vernon to set off the part so added; otherwise 21 322 CASES DECIDED BY THE the alteration would not take effect until the expiration of three months after notice in writing to the trustees of both districts. But the order creating district No. 21 shews on its face a want of authority on the part of the commissioners of common schools of the towns of Westmoreland and Vernon to form it. The district is, according to the order, formed from part of district No. 5, lying partly in (.he town of Westmoreland, and partly m the town of Vernon ; and part of district No. 6, tying partly in the town of Westmoreland, and partly in the town of Kirkland. The com- missioners of common schools of the town of Kirkland should therefore have united in the order. The trustees of district No. 6 swear that they never consented to a transfer of part of that district to No. 5. The order of the 14th March could, therefore, not have gone into effect j and although the part of No. 6 added to No. 5 was wholly within the town of Westmoreland, it was, at the time district No. 21 was formed, part of joint district No. 0, which was partly in the town of Kirkland - and the commis- sioners of the latter town mast have united in the order form- ing that district, to give it validity. If the order of the 14th of March, setting off to No. 5 the part of No, 6 which was subsequently added to No. 21, had gone into effect, the forma- tion of the latter would have been valid without the concurrence of the commissioners of Kirkland. But with what propriety can this be assumed, when the trustees of No. 6 swear that they never consented to the transfer of a part of that district to No. 5, and when the order of the 22d March, issued by the commis 1 - sioners of Westmoreland and Vernon, sets forth, that part of the former is taken to form the new district? The two trustees of district No. t>, who swear that they never consented to a trans- fer of part of that district to No. 5, state in an affidavit appended to the papers of the respondent, that they gave "-their consent to have that part of district No. 6, lying on the Seneca turnpike road, set off from said district, for the purpose of forming a new district and such others as the commissioners should think pro- per." No such consent is annexed, as it should have been, either to the order of the commissioners dividing district No. 6, or their order forming district No. 21. Besides^ if such consent was giv- en to the extent above stated, it was wholly unjustifiable on the part of the trustees. They are the immediate guardians of the interests of their district ; they are presumed to understand its wants ; and it is a misuse of the authority confided to them, to give a sweeping consent to any alterations in their district, which the commissioners may choose to make. The law has given them power to prevent alterations from going into effect for three months, by declining to give their consent to them ; and the de- sign wa?j to enable the trustees to protect themselves and the in- SUPERINTENDENT OF COMMON SCHOOLS. 323 terests of their district. But by consenting beforehand to such alterations as the commissioners may think proper, the trustees, if such consent is valid, disarm themselves, and put it out of of their power to object at a subsequent time, to alterations which they may not approve. The consent of trustees should only be given to specific alterations ; and if their consent is obtained in advance, the precise alteration to which it is intended to be given should be fully and explicitly stated. In addition to these objections, the order of the 22d March, forming district No. 21, includes as part of it, two persons, Messrs. Roberts and Osgood, belonging to district No. 2 in Westmore- land ; and it does not appear by the record that the consent of the trustees of that district to the alteration was obtained, or that any notice of it was served on them. Indeed, district No. 2 is not named in the order, nor does it appear that any part of it is included in the new district, except by referring to Calvin Os- good's east line as one of the boundaries of No. 2L The order is. therefore, on its face both defective and contradictory, in setting forth that the new district is to be formed " partly out of district No. 5 and partly out of district No. 6." while it ac- tually includes by name one individual belonging to No. 2, with- out mentioning the latter district at all It is incidentally men- tioned in a parenthesis in an affidavit made by the commission- ers of common schools of the town of Westmoreland, that the transfer of Messrs. Roberts and Osgood was with.the consent of the trustees of No. 2 ; but under any circumstances, it is con- ceived that the fact should have been explicitly averred, if it was impossible to produce the written consent. The Superintendent is aware that the formation of a new dis- trict from part of No. 6 had been for some time under discussion and that the propriety of the measure had been conceded by the trustees and a majority of the inhabitants of the district ; but the commissioners, in adopting an indirect course of proceeding, should have taken care to keep within the limits of their authority. Such is the condition of the records, now, that the Superintendent cannot declare their proceedings to be valid, without assuming that the consent of the trustees of district No. 6 was actually given to the alteration made by the order of the 14th of March, though their affidavit shows the contrary ; that the two new districts were actually created on the 14th March, when the orders form- ing them are dated the 22d of that month : and that the per- sons on the Seneca turnpike road, set off to district No. 21, were not, at the time they were so set, inhabitants of district No. 0, though the order of the22d March shows them to be so. Much as the Superintendent is disposed to sustain the proceed- ings of officers engaged in the administration of the common 324 - CASES DECIDED BY THE school system, he cannot go so far as to give jurisdiction, by such a train of assumptions, where none appears by the records to have been possessed. But there are other considerations which it may be proper to .advert to, with reference to the possible future action of the com- missioners in respect to these districts. District No. 5 has, in the opinion of the Superintendent, been unjustly reduced in strength. By the statement of the respondent, it appears that the district on the 31st December, 1835, had 57 children, be- tween 5 and 16 years of age, and that the number was by the division made to form district No. 21, reduced to 46. But there are included in this statement nine children who were set off to district No. 22, and the children of the appellant, who was left in such a condition that it did not appear satisfactorily to which district he belonged. On the other hand the statement of the appellant shows, that the number of children between 5 and 16 years of age, now residing in the district, is but 18, in addition to his own. The Superintendent is, therefore, left to infer, that between the 31st December. 1835, and the time when the appeal was made, the number of children in district No. 5 has been reduced to the extent set forth by the appellant. But admitting tlie number of children given by the respondent to have been the true number in the district, at the time the several dismemberments to which it was subjected were made r the dis- trict was, in this respect, reduced below the average strength of the other districts in the state, and as the result has proved, a considerable portion of the population left, was not of such a fixed character as to enable it to maintain itself. The formation of district No. 22 was not illegal. It was crea- ted by the commissioners of common schools of the towns ol Westmoreland and Yernon, and taken from districts lying whol- ly within those towns : but as the formation of that district was? a part of the transactions under review, and as the propriety of its organization as a separate district may be, in some respects- affected by the future disposition to be made of district No 5, the Superintendent does not deem it expedient to make any distinc- tion between this part of the proceedings and that which relate? to district No. 21 ; especially as no school-house has been built in district No. 22, aud there are no equitable rights to be impaired The Superintendent regrets that a school-house has been built in district No. 21, and that it will, in case that district was illegal- ly formed, be left on the hands of those who have constructed it : but if he had power to declare proceedings without authority to be valid, there are considerations which might render the pro- priety of his interposition for the protection of the trustees of dis- trict No. 21 at least doubtful. The respondent, Charles Porter, SUPERINTENDENT OF COMMON SCHOOLS. 325 is a trustee of the new district, as he was of No. 6, before the latter was divided, and it was principally through his influence and exertions that the new district was formed. He states in his affidavit, that the appellant, soon after his return from Albany, in the spring of 1836, informed him that he considered the pro- ceedings of the commissioners illegal, and that he should " appeal to the Superintendent as soon as he could get time, and rip it all up." The respondent should have taken warning from this de- claration, and have ascertained at least, that the proceedings were not deficient in that ground work of authority without, which the Superintendent would have no power to sustain them. The utmost that can be done by him, is to authorize the com- missioners to reassemble, and do what justice may seem to them to demand. It is accordingly ordered, that the proceedings of the commis- sioners of common schools of the towns of Westmoreland, Ver- non and Kirkland, in setting off part of school district No. 6 to school district No. 5 as aforesaid, on the 1 4th of March last, and the proceedings of the commissioners of the two former towns, in forming school district No. 22, on the 22d of the same month, be and they are hereby set. aside ; and it is hereby declared, that the proceedings of the commissioners of the two former towns, in forming school district No. 21, on the 22d of the same month, are void and of no effect: and the commissioners of the said three towns are hereby authorized, notwithstanding this deci- sion, to make such reorganizations of districts No. 5 and 6 as they may think proper and just, subject to an appeal to the Superin- tendent by any person conceiving himself aggrieved. The Inspectors of Common Schools of the town of Oysterbay, ex parte. Trustees are not the judges of the qualifications required for teachers in their school districts. Inspectors should aim to elevate the standard of education by a rigid examination of teachers. This was an application by the inspectors of common schools >f the town of Oysterbay, for the opinion of the Superintendent as to their duty in cases in which teachers not properly qualified were presented to them by the trustees of school districts with a request that the necessary certificates might be given, and with the assurance on the part of the trustees that they and the in- habitants were entirely satisfied with the teacher's qualifications. By JOHN A. Dix, February 11, 1837. Neither the trus- tees nor the inhabitants of school districts are the judges of the qualifications of teachers. The law has confided the power 326 CASES DECIDED BY THE 4 ^^^.^ of examining teachers to the inspectors, and the object was to secure the employment of competent persons. If the trustees or inhabitants are to determine what their districts require, and in- spectors are to be governed by their opinions and wishes, the of- fice of inspector might as well be abolished. With such a prac- tice, it is clear that the inspectors could have no influence in ele- vating the standard of education. A qualified teacher need only be employed three months, and it is no hardship to require a good one. In my annual report to the legislature for the year 1835, I made the following remarks, which I commend to your consideration : " One of the most responsible and delicate trusts to be executed under the common school system, is that of inspecting teachers and pronouncing upon their qualifications. This duty is con- fided to three inspectors, who are elected in each town annually, or by the three commissioners of common schools, who are also elected annually in each town, and who are, by virtue of their office, authorized to examine the schools and teachers, and give the latter certificates of qualification. If the inspection of teach- ers is negligently conducted, or with a willingness to overlook deficiencies instead of insisting rigidly on the requirements of the law, it s manifest that men without the necessary moral charac- ter, learning or ability, will gain a foothold in the common schools, and present a serious obstacle to the improvements of which- they are susceptible. This would be an evil of the great- est magnitude, and there is no remedy for it but a strict inspec- tion of the candidates. It has been the practice in some instan- ces, for inspectors to have a reference to the particular circum- stances of the case in giving a certificate. Thus, they have sometimes given an individual a certificate, with a view to a summer school, in which the children taught are usually smaller and require less of the teacher, when the certificate would have been withheld, if it was asked with a view to qualify the teacher for a winter school. But it is obvious that such a distinction is wholly inadmissible. A certificate must be unconditional by the terms of the law : The inspectors must be satisfied with the qua- lifications of the teacher, "in respect to moral character, learning and ability :" And the certificate, when once given, is an abso- lute warrant for the individual to teach for a year, and to receive the public money, unless revoked before the expiration of the year, in which case it ceases to be operative from the date of its revocation. The standard of qualification for teachers, so far as granting certificates is concerned, is of necessity arbitrary. The law does not prescribe the degree of learning or ability which a teacher shall possess, but virtually refers the decision of this im- portant rhatter to the inspectors. SUPERINTENDENT OF COMMON SCHOOLS. 327 " By employing a qualified teacher three months in each year, every district is entitled to a distributive share of the common school fund, and its proportion of the common school tax paid by the town; and there are few instances in which the amount of the contribution from these sources will not suffice to pay him one half of the whole amount of his compensation for the pre- scribed period. During the remaining nine months, the districts are at liberty to employ such teachers as they may think proper. All the law exacts is, that during one-fourth part of the year, each district which participates in the bounty of the state, shall have a teacher with whose qualifications the inspectors of the town are satisfied. The requisition is by no means onerous, and as the inspectors have not, neither should they possess, the power of relaxing the rule with reference to the circumstances of any particular case, by departing from the standard of qualification which they assume as their guide in others." A. B., a trustee of school district No. 1 in the town of Northeast, ex parte. All the trustees of a district should be present in assessing a tax; but if a tax is assessed by two, without consulting the third, the collector will be protected in executing the warrant. If the annual report of a school district is signed by two trustees, the commis- sioners can look no further, and the district must receive its share of the pub- lic money if the report is otherwise sufficient. The following question was submitted for the opinion of the Superintendent by one of the trustees of school district No. 1 in the town of Northeast : " Are the proceedings of two trustees legal, when the third is not notified or consulted, in assessing a tax arid making an an- nual report?" By JOHN A. Dix, February 16, 1837. All the trustees of a district should be present in assessing a tax. Sec. 27, page 555, 2 R. S. provides that " whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act may be done, and such power, au- thority or duty may be exercised and performed by a majority of such persons or officers, upon a meeting of all the persons or of- ficers so entrusted or empowered, unless special provision is other- wise made." The rule established by this section is applicable to officers concerned in the administration of the common school system, excepting where a different provision is made ; and in relation to the assessment of taxes by trustees of school districts, no such provision exists. At the same time, if a tax is assessed by two trustees, and it is collected, the collector will be protected, 328 CASES DECIDED BY THE even if he should enforce the collection by taking property and selling it. If the warrant annexed to a rate bill or tax list is under the hands and seals of a majority of the trustees (sec. 88 ? page 484, 1 R. S.) it is sufficient for the protection of the eoHec- tor ; though in an action of trespass against the trustees, brought by a person whose property had been taken and sold, he might perhaps be allowed to show that two of the trustees only united in the assessment.* The preparation of an annual report of a school district is a matter in which all the trustees ought also- to unite. But 1 do not perceive how any advantage could be taken of them if only two were present. By a special provision of the act relating to common schools, a report signed and certified by a majority of the trustees is sufficient, (sec. 92, page 484, 1 R. S.) If this provision is complied with,, and the report is in other respects suf- ficient, the commissioners ean look no further and the district must be allowed its share of the public money. The commissioners would clearly in such a case act in strict accordance with the re- quirements of the law; and if a portion of the public money were awarded to a district in which a report was made out by two trustees only, without any consultation with the third, the defect could not, it appears to me, be made the ground work of any judicial proceeding against the trustees by which such report was rendered. * ' . '"" (ANONYMOUS.) A teacher's certificate cannot be dated back, By JOHN A. Dix, February 18, 1837. A certificate of quali- fication for a teacher cannot be dated back. It must bear date on the day of the examination. It will not otherwise conform to truth. The Trustees of school district No. 4 in the town of Butternuts, exparte. Trustees of school districts have ceitain corporate powers conferred on them by the statute; but their jurisdiction is special and limited, and in the exercise of their powers they must confine themselves strictly to the directions of the sta- tute. Trustees cannot purchase promissory notes given by a teacher to third persons and set them off in payment of his wages. This was an application from the trustees of school district No. 4 in the town of Butternuts, for the opinion of the Superin- * According to the principle of the decision of the supreme court in the cas of McCoy vs. Curtice, 9 Wendell, 19, the presence of the third trustee would be presumed until the contrary was shown. SUPERINTENDENT OF COMMON SCHOOLS. 329 tendent as to their right to purchase promissory notes given by a teacher to certain inhabitants of the district, to whom he was indebted, for the purpose of setting off such notes on a contract with said trustees, in payment of the wages due him for teaching. By JOHN A. Dix, February 24, 1837. The question sub- mitted to me in this case is, whether the trustees of a school dis- trict may purchase and hold a promissory note given by a teacher to a third person, and set off such note on their contract with the teacher in payment of his wages? If trustees may purchase and hold such a note in their official character, then it would seem to follow that they may transmit it, as the property of the district, to their successors in office; and >that they, or their successors, may either set it off on a contract with the maker or maintain an action on it against him for the amount due: for if it is a legal demand in their hands, the right of enforcing the payment of it against the party from whom it is due would be necessarily implied. The question to be determined, therefore, is, whether trustees may purchase and hold a promissory note in their official cha- racter; and the settlement of this question involves a general in- quiry into the nature and extent of their powers. The revised statute relating to the common .schools confers on the trustees of school districts certain specified powers. They are authorized to perform various acts concerning the school dis- tricts for which they are appointed ; but they have never been considered as possessing any of the attributes of corporations, ex- cepting such as the statute may have conferred on them in ex- press terms. The right to purchase, hold and convey real and personal estate is one of the general powers of a corporation ; and it is only by force of various successive enactments that this power has been conferred, in special cases, on the trustees of school dis- tricts. Thus, the Revised Statutes, vol. 1, sec. 97, page 485, pro- vide that "all property now vested in the trustees of any school district, for the use of schools in the district, or which may be hereafter transferred to such trustees for that purpose, shall be held by them as a corporation." By force of this provision any property which may become vested in one set of trustees for the use of their district, passes, at the expiration of their term of of- fice, to their successors ; and either may doubtless bring an ac- tion for the purpose of maintaining the quiet and peaceable pos- session and enjoyment of such property ; for in the power to hold property that of defending it against unlawful interference is ne- cessarily implied.* But so far they are only authorized to hold as a corporation property vested in, or to be transferred to, them ; * See a case teported at page 188. 330 CASES DECIDED BY THE and there is no other provision in the statute declaring them in express terms to possess corporate powers. A declaration that they shall be a corporation for one purpose would seem to pre- clude the idea that the statute designed to make them so for any other purpose: and if, in other cases, corporate powers are spe- cially conferred, they are to be regarded as exceptions to the ge- neral design of the law. By 1 R. S. sub. 5, sec. 75, page 481, trustees of school dis- tricts are authorized to "purchase o%lease a site for the district school-house, as designated by a meeting of the district, and to build, hire or purchase, keep in repair and furnish such school- house with necessary fuel and appendages, out of the funds col- lected and paid to them for such purposes." The 4th section of the act of February 17, 1831, concerning district school-houses, authorizes the inhabitants of any school district in which the site of the school-house shall have been changed as provided by the preceding sections, to direct the sale of the former lot and the buildings thereon; and a deed execut- ed by the trustees in pursuance of such direction is declared valid and effectual to pass all the estate or interest of such district in the premises intended to be granted thereby. By the act of llth May, 1835, the trustees of a school district are authorized, when- ever the site of the school-house is lawfully changed, to sell and convey the former site, &c. These acts are designed to enable school districts to divest themselves of the title to their real estate, under certain circumstances, it having been uniformly held by the Superintendent that there was no competent authority exist- ing within them to alien and convey such property in any case. Thus, by a train of successive enactments, the trustees of school districts have been authorized to exercise one of the general powers of corporate bodies ; to hold, 'purchase and convey real estate, and this only in special cases. In relation to the management of other moneyed transactions confided to trustees of school districts the statute is equally pre- cise in its provisions. The moneys which may lawfully come into their hands for the use of their districts are those which are raised by tax upon the property of the districts, and imposed by vote of the inhabitants for certain objects enumerated in the sta- tute, and those which are received from the commissioners of common schools or collected from the persons liable therefor, for the payment of teachers' wages. If the moneys apportioned to a district are not paid over to the trustees, they are authorized, by sec. 90, page 484, 1 R. S. to bring a suit for the recovery of the same, with interest, against the commissioner in whose hands they shall be. If the sums for which the inhabitants of the district are liable for tuition are not paid to the teacher, the SUPERINTENDENT OF COMMON SCHOOLS. 331 trustees are authorized, by sub. 13, sec. 75, page 482. 1 R. S. to make out a rate bill containing the name of each person so lia- ble, and the amount for which he is so liable, &c. and to annex thereto a warrant for the collection thereof. Whenever a tax is voted, the trustees are required to make out a tax list containing the names of all the taxable inhabitants, (fcc. and to annex to it a warrant for its collection. If the sum payable by any person is not collected within a certain time, the trustees may renew the warrant as to such delinquent; or if he is a non-resident of the district at the time of making out the tax list or rate bill, or at the expiration of the warrant, and no goods or chattels can be found therein whereon to levy the same, the trustees may prose- cute for the amount due in their name of office. For the purpose of accomplishing the objects in view of these several provisions, the statute has conferred on trustees of school districts ample powers; and if those officers transcend the just bounds of their authority, they will have no right to complain if they lose the legal protection which would otherwise be ac- corded to them in the performance of their duties. The power of bringing suits has also been conferred on them in cases other than those above enumerated, and in almost every instance authority is specially given to sue "in their name of office." In a case which was decided in Massachusetts, 13 Mass. Rep. 193, it was held that the inhabitants of a school district had suf- ficient corporate powers to maintain an action on a contract to build a school-house, and to make a lease of land to them. The court said that school districts were to be considered " as qua corporations, with limited powers, co-extensive with the du- ties imposed upon them by statute or usage, but restrained from a general use of the authority which belongs to those metaphy- sical persons at common law. The same may be said of all the numerous corporations which have been from time to time cre- ated by various acts of the legislature, all of them enjoying the power which is expressly bestowed upon them, and perhaps in all instances where the act is silent, possessing by necessary im- plication the authority which is requisite to execute the purposes of their creation." The laws of Massachusetts, under which this decision was made, relating to the division of towns into school districts, and conferring certain powers on the inhabitants, were extremely general in their provisions, and the decision was not pronounced until the court had for some time held the case under advise- ment, and several times consulted in relation to it, in conse- quence of doubts which some of them entertained. The Re- vised Statutes of Massachusetts, sec. 57, page 225, provide that 332 CASES DECIDED BY THE "every school district shall be a body corporate, so far as to pro- secute and defend in all actions relating to the property of the district ;" thus removing all the doubt which existed as to the extent of the powers of school districts under pre-existing laws in respect to maintaining actions at law. The principles settled by the case in Massachusetts are per- haps in no degree inconsistent with the conclusion to which the foregoing arguments tend, with respect to school districts in this state. In Massachusetts many of the essential powers ol school districts were necessarily derived by implication, from a consideration of the purposes for which they were created. In this state, oa the other hand, the statute has undertaken to spe- cify with precision the powers to be exercised by the persons charged with administering the common school system and con- tinuing it in existence. Although the rule of construction adopt- ed by the court in Massachusetts may be equally true in both cases, the necessity of resorting to it in order to justify the exer- cise of implied powers, can rarely occur in this state, for there is scarcely any object which the statute has not provided the means of accomplishing. The jurisdiction of the officers en- gaged in the management of the affairs of school districts is spe- cial and limited ; and in the exercise of their powers they must confine themselves strictly to the directions of the statute, al- though the question may sometimes arise whether the exercise of a power not expressly granted by law is not indispensable to the accomplishment of some authorized object. There is no provision in the statute by which trustees of school districts may purchase or receive promissory notes. They can- not lawfully purchase them, for the moneys which come into their hands are appropriated to specific objects, and they have no right to use those moneys, even temporarily, for any other purpose. They cannot receive and hold promissory notes for moneys due the district, for the law requires them to collect in specified modes the legal demands of their districts against indi- viduals. To take a due bill or note of hand from an individual for money due to the district, is not only an unauthorized, but an unnecessary, step, and trustees can have no possible justification in thus transcending their powers. They have other means of enforcing the legal rights of the district, and they should not resort to practices for which the law furnishes no authority. The wages of teachers must be paid in the mode prescribed by law. If trustees purchase demands against them, it is in their indi- vidual capacity, and those demands will not be allowed to enter into their official transactions, or to be set off against the de- mands of the teacher upon the district. Such a right is essen- tial to no object for which school districts were created, and if \ SUPERINTENDENT OF COMMON SCHOOLS. 333 the power of trafficking in personal securities existed, I should apprehend that serious inconveniences and abuse would grow out of it. In the case of Brewster vs. Colwell and others, 13 Wendell. 28, the supreme court of this state decided that the trustees of a school district might receive for money due to them the note of a third person. This was a case, however, in which a contract had been made by the trustees for fuel, and in which they were al- lowed to set off in a suit brought by the person who had fur- nished it, a due bill given by him to a third person, and trans- ferred to them. From the opinion expressed by the court in the cases of Hubbard vs. Randall and others, 1 Cowen, 262. note, and Silver vs. Cummings and others, 7 Wendell, 181, it would seem that trustees are personally liable on such con- tracts, and cannot bind their successors in office. In both the cases last referred to, the opinion of the court had reference to contracts for building school-houses ; but the reasoning of the court in the case of Silver vs. Cummings, is equally applicable to contracts for fuel. Between such contracts, and those which are made with teachers for the payment of their wages, a dis- tinction was taken, for reasons which were fully assigned ; and the court decided that with respect to the latter, successors were liable under contracts made by their predecessors in office. The decision of the court in the case of Brewster vs. Colvvell and others, does not, therefore, necessarily conflict with the con- struction which I have given to the statute ; for if the trustees in that case were personally liable on their contract with Brew- ster, the due bill may have been regarded as having been pur- chased and held by them as individuals. If this supposition be true, it was not set off by them in their official character, but as a personal demand in extinguishment, of an individual liability. The opinion of the court in this case was very brief, and was accompanied with no exposition of the grounds on which it was founded ; but from the tenor of its decisions in other cases in re- spect to the powers of school district officers, I entertain no doubt as to the principle on which the case was decided. Jeremiah Coons, a trustee of school district No. 18 in the town of Broome, against the inhabitants of said district. If a tax is voted for a particular object, and the trustees expend a greater amount, they are without remedy if the inhabitants refuse to vote an additional sum to reimburse them. The facts of the case are stated in the Superintendent's deci- sion.. ; vt. j 334 CASES DECIDED BY THE By JOHN A. Dix, February 28, 1837. This is an appeal by Jeremiah Coons, a trustee of school district No. 18 in the town of Broome, from a decision of the inhabitants of said dis- trict at a special meeting called for the purpose of raising money to pay for repairing the school-house and for other work in put- ting up a stove. The sum claimed by said trustee to be equita- bly due from the district to him is $2.20, which the inhabitants refused to raise by tax. It appears that a tax of $11 was voted, and has been collected, to buy a stove, and that the trustees ex- pended in addition to that amount $5.20 for stove pipe and work. The sum of $3 has been raised by subscription, leav- ing the above mentioned balance of &2.20. The Superintendent of Common Schools cannot interfere in this case. If the inhabitants of the district had directed the trustees to purchase and put up a stove, without specifying the amount to be expended, or voting any tax for the purpose, he would authorize the sums reasonably expended by them in exe- cuting that direction, to be raised on the taxable property of the district, in case of a refusal on the part of the inhabitants to provide for a reimbursement of their expenditures. But as the inhabitants, by voting a tax of $11, have in effect limited the amount of the expenditure in contemplation to that sum, the trustees were wholly unauthorized to go beyond it, and they must abide the consequences. The district may at any time vote to be raised by tax the additional sum required ; but if they refuse, the trustees having acted without authority, have no re- medy. It is accordingly ordered, that the appeal of Jeremiah Coons be, and it is hereby dismissed. The Inspectors of Common Schools of the town of Edmeston, ex parte. Inspectors of common schools may give notice that they will meet at certain times and places for the inspection of teachers ; but this does not exonerate them ?rom the duty of meeting at intermediate times when there attendance is re- quired. This was an application for the direction of the Superinten- dent by the inspectors of common schools of the town of Ed- meston, as to their duty with respect to meeting for the exami- nation of teachers. By JOHN A. Dix, March 4, 1S37. There is no established rule as to the time when inspectors of common schools are to examine teachers. The inspectors may give a general notice that they will be present at a certain place on a certain day, and will then and there examine all such persons as may pre- SUPERINTENDENT OP COMMON SCHOOLS. 335 sent themselves as candidates for teaching common schools. But this will not exonerate them from the obligation of attend- ing at other times and places, in case of urgent necessity, on application to them from the trustees of a school district or a teacher. They may, if they choose, give public notice that they will meet at some central place in the lown. say, on the first Monday in January and July, and examine all persons, who intend to be candidates for teaching ; and in case of applications requiring an earlier action, they may meet on the first Monday of the intermediate months of April and October. 1 suggest this as a convenient arrangement, and one which the inspectors may with propriety make. If such a usage were to become es- tablished in a town, so as to be a matter of general notoriety, the cases would be extremely rare which would not be disposed of at the four stated meetings of the inspectors. The Trustees of school district No. in the town of Willsborough, ex parte. Collectors of school districts may, in certain cases, go beyond the boundaries of the districts, for which they were appointed, to execute warrants for the collection of taxes and rate bills The following question was presented for. the opinion of the Superintendent by the trustees of school district No. in the town of Willsborough. The collector of our town has taxes to collect against A. B. and C. of other towns of said county. He is authorized to go into said towns and levy and sell property in their possession to satisfy such taxes. Does not the school act, by the amendment of April 21, 1831, give the same authority to collectors of school district ? By JOHN A. Dix, March 6, 1837. The general rule ap- plicable to all officers is, that they cannot exercise jurisdiction be- yond the limits of the district or territory for which they are ap- pointed. The exceptions to the rule are cases in which the legis- lature, by special enactment, may have extended the jurisdiction of particular officers, or classes of officers, beyond those limits. The question presented by you is, whether the act of April 21, 1831, extends to collectors of school districts, the right of going beyond the boundaries of their districts for the purpose of execut- ing a warrant for the collection of a tax for erecting or repairing a school-house? This act provides that "the \vair.uu! annexed to any tax list for the collection of a district ccting or repairing any school-house, shall comni r.d the collector, in case any person named in such list shall IK t >.: pum therein set opposite to his name on demand, to le the ^ame of his goods 336 CASES DECIDED BY THE and chattels, in the same manner as on warrants issued by the board of supervisors to the collectors of towns." The act of April 26, 1832, provides that all taxes directed to be raised by the act relating to common schools, (title 2, of chapter 15, of part first of the Revised Statutes,) shall be collected in the manner pre- scribed by the act of 1831 above quoted. Whether, therefore, a tax be voted to build or repair a school-house, purchase fuel, fifa or for any other authorized object, the manner of collecting it is the same? The act of May 11, 1835, sec. 3, provides that "the warrant issued by the trustees of school districts for the collection of rate bills shall have the like force and effect as war- rants issued by the boards of supervisors to the collectors of taxes in towns; and the district collectors are hereby authorized to col- lect the amount due from any person or persons in their lespec- tive districts, in the same manner that the collectors are autho- rized to collect town and county charges." The effect of these several amendments of the Revised Sta- tutes is to authorize collectors of school districts to execute war- rants for the collection of all taxes and rate bills, in the same manner as warrants issued by boards of supervisors to the col- lectors of towns. The first question which arises under these amendments, al- though it is not distinctly presented by you, is, whether a collec- tor of a school district must levy the amount due from any in- dividual by distress and sale of the goods and chattels of such individual, or whether he may take "any goods and chattels in his possession," as collectors of towns may do, under the provi- sions of sec. 2, page 397, 1 R. S.? With regard to warrants issu- ed for the collection of rate bills, there can be no doubt, as the act of May 11, 1835, expressly declares, that they shall have the like force and effect as warrants issued by the board of su- pervisors, &c. The act of April 21, 1831, which, with the amendment of 1832. relates to warrants issued for the collection of taxes, authorizes collectors of school districts, in case any per- son named in their warrants refuses to pay the amount set oppo- site to his name, "to levy the same of his goods and chattels in the same manner as on warrants issued by boards of supervi- sors," &c. At first glance, this provision would seem to restrict the collector in his levy, fo the goods and chattels of the person named in the tax list, and not to authorize him to take " any goods or chattels" in the possession of such person. But by re- ferring to sub. 5, of sec. 37, page 396, 1 R. S. it will be perceived that the warrants issued by boards of supervisors merely autho- rize " the collector, in case any person named in the assessment roll shall refuse or neglect to pay his tax, to levy the same by distress and sale of the goods arid chattels of such person." The SUPERINTENDENT OF COMMON SCHOOLS. 337 direction, therefore, would be the same in both cases. But under the provision of the act of April 21, 1831, which directs the levy to be made u in the same manner" as warrants issued by boards of supervisors to town collectors, it is conceived that the autho- rity given to the latter to take " any goods and chattels in pos- session" of any person who ought to pay the tax, extends also to collectors of school districts. The article of which this provi- sion is a part, professes to treat "of the manner in which taxes are to be collected, and the duties of the collector ;" and from the similarity of the language adopted in the two cases, it is fair to infer that the intention was to make the provisions of this ar- ticle applicable to both.* The first question which arises under this construction of the statute, as amended, being disposed of, we come now to the in- quiry presented by you, whether a collector of a school district can go beyond the boundaries of his district to execute a war- rant? Sec. 5, page 398, 1 R. S. provides that town collectors may levy and collect taxes in other wards or towns, in the same coun- ty, in two cases : 1st. When any person assessed to pay a tax shall have remov- ed after the assessment, and before the tax ought by law to have been collected, out of the town or ward in which such tax has been assessed : and, 2d. When any person shall neglect or refuse to pay a tax as- sessed on any estate situated out of the ward or town in which lie shall reside, and within the county. The last case cannot occur in the assessment of taxes for school district purposes, as such taxes are to be apportioned " ofl all the taxable inhabitants within the district, according to the valuations of the taxable property which shall be owned or pos- sessed by them, at the time of making out the list within the district," or " partly in such district and partly in any adjoining district." No person, therefore, can be assessed for real proper- ty excepting in the district in which it is situated ; and if he re- sides in a different district, he is, in certain cases, by the provi- sions of sec. 77 and 78, page 482, 1 R. S. to be deemed a taxa- ble inhabitant of the district in which the property is situated. Where school districts lie partly in two or more towns, the col- lector may levy on property in either town^ and even in a differ- ent county, if it be within his district. But this is within the general rule, and of course not susceptible of the application of . : _ : * See the case of the trustees of school district No. 4 in the town of Butter- nuts, page 143, and decision of supreme court, note, page 144. 22 338 CASES DECIDED BY THE the principles which govern either of the above mentioned excep- tions.* In the first case above stated, in whicli town collectors may levy and collect taxes out of their own towns and wards, and within the same county, it appears to me that the same autho- rity is conferred on collectors of school districts, by force of the amendments of the statute above recited. With regard to rate bills, if it be not so, the warrant would not have the like force and effect as warrants issued by boards of supervisors to town collectors. There is some difference in the phraseology of the acts of 1831 and 1835. The latter gives to warrants for the collection of rate bills " the like force and effect" as warrants issued by boards of supervisors. The former gives authority to collect of "any per- son named in" a tax list, in the same manner as on warrants issued by boards of supervisors; whereas, by the last clause of sec. 3, of the act of 1835, district collectors are authorized to col- lect "the amount due from any person or persons in their re- spective districts in the same manner" as town collectors. I do not consider these differences, in the language of the acts refer- red to, as intended to make .a distinction in the two classes of cases to which they relate. The object of the amendments was the same ; to give a more extensive remedy in collecting moneys for common school pui poses. The act of 1831 applied to taxes for erecting or repairing school-houses. The act of 1832 design- ed to place all other taxes in school districts on the same footing. But a doubt having arisen whether rate bills for teachers' wages were embraced by the act of 1832, the act of 1835 was passed for the purpose of removing it. After all, it will be perceived that there is but a single class of cases, under this construction of the acts referred to, in which the collector of a school district can go beyond the boundaries of his district to enforce the collection of a tax; that is, where an inha- bitant is included in a tax list or rate bill, and removes out of the districi, after the assessment and before the tax or tuition bill . " In the opinion of the Superintendent, in the case of the trustees of school district No. 1 in the town of Conewango, page 78, it would seem that collectors might go beyond the boundaries of their districts to execute warrants against the class of non-residents embraced in sections 77 and 78, though not for the collec- tion of rate bills ; and by the decision of the supreme court, in the case of Ward vs. Aylesworth, 9 Wendell, 281, it was settled that a collector might, where a farm was partly within an adjoining district, go on to that part of it and take pro- perty to satisfy a tax, the whole farm being considered, for that purpose, with- in the district of the collector. In this case the court held, that the collector was limited in his functions to the bounds of his district. But the case occurred and was tried beibre the amendments of 1831 and 1832 to the school act, with regard to the collection of taxes, were in force. ' SUPERINTENDENT OF COMMON SCHOOLS. 339 . MIL . ' ought by law to have been collected. Whether the warrant be is- sued for the collection of a tax list or rate bill, is of no consequence. If, after the tax list or rate bill is made out, a person removes in- to another town in the same county, the collector may follow him and levy the amount due on any goods or chattels in his possession. There are other cases in which a collector cannot go out of his district to collect a rate bill : 1st. Where a person, liable to be included in a rate bill, re- moves from the district before it is made out; and 2. Where a person, liable to be included in such rate bill, has not removed from the district after the rate bill is made out, and does not reside therein at the expiration of the warrant, and no goods or chattels can be found in the district whereon a levy can be made. Neither of these cases comes within the scope of the amend- ments to the Revised Statutes, prescribing the duties of col- lectors, whatever may have been the intention of the framers of those amendments; for in neither case is there a removal after making out the rate bill, and before it ought by law to have been collected ; nor is there in either an assessment of pro- perty situated out of the town or ward in which the owner re- sides, rate bills not being made out with any regard to taxable property, but according to the number of children sent to school, and the period of attendance. In. these cases, therefore, the only remedy is that provided by section 89, page 484, 1 R. S. which authorizes trustees of school districts to sue for and recover the amount due in their name of office, The Trustees of school district No. 5 in the town of Oswegatchie, ex parte. If the commissioners of common schools certify that a larger sum than $400 is necessary to build a school-house, the excess cannot be raised by tax without a vote of the district. If, after $400 has been expended in erecting a school -house, and an additional sum has been raised on the certificate of the commissioners, a further sum is required, such further sum may be voted, if certified by the commissioners to be necessary. In February, 1836, a tax of $400 was voted in school district No. 5 in the town of Oswegatchie, to build a school-house. The whole amount was raised and expended, and was found insuffi- cient to finish the house. An application was then made to the commissioners of common schools for a certificate, stating that ; their opinion a larger sum was necessary. The commission- ef9 gave a certificate that $200 more was necessary, which sum 340 CASES DECIDED BY THE was also raised and expended. A further sum being required, another application was made to the commissioners, who ex- pressed a willingness to give the required certificate, but doubted their authority to certify a second time. In the mean time the trustees had gone on by a vote of the inhabitants, given after six hundred dollars had been expended, and finished the house, having borrowed money on their own responsibility for the pur- pose. Under these circumstances an application was made to the Superintendent for his opinion as to the right of the commission- ers to certify a further sum, and as to the right of trustees to levy such additional sum without a vote of the district. By JOHN A. Dix, March 4, 1837. Section 64, page 479, 1 R. S. which forbids a greater sum than $400 to be voted for building a school-house, unless the commissioners of common schools of the town certify in writing that a larger sum ought to be raised, does not, in my opinion, authorize such additional sum to be raised without a vote of the district. Though the latter part of the section may at first glance seem to be impe- rative as to raising "a sum not exceeding the sum" specified by the commissioners, yet when taken in connection with the first part of the section, I think the manifest intention was, that the additional sum should be voted by the district, and that the certificate of the commissioners was designed only to enlarge the powers of the inhabitants as to voting a tax for building a school- house, and not to give the commissioners power, independently of the wishes of the district, to cause a larger sum than $400 to be levied on its taxable property. Under this view of the intention of the statute, I see no rea- son why the commissioners may not again certify that a larger sum than the amount already collected ought to be raised. On this certificate the inhabitants of the district may, at a special meeting, called for the purpose, vote the additional sum so speci- fied. If the trustees of the district have gone on, by the direction of the inhabitants who were convened >for the purpose, and in- curred pecuniary responsibilities, they should be protected ; and; in case the inhabitants refuse, on the certificate of the commis- sioners, to vote a sum sufficient to reimburse the trustees for the amount reasonably expended in pursuance of such direction, I should, on application to me, take the measures necessary to save them harmless. ^ * * SUPERINTENDENT OF COMMON SCHOOLS. 341 Horace Gay and Hester L. Stevens, against the trus- tees of school district No. 3 in the town of Gates. If a man has been assessed on the last assessment roll of the town for a greater number of acres than his farm contains, he may claim a reduction before the trustees of a school district, when a tax is assessed for common school pur- poses; but if he neglects to make such claim, he wiH not be relieved on an appeal to the Superintendent. This was a case in which the appellants complained that they had been unjustly taxed for 12 T \^ acres of land, the farm for which they were taxed being so much less than the quantity for which it was assessed in the last assessment roll of the town. By JOHN A. Dix, March 14, 1837. The Superintendent of Common Schools having examined the case submitted by Ho- race Gay and Hester L. Stevens of the one part, and the trus- tees of school district No. 3 in the town of Gates on the other part, in the matter of the assessment of a tax by the latter, is of opinion that the sum of $4.01, which the appellants state to have been assessed on lot No. 167, on account of 12-^ acres of land more than the lot contained, cannot be remitted, inasmuch as the assessment was made agreeably to the last assessment roll of the town of Gates. A reduction of the tax on account of the excess of land assessed over and above the number of acres actu- ally contained in the lot, might have been claimed; but the Superintendent cannot interpose when the parties have ne- glected to resort to the remedy provided by the statute. If the reduction had been claimed before the trustees, and they had re- fused to correct the error, the interposition of the Superintendent might with propriety have been asked. It is not alleged that the proper application was made to the trustees for a reduction of the tax; and it is therefore presumed that no such claim was pre- ferred. The Trustees of school district No. in the town of Fallsburgh, ex parte. Trustees must include in a tax list every taxable inhabitaht 'residing in the dis- trict at the time the list is made out. Trustees cannot assess an individual for personal property, if he has been taxed for none on the last assessment roll of the town, upon the supposition that he may have more than his debts amount to. The following questions were presented for the opinion of the Superintendent by the trustees of a school district in the town of Fallsburgh. 1. A. B. an inhabitant of our district has sold his farm to another inhabitant of the district, and intends going to the west early in the spring. ^"He has money and obligations equal to the '"/lP** ^; V " " V& - ' .* * *m 342 CASES DECIDED BY THE 4 . amount for which he sold his farm. A tax is voted to build a school-house. What should the trustees do in relation to A. B.? 2. The town assessors have assessed C. D. for his real estate, but not for any personal property. No addition to his property has since been made. Can the trustees of the district assess him for personal property upon the supposition that he may have more than his debts amount to? By JOHN A. Dix, March 21, 1837. The trustees of a school district have no discretion to exercise as to the persons to be in- cluded in a tax list. They must include every taxable inhabi- tant residing in the district at the time the list is made out. If a man sells his farm after the assessment roll of the town is com- pleted, and remains in the district, he must be assessed for the price of the farm, if he is paid in money or securities for the pay- ment of money, deducting his debts, unless they have been al- ready deducted in the valuation of his taxable property on the town roll. In short, the trustees must give notice, and ascertain the true value of his property from the best evidence in their power, pursuant to sec. 80, page 483, 1 R. S. this being a case in which the valuation cannot be ascertained from the last as- sessment roll of the town. The trustees of a district have no authority to assess an indi- vidual for more personal property than has been assessed to him on the assessment roll of the town, upon the supposition that he may have personal property exceeding the amount of his debts. The assessment roll of the town settles the matter, and the trustees cannot vary the amount, but from some knowledge of an alteration after that roll was made out, or to correct some known and acknowledged error. The Trustees of school district No. 5 in the town of Rodman, ex parte. If before a tax is assessed the trustees ascertain that the whole amount voted will not be required, they may make out a tax list for a smaller sum. In this case a tax of $180 was voted to build a school-house, and the dimensions of the building were agreed on. The trus- tees immediately entered into a contract with a builder, who agreed to construct the house for $160. The question present- ed was, whether they could make out a tax list for $160, the amount of the contract, instead of $180, the amount voted? By JOHN A. Dix, April 5, 1837. Under a vote to raise $180 you may raise a smaller sum, if you find the whole is not re- quired to accomplish the object of the inhabitants in voting it. No one can be injured by such a proceeding. f * r\ , . i SUPERINTENDENT OF COMMON SCHOOLS. 343 The Inhabitants of joint school district No. 12 in the towns of Stockbridge and Vernon, against the Commissioners of Common Schools of the latter town. If within thirty days after proceedings complained of, notice of appeal is served and the papers transmitted to the Superintendent, it is a sufficient compliance with the regulation, and ten days will he allowed to the respondents to answer, after the service of such notice. If there are Indian lands within the limits of a (own, those lands may be included within the boundaries of school districts. If there are, within the boundaries of a school district, Indian children whose education is provided for by special enactments, they must not be included in the annual reports of the district. The facts of this case are staled in the Superintendent's order. By JOHN A. Dix, April 17. 1837. The Superintendent of Common Schools has had under consideration the appeal of cer- tain inhabitants of joint school district No. 12 in the towns of Stockbridge and Vernon, from the proceedings of the commis- sioners of common schools of the latter town on the 23d of No- vember last, in setting off from said district so much of it as was comprised within the boundaries of the last mentioned town and forming a new district, under the denomination of district No. 15. With respect to a preliminary objection to the hearing, raised by the respondents on account of delay in presenting the appeal, the Superintendent deems the regulations substantially complied with. In the application of these rules a liberal interpretation has always been given to their requirements. If the papers in support of an appeal are sent to the Superintendent within thirty days, and notice is served on the opposite party within the same time, it is sufficient; and ten days thereafter will be allowed to the respondent to answer. The proceedings complained of in this case were of the 23d of November, 1836. Copies of the ap- pellants' papers were served on the commissioners of common schools of the town of Vernon on the 20th December, twenty- seven days afterwards, and the original affidavits were sent to a member of assembly at Albany, to be presented to the Superin- tendent. In consequence of the absence of the member referred to, the papers were not received until sometime afterwards; but as they were prepared and sent to the Superintendent, and no- tice of the appeal was given within thirty days, it is a sufficient compliance with the regulations. It appears that school district No. 12 was formed on the 23d of May, 1819, by the commissioners of common schools of the town of Vernon. In describing the boundaries of the district the commissioners commenced at the southwest corner of a patent granted to John Sargeant, jr. and ran the line southerly to the 344 CASES DECIDED BY THE south line of the town of Vernon; thence northerly on the west line of the same patent to the northwest corner of the same; and thence northerly, parallel with the east line of the Indian lands, to the centre of the Oneida turnpike road; and thence westerly to the west line of the town of Vernon. In thus describing the boundaries of district No. 12, two sides of the district, (the southern and western,) are left untouched. But the design of the com- missioners is obvious,, as these sides were bounded by the town line, which was the limit of their jurisdiction. They intended, beyond all doubt, to form into a separate district, under the de- signation of No. 12, all that part of the town of Vernon lying between Sargeant's patent on the east and the town line oa the west, and between the town line on the south and the Oneida turnpike road on the north. Upon any other supposition, the or- der would be incomprehensible and absurd. It may be proper to observe in this place, that in an affidavit made by Messrs. Joseph .Pixley, Silas Seeber and George Adams, it is alleged that a there is no road in the town of Vernon, and never has been one, known by the name of the Oneida turnpike ; that the only turnpike within three miles of the said patent of John Sargeant, jr. was the Peterborough turnpike." The Su- perintendent is somewhat surprised that this assertion has been so positively made; for although he has no doubt the persons making the affidavk intended to state the truth, he apprehends* that they are wholly in error in this respect. The Oneida Turn- pike Road was established by that name,, as will be seen by re- ference loan act passed the 31st March, 1801, before the town of Vernon was erected, and by an amendment of the charter in the year -1812, chapter 153 of the laws of that year, it appeal's* that it still retained the name of the Oneida Turnpike Road r and that the company were authorized to change the line of their route between the school-house in Peterborough and a spe- cified point in the town of Vernon. Subsequently to this time, until the formation of district No. 12, no act is found changing the name of the corporation, nor has the Superintendent been able to find any act establishing a turnpike road by the name of the Peterborough turnpike. If it was the intention of the commissioners to include within district No. 12 the territory comprehended by the lines above mentioned, the question arises, whether the Indian lands which compose a part of it could be lawfully embraced in the order of the commissioners as a part of that district? On the settlement of this question the right of the commissioners of common school? of the town of Vernon to form district No. 15 must necessarily depend, as by the erection of the town of Stockbridge, district No. 12 became a joint district, if its original formation was legal. ?* SUPERINTENDENT OF COMMON SCHOOLS. 345 and it coirld, in that case, be altered only with the assent and concurrence of the commissioners of the latter town. To determine this question, it will be necessary to enter into a brief examination of the legislation of this state in relation to Indian lands, with a view to ascertain how far the legislature has claimed to exercise jurisdiction over them. By art. 37 of the constitution of this state, adopted in the year 1777, it was ordained, that no purchases or contracts for the sale of lands with the Indians within the limits of this state should be deemed valid, unless made under the authority and with the consent of the legislature. Although the avowed object of this provision was to maintain peace and amity with the Indians, and to guard against discon- tents and animosities growing out of frauds practised upon them in procuring contracts for the sale of their lands, the effect ne- vertheless was, by declaring all such contracts (unless made un- der the authority and with the consent of the legislature) to be void, to assume with respect to the Indian tribes, a right to con- trol and regulate the alienation of their lands. By an act passed the 17th March, 1788, to punish infractions of the article of the constitution above referred to, it was enacted that if any person should, without the authority and consent of the legislature, purchase any Indian lands within this state, or make contracts for the sale of such lands, he should, on convic- tion thereof, forfeit one hundred pounds, and be further punished by fine and imprisonment, in the discretion of the court. It was also provided by the same act,' that any person selling, intruding, or entering upon any such lands, by virtue of such contract or sale, should be subject to the like penalties. By an act passed the 25th February, 1789, it was provided that a certain tract of land confirmed by the Oneida Indians to the Stockbridge Indians should remain to the said Stockbridge Indians, but without any power of alienation or right of leasing the same lands, or any part thereof, for a longer term than ten years. On the 21st February, 1791, an act was passed authorizing the male Indians residing in Brothertown and New-Stockbridge, above 21 years of age, to meet together on the first Tuesday of April in each year, to choose a clerk, a marshal, and three trustees. The trustees were authorized, with the consent of the mayor of the city of Albany, to lease to any person or persons, not exceed- ing six hundred and forty acres, for a term not exceeding twen ty-one years, for the use of the inhabitants of Brothertown and Stockbridge; the rents to be applied to the maintenance of a mi- nister and free school for the instruction of the Indians. By an act passed the 12th April, 1791, the provisions of the 346 CASES DECIDED BY THE last mentioned act were substantially re-enacted, with the ex- ception that three peace-makers were to be chosen annually, in- stead of three trustees, and that some further powers were given to them, and to the Indians, for the transaction of their local concerns. By an act passed the 31st March, 1795, commissioners were appointed to examine into and adjust differences which had ari- sen between the Indians of Brothertown and the white inhabi- tants, in consequence of leases granted to the latter by Indians in their individual capacity; and the said commissioners were authorized, after setting apart a certain piece of land for the use of the Indians, to make a division of the remainder among such persons as had obtained leases from the Indians and were actu- ally residing on the lands, and to sell the said lands to such per- sons ; and it was also provided that no white person should be dispossessed of any lands which he held under a lease given for ten years by the Indians in their collective capacity. By an act passed the 23d March, 1797, the acts authorizing the Stockbridge Indians to alienate or lease any part of the tract confirmed by the Oneida Indians to them, were repealed. By an act of the 28th February, 1804, one thousand acres of the lands of the Stockbridge Indians were directed to be leased in fee for the education of the Indian children in New-Stock- bridge. By an act of the 7th April, 1806, the superintendents of the Brothertown Indians were appointed superintendents of the Stockbridge Indians, and were authorized to sell or lease so much of their land in New-Stockbridge as would enable them to repair their mills and create a fund for the support of old and decrepit persons. By an act passed the 3d April, 1807, the superintendents of the Brothertown Indians were authorized, under certain restric- tions, to sell or lease so much of their land on the turnpike road, in one or more parcels, as they should judge convenient for keep- ing public houses. By an act passed the 8th April, 1810, the sales made by the superintendent of the New-Stockbridge Indians, by virtue of the authority given to them by law, of certain lands belonging to said Indians, were ratified and confirmed. On the 10th April, 1813, a general act was passed in relation to the different tribes and nations of Indians within this state, embodying the provisions of previous laws. The first section, among other provisions, made it penal for any person to purchase lands of any Indian residing within the state, or to enter on any lands by pretext or color of any right derived from such SUPERINTENDENT OF COMMON SCHOOLS. 347 l purchase since the 14th of October, 1775, unless made with the consent and authority of the legislature. By an act passed the 22d of March, 1816, the section contain- ing the above mentioned provisions was suspended in relation to the Stockbridge Indians, so far as regards those persons, who, on or before the 1st of February, 1815, had settled on the Indian lands by virtue of leases from the Indians. The effect of I his provision was to recognize the validity of the possessions acquir- ed by white settlers, under leases granted by virtue of the acta above referred to, from 1789 to 1810. Under the protection of the leases thus granted, the Indian lands were occupied by white settlers ; and the lands being in- cluded within the boundaries of particular towns, those settlers enjoyed all the political privileges of other inhabitants of those towns. The Indian lands within this state have, as settlement has reached them, been included within our municipal divisions like all other lands within the boundaries of the state, and as has been seen, the legislature has assumed, from the earliest times, to exercise a sovereign control over them. The lands belonging to the Stockbridge Indians, usually known as New-Stockbridge, and now constituting the town of Stockbridge, were formerly comprised within the boundaries of the three towns of Vernon, Augusta and Lenox, lying partly in each : these lands constituted a part of those towns ; and unless the laws provided otherwise, they were subject to be included in the school districts into which these towns were divided. The act for the better establishment of common schools, passed the 15th April, 1815, was in force when school district. No. 12 was formed ; and by the llth section it was provided, that it should be "the duty of the commissioners of common schools, or the major part of them, to divide their respective towns into a suita- ble and convenient number of school districts." Under this pro- vision, the commissioners were undoubtedly authorized to in- clude in the school districts formed by them all the territory em- braced within the boundaries of their respective towns, unless there was some special provision to the contrary, in the law from which their powers were derived. The existence of such a pro- vision has not been alleged, and none, it is believed, has ever existed. By the 20th section of the act last referred to, the trus- tees of each school district were directed to include in their an- nual reports " the number of children residing in such district between the ages of 5 and 15 years inclusive, except Indian children, otherwise provided for by law." This provision was manifestly intended for cases in which Indian lands were in- cluded within the boundaries of school districts. Thus, in New- 348 CAES DECIDED BY THE Stockbridge, provision had been made for the education of- the In- dian children, as above shown, by reference to the act of 28th of February, 1804, and they could not, under the act of 15th of April, 1815, be included in the annual reports of the trustees of school district No. 12 ; but if there were on Indian lands white set- tlers under leases from the Indians, granted in pursuance of the authority contained in the act of 25th of February, 1789, and other subsequent acts, it would have been the duty of the trus- tees to include their children in their reports. If the provision of the act of 1815 was not intended for cases precisely similar to this, it would be difficult to imagine its object. On a full review of the law applicable to the case, the Super- intendent of Common Schools lias no doubt that the commis- sioners of common schools of the town of Vernon had full power to include within the limits of district No. 12, that part of New- Stockbfidge which was comprised within the boundaries of the town of Vernon ; nor does he entertain the slightest dobt,that it was the intention of the commissioners to bound the district by the town lines on the south and west. If there were any cause to suppose they had a different intention^ the supposition would be repelled by the fact, that the question of boundary has never before been raised, although eighteen* years have elapsed since the district was formed, and by the consideration, that if the town lines were not the intended limits of the district, the order of the commissioners would be absurd on its face. It is unnecessary for the purposes of this decision to inquire whether there were on the Stockbridge lands any white settlers within the town of Vernon. Whether there were or not. th principle is the same. Those lands were included in district No. 12, and as they have become settled by white persons, thos persons are entitled to all the benefits of the common school sys- tem, equally with the inhabitants of the district residing without the Indian boundary. This point being settled, the case is disposed of without dif- ficulty. By the erection of the town of Stockbridge. that part of dis- trict No. 12 which was comprised within the boundaries of the lands belonging to the Stockbridge Indians, at the time the dis- trict was formed, became a part of that town. District No. 12, therefore, became, according to a principle long since settled by the Superintendent in a like case, a joint school district, and could only be altered with the concurrence of a majjr part of the commissioners of common schools, of the towns of Vernon and Stockbridge. The commissioners of the former, by 's^um- ing to alter it without the concurrence of the commissioners of 4. SUPERINTENDENT OF COMMON SCHOOLS. 349 > the latter, have exceeded their powers, and their proceedings are void for want of authority. It is accordingly decided, that the proceedings of the commis- sioners of common schools of the town of Vernon, in dividing joint school district No. 12, in Vernon and Stockbridge, are, and they are hereby declared to be, void and of no effect. The Commissioners of Common Schools of the town of Blenheim, ex parte. If a new district is formed so soon before the first of January as not to have had time to have a school kept three months by a qualified teacher, and if part of said district is taken from a district in which a school has been kept three months by a qualified teacher, and the residue from territory not belonging to any district, such new district should be allowed a share of the public money. - This was an application for the direction of the Superinten- dent, by the commissioners of common schools of the town of Blenheim, with regard to the propriety of including one of the school districts in said town, in the apportionment of the public moneys. The district had been formed so soon before the 1st of January preceding, as not to allow a sufficient time for keeping a school therein three months. Part of the district was taken from one of the other districts in the town, in which a school had been taught three months by a qualified teacher during the preceding year, and the residue of the new district was com- posed of territory which had never been included in the boun- daries of any district. By JOHN A. Dix, April 18, 1837. School districts are en- titled to a share of the public money, if they have been so re- cently formed, previous to the 1st of January, as not to have had time to keep a school three months ; and when formed sub- sequently to the first of January, and before the apportionment of the school moneys they are entitled to a share of those moneys, if they have been set off from districts in which schools have been taught three months by a qualified teacher, during the pre- ceding year. The only limitation of this rule is, where a dis- trict has been formed without the consent of the trustees of the district or districts from which, it is taken, and where, as the al- teration cannot take effect for three months, the new district is not in operation at the time of the apportionment, so that there is no authority existing within it to receive and apply the public money. It appears to me, that there can be no difficulty in the case presented by you, if part of the new district was taken from a school district which fulfilled all the requirements of the law, and the residue is composed of territory not before annexed to any district. On every principle of equity the district should receive such share of the school moneys as the whole number of 350 CASES DECIDED BY THE children, between 5 and 16 years of age, residing within it, en- title it to. If any part of the district had been taken from an- other organized district, in which a school had not been kept three months during the previous year by a qualified teacher, that part would necessarily be excluded from the apportionment, which would be made in reference to the children residing in the other part of the new district. The reason of such exclusion is just, because if the part so excluded had continued to be a part of the district from which it was set off, it could have received none of the school moneys. The case presented by you, is one not specially provided for by law. But as part of the new district has been taken from a dis- trict which has complied with the law. there can be no question as to the right of this part to a share of the school moneys. And as to the other part, since it has never been attached to any district, there has been no failure to comply with the require- ments of the law ; and it is in respect to a failure to fulfil those requirements, where a compliance is possible, that a forfeiture is provided. You can pay over to the district the money retained in your hands. The Trustees of school district No. 3 in the town of Ballston, ex parte. Rail-road companies are taxable on their rail-ways, and other fixtures connected therewith, as real estate, in the school districts within which such real estate is situated. This was an application from the trustees of school district No. 3 in the town of Ballston, for the advice of the Superinten- dent with regard to their right to include in a tax list the rail- way and fixtures of the Rensselaer and Saratoga Rail-Road Company, about a mile and a half of the rail-way of which was included in the boundaries of that district. By JOHN A. Dix, April 21, 1837. By a decree of the chancellor of this state, 4th vol. Paige's Chan. Rep. 384, it has been decided that rail-road " companies, whose stock, or the principal part thereof, is vested in the lands necessary for their roads, and in their rail-ways and other fixtures connected there- with, are taxable on that portion of their capital as real estate in the several towns or wards in which such real estate is situa- ted." They are, of course, taxable in school districts for com- mon school purposes, on so much of such real estate as is in- cluded within the boundaries of those districts. In the decree referred to, it was also decided, that such real estate " is to be taxed upon its actual value at the time of the assess- ment, whether that value is more or less than the original cost thereof." SUPERINTENDENT OP COMMON SCHOOLS. 351 la ascertaining the value of so much of such real estate as is included within the boundaries of a school district, the trustees must, from the necessity of the case, be guided by the best evi- dence which it is in their power to obtain. They should ascer- tain from the assessment roll of the town, the aggregate value of so much of the real estate of the company as is within the town. They should then ascertain whether the proportion of that value, in respect to the rail-way included within their district, is equal to the value of the whole of the real estate of the company included within another district in which the length of the rail-way is the same. This cannot always be the case, for within the boun- daries of one school district the company will have a depot, while it has none in another district. Within one school district, the rail- way may have a double, while in another, it may have but a single, track. All these circumstances must be ascertained and taken into consideration by the trustees. If the company has in a school district nothing but its rail-way, and has a depot within the same town, then the value of the depot should be deducted from the valuation of the real estate of the company on the last assessment roll of the town, as preliminary to a valuation of that part of the rail-way which is within the boundaries of such district. I make these suggestions for your consideration, leav- ing it to the trustees to observe the directions contained in sec. SO, page 483, IRS. The Clerk of school district No. 7 in the town of West Turin, ex parte. If a special meeting is called under a notice to take into consideration the pro- priety of building a new school-house, and, if thought proper, to lay a tax for the purpose, it is a sufficient notice to warrant the inhabitants at such meeting to vote a tax to repair the old school-house. In school district No. 7 in the town of West Turin, the fol- lowing notice was issued by the trustees : " To the Clerk of school district No. 7 in West Turin : We, the subscribers, trustees of said district, hereby order you to no- tify the taxable inhabitants of the aforesaid district, that a spe- cial school meeting will be held at the school-house in said dis- trict on the 23d day of March inst. at 6 o'clock P. M., for the purpose of taking into consideration the propriety of building a new school-house in said district, and if thought advisable at said meeting to build, then to levy a tax on the inhabitants of said district for the purpose of building. Dated at West Turin this 14th day of March, 1837. H. JOHNSON, ) N. WOOD, } Trustees." F. E. TAYLOR, } 352 CASES DECIDED BY THE The question submitted to the Superintendent was, whether at the meeting called in pursuance to this notice, a tax could be voted to repair the old school-house. By JOHN A. Dix, April 24, 1837. I am of opinion that the notice given in your district on the 14th of March for a special meeting to " take into consideration the propriety of building a new school-house Jn said district, and if thought advisable at said meeting to build, then to levy a tax," &c., was sufficient to justify the inhabitants to vote a tax to repair the old house. The two objects are so nearly allied that no one can complain of surprise ; and it seems to be manifest that if the main object of the meeting, that of raising money to build a new school-house, should fail, the other, that of raising money to repair the old one, almost necessarily follows. If any one felt aggrieved, he should have appealed within the time limited by regulation ; but as there is no appeal, the trustees may go on and levy on the taxable property of the district the sum voted. ? i ~ <~ The Commissioners of Common Schools of the town of Burton, ex parte. When a town is divided and a new one formed, after the assessment of taxes has been made in the former, the school moneys levied on such town should, when collected, be divided in the same proportion as the moneys derived from the common school fund. On the 12th of May, 1836, an act was passed dividing the town of Burton and erecting the town of Humphrey from a part of it, the first town meeting in which was to be held on the first Tuesday of March, 1837. The question presented was. in what manner the amount levied for common school purposes on the taxable property of the town of Burton in 1836, should be di- vided between that town and the new town of Humphrey, with a view to the apportionment to be made on the first Tuesday of April. By JOHN A. Dix, May 13, 1837. The moneys levied in. the town of Burton for common school purposes, previous to the time at which the act for the erection of the town of Humphiey took effect, must be divided between those towns in the same proportion in which the moneys distributed to the towns from the common school fund were apportioned by the Superinten- dent to the towns of Humphrey and Burton. Thus, the origi- nal town of Burton was entitled to $540.94, of which the sum of $18.31 was given to Humphrey, leaving to Burton the sum of S22.63; or. for every dollar given to Humphrey, $1.23 should be given to Burton. This is as near an approximation to a true result as can be attained. A ' ' '* '" * ...-'. SUPERINTENDENT OF COMMON SCHOOLS. 353 (ANONYMOUS.) A commissioner of common schools may be a trustee of a school district. By JOHN A. Dix, May 19, 1837. A commissioner of com- mon schools may be a trustee of a school district ; that is, there is no legal disqualification. At the same time, it is better that no one individual should hold both offices, as questions may arise in which there may be conflicting interests to adjust between the commissioners and trustees. At all events, a proper feeling of delicacy would seem to suggest, in such a<^se, that the individual should resign one office or the other. ;- The Trustees of school district No. 4 in the town of Sharon, ex parte. if the inhabitants of a school district authorize the trustees to select a site for a school-house, it is not a legal site until subsequently fixed by a vote of the in- habitants. The inhabitants of a school district cannot authorize the trustees to borrow mo- ney. if part of a resolution passed by the inhabitants of a school district is void, the whole resolution is vitiated. Jf at an annual meeting a vote is passed in relation to the erection of a school- house or the choice of a site, and a special meeting is subsequently called un- der a notice to reconsider the proceedings of the annual meeting, it is a suffi- cient designation of the object of the meeting to justify the inhabitants in re- scinding r modifying such vote. This Was an application to the Superintendent for his opinion with regard to certain proceedings in school district No. 4 in the town of Sharon. The facts of the case are stated in his opi- nion. By JOHN A. Dix, May 29, 1837. On the 3d day of April last, at an annual meeting held in school district No. 4 in the town of Sharon, a vote was taken to build a stone school-house, the site to be selected by the trustees between two points desig- nated in the resolution. It was also voted at the same time that the trustees should borrow $125 for the purpose of procuring ma- terials for the building. At a subsequent day, the trustees having met to receive pro- posals for building, it was, on reflection, deemed advisable to call a special meeting of the inhabitants of the district for the pur- pose of reconsidering the former proceedings. A meeting was accordingly called on the 3d of May inst. for the purpose of tak- ing " into consideration the propriety of reconsidering the pro- ceedings of the annual meeting, and such other business" as the inhabitants should find necessary. Due notice was given to ev- ery inhabitant entitled to vote, and the meeting was held, four- Mhs of the whole number of inhabitants being present. On 23 354 CASES DECIDED BY THE reconsidering the proceedings of the annual meeting, it wae unanimously resolved that the school-house should be built of wood instead of stone, and a tax of $250 was voted for the pur- pose. The proceedings of the annual meeting in relation to building a school-house are void, for the following reasons : 1st. The in- habitants of the district must designate the site for the school- house themselves ; they cannot leave the choice to the trustee* or to any other persons. 2d. The inhabitants of a school dis- trict cannot authorize the trustees to borrow money. No part of the proceedings was authorized by law, excepting so much as relates to the materials of which the house was to be built. By the statement presented to me, it would appear that the vote au- thorizing the trustees to fix the site for the school-house was part of the same resolution which prescribed the nature of the mate- rials to be used. The whole resolution must therefore fall, as that part of it which is void vitiates the residue; but if that part which relates to the materials could be sustained, it would make no difference, as the vote at the subsequent meeting annulled it. The proceedings of the meeting on the 3d of May are valid. The only question which can possibly arise is, whether the no- tice was sufficient? On this point I entertain no doubt. The law does not prescribe that the object of a special meeting shall be stated in the notice. This duty is enjoined by the Superin- tendent in the directions and forms of proceedings furnished by him, and he will require in all cases that it shall be performed in good faith. The notice for the meeting on the 3d May, set forth that the object was to reconsider " the proceedings of the annual meeting." The proceedings referred to were a matter of notoriety, and it is not alleged that any one has been taken by surprise in rescinding them, so far as the school house is directed to be built of wood instead of stone. Indeed, it is manifest from the great proportion of the inhabitants who attended the meet- ing, and from the unanimity which distinguished it, that the voice of the district has been fairly and clearly expressed. To attempt to overthrow the proceedings upon grounds merely tech- nical, is, to say the least, ungracious, and can lead to no good result. But even the want of technical regularity is not shown. The notice is a substantial compliance with the forms and direc- tions prescribed by the Superintendent ; and the object of the notice, to apprize each inhabitant of the business proposed to be acted on, seems to have been fully attained. The trustees should proceed to collect the tax. At the last meeting no vote was taken in relation to the site, As has already been stated, it must be designated by the inha- bitants, although such designation need not necessarily precede SUPERINTENDENT OF COMMON SCHOOLS. 355 the collection of the tax. At the same time, the most unexcep- tionable course of proceeding in all cases, is to designate the site first, and then vote the tax to purchase it and build the school- house. The trustees may, if they choose, examine the ground be- tween the two points mentioned in the resolution passed on the 3d of April, but such examination can only be for the purpose of giving their advice to the inhabitants at a future meeting with regard to a proper place for a site for the district school-house, jk This proceeding can have no force whatever, so far as the choice of the site is concerned. To make the selection legal, the inhabitants must give a direct vote upon it, and fix the spot on which the school-house is to^stand. -' '' Bit The Trustees of school district No. 8 in the town of Kingshury, against the Commissioners of Common Schools of said town, . If a school district formed nine months before the first of January, is unable to pro- cure a suitable room for keeping school, and cannot succeed in building a school-house in time to have a school kept three months by a qualified teach- er, the Superintendent will, on application to him, allow such district a por- tion of the public moneys, if the time during which the inhabitants have con- tributed to the support of a school by a qualified teacher in the new district, and in the district from which it was taken, is equal to three months. This was an appeal to the Superintendent by the trustees of school district No. 8 in the town of Kingsbury, under circum- stances which are fully explained in the Superintendent's order. By JOHN A. Dix, May 29, 1837. On the 28th day of March, 1836, school district No. 8 in the town of Kingsbury, was divided, and school district No. 15 was formed from a part of it. The latter district was organized by the appointment of officers on the llth of April ensuing. On the 2d of May a site for a school-house was selected, and arrangements were soon af- terwards made for building the house ; but the difficulty of pro- curing labor and materials at that season of the year was such that the house was not completed until the last of November. In consequence of this difficulty, and the impossibility of hiring a building for a school-house, an agreement was entered into with district No. 8, and the inhabitants of No. 15 continued through the summer to send their children to the school in that district. On the 1st of December ensuing, the school-house in No. 15 being completed, a school was commenced by a qualified teacher, and continued to the end of the year. The school in No. 8, to which the inhabitants of No. 1 5 had sent their child- ren during two months and a half of the summer term, was also kept by a qualified teacher, so that they had, for more than CASES DECIDED BY THE three months, during the year 1836, and subsequently to their separation from No. 8, contributed to the support of a school kept by a qualified teacher. Scliool district No. 8 had also, dur- ing the year 1836, a school kept by a qualified teacher for the full period of three months. ,*.,' The facts above stated were substantially presented by the an- nual report of district No. 15 to the commissioners of common schools, who refused, in apportioning the school moneys for the present year, to allow any portion of them to No. 15. From this decision the trustees of district No. 15 appeal. A copy of the appeal, with the proper notice, has been served on the commis- sioners, and as they do not answer, the Superintendent infers that they are willing to submit the case for his decision upon the facts stated by the appellants. By the act of April 21, 1831, where "a school district shall have been formed at such time previous to the first of January as not to have allowed a reasonable time to have kept a school therein for the term of three months," it becomes entitled to a share of the public moneys, if it is formed out of a district in which a school shall have been kept three months by a qualified teacher. School district No. 15 was formed in the month of March, 1836. It had, therefore, more than nine months before the expiration of the year for keeping such a school. This was certainly a reasonable time, and the commissioners of common schools were right in refusing to apportion to it a share of the school moneys. The only question for them to decide wae, whether the district had a reasonable time before the 1st of Janu- ary to keep a school three months? And this question being de- cided in the affirmative, they could not aflow it any portion of the public money. But there are circumstances in this case which, though they could not be taken into consideration by the commissioners for the purpose of varying the plain requirements of the law, may be properly addressed to the Superintendent, with a view to such an interposition on his part as to save, if possible,, the equitable rights of the district. The object of the provision of the act of 1831, above quoted, was to secure to districts formed at so late a period of the year as not to have afforded sufficient time to have a school kept in them by a qualified teacher for the period of three months before the first of January ensuing, on which day the annual reports of the school districts must be dated, a participation in the distribution of the school moneys to be made on the basis of those reports. With this provision was connected another which was intended to put such districts on the footing of all others in the state; that they should not receive any share of the school moneys unless m .-** ff' i- i SUPERINTENDENT OF COMMON SCHOOLS. 357 they were taken from districts in which schools had been kept three months by a qualified teacher, during the year preceding the first of January. This is a fundamental provision of the com- mon school system, and is deemed indispensable to maintain its efficiency. As has been already seen, district No. 15 had substan- tially fulfilled this requirement. Not only had district No. 8, from which it was taken, supported for three months previous to the first of January a school kept by a qualified teacher, but the inhabitants of No. 15 had contributed to the maintenance of such a school for more than three months. The design of the law had, in this respect, therefore, been accomplished. It is true that district No. 15 had a reasonable time before the first of January to have a school kept within it three months; and but for strong reasons the Superintendent would not deem him- self at liberty to interpose. These reasons consist in the inabili- ty of the district to procure a proper building for keeping school while the school-house was in a course of construction, and the difficulty of procuring labor and materials to complete the house before the last of November. The inhabitants did all in their power, under the circumstances, to carry into execution the re- quirements of the law. They entered into an arrangement with the district from which they were taken, and provided their chil- dren, at the school in that district, with the instruction which the law enjoins. If there had been any laches on their part; and if they had not contributed to the support of a school kept by a quali- fied teacher, so as to make up the legal term of instruction, the Superintendent would not interpose. But as the inhabitants of the district have acted in good faith, and have substantially carried into effect the requirements of the law ; and as they were pre- vented by causes not within their control from complying lite- rally with these requirements : It is hereby ordered, that the commissioners of common schools of the town of Kingsbury pay to the trustees of school district No. 15 in said town, out of the school moneys next to be distri- buted, such sum as that district would have been entitled to re- ceive for the present year, if a school had been kept therein three months during the year 1836 by a qualified teacher. . .*.-; ".'" * ';' V' The Trustees of school district No. in the town of Batavia, ex parte. If an inhabitant removes from a district before the end of one month after a tax ia voted, and before the tax list is delivered to the collector, he cannot be included in it, the tax list not being complete until the end of the month, if it remains in the hands of the trustees. In this case a tenant in the occupation of a farm in a school district, in the town of Batavia removed from the district after a 358 CASES DECIDED BY THE tax was voted r but before the tax list was put into the hands ot the collector; but it did not appear distinctly from the statement presented to the Superintendent, whether one month had elapsed after the tax was voted and before the tenant removed. By JOHN A. Dix, June 13, 1837. If the tenant referred to in your letter was a taxable inhabitant of the district at the time the tax list was made out, he should have been included in it, and if he removed, subsequently, he would be liable for the amount of the tax assessed to him. The only question is, when was the tax list made out? I think the tax list must be considered in- complete, if it remains in the hands of the trustees, until the last day of the month allowed them for making it out; and if an in- habitant removes from the district before that day he cannot be included in it. If they deliver it to the collector at the end of fifteen or twenty days, it is beyond their control, and they can- not recall it for the purpose of making alterations, though mere errors discovered after that tune may be corrected. But if the tax list remains in their hands until the twenty-ninth day after the tax was voted, they may and should make it conform to the condition of the district in respect to its taxable inhabitants on that day. After the expiration of the month they can make no alteration in it, though it may not have been delivered to the col- lector. The Trustees of school district No. in the town of Ovid, ex parte. When a new district is formed, if the commissioners of common schools neglect to issue a notice for the first district meeting, within twenty days, they may issue it at a subsequent time. If a notice is issued for the first district meeting in a new district, formed withost the consent of the trustees of the district or districts from which it was taken, and the time fixed for such meeting is within three months after service of notice on such trustees of the alteration made in their districts, the notice issued for such first district meeting is void, and the commissioners may issue another at a subsequent time. If the notice for the first district meeting in a new district is not void, but merely defective in form, application may be made to the Superintendent to amend it. This was an application for the opinion of the Superintendent in a case in which a new district had been formed in the town of Ovid, and in the organization of which a doubt had arisen as to the effect of a notice appointing the first district meeting be- fore the expiration of three months after notice in writing to the trustees of the districts from which such new district was taken, said trustees not having consented to the alterations made in their respective districts. By JOHN A. Dix, June 29, 1837. By 1 R. S. sec. 55. page 477, the commissioners of common schools are required, whenever SUPERINTENDENT OP COMMON SCHOOLS. 359 a school district is formed by them, to prepare a notice in writing, within twenty days thereafter, describing such district and ap- pointing a time and place for the first district meeting, and to de- liver such notice to a taxable inhabitant of the district. By 1 R. S. sec. 22, page 471, it is provided that "no alteration of any school district, made without the consent of the trustees thereof, shall take effect until three months after notice in writing shall be given by the commissioners to some one or more of such trustees." These two provisions must, if possible, be so construed that both may stand ; and in this there is no difficulty. If an alte- ration is made in one or more existing districts, without the con- sent of trustess, it cannot take effect until three months after no- tice in writing to the trustees, &c. The formation of a new district necessarily involves an alteration of existing districts, ex- cepting those uncommon cases in which school districts are form- ed out of territory previously unsettled, and for want of inhabi- tants not included within the boundaries of any district. In these cases the commissioners may issue their notice for the first dis- trict meeting, which may be held after the expiration of six days, if the notice is immediately served. But if a new district is form- ed out of territory included in existing districts, so as to alter the latter, and the trustees do not consent to such alteration, it can- not take effect until three months after notice in writing, &c. In the application of this rule the Superintendent has decided that no act touching the organization of the new district is valid if done before the expiration of the three months, so that an election before that time has expired would be void for want of authority. Notwithstanding this decision the commissioners should issue their notice for the first district meeting within twenty days after the district is formed ; but the time appointed for the meeting must be at some period subsequent to the expiration of three months after notice in writing to the trustees of the district or districts from which it is taken. It is hardly necessary to say, that if the trustees of the altered districts consent, the new district may organize immediately, in the same manner as though it had been formed out of territory not previously attached to any district. The provisions above quoted with regard to the notice to be given by the commissioners may be violated in three modes. 1. The commissioners may neglect to issue their notice with- in twenty days: 2. They may issue it within twenty days, and appoint the time for the first district meeting before the expiration of three months : *>* fc CASES DECIDED BY THE 3. They may issue a notice which is in some matter of form defective. 1. If the commissioners do not issue any notice within twenty days they may perform the duty at a subsequent time, as the provision of law requiring them to do it within that time is direc toiy only ; and if the duty is neglected it should be subsequently performed, so that third persons may sustain no injury. This is the general rule of law, where the authority of the officer is not intended to be limited by the specification of time, and it appears to me to be applicable to this case. 2. If the notice for the first meeting in the new district is issued within twenty days, and the time appointed for the meeting is within three months, and the trustees have not consented to the alteration, the notice is void. It appoints a day in violation of an express prohibition of the statute. It is, in contemplation of law. no notice at all; and the commissioners may issue another, pre- cisely as though they had issued none. 3. If the notice does not on its face show a direct yiolation of the statute, but is defective in some matter of form, application may be made to the Superintendent for authority to amend it. Having issued an order which is not void, the commisioners can- not issue another without being empowered to do so by the pro- per authority ; although they may doubtless rescind their order for the formation of the new district and commence anew. * + APPENDIX. m '*? :,.^-* LAWS ; - -, KBtATINQ TO COMMON SCHOOLS, AND THE FORMS AND REGULATIONS PRESCRIBED FOR THEIR GOVERNMENT. [This edition of the Statutes relating to Common Schools, is in conformity to an edition of the Revised Statutes of the state, with the amendments thereto, recently published by the Revisers. Some of the sections have double numbers. In every such case, the last number refers to the original edition of the Revised Statutes. In the annexed Forms and Regulations, the numbers of the sections as given in the present edition are referred to ; but the foregoing Decisions of the Superintendent refer to the numbers of the sections in the original edition. The Decisions also refer to the pages of the original edition of the Revised Statutes, which are shown by the figures, with asterisks annexed, on the margins of the follow- ing pages.] -- LAWS REVISED STATUTES RELATING TO COMMON SCHOOLS, TITLE II. CHAPTER XV. .- TITLE JI. OF COMMON SCHOOLS. ART. 1. Of the powers and duties of the superintendent of common schools, and of the apportionment of school moneys. ART, 2. Of the distribution of the common school fund. ART. 3. Of the powers and duties of the commissioners of common schools. ART. 4. Of the inspectors of common schools. ART. 5. Of the formation of school districts, and of the choice, du- ties and powers of their officers. ART. 6. Of certain duties of the county clerk. ARTICLE FIRSTV Of the Powers and duties of the Superintendent of Common Schools, and of the Apportionment of School Moneys. SEC. 1. Superintendent must make annual report to the legislature; con- tents thereof. 2. When school moneys to be apportioned. 3. How apportionment to be made. 4. How an increase apportioned. 5. How apportionment made when census defective. 6. New apportionment to be made in certain cases, and how. 7. Apportionment to be certified, and notice to be given. 8. Superintendent to prepare forms and instructions, and transmit them to officers. 9. Six first Articles of this Title to be printed and distributed. 10. Reasonable expenses of superintendent to be paid out of treasury. *$ 1. There shall continue to be a superintendent of * 46T common schools, whose duty, amongst other things, it """f I shall be, to prepare and submit an annual report to the to legislature containing, 1. A statement of the condition of the common schools of the state : 2. Estimates and accounts of expenditures of the school moneys : 364 LAWS RELATING TO Apportion ment. Ralio. Increase. Proceeding when cen- sus defec- When town altered. * 468 Certificate and notice. 3. Plans for the improvement and management of the common school fund, and for the better organization of the common schools ; and, 4. All such matters relating to his office, and to the common schools, as he shall deem expedient to commu- nicate. $ 2. Jn every year, immediately following a year in which a census of the population of this state shall have been taken, under the authority of the state, or of the United States, the superintendent shall apportion the school moneys to be annually distributed, amongst the several counties of the state, and the share of each coun- ty, amongst its respective towns and cities. $ 3. Such apportionment shall be made among the several towns and cities of the state, 1 according to the ratio of their population respectively, as compared with the population of the whole state, according to the last pre- ceding census. $ 4. [Sec. 5.] If an increase of the school moneys to be distributed, shall take place in any other year, than one immediately following a census, the superintendent shall apportion such increase amongst the several coun- ties, cities and towns, according to the ratio of the ap- portionment then in force. $ 5. [Sec. 6.] When the census, or returns, upon which an apportionment is to be made, shall be so far defective, in respect to any county, city, or town, as to render it impracticable for the superintendent to ascer- tain the share of school moneys, which ought then to be apportionment to such county, city, or town, he shall as- certain, by the best evidence in his power, the facts up- on which the ratio of such apportionment shall depend, and shall make the apportionment accordingly. g 6. [Sec. 7.] Whenever, in consequence of the di- vision of a town, or the erection of a new town, in any county, the apportionment then in force shall become unjust, as between two or more of the towns of such county, the superintendent shall make a new apportion- ment of *the school moneys, next to be distributed amongst such towns, ascertaining by the best evidence in his power, the facts upon which the ratio of apportionment, as to such towns, shall depend. $ 7. | Sec. 8.] The superintendent shall certify each apportionment made by him, to the comptroller, and shall (1) Amendatory act of 1830, chap. 320, 5, and by 6 of same ch. the orig. 4 is repealed. COMMON SCHOOLS. 365 give immediate notice thereof, to the clerk of each coun- ty interested therein, and to the clerk of the city and county of New- York ; stating the amount of moneys ap- portioned to his county, and to each town and city there- in, and the time when the same will be payable to the treasurer of such county, or to the chamberlain of the city of New-York. $ 8. [Sec. 9.] The superintendent shall prepare stii- Regulations, table forms and regulations for making all reports, and conducting all necessary proceedings, under this Title, and shall cause the same, with such instructions as he shall deem necessary and proper, for the better organiza- tion and government of common schools, to be trans- mitted to the officers required to execute the provisions of this Title throughout the state. $ 9. [Sec. 10.] He shall cause so many copies of the certain ai- first six Articles of this Title, with the forms, regula- prtnted be tionsand instructions prepared by him, thereto annexed, to be, from time to time, printed and distributed amongst the several school districts of the state, as he shall deem the public good to require. S 10. [Sec. 11.1 All moneys reasonably expended by Expenses i i J c i j * u 11 j how paid. him, in the execution of his duties, shall, upon due proof, be allowed to him by the comptroller, and be paid out of the treasury. ARTICLE SECOND. Of the distribution of the Common School Fund. SEC. 11. When school moneys to be paid; how; to whom. 12. To he applied for as soon as payable. 13. County treasurer to give notice to commissioners of common SCllOols. , 14. Duty of treasurer if moneys are not applied for. 15. Duty of clerk of county on receiving notice of apportionment. 16. A sum equal to that apportioned, to be raised in each town. 17. To be paid to commissioners of common schools. 18. If no commissioners, to he paid to treasurer. <$ 11. [Sec. 12.] The sum annually to be distributed When P^' 1 for the encouragement of common schools, shall be paid on the first day of February, in every year, on the war- rant of the comptroller, to the treasurers of the several counties, and the chamberlain of the city of New- York. < 12. [Sec. 13.] The treasurer of each county, and Treasurer to the chamberlain of the city of New- York, shall apply app!y ' for and receive the school moneys apportioned to their re- spective counties, as soon as the same become payable. *S 13. [Sec. 14.1 Each treasurer receiving such mo- *. 460 *" , , L , . J . . . . To give no- neys, shall give notice, in writing, to some one or more i>ce. of the commissioners of common schools of each town L. 366 LAWS RELATING TO or city in his county, of the amount apportioned to such town or city, and shall hold the same subject to the or- der of such commissioners. HoMjt re- $ 14. [Sec. 15.] In case the commissioners of any dS^Ii?f $ 16. [Sec. 17.] It shall be the duty of the supervi- sors > a * sucn meeting, and at every annual meeting thereafter, to add to the sums of money to be raised on each of the towns of the county, for defraying the ne- cessary expenses thereof, a sum equal to the school mo- neys which shall have been apportioned to such town ; which moneys, so added, together with the fees of the collector, shall be levied and collected in the same man- ner as other moneys directed to be raised in the town. H> $ 17. [Sec. 18.] The supervisors shall cause and re quire the collector of each town, by their warrant to him, to pay the moneys so added, when collected, retaining his fees for collection, to some one or more of the com- missioners of common schools in such town, for the use f^jp? of common schools therein ; whose receipt therefor shall be sufficient evidence of such payment. when mo- 18. [Sec. 19.] If there shall not be any commission- pala to ira- ers of common schools in such town when the moneys * mjrer - are collected, the collector shall pay the same, retaining his fees for collection, to the county treasurer, to be by him apportioned among the several cities and towns in the county, and distributed in the manner provided in the fifteenth [14th] section of this Title. ^ J #47O COMMON SCHOOLS. ARTICLE THIRD. Of the Powers and Ditties of the Commissioners of Common Schools. SEC. 19. Enumeration of certain duties of the commissioners. 20. Commissioners when to form and alter districts, in two or more towns. 21. When to take effect, if trustees do not consent. 22. 23 & 24. In what cases apportionment of school moneys not to be made. 25 &. 26. In what cases commissioners to make new apportionment. 27. What commissioners to do with moneys remaining in their hands, in certain cases. 28. Moneys remaining two years, in certain cases, to be returned to treasurer. 29. Commissioners to make annual report to county clerk; contents. 30. If report not made, county clerk to give notice to clerk of town. 31. Commissioners to forfeit $10; moneys for next year may be with- held. 32. If moneys lost to town, commissioners to forfeit full amount. 33. Supervisor of town to prosecute. 34. Commissioners to keep account of moneys; to whom submitted. 35. Must give account of moneys to successors ; to be filed. 36. If balance remain, it must be paid forthwith. 37. If balance appropriated, it must be stated and paid accordingly. 38. For breach of any provision of three last section*, penalty of $100. 39. Successors to prosecute for forfeiture. 40. Successors may bring suit for unpaid balance. 41. If commissioner dead, suit may be brought against his represen- tatives. 42. Commissioners have powers of a corporation to certain extent. 43. Town clerk, clerk of commissioners; his duty. 19. [Sec. 20.1 It shall be the duty of the commis- uti <* J , , , - J commis- of common schools, in each town, 1. To divide their town into a convenient number of school districts, and to regulate and alter such districts as hereinafter provided : 2. To set off by itself any neighborhood in their town adjoining to any other state of this Union, where it has been usual, or shall be found convenient for such neigh- borhood to send their children to a school in such adjoin- ing state : 3. To describe and number the school districts, and to deliver the description and numbers thereof, in writ- ing, to the town clerk, immediately after the formation or alteration thereof: 4. To deliver to such town clerk a description of each neighborhood, adjoining to any other state, set off by itself: 5. To apply for and receive from the county treasurer, all moneys apportioned for the use of common schools in their town, and from the collector of the town, all moneys raised therein for the same purpose, as soon as such moneys shall become payable, or be collected. 6- To apportion the school moneys received by them, oa the first Tuesday of April, in each year, among the 368 LAWS RELATING TO several school districts, parts of districts, and neighbor- hoods separately set off, within their town, in proportion to the number of children residing in each, over the age of five, and under that of sixteen years, as the same shall have appeared from the last annual reports of their re spective trustees : 7. If the commissioners shall have received the school moneys of their town, and all the reports from the seve- ral school districts therein, before the first Tuesday of * 471 April, they shall apportion such moneys *as above direct- ed, within ten days, after receiving all of the said re- ports and the said moneys : 8. To sue for and collect, by their name of office, all penalties and forfeitures imposed in this Title, and in respect to which no other provision is made, which shall be incurred by any officer or inhabitant of their town : and after deducting their costs and expenses, to add the sums recovered, to the school moneys received by them, Title e.j to k e apportioned and paid in the same manner. 1 Districts ( 20. [Sec. 21.1 Whenever it may be necessary or from several *^ . l r j- . . e^ towns. convenient, to form a district out of two or more adjoin- ing towns, the commissioners from each of such adjoin- ing towns, or the major part of them, may form, regu- late and alter such district. consent of $ 21. [Sec. 22.J No alteration of any school district, ees- made without the consent of the trustees thereof, shall take effect until three months after notice, in writing, shall be given by the commissioners, to some one or more of such trustees. svhenmo- 22. [Sec. 23.] In making the apportionment of mo- ueys with- ne y s among the several school districts, no share shall be allotted to any district, part of a district, or separate neigh- borhood, from which no sufficient annual report shall have been received, for the year ending on the last day of December, immediately preceding the apportionment. Il> - 23. [Sec. 24.] No moneys shall be apportioned and paid to any district or part of a district, unless it shall appear by such report, that a school had been kept there- in for at least three months, during the year ending at the date of such report, by a qualified teacher ; and that all moneys received from the commissioners during that year, have been applied to the payment of the compen- sation of such teacher. (1) Laws of 1819, p. 192, and p. 194, 12 to 15. By laws of 1829, chap 287, the commissioners are also to take charge of the " Common School Fund" of their town, created by a vote appropriating surplus poor money?. See Chap. 11, Part J, Title 6, for this act. COMMON SCHOOLS. 369 '^% S 24. [Sec. 25.] No part of such moneys shall be ap- J^fjgg; portioned or paid to any separate neighborhood, unless it nek shall appear from the report of its trustee, that all mo- neys received by him from the commissioners, during the year ending at the date of such report, have been faithfully applied, in paying for the instruction of child- ren residing in such neighborhood. g 25. {Sec. 26.] If after the annual reports of the dis- ^f/^. tricts shalThave been received, and before the apportion- tiietaiterd ment of the school moneys shall have been made by the ?e^rt? nn commissioners, a district shall be duly altered, or a new district be formed in the town, so as to render an appor- tionment founded solely on the annual reports, unjust, as between two or more districts of the town, the com- missioners shall make an apportionment among such districts, according to the number of children in each, over the age of five and under sixteen years, ascertain- ing that number by the best evidence in their power. $ 26. The provisions of the twenty -sixth section of Last section Article third, Title second of Chapter fifteen of the "her ease's. First Part of the Revised Statutes, are hereby extended to all cases where a school district shall have been form- ed at such time previous to the first day of January, as not to have allowed a reasonable time to have kept a school therein for the term of three months, such district having been formed out of a district or districts in which a school shall have been kept for three months, by a teacher duly qualified, during the year preceding the first day of January. 1 *C) 27. All moneys apportioned by the commissioners, #472 to the trustees of a district, part of a district, or separate f^ia ne neighborhood, which shall have remained in the hands hands of i .... - . comnnssistt- oi the commissioners for one year after such apportion- rs. ment, by reason of the trustees neglecting or refusing to receive the same, shall be added to the moneys next there- after to be apportioned by the commissioners, and shall be apportioned and paid therewith, in the same manner. town, shall be the inspectors of common schools for their town. $ 45. It shall be the duty of the inspectors of com- Their dm y , mon schools in each town, or any three of them, at a Its. tcaoh " meeting of the inspectors called for that purpose, to ex- amine all persons offering themselves, as candidates for teaching common schools in such town. $ 46. In making such examination, it shall be the lb duty of the inspectors to ascertain the qualifications of the candidate, in respect to moral character, learning and ability. $ 47. If the inspectors shall be satisfied in respect to ib. the qualifications of the candidate, they shall deliver to the person so examined, a certificate signed by them, in such form as shall be prescribed by the superintendent of common schools. $ 48. The inspectors, or any three of them, may an- Ib nul any such certificate given by them or their predeces- sors in office, when they shall think proper, giving at least ten days' previous notice in writing to the teacher holding it, and to the trustees of the district in which he may be employed, of their intention to annul the same. $ 49. The inspectors, whenever they shall deem it ib. necessary, may require a re-examination of all or any of the teachers in their towns, for the purpose of ascer- taining their qualifications to continue as such teachers. $ 50. The annulling of a certificate shall not disquali- ib. 374 LAWS RELATING TO fy the teacher to whom it was given, until a note in writ- * 47G ing thereof, containing the *name of the teacher, and the time when his certificate was annulled, shall be made by the inspectors, and filed in the office of the clerk of their town. ib. $ 51. Where any school district shall be composed of a part of two or more towns, or any school-house shall stand on the division line of any two towns, the inspec- tors of either town may examine into and certify the qualifications of any teacher, offering to teach in such district, in the same manner as is provided by the pre- ceding sections of this Article; and may also in the same manner annul the certificate of such teacher. ib. a? to visi- g 52. It shall be the duty of the inspectors to visit all ting schools. ^^ common sc hools, within their town as shall be or- ganized according to law r at least once a year r and of- tener if they shall deem it necessary. "' 53. At such visitation, the inspectors shall examine into the state and condition of such schools, both as re- spects the progress of the scholars in learning, and the good order of the schools ; and may give their advice and direction to the trustees and teachers of such schools as to the government thereof, and the course of studies* to be pursued therein. i!> $ 54. Each of the inspectors, by agreement with, or direction of, the other inspectors, may be assigned to a certain number of school districts 7 which it shall be his special duty to visit and inspect. ARTICLE FIFTH. Of the Formation of School Districts, and of the Choice, Duties and Powers of their Officers. SEC. 55. Duty of commissioners when district formed; notice to be given. 56. Manner of serving notice. 57. In certain cases, notice to be renewed. 53. For not serving notice, forfeiture $5. 59. When meeting called, duty of inhabitants to assemble. 60. Qualifications of voters; fine for voting without right. 61. Powers of meeting. 62 to 65. To raise money to purchase district libraries ; annually to make additions ; who librarian; taxes how collected. 66. Annual meetings, how and when to be appointed. 67. Special meetings how called, effect of want of notice. 68. Amount to be raised for building, &c. school-house, limited. 69. Altering school districts formed from several towns. 70 & 71. Sites of school-houses how and when altered, votes how to be taken. 72. Notices of district meetings to alter sites, to specify objects. 73. Sale of former site on change being made; security for purchase. 74. Money how appropriated. 75 & 76. Trustees may sell former site when changed; proceeds how applied. 77. In dividing districts, proportion due new district to be ascer- tained. COMMON SCHOOLS. 375 SEC. 78. Proportion how ascertained; and deduction for debts of former district. 79. Amount of such proportion, how collected and applied. 80. Duration of office of district officers. 81. Vacancies in such offices, how filled. 82. Penalty for refusing to serve after appointment, and for neglect- ing without re fusing. 83. Persons chosen may resign, and in what manner. 84. Duty of clerk of district. 85. Duty and powers of trustees. 86. Among whom tax to be apportioned, and upon what to be as- sessed. *87. Persons owning lands occupied by agents, considered taxable in- g, 477 habitants. 88. Improved land unoccupied, liable to taxation, though owner re- side out of district. 89 & 90. Valuations of taxable property, how ascertained and when reduced. 91. Who exempted from taxation to build a school-house. 92. Trustees to assess district tax, and make out list thereof. 93. When tenant may charge tax paid by him, to owner of the land. 94. Where fuel for school is not provided by tax, who to furnish the same. 95. Trustees to determine the proportion to be provided by each person. 96&97. If any person omit, trustees to furnish; how collected. 98 to 101. Collector's warrant, and his duty under it; taxes and rate bilk how collected. 102. When trustees to renew warrant; and when to collect tax by suit. 103. Moneys apportioned to a district if unpaid; how to be recovered and applied. 104. Trustees of district to report; when and to whom. 105 & 106. To whom report to be delivered, and what to specify ; not to contain paupers. 107. Who to be deemed qualified teachers. 108. When a district is formed of two or more towns, trustees to whom to report. 109. Trustee of separate neighborhood, how chosen; when and to whom to report. 110. Penalty on trustees for signing a false report. 111. Property vested in trustees, held by them as a corporation. 112 & 113. At expiration of office, trustee* to account; balance how paid. 114. Penalty for refusing, &c. to account. 115. Who to prosecute for same, and how applied. 116. Remedy for recovering balance from a former trustee; who to sue for it. 117. Bonds, &c. taken by trustees, to be delivered to their succes- sors. 118. Fees of collector of district. 119. To pay to trustees moneys collected, and when. 120. When required by them, to give bond to trustees; its conditions. 121. If he do not execute bond, office to be vacated. 122. If money lost by his neglect, what he shall forfeit. 123. Who to sue for such forfeiture, and for balances remaining in his hands. 124. Appeal to superintendent of common schools. 55. Whenever any school district shall be formed in any town by the commissioners of common schools, it shall be the duty of some one or more of the commis- sioners, within twenty days thereafter, to prepare a no- tice in writing, describing such district, and appointing a time and place for the first district meeting, and to de- liver such notice to a taxable inhabitant of the district 376 LAWS RELATING TO Notice for $ 56. It shall be the duty of such inhabitant to notify first meeting ever y otner inhabitant of the district, qualified to vote at district meetings, by reading the notice in the hearing ot each such inhabitant, or in case of his absence from home, by leaving a copy thereof, or of so much thereof as re- lates to the time and place of such meeting, at the place of his abode, at least six days before the time of the meeting. when to be ^ 57. In case such notice shall not be given, or the in- ' ' ' habitants of a district shall refuse or neglect to assemble, or form a district meeting, when so notified ; or in case any such district, having been formed and organized in pursuance of such notice, shall afterwards be dissolved, so that no competent authority shall exist therein, to call a special district meeting in the manner hereinafter pro- vided ; such notice shall be renewed by the commission- ers, and served in the manner above prescribed. p*ait y 7 for * ^8. Every taxable inhabitant to whom a notice of not serving a district meeting shall have been properly delivered for service, who shall refuse or neglect to serve the notice in the manner above in this Article enjoined, shall for eve- ly such offence forfeit the sum of five dollars. inhabitants $ 59. Whenever any district meeting shall be called. 8embie M " m tne manner prescribed in the preceding sections of this Article, it shall be the duty of the inhabitants of the dis- trict, qualified to vote at district meetings, to assemble together at the time and place mentioned in the notice. S 60 - No person shall vote at any school district meet- ing, unless he shall be a freeholder in the town where he votes or shall have been assessed the same year in which he votes, or the preceding year, to pay taxes there- in ; or shall possess personal property over and above such as is exempt from execution, to the amount of fif- ty dollars, liable to taxation in the district ; and every person not so qualified, who shall vote at any such meet- ing, shall for each offence forfeit the sum of ten dollars. Powers of 61. The inhabitants so entitled to vote, when so as- sembled in such district meeting, or when lawfully as- sembled at any other district meeting, shall have power, by a majority of the votes of those present, 1. To appoint a moderator for the time being : 2. To adjourn from time to time, as occasion may re- quire : 3. To choose a district clerk, three trustees, and one district collector, at their first meeting, and as often a? such offices, or either of them, become vacated : COMMON SCHOOLS. 377 4. To designate a site for a district school-house: 5. To lay such tax on the taxable inhabitants of the district as the meeting shall deem sufficient to purchase or lease a suitable site for a school-house, and to build, hire, or purchase such school-house, and to keep in re- pair and furnish the same with necessary fuel and ap- pendages : 6. To repeal, alter, and modify their proceedings from time to time, as occasion may require. $ 62. The taxable inhabitants of each school district To rtlise m - in the state shall have power, when lawfully assembled chLe dls- at any district meeting, to lay a tax on the district, not tnct llbrary - exceeding twenty dollars for the first year, for the pur- chase of a district library, consisting of such books as they shall in their district meeting direct, and such fur- ther sum as they may deem necessary for the purchase of a book case. The intention to propose such tax shall be stated in the notice required to be given for such meeting. 1 $ 63. The taxable inhabitants of each school district shall also have power when so assembled in any subse- quent year, to lay a tax not exceeding ten dollars in any one year, for the purpose of making additions to the district library. 1 $ 64. The clerk of the district, or such other person Librarian, as the taxable inhabitants may at their annual meeting designate and appoint by a majority of votes, shall be the librarian of the district, and shall have the care and custody of the library, under such regulations as the in- habitants may adopt for his government. 1 $ 65. The taxes authorized by this act to be raised, Taxes how shall be assessed and collected in the same manner as a tax for building a school-house. 1 $ 66. [Sec. 62.] In each school district an annual Annual meeting shall be field at the time and place previously m< appointed ; and at the first district meeting, and at each annual meeting, the time and place of holding the next annual meeting shall be fixed. $ 67. [Sec. 63.] A special meeting shall be held in special each district whenever called by the trustees ; and the m< proceedings of no district meeting, annual or special, shall be held illegal, for want of a due notice to all the persons qualified to vote thereat, unless it shall appear -, (1) Laws of 1835, chap. 80. V- -:wrrt&- '. .:;< I.-' t'-tf: t- >>( f (;, LAWS RELATING TO Joint meet- that the omission to give such notice was wilful and fraudulent. * 479 *$ 68. [Sec. 64.] No tax to be voted by a district Limitation of meeting for building, hiring or purchasing a school-house shall exceed the sum of four hundred dollars, unless the commissioners of common schools of the town in which the school-house is to be situated, shall certify in writ- ing, their opinion that a larger sum ought to be raised, and shall specify the sum ; in which case, a sum not exceeding the sum so specified, shall be raised. 69. [Sec. 65.] If the commissioners of common schools in any town, shall require in writing, the attend- ance of the commissioners of any other town or towns, at a joint meeting for the purpose of altering a school district formed from their respective towns, and a major part of the commissioners notified shall refuse or neglect to attend, the commissioners attending, by a majority of votes, may call a special district meeting of such district, for the purpose of deciding on such proposed alteration ; and the decision of such meeting shall be as valid as if made by the commissioners of all the towns interested, but shall extend no further than to dissolve the district formed from such towns. $ 70. Whenever a school-house shall have been built or purchased for a district, the site of such school-house shall not be changed, nor the building thereon be re- moved, as long as the district shall remain unaltered, unless by the consent, in writing, of the commissioners of common schools, or a majority of them, of the town or towns within which such district shall be situated, stating that in their opinion such removal is necessary ; nor then, unless two-thirds of all those present at a spe- cial meeting of such district, called for that purpose, and qualified to vote therein, shall vote for such removal and in favor of such new site. 1 $ 71. Such vote shall be taken by ayes and noes, and the name of each voter, with the vote that he shall give, shall be entered by the clerk in the records of such school district. 1 $ 72. Every notice of a district meeting called in pur- suance of this act shall state the purpose for which such meeting is called. 1 73. Whenever the site of a school-house shall have been changed as herein provided, the inhabitants of the Sites of school- ho u ses, when and how altered. Votes how taken. Contents of notice. Sale of for- mer site. (1) Laws of 1831, chap. 44, and orig. $ 66 repealed. COMMON SCHOOLS. 379 district entitled to vote, lawfully assembled at any district meeting, shall have power, by a majority of the votes of those present, to direct the sale of the former site or lot, and the buildings thereon, and appurtenances, or any part thereof, at such price and upon such terms as they shall deem most advantageous to the district ; and any eei ^ ,,., f i i- therefor. deed duly executed by the trustees of such district, or a majority of them, in pursuance of such direction, shall be valid and effectual to pass all the estate or interest of such school district in the premises intended to be con- veyed thereby, to the grantee named in such deed ; and p when a credit shall be directed to be given upon such how sale, for the consideration money, or any part thereof, the trustees are hereby authorized to take, in their cor- porate name, such security by bond and mortgage, or otherwise, for the payment, thereof, as they shall deem best, and shall hold the same as a corporation, and ac- j count therefor to their successors in office and to the dis- trict, in the manner they are now required by law to ac- count for moneys received by them ; and the trustees of any such district for the time being, may, in their name of office, sue for and recover the moneys due and unpaid upon any security so taken by them or their predecessors in office, with interests and costs. 1 $ 74. All moneys arising from any sale made in pur- Ava ?. la , t( ? be e i i i- -1111 applied to suance of the last preceding section, shall be appropn- new site, &c. ated to the payment of the expenses incurred in procur- ing a new site and in removing or erecting a school- house, or either of them, so far as such application there- of shall be necessary. 1 $ 75. Whenever the site of the school-house in any Trustees school district in this state shall have been legally chang- St 8e ed, the trustees of such district shall have power to sell and convey the former site, and the building or buildings thereon, upon such terms as they shall deem advanta- geous to the district. 2 $ 76. The proceeds arising from any sale made in Proceeds e xi i- i 111 , how to be pursuance of the preceding section, shall be appropriated appropriated to the payment of expenses incurred in procuring a new site, and in removing or erecting a building or build- ings thereon, so far as such appropriation shall be neces- sary. 2 $ 77. [Sec. 67.] When a new district shall be formed $ ri f : w !is - from one or more districts, possessed of a school-house ; school- (I) Laws of 1831, chap. 44. (2) Ib. 1835, chap. 308, 4 and 5. 380 LAWS RELATING TO dHjxwediof. an< * m cases where any district from which such new district shall be in whole or in part formed, shall be en- titled to other property than its school-house, then the commissioners of common schools, at the time of form- ing such new district, shall ascertain and determine the amount justly due to such new district, from any district out of which it may have been in whole or in part form- ed, as the proportion of such new district of the value of the school-house and other property belonging to the for- mer district, at the time of such division. Proportion $ 78. [Sec. 68.] Such proportion shall be ascertained, talned 80 " according to the taxable property of the inhabitants of the respective parts of such former district, at the time of the division, by the best evidence in the power of the commissioners; and deduction shall be made therein for any debts due from the former district. HOW levied $ 79. [Sec. 69.] Such proportion, when ascertained. and applied. snall be \ QV { e ^ ra i se( j an( j collected, with the fees for collection, by the trustees of the district retaining the school-house er other property of the former district, upon the taxable inhabitants of their district in the same man- * 480 ner * as if the same had been authorized by a vote of their district for the building of a school-house; and when collected, shall be paid to the trustees of the' new district, to be applied by them towards procuring a school- house for their district; and the moneys so paid to the new district shall be allowed to the credit of the inhabi- tants who were taken from the former district, in reduc- tion of any tax that may be imposed for erecting a school-house. District offi. $ 80. [Sec. 70.] The clerk, trustees, and collector of nure'. T * e^" 1 school district, shall hold their respective offices un- til the annual meeting of such district next following the time of their appointment, and until others shall be elect- ed in their places. vacancies 81. [Sec. 71.] In case any such office shall be va- how ailed, cated by the death, refusal to serve, removal out of the district, or incapacity of any such officer, and the va- cancy shall not be supplied by a district meeting with- in one month thereafter, the commissioners of common schools of the town may appoint any person residing in such district to supply such vacancy. Forfeitures. $ 82. [Sec. 72.] Every person duly chosen or appoint- ed to any such office, who, without sufficient cause, shall refuse to serve therein, shall forfeit the sum of five dollars ; and every person so chosen or appointed, and COMMON SCHOOLS. 381 not having refused to accept, who shall neglect to per- form the duties of his office, shall forfeit the sum of ten dollars. $ 83. [Sec. 73.] Any person chosen or appointed to Resignations any such office, may resign the same in the manner pro- vided in Chapter eleventh, Title third, section thirty- third of this Act ; and the acceptance of such resigna- tion, shall be a bar to the recovery of either of the penal- ties mentioned in the preceding section. The justices accepting the resignation shall give notice thereof, to the clerk, or to one of the trustees of the school district, to which the officer resigning shall belong. S 84. [Sec. 74.] It shall be the duty of the clerk of JJ"^" 1 * each school district, 1. To record the proceedings of his district in a book to be provided for that purpose by the district, and to en- ter therein true copies of all reports made by the trus- tees of his district, to the commissioners of common schools : 2. To give notice of the time and place for special dis- trict meetings, when the same shall be called by the trustees of the district, to each inhabitant of such district liable to pay taxes, at least five days before such meet- ing shall be held, in the manner prescribed in the fifty- sixth section of this Title : 3. To affix a notice in writing of the time and place for any adjourned district meeting, when the same shall be adjourned for a longer time than one month, in at least four of the most public places of 'such district, at * 481 least five days before the time appointed for such ad- journed meeting : 4. To give the like notice of every annual district meeting : 5 . To keep and preserve all records, books and papers, belonging to his office, and to deliver the same to his successor in office, in the manner and subject to the pe- nalties provided by law, in relation to the town clerk. 85. [Sec. 75.] It shall be the duty of the trustees Dwy of every school district, and they shall have power, 1. To call special meetings of the inhabitants of such districts liable to pay taxes, whenever they shall deem it necessary and proper : 2. To give notice of special, annual and adjourned meetings, in the manner prescribed in the last preceding section, if there be no clerk of the district, or he be ab- sent or incapable of acting : 382 LAWS RELATING TO 3. To make out a tax list of every district tax, voted by any such meeting, containing the names of all the taxable inhabitants residing in the district at the time of making out the list, and the amount of tax payable by each inhabitant, set opposite to his name : 4. To annex to such tax list a warrant, directed to the collector of the district, for the collection of the sums in such list mentioned, with five cents on each dollar thereof, for his fees : 5. To purchase or lease a site for the district school- house, as designated by a meeting of the district, and to build, hire or purchase, keep in repair, and furnish such school-house with necessary fuel and appendages, out of the funds collected and paid to them for such purposes : 6. To have the custody and safe keeping of the district school-house : 7. To contract with and employ all teachers in the district : 8. To pay the wages of such teachers when qualified, out of the moneys which shall come into their hands from the commissioners of common schools, so far as such moneys shall be sufficient for that purpose; and to collect the residue of such wages, excepting such sums as may have been collected by the teachers, from all per- sons liable therefor : 9. To divide the public moneys received by them, whenever authorized by a vote of their district, into not exceeding four portions for each year; to assign and ap- ply one of such portions to each quarter or term during which a school shall be kept in such district, for the pay- ment of the teacher's wages, during such quarter or term ; and to collect the residue of such wages, not paid by the proportion of public money allotted for that pur- pose, from the person liable therefor, as above provided : #483 *!<>. To exempt from the payment of the wages of teachers, such indigent persons within the district, as they shall think proper : 1 1 . To certify such exemptions, and deliver the cer- tificate thereof to the clerk of the district, to be kept on file in his office : 1 2. To ascertain by examination of the school lists kept by such teachers, the number of days for which each person not so exempted, shall be liable to pay for instruction, and the amount payable by each person : 13. To make out a rate bill containing the name of each person so liable, and the amount for which he is ' COMMON SCHOOLS. 383 liable, adding thereto five cents on each dollar of the sum due from him, for collector's fees ; and to annex thereto a warrant for the collection thereof: 14. To deliver such rate bill, with the warrant annex- ed, to the collector of the district, who shall execute the same in like manner with other warrants directed to him, by them. S 86. [Sec. 76.1 In making out a tax list, the trustees T e * . how . i 11 L 11 i i i i , apportioned. shall apportion the tax on all the taxable inhabitants within the district, according to the valuations of the tax- able property which shall be owned or possessed by them, at the time of making out the list within the district, or which being intersected by the boundaries of the district, shall be so owned or possessed by them, partly in such district and partly in any adjoining district ; but where taxable property shall be owned by one inhabitant and possessed by another, only one of them shall be taxed therefor. $ 87. [Sec. 77.] Every person owning or holding any it. real property within any school district, who shall im- prove and occupy the same by his agent or servant, shall, in respect to the liability of such property to taxa- tion, be considered a taxable inhabitant of such district, in the same manner as if he actually resided therein. g 88. [Sec. 78.] If there shall be any real property n>- within a district, cultivated and improved, but not occu- pied by a tenant, or agent, and the owner of which shall not reside within the district, nor be liable to be taxed for the same in an adjoining district, such owner shall be taxable therefor, in the same manner as if he were an inhabitant of the district ; but no portion of such pro- perty, but such as shall be actually cleared and cultivat- ed, shall be included in such taxation. $ 89. [Sec. 79.] The valuations of taxable property valuations i 11 i . J i f -i i i i r how ascer- snall be ascertained, as far as possible, from the last as- tained. sessment roll of the town ; and no person shall be enti- tled to any reduction in the valuation of such property, as so ascertained, unless he shall give notice of his claim to such reduction, to the trustees of the district, before the tax list shall be made out. *$ 90. [Sec. 80.] In every case where such reduction * 483 shall be duly claimed, and in every case where the va- how !" luation of taxable property cannot be ascertained from tained - the last assessment roll of the town, the trustees shall ascertain the true value of the property to be taxed, from the best evidence in their power, giving notice to the per- 384 LAWS RELATING TO Exemption in certain cases. Time of ma- king tax list. Remedy of tenant against own- Fuel how provided. Proportion how deter- mined. When. trus- tees to fur- nish, and charge de- linquent. Ib. sons interested, and proceeding in the same manner as the town assessors are required by law to proceed, in the valuations of taxable property. $ 91. [Sec. 81.] Every taxable inhabitant of a dis- trict, who shall have been, within four years, set off from any other district, by the commissioners of common schools, without his consent, and shall, within that pe- riod, have actually paid in such other district, under a lawful assessment therein, a district tax for building a school-house, shall be exempted by the trustees of the district where he shall reside, from the payment of any tax for building a school-house therein. $ 92. [Sec. 82.] Every district tax shall be assessed, and the tax list thereof be made out by the trustees, within one month after the district meeting in which the tax shall have been voted. $ 93. [Sec. 83.] Where any district tax, for the pur- pose of purchasing a site for a school-house, or for pur- chasing, or building, keeping in repair, or furnishing such school-house with necessary fuel and appendages, shall be lawfully assessed and paid by any person, on account of any real property, whereof he is only tenant at will, or for three years, or for a less period of time, such tenant may charge the owner of such real estate with the amount of the tax so paid by him, unless some agreement to the contrary shall have been made by such tenant. $ 94. [Sec. 84.] Where the necessary fuel for the school of any district shall not be provided, by means of a tax on the inhabitants of the district, it shall be the duty of every person sending a child to the school, to provide his just proportion of such fuel. $ 95. [Sec. 85.] The proportion of fuel which every person sending children to the school, shall be liable to provide, shall be determined by the trustees of the dis- trict, according to the numbei of children sent by each; but such indigent persona as in the judgment of the trus- tees, shall be unable to provide the same, shall be ex- empted from such liability. $ 96. [Sec. 86.] If any person liable to provide such fuel, shall omit to provide the same, on notice from any one of such trustees, it shall be the duty of the trustees to furnish such fuel, and to charge the person so in de- fault the value of, or amount paid for, the fuel furnish- ed. g 97. [Sec. 87.] Such value or amount may be added COMMON SCHOOLS. 385 to the rate bill of the moneys due for instruction, and may be collected therewith, and in *the same manner ; # 484 or the trustees may sue for and recover the same, in their own names, with costs of suit. $ 98. [Sec. 88.] The warrant annexed to any tax warrant, list or rate bill, shall be under the hands and seals of the trustees, or a majority of them, and shall command the collector to collect from every person in such tax list or rate bill named, the sum therein set opposite to his name ; and in case any inhabitant shall not pay such sum on demand, to levy the same of his goods and chat- tels, together with his fees, and to make a return of such warrant within thirty days after the delivery thereof. 1 $99. The warrant annexed to any tax list for the Tax for YI .. /. j. . . . .. . . . erecting,fcc. collection ot a district tax for erecting or repairing any S chooi- school-house, shall command the collector, in case any ^IJ' how person named in such list shall not pay the sum therein set opposite to his name on demand, to levy the same of his goods and chattels in the same manner as on war- rants issued by the board of supervisors to the collectors [Ch j, fan of towns; and such part of the eighty-eighth section of i, Title 2, Article five of the aforesaid Title as is repugnant there- ng ' to, is hereby repealed. 1 $ 100. All taxes directed to be raised by the act here- AH taxes ie- by amended, shall be collected in the manner prescribed niann"^ 116 in the second section of the act entitled "An act to amend the Revised Statutes relating to common schools," pass- ed April 2lst, 183 1. 2 [See section 99, above.] $ 101. The warrants issued by the trustees of school Rate wits districts for the collection of rate bills, shall have the like ^w collect- force and effect as warrants issued by the boards of su- pervisors to the collectors of taxes in towns ; and the dis- trict collectors are hereby authorized to collect the amount due from any person or persons in their respective dis- tricts, in the same manner that the collectors are autho- rized to collect town and county charges. Those parts of the Revised Statutes which are inconsistent with the provisions of this act, are hereby repealed. 3 102. [Sec. 89.] If the sum or sums of money, pay- Trustees able by any person named in such tax list or rate bill, jj^lue""^' shall not be paid by him, or collected by such warrant un within the time therein limited, it shall and may be law- ful for the trustees to renew such warrant, in respect to (1) Laws of 1831, chap. 206, 2. " An act to amend the Revised Sta- tutes relating to common schools," passed April 21, 1831. (2) Laws of 1832, chap. 317, " An act to amend the act relating to common schools." (3) Laws of 1835, chap. 308, 3. 25 LAWS RELATING TO such delinquent person; or in case such person shall not reside within their district, at the time of making out a tax list or rate bill, or shall not reside therein at the ex- piration of such warrant, and no goods or chattels can be found therein whereon to levy the same ; the trustees may sue for and recover the same, in their name of office. Proceeding ft 103. [Sec. 90.] If the moneys apportioned to a dis- whenconv , . ~ , iU L . J . ,, f missioned trict by the commissioners of common schools, shall not money! U nave be en paid, it shall be the duty of the trustees there- of, to bring a suit for the recovery of the same, with in- terest, against the commissioner in whose hands the same shall be, or to pursue such other remedy for the recovery thereof, as is or shall be given by law ; and the moneys, when recovered, shall be applied by them in the same manner as if they had been paid without suit. Ammai re- ( 104. [Sec. 91.] The trustees of each school district }<5- is shall, after the first day of January, in every year, and on or before the first day of March thereafter, make and transmit a report, in writing, to the commissioners of com- mon schools for such town, dated on the first day of January, in the year in which it shall be transmitted. HOW made. $ 105. [Sec. 92.] Every such report signed and cer- tified by a majority of the trustees making it, shall be delivered to the town clerk, and shall specify, its extents, i . The whole time any school has been kept in their district during the year ending on the day previous to the date of such report, and distinguishing what por- tion of the time such school has been kept by qualified teachers: 2. The amount of moneys received from the commis- sioners of common schools, during such year, and the mariner in which such moneys have been expended: * 485 *3. The number of children taught in the district dur- ing such year : 4. The number of children residing in the district on the last day of December, previous to the making of such report, over the age of five years, and under six- teen years of age, (except Indian children otherwise pro- vided for by law,) and the names of the parents or other persons with whom such children shall respectively re- side, and the number of children residing with each. Paupers not $ 106. It shall not be lawful for the trustees of any i. e ' n school district to include, in their annual returns, the names of any children who are supported at a county poor-house. 1 (1) Laws of 1831, chap, 277, 6. COMMON SCHOOLS. 387 S 107. [Sec. 93.] No teacher shall be deemed a qualifi- ed teacher, within the meaning of this Title, who shall not have received, and shall not then hold, a certificate of qualification, dated within one year, from the in- spectors of common schools for the town in which he shall be employed. $ 108. [Sec. 94.] Where a school district is formed District out of two or more adjoining towns, it shall be the duty two n town m of the trustees of such district, to make and transmit a ^. lo re ~ report to the commissioners of common schools, for each of the towns out of which such district shall be formed, L 1 1-1 within the same time, and in the same manner, as is required in sections ninety-one and ninety-two of this Title ; distinguishing the number of children over the age of five and under sixteen years, residing in each part of a district which shall be in a different town from the other parts, and the number of children taught, and the amount of school moneys received for each part of the district. 109. [Sec. 95.] Where any neighborhood shall be J . set off by itself, the inhabitants of such separate neigh- hooda, how borhood shall annually meet together and choose one to report trustee ; whose duty it shall be, every year, within the time limited for making district reports, to make and trans- mit a report in writing, bearing date on the first day of January, in the year in which it shall be transmitted, to the commissioners of common schools of the town from which such neighborhood shall be set off, specifying the number of children over the age of five and under six- teen years, residing in such neighborhood, the amount of moneys received from the commissioners since the date of his last report, and the manner in which the same have been expended. 5 110. [Sec. 96.1 Every trustee of a school district Penalty for L ii J i j r u n / i ' false report or separate neighborhood, who shall sign a false report to the commissioners of common schools of his town, with the intent of causing such commissioners to ap- portion and pay to his district or neighborhood, a larger sum than its just proportion of the school moneys of the town, shall, for each offence, forfeit the sum of twenty- five dollars, and shall also be deemed guilty of a mis- demeanor. 6 111. [Sec. 97.1 All property now vested in the trus- Property of L f i J- * * r u r i *U distncts tees of any school district, for the use of schools in the HOW held. district, or which may be hereafter transferred to such * 486 .1 f.uOl /iV-i .<^I 7. . 388 RELATING TO Trustees to account. Balance paid to succes- sors. Forfeiture for neglect, How prose- cuted. Remedy against for- mer trustees Bonds to be delivered. Fees of col- lector. Hit duty in collecting taxes. To give bond trustees for that purpose, shall be held by them as a cor- poration. g 112. [Sec. 98.] The trustees of each school district shall, on the expiration of their offices, render to their successors in office, and to the district, at a district meet- ing, a just and true account, in writing, of all moneys received by them respectively, for the use of their dis- trict, and of the manner in which the same shall have been expended ; which account shall be delivered to the district clerk, and be filed by him. g 113. [Sec. 99.] Any balance of such moneys, which shall appear from such account to remain in the hands of the trustees or either of them, at the time of rendering the account, shall immediately be paid to some one or more of their successors in office. $ 114. [Sec. 100.] Every trustee who shall refuse or neglect to render such account, or to pay over any ba- lance so found in his hands, shall for each offence, for- feit the sum of twenty-five dollars. g 115- [Sec. 101.] It shall be the duty of his succes- sors in office to prosecute without delay, in their name of office, for the recovery of such forfeiture ; and the moneys recovered shall be applied by them to the use and benefit of their district schools. $ 116. [Sec. 102.1 Such successors shall also have the same remedies for the recovery of any unpaid balance, in the hands of a former trustee, or his representatives, as are given to the commissioners of common schools against a former commissioner and his representatives ; and the moneys recovered shall be applied by them to the use of their district, in the same manner as if they had been paid without suit. $ 117. [Sec. 103.] All bonds or securities, taken by the trustees from the collector of their district, shall on the expiration of their office, be delivered over by them to their successors in office. g 118. [Sec. 104.] The collector of each school dis- trict shall be allowed five cents on every dollar collected and paid over by him. S 119. [Sec. 105.] It shall be his duty ,to collect and pay over to the trustees of his district, some or one of them, all moneys which he shall be required by war- rant to collect, within the time limited in such warrant for its return, and to take the receipt of such trustee or trustees for such payment. 120. [Sec. 106.] Every collector of a school district COMMON SCHOOLS, 389 shall, before receiving any warrant for the collection of moneys, execute a bond to the trustees of his district when required by them, in their corporate name, with one or more sureties, to be approved by one or more of the trustees, in double the amount of taxes to be collect- ed, conditioned for the due and faithful execution of the duties of his office. * 121. [Sec. 107.] If any collector shall not execute If * *J w such bond within the time allowed him by the trustees to proceed, for that purpose, which shall not be less than ten days, his office shall be vacated ; and the trustees may appoint any other person residing in the district, as collector in his place. g 122. [Sec. 108.J If by the neglect of the collector, Forfeiture any moneys shall be lost to his district, which might for ne lect - have been collected within the time limited in the war- rant delivered to him for their collection, he shall forfeit to his district the full amount of the moneys thus lost, and shall account for and pay over the same to the trus- tees of his district, in the same manner as if they had been collected. 123. [Sec. 109.] For the recovery of all forfeitures, Trustees and of balances in the hands of a collector which he "^ st shall have neglected to pay over, the trustees of the dis- trict may sue in their name of office, and shall be en- titled to recover the same with interest and costs ; and the moneys recovered shall be applied by them in the same manner as if paid without suit. S 124. Any person conceiving himself aggrieved in Appeals to J ~ r i superinten- consequence of any decision made, dent of com- 1 . By any school district meeting : monschooia. 2. By the commissioners of common schools, in the forming or altering, or in refusing to form or alter any school district, or in refusing to pay any school moneys to any such district : 3. By the trustees of any district, in paying any teach- er, or refusing to pay him, or in refusing to admit any scholar gratuitously into any school: 4. Or concerning any other matter under the present Title : May appeal to the superintendent of common schools, whose decision thereon shall be final. 1 . (1; Amendatory act of 1830, chap. 320, 7, by which the above $ is sub- stituted for the orig. sees. 110 and 111. 390 LAWS RELATING TO ports. #48 HOW prose- appited? d Notice to ARTICLE SIXTH. Of certain duties of the County Clerk. Sic. 125. County clerk to report to the superintendent of common schools what, and when. 126. Forfeiture for neglecting it. 127. Who to prosecute for it, and where paid when recovered. 128. Duty of county clerk when commissioners do not report. g 125. [Sec. 112.] It shall be the duty of each county clerk, between the first day of August 1 and the first day of October, 1 in every year, to make and transmit to the superintendent of common schools, a report in writing, containing the whole number of towns in his county, distinguishing the towns from which the necessary re- ports have been made *to him by the commissioners of common schools, and containing a certified copy of all such reports. $ 126. [Sec. 113.1 Every clerk who shall refuse or neglect to make such report, within the period so limit- ed, shall, for each offence^ forfeit the sum of one hun- dred dollars to the use of the school fund of the state. $ 127. [Sec. 114.] It shall be the duty of the super- intendent of common schools, to prosecute without de- lay, in his name of office, for such forfeiture, and to pay the moneys recovered, into the treasury of the state, to the credit of the school fund. ( 128. [Sec. 115.] It shall be the duty of each county clerk, immediately after the first day of August 2 in eve- ry year, in case the commissioners of common schools of any town in his county shall have neglected to make to him their annual report, to give notice of such neglect to the clerk of the town, who shall immediately assem- ble such commissioners for the purpose of making their report. Local Regulations respecting Common Schools. O J O NEW-YORK. Art. 7, Title 2. Chap. 15, Part 1, R. S. * 489 *S 129 - [ Sec - 116 -] Whenever the clerk of the city ork* f N< an( * c 01111 ^ f New-York, shall receive notice from the superintendent of common schools, of the amount of the moneys apportioned to the city of New- York, for the support and encouragement of common schools therein. (1) Laws of 1835, chap. 308, $ 2. by chap. 308, laws of 1835, 2. (2) August substituted for October, COMMON SCHOOLS. 391 he shall immediately lay the same before the corporation of the city, in common council convened. 1 $ 130. [Sec. 117.] The corporation shall annually corporation raise and collect, by tax upon the inhabitants of the city, 3 * a sum of money equal to the sum specified in such no- tice, at the same time, and in the same manner as the contingent charges of the city are levied and collected. 1 $ 131. The corporation of the city of New- York, are corporation hereby authorized in addition to the amount now requir- raise addi*- ed to be raised for the support of schools in the said city, nonal 8unu annually to raise and collect by tax upon the inhabi- tants thereof, a sum of money equal to one-eightieth of one per cent of the value of the real and personal pro- perty in the said city, or liable to be assessed therein, to be applied exclusively to the purposes of common schools in the said city. 2 $ 132. The corporation of the city of New- York are ib. hereby authorized, in addition to the amount now requir- ed to be raised for the support of schools in the said city, annually to raise and collect by tax upon the inhabi- * tants thereof, a sum of money, equal to three-eightieths of one per cent of the value of the real and personal pro- perty in the said city, or liable to be assessed therein, to be applied exclusively to the purposes of common schools in the said city. 3 g 133. [Sec. 118.] The corporation shall, on or be- wher0 ' of money equal to the amount last received by the cham- berlain from the common school fund, be deposited by him, together with the sum so received from the school fund, in one of the incorporated banks in the city, to the credit of the commissioners of school money for the city, and subject only to the drafts of the commissioners, drawn payable to the order of the treasurers of the re- spective societies or schools entitled thereto, or to some person duly authorized by the trustees of such societies or schools. 4 $134. [Sec. 119.] The corporation shall, once in co every three years, after the month of January in the year p one thousand eight hundred and twenty-five, appoint from the inhabitants of the city, one from each ward, (1) Laws of 1824, p. 337, 1 and 2. (2) Ib. 1829, chap. 265. (3) Ib. 1831, chap. 119. By both of the acts of 1829 and 1831, from which the above sections 131 and 132 are taken, it is provided that the several origi- nal sections of this Article (7th) from the 117th to the 127th both inclusive, shall apply to the moneys by the said acts authorized to be raised. (4) Ib. 1S24, p. 337, 1 and 2. 392 LAWS RELATING TO to be commissioners of school money, who shall hold their offices for three years, and until others are appoint- ed in their places ; and who, before they enter upon the duties thereof, shall take the oath of office prescribed in the constitution of this state. 1 vacancies $ 135. [Sec. 120.] All vacancies occurring in the of- fice of commissioner, shall be supplied by the corpora- tion ; and each person appointed to fill a vacancy, shall hold his office for the residue of the term for which his predecessor was appointed. 2 wi,o ineiigi- g 136. [Sec. 121.1 No trustee or other officer of any society or school, wnich shall be entitled to receive a share of the school moneys, shall be appointed a com- missioner of school moneys. 2 * 490 *fi 137. [Sec. 122.] The corporation shall, once at Moneys how. ^ . , L J ,. ' distributed, least in three years, by ordinance, designate the socie- ties or schools which shall be entitled to receive a share of the school moneys, and prescribe the rules and restric- tions under which such moneys shall be received by such ' societies or schools respectively. Such ordinance shall be published in two or more of the public newspapers of the city. 3 whentrus. $ 138. [Sec. 123.] The trustees of every society or pen '"con" school th us designated, shall, on or before the fifteenth tents of ic- easurerto 07 L J J pay moneys. (1) Laws of 1834, chap. 296. 16 and 17. (2) Laws of 1826. p. 92; 1817, p. 324, 7. 398 LAWS RELATING TO Columbia shall pay the amount thus apportioned to the Hudson Lancaster School to its treasurer, and the amount thus apportioned to such school districts and parts of dis- tricts to the commissioners of common schools for the city of Hudson. 1 HOW applied $ 161. [Sec. 139.] The amount thus paid to the Hud- san Lancaster School Society, shall be applied by the trustees of that society to the education of such poor chil- dren belonging to the city of Hudson as may be, in their opinion, entitled to gratuitous education, and to the sup- port and maintenance of the school or schools established by such trustees. 1 copyoiap- $ 162. [Sec. 140. J The treasurer of the county of portionment Columbia shall transmit to the board of supervisors of the county, at their annual meeting, a certified copy of the apportionment made by him. 1 supervisors $ 163. [Sec. 141.] The supervisors shall annually equ sc ac ^ to tne amount to e raised on the said districts and amount. parts of districts respectively, for defraying town expen- ses, a sum equal to the amount thus apportioned to such districts and parts of districts, with the addition of five cents on the dollar for collector's fees, and shall cause the same to be collected at the same time and in the same manner as other taxes levied on towns are collected. 1 collector $ 164. [Sec. 142.] The collector shall pay over the how to pay. mone y s so collected by him, after deducting five cents on the dollar for his fees, to the commissioners of com- mon schools for the city of Hudson. 1 commission < 165. [Sec. 143.] The commissioners of common distribute! schools for that city shall distribute and pay to the trus- tees of such school districts and parts of districts, the amount so received by them from the collector and the county treasurer, in the same proportion in which such moneys were collected from each district and part of a district. l Assessors to $ 166. [Sec. 144.] To enable the supervisors of the hab'uant t s. in ~ count y to make such addition, it shall be the duty of the assessors of the ward within which such school districts and parts of districts shall be situate, to designate on their asesssment rolls the inhabitants who reside within each of such districts and parts of districts. 1 * (1) Law, of 1826, p. 92; 1817, p. 324, $7. T V- >' 1" HJ^i.ail fllfT [. ''.'! . rt'l >o *Wtt.J !i *- >i*t<>! *V*A' -'irfflo ,8Btfo ."?.&<( COMMON SCHOOLS. 399 ALBANY. } r}' Art. 7, title 2, chap. 15, part 1 R. S. $ 167. [Orig. sec. 1.1 In each of the wards of the city one com- .',, L i i 11 i i i j missioner of Albany, there shall be elected one commissioner, and and one in- one inspector of common schools, at the annual election ^osen in be for supervisor, by the persons qualified to vote for town officers ; but the persons residing west of Perry-street, shall not vote for the said commissioner and inspector at such election. 1 $ 168. [Orig. sec. 2.] Any vacancy by death, resig- nation, or removal from the said city, of any commis- sioner or inspector, shall be filled by the common council thereof, until the next election. $ 169. [Orig. sec. 3.1 The commissioners so elected Powers of shall form a board, with power, from time to time, to sioners. form the said city into school districts, not exceeding five in number, east of Perry -street : They shall also appoint three trustees for each district, to hold their offices for one year, and shall fill any vacancy which shall hap- pen. $ 170. [Orig. sec. 4.] The said commissioners, with u>- the consent of the common council, may form another or other school districts in the said city of Albany. $ 171. [Orig. sec. 5.1 The trustees of each district, or Powers of a majority of them, shall, within their respective districts Slew. ' have power to hire a school-house or rooms, and furnish the same with necessary fuel and appurtenances ; ap- point a collector ; hire a teacher or teachers ; fix the rate of tuition fees, not exceeding two dollars a quarter for any scholar ; and exempt from the payment of teacher's wages any indigent persons within the district they shall think proper. $ 172. [Orig. sec. 6.] The clerk of the common coun- cierk 10 cil shall be clerk to the commissioners, and shall be sub- sumer'a! ject to the like duties, and receive the like compensation as town clerks in the several towns, in similar cases. $ 1 73. [Orig. sec. 7.] The superintendent of common Apportion- schools shall apportion to the city and county of Albany hoo!no their share of the school moneys, according to the num-{^ stoAI ' ber of children over five and under sixteen years of age residing therein, in the same manner aa to other coun- ties in this slate. 2 S 174. [Orisf. sec. 8-1 The county treasurer shall an- chamber- " lain to re- ceive school (1) Laws of 1830, chap. 240. (2) This section seems to be superseded moneys, by 5 and 6 of chap. 320, laws of 1830, which was passed subsequent to this act. See ante $ 3 of this Title. 400 LAWS RELATING TO chamber- ino!ie8d?s^ tinct. Apportion- General powers and nually pay to the chamberlain of the city of Albany, that part of the school moneys apportioned to the city of Albany for the support of common schools to be esta- blished by this act, and for the support of Lancaster schools established or to be established in the said city. 5 175- 1 9 '] The 8U P?rvisors of tn e county of Albany, at their annual meeting in each year, shall cause a sum of money equal to twice the amount of the money apportion- ed to the city from the common school fund, together with collectors' fees, to be raised, levied and collected, in the same manner that other taxes are raised, levied and collected ; and when so raised, to be paid to the cham- berlain, for the support of common schools in the city of Albany, to be apportioned and distributed as now pro- vided for by law. 1 176. [Orig. sec. 10.] All moneys paid to the cham- ^ er ' am ^ or tne support of common schools in the city of Albany, shall be kept distinct from other money, and subject to the drafts of the commissioners, and payable to the orders of the trustees of the respective school dis- tricts, and to the trustees of the Lancaster school society. $ 177. [Orig. sec. 11.] The board of commissioners sna M apportion the school moneys to be received by them, among the several school districts and the Lancaster . schools, provided such schools shall have been kept at least nine months in the year, in the five districts creat- ed by the third [169th] section of this act, and at least four months in the year in the district created by the fif- teenth [181st] section thereof, in proportion to the ave- rage number of scholars attending such schools, over five and under sixteen years, who have actually attend- ed such schools during the year ; to be ascertained by , the teachers keeping an exact account of the number of scholars present every school time or half day, which being added together, and divided by five hundred, the number of half days for a year, shall be considered the average of attending scholars ; which average shall be sworn or affirmed to by the teacher. $ 178. [Orig. sec. 12.] If a school shall have been kept four months in any one or all of the said districts, for the year one thousand eight hundred and thirty, then the same shall participate proportionably in the said school moneys to be apportioned in the said city in the year one thousand eight hundred and thirty-one. ft 179. [Orig. sec. 13.] The commissioners, inspec- * (1) Laws of 1837, chap. 369. COMMON SCHOOLS. tors, trustees and collectors, shall possess the like powers, %** of of - and be subject to the like duties and liabilities, as the same officers and persons in the towns in this state, ex- cept when it is otherwise provided in this act, and except also that the said commissioners and inspectors shall not demand or receive any pay for services under this act. S 180. f Orig. sec. 14.1 The trustees of the Lancaster ^? f _' P J . j*aiicahier school society, before they receive the moneys apportion- schools. ed to them, shall make returns, the same as the district schools are required to make. (5 181. [Orig. sec. 15.1 The inhabitants of the city of inhabitants iu -j- r -r* j r west ot Per- Albany, residing west of Perry-street, and east of a pa- ry-strcet to rallel line three miles west thereof, qualified to vote for SSSHS^ town officers, shall, on the Tuesday succeeding the an- c ^ ; t ^ nual election for supervisors in each year, meet at some convenient place within said bounds, and there elect by ballot one commissioner and one inspector of common schools, and one collector, and form themselves into a school district, the same as a separate ward, for all the purposes of this act: And they are hereby authorized to impose and collect the same taxes upon the real and per- sonal property within the said district, for the hire or erection of a school-house, and the support of a teacher, as if they were a separate ward, and shall be entitled to a like distribution of the school money. The first meet- ing shall be held at the house now occupied by James Magher ; and the inhabitants then assembled shall de- termine when the next meeting shall be held. 1 $ 182. [Orig. sec. 1.] The commissioners of common Money to be schools of the city of Albany east of Perry-street, or the IchooisTast majority of them, at any stated meeting thereof, may, fo^ee st ' with the consent of the common council of said city, in years. each year, for the term of three years, direct such sum yearly to be raised in the said city, for the support of common U89l>ost ' schools for the then ensuing year, as they may deem necessary, but not exceeding a sum equal to the amount apportioned to the common schools and Lancaster schools in said city, east of Perry -street, from the common school fund. 2 $ 183. (Orig. sec. 2.] The supervisors of the county ib .to je paid of Albany, at their annual meeting, shall cause such iain hambei sum as the said commissioners shall direct to be raised, to be levied and collected upon the real and personal pro- perty within the said city of Albany, east of Perry-street, (1) The preceding 15 sections are from ''An act relating to common schools in the city of Albany," passed April 17, 1830, chap. 240, p. 260. (2) Laws of 1831, chap. 111. 2(5 402 LAWS RELATING TO together with the collector's fees, in the same manner that other taxes are levied and collected ; and when so collected it shall be paid to the chamberlain for the sup- port of common schools in the said city r east of Perry- street. 1 Moneys bow ( 184. [Orig. sec. 3.] The commissioners may direct applied. t j je a ppii ca tj on o f the moneys thus raised, or any part thereof, for the hire, purchase or erection of a school- house in any district in the said city, east of Perry- street, and with the consent of the common council may increase the number of districts east of Perry-street, from creased. time to time, and alter the same. 1 other mo- $185. [Orig. sec. 4.] The commissioners shall a ppor- port!oned ap t' on tne moneys received by them for the wse of common schools in the city of Albany, other than the moneys which shall be raised as herein provided, among the se- veral districts and the Lancaster schools, provided such schools shall have been kept at least six months in the year in the districts east of Perry-street, and four months in the districts west of Perry-street, in proportion to the average number of scholars attending such schools over five and under sixteen years, who have actually attend- ed such schools during the year,, to be ascertained in the manner prescribed in the eleventh [177th] section of the act hereby amended, and shall in like manner appor- tion the moneys to be raised as herein provided, and not otherwise appropriated among the several districts and the Lancaster schools in the said city, east of Perry-street. 1 Districts 186. [Orig. sec. 5.] The inhabitants of the city of r7-re f e er Albany residing west of Perry -street, within any district powers, tec. now formed, or which shall hereafter be formed, in said city, and the clerk, trustees and collector of every such district, shall possess the like powers and be subject to the like duties and liabilities as the inhabitants and same officers of school districts in the towns in this state, ex- cept where it is otherwise provided in this act. 2 school- (^ 187. The trustees of school district number two in trktNo2.' s the city of Albany, or their successors in office, are hereby empowered to erect a school-building, for the use of said district school, and they are hereby authorized to mort- gage the lot and building for the balance that may be due on the same, over and above the moneys now in hands of said trustees. 3 (1) Law8ofl831, chap. 1 11. (2) The preceding five sections are from "An act to amend an act, entitled ' An act relating to common schools in the city of Albany,' passed April 11, 1831," chap. Ill, p. 153. (3) Laws of 1832. chap. 263. COMMON SCHOOLS. 403 188. It shall and may be lawful for said trustees, or their successors in office, to exact ten per cent on each rate bill for tuition, to be applied towards the expenses of interest, and the mortgage upon said building. 1 S 189. The provisions of an act to amend an act en- Act of, ., * V 1 ... i i i ..extended to titled " An act relating to common schools in the city ot 1339. Albany," passed April 11, 1831, are hereby continued in full force and operation for the term of five years from and after the passage of this act. 2 Chap. 213, Laws of 1837. Passed April 20. $ 1. The board of supervisors of the county of Alba- Money to be ny are hereby directed, at their next annual meeting, ra and at each successive annual meeting, for the term of nine years next thereafter, to cause in each successive year as aforesaid, to be assessed, levied and collected, the sum of two thousand five hundred dollars, making in all a sum of twenty-five thousand dollars, upon the tax- able property in the city of Albany east of Perry-street, for the purpose of erecting in each school district east of Perry-street, a substantial brick school building, equal to that now erected in school district number two ; which sum when collected, shall be paid to the chamberlain of the city of Albany, and to be by him applied to the pay- ment of the moneys that may be borrowed under this act. $ 2. The said district school buildings shall be built Buildings to of stone or brick on the building lots now belonging tourist!"* said districts, or that may hereafter be vested in said school districts. $ 3. The common council of the city of Albany are commission- hereby directed to appoint three commissioners ; and the c . to fi * . , . . , , sites and su- said commissioners, or a majority or them, are hereby perintemi authorized to fix the site, and to determine upon the u plan, form and manner of the construction of the said district school buildings, and to superintend the building of the same, and as often as may be necessary to draw for and receive the moneys appropriated and borrowed for the construction of the said district school buildings, and to do all such other acts and things as may be ne- cessary and proper to be done to complete the same, and also to pay up any mortgage due or to become due on any district school lot and building east of Perry-street, the title whereof is vested in the district ; and the said (1) Laws of 1832, chap. 263. (2) 13, of chap. 230, laws of 1834, pass- ed May 1, 1834. 404 LAWS RELATING TO commissioners may, with the consent of the common council of said city, purchase a lot. or lots, or buildings for any school district east of Perry-street, or exchange those now belonging to the district for a more eligible site, vesting the title thereof in said district. Jurft ve se 5 4- The said commissioners shall, before they enter upon their duties, give a bond to the mayor of said city, with sufficient securities to be approved by him, in a pe- nalty of double the amount entrusted to them, condition- ed for the faithful expenditure of the moneys committed to their charge for the purposes aforesaid, which said bond shall be filed in the chamberlain's office. Their pay. g 5. The said commissioners shall be allowed such sum for their services, not exceeding two dollars for eve- ry day actually and necessarily devoted to the perform- ance of their duties under this act, as the common coun- cil shall think proper : such allowance to be audited by the said board of common council. The said commis- sioners shall render annually an account of their pro- ceedings and expenditures to the common council, until they shall have fully executed their duties under this act. Loan of *25,- $ 6. The comptroller is hereby authorized to loan to the city of Albany a sum not exceeding twenty-five thousand dollars, out of any moneys now or hereafter in the treasury of this state belonging to the capital of the common school fund, on receiving from the cham- berlain, on behalf of said city, a bond, conditioned for him as treasurer and his successor in office, to repay the said sum in ten equal annual instalments, together with the annual interest on said loan from the time it is made, at the rate of six per cent per annum ; and which bond said chamberlain is hereby authorized to make and exe- cute. interest of 7. The board of supervisors of said county, if the Joan provid- saroe g^H Decome necessary, shall cause to be levied, assessed and collected upon taxable property in the city of Albany east of Perry-street, in addition to the sums hereinbefore directed to be levied, assessed and collected annually, a sum sufficient to pay the interest of the said sum or sums to be loaned ; and it shall be the duty of the said chamberlain of the said city, to pay the said sums of money herein before directed to be levied, assess- ed and collected, together with the interest thereon, when so collected and paid to him, into the treasury of this state, to apply in payment of his said bond. $ 8. The said commissioners are hereby authorized. COMMON SCHOOLS. 405 with the consent of the common council first had and obtained, to purchase a site, and erect a Lancaster school- building, of the same dimensions as a district school- building, in order to comply with the report of the com- mittee of the common council, adopted by the board, in one thousand eight hundred and thirty-three. $ 9. The school-buildings, and the lots on which the Exemption same are erected, now belonging to, or that may here- after belong to, any school district in said city of Albany, shall be exempt from all taxes or assessments. $ 10. This act shall take effect immediately after the Act to take . i f effect passage thereof. Chap. 358, Laws of 1837. Passed May 8. (X 1. The commissioners of common schools of the contingent e 1 11 i i 11 . P i expenses. city of Albany, in each year, shall apportion of the mo- neys paid to the chamberlain of said city, for the sup- port of common schools, one hundred dollars to each school district east of Perry-street, and twenty-five dollars to each school district west of Perry-street ; said moneys to remain in the chamberlain's hands to be paid to the trustees of each school district, in quarterly payments, on the first day of April, July, October and January, in each year, to be applied for contingent expenses, repairs, fuel, r#, represented in Senate and Assembly, do enact as follows : Money how ft 1. It shall be lawful for the inhabitants of any town- tone appro- . i . , ii> 111 i- i ix-iated. in such counties as have abolished the distinction be- tween county and town paupers, and in such counties as may hereafter abolish such distinction, at any an- nual or special town meeting to appropriate all or any part of the moneys and funds remaining in the hands of the overseers of the poor of such town after such aboli- COMMON SCHOOLS. 419 tion, to such objects, and for such purposes, as shall be determined on at such meeting. $ 2. If any such meeting shall appropriate such mo- school ruui. ney or funds for the benefit of common schools in their town, the money so appropriated shall be denominated " The common school fund of such town," and shall be under the care and superintendence of the commission- ers of common schools of said town. $ 3. If any such meeting shall appropriate such mo- Money ami ,. , J f , , ? f , , A securities Co ney or funds for the benefit of common schools, alter he -fcuverai such appropriation shall have been made, and after the ^nunSfc'ioa- commissioriers of common schools shall have taken the era oath of office, the overseers of the poor of such towns shall then pay over and deliver to the said commission- ers, such moneys, bond?, mortgages, notes and other se- curities, remaining in their hands as such overseers of the poor, as will comport with the appropriation made for the benefit of common schools of their town. $ 4. The said commissioners of common schools may 8utns - sue for and collect in their name of office, the money due or to become due on such bonds, mortgages, notes or other securities, and also all other securities by them taken under the provisions of (his act. $ 5. The moneys, bonds, mortgages, notes and other p-tnanni securities aforesaid, shall continue and be a permanent Sl ' bo l lun4 fund, to be denominated the common school fund of the town appropriating the same, the annual interest of which shall be applied to the support of common schools in such towns, unless the inhabitants of such town, in an- nual town meeting, shall make a different disposition of the whole of the principal and interest, or any part there- of, for the benefit of the common schools of such town. $ 6. The said commissioners of common schools when- roans w ever the whole or any part of the principal of said fund |, n r < j^!. shajl come to their hands, shall loan the same on bond, secured by a mortgage on real estate of double the value of the moneys so loaned, exclusive of buildings or artifi- cial erections thereon. $ 7. The said commissioners of common schools may Foreclosure purchase in the estate on which the fund shall have been secured, upon the foreclosure of any mortgage, and may hold and convey the same for the use of said fund. $ 8. The said commissioners of common schools shall imefore such division or alteration; and the proceeds there- of shall be apportioned between the towns interested therein, in the same manner as the other public moneys of towns, so divided or altered, are apportioned. $ 6. The shares of such moneys to which the towns shares t shall be respectively entitled, shall be paid to the trustees whom pM ~ of the gospel and school lots of the respective towns, and *hall thereafter be subject to the provisions of this Title. $ 7. If in either of such towns, trustees of gospel and n>. school lots shall not have been chosen, or there be none in office, the share of such town shall be paid to the su- pervisor ; and the town, at its next annual town meet- ing, and annually thereafter, shall choose such trustees in the same manner as if gospel and school lots had or- LAWU RELATING TO, &C- finally been assigned to it ; which trustees shalt have charge of the moneys so paid to the supervisor, and shall be subject to all the duties and liabilities, and possess all die powers imposed or conferred in this Title. FORMS, REGULATIONS, RESIGNATIONS. [Reference from Sec. 83.] The provision referred to in this section is as follows : " Any three justices of the peace of a town may, for sufficient cause shown to them, accept the resignation of any town offi- cer of their town." Sec. 33, Title III. Chap, XI. 1 R. S. 348. They may do the same as to officers of school districts, and must notify the clerk,, or a trustee of the district, of such resig- nation. ASSESSMENT OF TAXES. [Reference from Sec. 90.] The following are the provisions referred to in this section, and are extracted from Chapter XIII, Title II., which relates to the assessment and collection of taxes : (p. 392, 1 R. S.) "$ 15. If any person, whose real or personal estate is liable to taxation, shall at any time before the assessors shall have completed their assessments, make affidavit that the value of his real estate does not exceed a certain sum, to be specified in such affidavit ; or that the value of the personal estate owned by him, after deducting his just debts, and his property, invested in the stock of incorporated companies, liable under this Chapter to taxation on their capital, does not exceed a certain sum, to be specified in the affidavit, it shall be the duty of the assessors to value such real or personal estate, or both, as the case may be, at the sums specified in such affidavit, and no more." "S 16- If an y trustee, guardian, executor or administrator, shall specify, by affidavit, the value of the property possessed by him, or under his control, by virtue of such trust, after de- ducting the just debts due from him, and the stock held by him in incorporated companies liable to taxation, in that capacity, the assessors shall in like manner value the same at the sum specified in such affidavit." "<$ 17. All real and personal estate liable to taxation, the value of which shall not have been specified by the affidavit of 126 FORMS AND the person taxed, shall be estimated by the assessors at its full value, as they would appraise the same in payment of a just debt, due from a solvent debtor." After completing the assessment roll, section 19 provides that the assessors "shall make out one fair copy thereof, to be left with one of their number. They shall also forthwith cause no- tices thereof (o be put up at three or more public places in their town or ward." "$ 20. Such notices shall set forth that the assessors have completed their assessment roll, and that, a copy thereof is left with one of their number, to be designated in such notice, at some place to be specified therein, where the same may be seen and examined by any of the inhabitants of the town or ward during twenty days ; and that the assessors will meet on a cer- tain day, at the expiration of such twenty days and at a place to be specified in such notice, to review their assessment?, on the application of any person conceiving himself aggrieved." "'21.' The assessor with whom such assessment roll is left, shall submit the same, during the twenty days specified in such" Hiotice, to the inspection of all persons who shall apply for that purpose." " $ 22. The assessors shall meet at the time and place speci- fied in the notice, and on the application of any person conceiv- ing himself aggrieved by their assessment, shall review such as- sessment. And when the person objecting thereto, shall not previously have made affidavit concerning the value of his pro-- perty, pursuant to the fifteenth and sixteenth sections of this Title, the assessors shall, on the affidavit of such person, made as provided in those sections, reduce their assessments to the sum specified in such affidavit." " < 23. If the person objecting to the assessment can show .by other proof than his own affidavit, to the satisfaction of the as- sessors, or of a majority of them, that such assessment is error neons, the assessors shall review and alter the same, without re-< quiring any such affidavit." "$ 24. Where any person in possession of personal property liable to taxation, shall make affidavit that such property, or any part thereof, specifying what part, is possessed by him as agent for the owner thereof, and shall disclose in such affidavit the name and residence of the owner, the assessors, if it shall appear that such owner is liable to be taxed under this Chapter, nhall not include such personal estate in the assessment of tbe property of such possessor." "$ 25. The affidavit specified in this Article, shall be made before the assessors, -or one of them, either of whom is-, hereby authorized to administer an oath for that purpose ; and the ar REGULATIONS. 427 sessors shall cause all such affidavits to be filed in the office of the town clerk." Form of a District Tax list, and Warrant. List of taxes payable by the following persons, taxable in- habitants of district No. in the town of made by the trustees of said district on the . day of 18 in conformity to law. Valuation of Personal es- Total pro- Amount of Collector's Total aniou't NAME. real estate. lale. perty. laxes. fees 5 per to be col C'illt looted A. B... $1,000 $200 SI ,200 $6.00 $0.30 $6.30 0. D... 1 ,500 500 2,000 10.00 0.50 10.50 B. F... 2,000 800 2,800 14.00 0.70 14.70 (Bounty of . ss. To the collector of school district No. in the town of in the county aforesaid, GREETING: in the name of the people of the state of New- York, you are hereby commanded and required, to collect from each of the in- habitants in the annexed tax list named, the sum of money set opposite to his name, in said list, and within thirty days after receiving this warrant, to pay the amount thereof collected by you, (retaining five per cent, for your fees,) into the hands of the trustees of said district, or one of them, and take his or their re- ceipt therefor : And if any of the said inhabitants shall not pay such sum on demand, you are hereby further commanded, to levy the same by distress and sale of the goods and chattels of the said delinquent, in the same manner as on warrants issued by the board of supervisors to the collectors of towns. Given under our hands and seals, this day of in the year of our Ix>rd one thousand eight hundred and A. B. [L. s.l ) 0. D. [L. s. V Trustees* E. F. [L. s.] } [The tax list must be made out within one month after the district meeting in which the tax was voted.] FORMS AND Form of a District Rate BiM. Rate bill of th persons liable for teacher's wages in district No. in the town of for the school term ending 18 NAMES. No. of days sent. Amount of school lill. Collector's fees, 5 pr cent Tola! amount lo be collected. A B 80 $1.00 $0.05 $1.05 C D .... . 90 1.12 1 0.05 s 1.18- 1 - E F. 100 1.25 0.06| 1.3P [The warrant to be annexed to a rate bill r is to be, similar i form to the warrant annexed to a tax list, as above, excepting that -the words " rate bill " will be substituted for the words* u tax list," or "list," whenever the two latter occur.] [In executing the wairant, the collector will be governed by the following sections of chapter 13, pages 397 and 398, 1 R. S.] $ 1. Every collector, upon receiving the tax list and warrant, shall proceed to collect the taxes therein mentioned, and for that purpose shall call at least once on the person taxed, or at the place of his usual residence, if in the town or ward for which such collector has been chosen, and shall demand payment of the taxes charged to him on h ; .s property. $ 2. In case any person shall refuse or neglect to pay the tax imposed on him, the collector shall levy the same by distress and sale of the goods and chattels of the person who ought to pay the same, or of any goods and chattels in his possession, where- soever the same may be found within the district of the collec- tor, and no claim of property to be made thereto by any other person shall be available to prevent a sale.* $ 3. The collector shall give public notice of the time and place of sale, and of the property to be sold, at least six days previous to the sale, by advertisements to be posted up in at least three public places in the town where such sate shall be made. The sale shall be by public auction. $ 4. If the property distrained shall be sold for more than the amount of the tax, the surplus shall be returned to the person in whose possession such property was when the distress was made, if no claim be made to such surplus by any other person, If any other person shall claim such surplus on the ground that the property sold belonged to him, and such claim be admitted * NOTE. "No replevin shall lie for any property, taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute of this tale." 3d R. S. page 52-', sec. 4. REGULATIONS. 429 by the person for whose tax the same was distrained, the surplus shall be paid to such owner ; but if such claim be contested by the person for whose tax the property was distrained, the sur- plus moneys shall be paid over by the collector lo the supervisor of the town, who shall retain the same until the rights of the parties shall be determined by due course of law. 1 R. S. page 397, 398. Form of a Bond to be given by a District Collector. Know all men by these presents, that we. A. B. and C. D. (the collector and his surety,) are held and firmly bound to E. F. and G. H. &c., trustees of school district number in the town of in the sum of (here insert a sum dou- ble the amount to be collected,) to be paid to the said E. F., G. H., &c., trustees as aforesaid, or to the survivor or survivors of them, or their assigns, trustees of said district; to the which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated this day of 18 ents, of which sum dollars cents were paid by that part of the district lying in the town of and dollars .cents by the part lying in the town of f This blank is tQ be filled with the sum to- tal of all the school bills for the year which are made out af- ter applying the school money to the payment of teachers' wages.] Dated at this first day of January, in the year of our Lord one thousand eight hundred and A. B. ; . D. } Trustees. E. F.\ N. B. A copy of the report must be sent to the commissioners or clerk of each town out of which the district is formed. DISTRICT MEETINGS. 1. Annual meetings are adjourned from year to year, and no- tices in the second form which follows, are to be posted up by the clerk, in four public places in the district, five days before the annual meeting. 2. Special meetings are called by order of the trustees, and every taxable inhabitant should be notified of the time, place and object of such meeting, at least five days before it is held, by reading the notice in his hearing, or leaving a copy thereof at his place of abode. Sec. 56 and sub. 2 of 84. 3. If any district meeting is adjourned for more than one month, the clerk naust post up notices in four public places, at least five days before the day on which such adjourned meeting is to be held. Sec. 84, sub. 3. 4. A special meeting should not be called without notice to all the trustees, who should confer together, and a major part of them should sanction the order of the clerk to call a special meet- ing. The notice for a special meeting should specify the object, 28 434 FOR M AND as well as the time and place of the meeting. If the clerk can- not give notice for annual or special meetings, either of the trus- tees may do the clerk's duty in this particular. Sec. 85, sub. 2. Farm of Notice for a Special District Meeting. To the clerk of district number The trustees of district number at a meeting held for the purpose, have resolved that a special meeting be called at the school-house, on the day of 18 at o'clock in the noon of that day. for the purpose of [choosing a collector in place of A. B. removed^ or whatever the object &f the meeting may be,] and for the transaction of such other bu- siness as the meeting may deem necessary. You will therefore notify each taxable inhabitant of the dis- trict, by reading this notice in his hearing, or if he is absent from home, by leaving a copy of it y or so much as relates to the time and place of meeting, at the place of his abode, at least five days before such meeting. Dated at this day of 18 A. B. ) C. D. V Trustees. Form of Notice for an adjourned District Meeting, to be posted up in the District. SCHOOL DISTRICT NOTICE. Notice is hereby given, that a meeting of the freeholders and inhabitants of this school district, authorized by law to vote there- in, will be held at on the day of next, (or in- stant, as the case may be,) at ofclock in the noon. pursuant to adjournment. Dated at school district number in the town of this day of A. D. 18 A. B. District Clerk. N. B. If it be the annual meeting, it should be so termed in the notice. These notices are to be posted up in four of the most public places in the district, at least five days before the annual, or any other meeting which has been adjourned for more than one month. Sec. 84, sub. 3. REGULATIONS. 435 Form of Minutes to be kept by the District Clerk, of Pro- ceedings of District Meetings. At a meeting of the freeholders and inhabitants of school dis- trict number in the town of held pur- suant to adjournment, at on the day of 18 [or if it be the annual meeting, say, " at an annual meeting of, fy-c., held pursuant to appointment and public notice, at," fyc. Or if it be a special meeting, say, " at a special meeting of, fyc., called by the trustees of said district^ and held pursuant to special notice, at, fyc., on the day of" to common schools, you are hereby required to notify (by read- ing this notice in bis hearing, or in case of his absence from home, by leaving a copy thereof, or so much as relates to the time and place of meeting, at the place of his abode,) each of the taxable inhabitants residing in district No. and de- scribed as follows, viz: \heregivethe bounds and description of the district] to meet at in the town of on the day of at o'clock in the noon, to elect district officers, and to transact such other business as may be necessa- ry in the organization of said district- Dated at this day of IS- A. B. Commissioner:' [In forming a district from two or more towns, the above no- tice should be signed by one commissioner from each town.) 2CjP When* the commissioners form a new district, and ap- praise the school-house, according to sections 77 and 78 they are to distribute the appraised value of the school-house in the same manner as the trustees of the district would apportion th ) like sum if it was a tax upon the several inhabitants of the dis- trict. Having in this way ascertained the amount due to those set off as their portion of the school-house, and other property, the commissioners should make out an order to the trustees of the district retaining the school-hou?e r as follows : To the trustees of district No. in the town of We, the commissioners of common schools of said town, hav- ing formed a new district, to which certain persons belonging to- your district have been attached, and having valued the school- house and other property belonging to said district No. at 150 dollars, do determine that the amount justly due to such new district is fifty dollars, apportioned fco the several persons set off, as follows : To A. B. 20 dollars, 0. IX 15 dollars, E. F. 10 dollars, G. H. 5 dollars. You are therefore, according to the statute relating to com- mon schools, to levy and collect the said sum of fifty dollars, from the taxable inhabitants remaining in district No. af- ter the alteration alluded to, and pay the same to the trustees of said new district No. Given under our hands at this day of 18. Commissioners. A. B. ) C. D. V REGULATIONS. Form of the Annual Report of the Commissioners of Com- mon Schools. To the Superintendent of Common Schools of the State of New- York. We, the commissioners of common schools of the town of in the county of in conformity to the statute in relation to common schools, do report : That the number of entire school districts in our town, organized according to law, is [eight] and that the number of parts of school districts in said town, is [five] that the number of entire districts from which the necessary re- ports have been made for the present year, within the time limi- ted by law, is [eight] and that the number of parts- of districts from which such reports have been made, is [ t /ye.] That from the said reports, the following is a just and true abstract, viz : !-i Whole length Length of time e cS ,2 o~ o ^ ~ w .a |i a c> I"? ; ol thud any SHch schoot Amount 2 i "5 > o. 111 schoo has been kept has he-n kept by approved ot'money received 5 i S % o >> 3-e ill (here n. teacht rs. of. Oo *I* 1 Mons. Days. Mons. Days Dots. Cts. eS Z ?: S 62-= 6 o* No. 1 6 4 3 4 1 10 30 17 88 48 46 341 $20 60 59 25 50 2 3 or* o 8 12 8 12 5 76 77 52 23 30 4 O 4 8 4 21 51 85 71 30 15 1 ~ r> 6 6 21 21 73 70 30 20 6 4 4 16 06 50 53 20 10 3 bu c 4 4 H 51 50 38 16 00 4 8 9 12 4 14 54 52 48 19 17 2 ft. 00 9 10 6 10 t 9 70 33 32 12 40 1 c^ 10 6 3 4 55 12 15 10 25 3 05 H OS 11 6 6 8 48 28 30 13 00 4 12 3 5 3 8 18 26 25 14 00 1 < cc * s 13 8 8 8 79 34 2 10 70 2 Total. 13 83 5 65 23 168 47 614 557 245 37 30 And we, the said commissioners, do further certify and re- port that the whole amount of money received by us, or our predecessors in office, for the use of common schools, during the year ending on the date of this report, and since the date of the last report, for our town, is $ of which sum the part re- ceived from the county treasurer is $ the part from the town collector is $ [and if there be any other source from 442 FORMS AND which any part has been received, here state it particularly.] That the said sum of money has been apportioned and paid to the several districts from which the necessary reports were re- ceived by the commissioners. That the school books most in use in the common schools in our town, are the following, viz : [here specify the principal books used.] Dated at the first day of July, in the year of our Lord one thousand eight hundred and A. B. ) C. D. > Commissioners. E. F. } 33= The commissioners, in making their annual report should be careful when they make the abstract of districts formed from two or more towns, to include in the report of their town, only such of the children between five and sixteen and those taught, as reside in that part of the district belonging to the same town, for which the commissioners are making their report. And in (Kitting down in the commissioners' report, the amount paid for teachers' wages, over and above public money, the same rules should be observed. [The above report must be made and transmitted to the coun- ty clerk, between the first day of July and the first day of Au- gust in each year. The columns of figures should be added up by the commissioners. The county clerk, between the first of August and the first of October, should transmit to the Superin- tendent of Common Schools, a report containing a list of the towns in his county, distinguishing the towns from which the necessary reports have beenmade to him, together with a certi- fied copy of all such reports.] INSPECTORS OF COMMON SCHOOLS. 1. Three inspectors are required to sign the certificate lor a teacher : And three should hold a meeting for the examination of a teacher. 2. The commissioners are, by virtue of their offices, authoriz- ed to act as inspectors. 3. Teachers are required to be inspected and to obtain certifi- cates every year. 4. It is the duty of inspectors to visit each school at least one* in each year. 5. The inspectors are allowed such compensation as may be decided upon by a vote of the town meeting. [See page 437.] REGULATIONS. 443 Form of a Certificate to be given to a Teacher. We, the subscribers, inspectors of common schools for the town of in the county of Do CERTIFY, that at a meeting of the inspectors, called for that purpose, we have ex- amined (here insert the name of the teacher) and do believe that he (or she, as the case may be) is well qualified in respect to moral character, learning and ability, to instruct a common school, in this town for one year from the date hereof. Given under our hands, at this day of 18 Inspectors of Com- mon Schools. APPEALS. The Superintendent of Common Schools has prescribed the following Regulations^ to be observed in cases of appeal to him. ,l-\ '.!!' ^>/ !- V ;( ? );< Vi 1 * *' f Common Schools, 9, 10, 11. Trustee*, 1 , 25. ADJOURNMENT. See Annual Meetings, 10, 11. ADMINISTRATORS. See Taxation and Taxes, 47. AGENT FOR TOWN. See Town Funds and Lands, 5. AGENT OR SERVANT. See Aon- Residents, 1, 2, 4, 5, 7, 8,11. ALBANY. See Evening Schools. ALIENS. 1. Aliens may vote at district meet- ings, 76 2. An alien cannot he an officer of a school district, 147 ALTERATIONS IN SCHOOL DISTRICTS. 1. If trustees consent verbally to an alteration in their school district, the proceedings will not be set aside for want of a written assent 59 2. Persons attached to a school dis- trict without the consent of the trustees, may within three months he set off again with- out the consent of such trus- tees, 65 3. Alterations ought not to he made in school districts when the effect is to give particular in- dividuals unjust advantages in respect to others, 75 4. Improper alterations in school districts will not be sanctioned for the purpose of quieting controversies 104 5. An inhabitant being set off from a school district, it is an alter- ed district, and the site of the school house may be changed by a majority of votes, 147 9. If two farms are set off from one school district to another, and contain within them a third not included in the order of the commissioners, the lat- ter must nevertheless go with them, 166 7. Persons set off from a school district without the consent of the trustees, do not cease to belong to it until three months after notice in writing to the trustees 212 8. If an alteration is made in a school district, without the consent of the trustees, and without the knowledge of the parties interested, an appeal to the Superintendent will be allowed alter three months,. . 227 9. If a school district is altered, the site of the school-house may be changed by a majority of votes, and without the con- sent of the commissioners of common schools, 272 10. An alteration in a school dis- trict, made without evidence of the consent of (he trus- tees, or notice to them, will be held not valid, if all con- cerned have for five years act- ed as though it had not been made, 275 11. Trustees of school districts should not give a general con- sent before hand to alterations to be made in their school dis- tricts, but such consent should be limited to specific altera- tions, 320 See Commissioners of Common Schools, 8. Joint Si.hool District*, 1, 2, 3 JVvtice, 3, 6, 16, 19. Records, 2, 6. 446 INDEX TO DECISIONS. See School District, 6, 9, IS, 14. Superintendent, 6. ANNUAL TOWN MEETING. See Commissioners of Common Schools, 20. ANNUAL REPORTS OF TRUS- TEES. 1. If the annual report of the trus- tees of a school district is furnished before the public moneys are apportioned by the commissioners, it is in time, 9 2. The annual report of school dis- tricts should be made out by the 1st of March 155 3. If trustees neglect, without good cause, to make their an- nual report before the appor- tionment of the school mo- neys, they are without reme- dy, 155 4. If the annual report of a school district includes part of two years, it is a false repoit,.... 213 5. If the annual report of a school district is lost, and the district does not receive the public money, application must be made to the Superintendent of Common Schools, to have the deficiency supplied out of the moneys to be distributed the next year, 236 6. If the annual report of a school district is received by the com- missioners before the public moneys are distributed, it is in time, and the district should be included in the apportion* ment, ^ 296 7. If the annual report of a school district is signed by t^o trus- tees, the commissioners can look no further, and the dis- trict must receive its share of the public money if the report is otherwise sufficient 327 See Children, 6, 10. Errors and Omissions, 3, 6. Indian Children. Poor-Houses, 1. Public or School Moneys, 1 , 11. Trustees of School Districts, 22. ANNUAL MEETINGS. 1. If an annual meeting in a school district is neglected, the trus- tees hold over until the next annual meeting, and until oth- ers shall be elected in their places 49- 2. If an annual meeting is held at the time and place appointed at the annual meeting of the preceding year, it is valid, al- though the clerk of the district may have neglected to give the notice required by law,. . TO 3. If the time for the annnal meet- ing is unknown, application should be made to the Super- intendent to fix a day for hold- ing it, 103 4. If the annnal meeting is void, the persons in office hold over; but the commissioners of com- mon schools cannot, in such a case, call a meeting or appoint officers, 114 5. The clerk of a schooi district cannot designate a place for an annnal meeting when it has been omitted at the previous annual meeting, 129 6. Two meetings being held at dif- ferent places on the same day as an annual meeting, a new one will be ordered, 129 7. If at an annual meeting a rea- sonable time is not allowed to the inhabitants to assemble, a new meeting will be ordered, 131 8. The time and place for the an- nnal meeting not having been fixed, it may be held at the usual time and place, 141 9. If the annnal meeting in a school district i neglected, the dis- trict officers hold over until the next annual meeting, 241 10. If an annual meeting is regu- larly called and attended by only four persons, who, with- out organizing, agree to meet again in a week, the second meeting is not valid, 271 11. If an annual meeting is regu- larly called and attended by four persons, who organize, and without transacting any other business adjourn for a week, the proceedings are va- lid, and the annual election may be held at the adjourned meeting, 271 12. Annual meetings need not be precisely one year apart to a day,.... . 289 See Notice, 17. Taxation and Taxes, 20. INDEX TO DECISIONS. 44? APPARATUS. See Taxation and Taxes, 54. APPEALS. 1. An appeal to the Superinten- dent will not be entertained when the point at issue has been settled by an adjudica- tion upon the same case in a court of competent jurisdic- tion, 3 2. Appeals must be made by per- sons aggrieved, 57 8. The regulation of the Superin- tendent requiring an appeal to be made within thirty days af- ter the proceeding complain- ed c-f, is not to be enforced against an aggrieved party hav- no knowledge of such proceed- ing 162 4. If within thirty days after pro- ceedings complained of, notice of appeal is served and the pa- pers transmitted to the Super- intendent, it is a sufficient compliance with the regula- tion, and ten days will be al- lowed to the respondents to answer, after the service of such notice, 343 See Alterations in School Dis- tricts, 9. Assessment of Taxes:, 2. Commissioners of Common Schools, 8, 17. Irregularity, 1. Property of School Districts, 12. School Districts, 3. Superintendent, 7. Taxation and Taxes, 74. Void proceedings, 1. Votes and Voters, 6. APPENDAGES TO A SCHOOL- HOUSE. 1. A bell is not a necessary appen- dage to a school-house and cannot be provided by a tax, 28 2. A fence is a necessary appen- dage to a school-house, 235 See Taxation and Taxes, 4, 57. APPRAISEMENT OF SCHOOL- HOUSE. See Notice. 5. Property of School Districts. ASSESSORS OF TOWNS. See Taxation and Taxes, 64, 67 ASSESSMENT OF TAXES. 1. Trustees in assessing taxes may administer an oath when a re- duction is claimed 96 2. If the assessment of a tax is de- layed by an appeal, the time is not to be computed as part of the month within which the tax list must be made out,. . . 304 See Assessment Roll of Town. J\'otice, 4, 5. Taxation and Taxes. ASSESSMENT ROLL OF TOWN. 1. The assessment roll kept by the town clerk is the one to be followed in assessing taxes,. . 154 2. If an individual acquires or parts with property after the last as- sessment roll of the town is made out, the roll must not be followed in making out a tax list, 158 3. Where improvements in real estate have been made and completed since the last as* sessment roll of the town was made out. the roll is not to be followed, so far as such real estate is concerned, 194 4. The assessment roll of the town is not complete until it is sign- ed and certified, 200 5. The last assessment roll of the town is the proper guide to trustees in making out a tax list as to the valuation of pro-* perty, but not as to owner- ship, 225 6. From the 1st of September to the meeting of the board of su- pervisors, the assessment roll of the town in the hands of the supervisor, must be con- sulted in assessing taxes in school districts, 281 7. The last assessment roll of the town is not a guide, in mak- ing out a tax list, as to a per- son who became an inhabitant of the district after the roll was made out, 292 See Errors and Omissions, 1. Notice, 5. Property of School Districts, 3. Taxation and Taxes, 51, 58, 67,70, 74,76. Warrant, 6. BANK. 1. Banks are taxable for common school purposes, 87 See Public or School Moneys, 5. 448 INDEX TO DECISIONS. BELL. See Appendages to a Sckool- ILntse, 1. BOND OF COLLECTOR. See Collector, 1, 8, 9, 10, II, 12. BRIDGE COMPANIES. See Taxation and Taxes, 14, 26. CANAL BOATS. See Vessels, 1. CERTIFICATES OF QUALIFI- CATION. 1. Conditional certificates of quali- fication cannot be given to teachers 24 2. Certificates of qualification are good for a year, even though given by the inspectors for a shorter period, 76 3. Certificates of qualification gi- ven after the commencement of a term are good in some ca- ses, 120 4. A certificate of qualification signed l>y two inspectors is good, if there are only two persons fn the town authoriz- ed to act as such, 141 5. Certificates of qualification to teach a particular school can- not be given, 199 6. A certificate from the inspec- tors of common schools that the candidate gave them good sa- tisfaction in particular branch- es, is not a legal certificate of qualification fur a teacher,. . . 235 7. A teacher's certificate cannot be dated back 328 See Inspectors of Common Schools, 3. 4,5,6, 7,8, 10, 11. Teachers, 8, 10, 16, 21, 23. CHILDREN. 1. None but children residing in a school district can of right be benefited by the public mo- ney 11 2. But if children not residing in the district are admitted into the school .their parents should be apprised of the conditions on which they are received,. II 3. Children are to be numbered in the districts in which their pa- rents reside; if children are boarded in a district to attend school, they rnustbt number- ed where their parents reside, 33 4. AH children residing in a school district may of right attend the district school, 4\ 5. All children attending the dis- trict school must be charged at the same rate for tuition, without regard to the studies pursued by them 47 6. Children attending an academy are to be irombtred in the re- ports of the trustees of school districts, if their parents re- side in the district in which the academy is situated, but not otherwise, 68 7. A taxable inhabitant of a school district may send to school any child actually living with him, M) S. No child residing in a school district can be excluded from the school on account of the inability of the parent to pay his tuition, 119 9. Parents cannot be compelled to send their children to school, 169 10. The children of laborers tem- porarily employed on canals, are not to be included in school district reports, 208 11. If a man removes from a dis- trict on the last day of Decem- ber, his children are to be enu- merated in the district into \vhichhemoves...... 21<5 12. Children residing in o her states when attending schools in separate m-igh horhoods within this state, cannot share the public moneys, 229 13. The numberofchildrenattend- ing school during the year, mu.st be ascertained from the teacher's lists, 292 14. If a man is employed in a school district in taking care of a mill from fall till spring, his child- ren must be enumerated in the district 293 15. Children in county poor-hou- ses cannot be sent to a district school, excepting by volunta- ry agreement with the trus- tees 303 See Colored Persons. Fuel, 6. Indian Children. J\'on-re&idents, 15. Poor-Houses, 1,2. Public or School Moneys, 3. Residence, 4. Schttols, 1 , 8. School Dixtricts, 11. Towns, Division of, 2. INDEX TO DECISIONS. 449 CLERKS OF SCHOOL DIS- TRICTS. 1. The offices of clerk and collector may be held by the same per- son, although the intention of the law would be better an- swered by conferring them on different individuals, 142 2. If a clerk neglects to keep a book of minutes, he is not re- sponsible unless a book is pro- vided for him, 164 See Annual Meetings, 25. Minor. Notice, 2, 9, 13. School Districts, 10. Trustees of School Districts, 9. Votes and Voters, 7. COLLECTOR. 1. If the collector refuses to give a bond, his office becomes va- cated, and the trustees may make a new appointment,. . . 19 2. Collectors are entitled to five per cent on all sums actually collected and paid over by them; but not on sums paid to teachers for tuition, ...... 54 3. Collectors are allowed the usual fees of distress and sale, in addition to five cents on each dollar, when they take and sell the property of delinquents,.. Ill 4. Any goods and chattels lawful- ly in possession of a person as- sessed to pay a tax, may be taken by the collector of a school district 143 5. A collector has thirty days from the delivery of a tax list and warrant to collect a tax, 212 <>. If a collector takes and sells pro- perty to pay a tax, and the owner refuses to receive the excess, the collector must re- tain the amount in his hands, 217 7. A collector is not bound to take any particular article of pro- perty at the request of the owner; but if he does so it will be an answer to the charge of takinganxcessive distress, 218 3. Trustees may require a bond of the collector whenever a war- rant is delivered to him for collection, 340 9. If the trustees do not require a bond of the collector he may execute a warrant without giving one, 340 29 10. Quere. Whether the bond gi- ven by a collector when about to execute a warrant, is a se- curity for the faithful execu- tion of the duties of his office generally, 340 11. If a collector gives a bond, and after collecting part of a tax resigns, quere, whether he is not liable, if the whole amount is not collected, 340 12. The collector of a school dis- trict is answerable for moneys lost to the district by his ne- glect, though he may not have given a bond to the trustees,. 307 13. Collectors of school districts may, in certain cases, go be- yond the boundaries of the dis- tricts for which they were ap- pointed, to execute warrants for the collection of taxes and rate bills, 335 See Clerks of School Districts, 1. Trustee* of Schaol Districts, 2, 9, 30. Rate bills, 2, 3. Taxation and Taxes, 71, 80. Warrant, 3, 5, 6, 8. COLLECTORS OF TOWNS. See Warrant, 5. COLOURED PERSONS. 1. Coloured persons ought not to be employed to teach white children, 139 See Votes and Voters, 13. COMMISSIONERS OF COMMON SCHOOLS. 1. Commissioners of common schools are not authorized to change the site of a district school-house, although their censent to such change is ne- cessary in some cases, 13 2. Commissioners cannot be com- pelled to pay interest on mo- neys withheld from school dis- tricts in the discharge of their duties, 89 3. Commissioners of com. schools are, to all intents, inspectors, 146 4. Commissioners of com. schools have no authority to designate a site for a school-house, or to give a conditional consent to a change of the site, 171 5. The orders of commissioners altering joint districts must be put on record in all the towns of which the districts are a part, 172 450 INDEX TO THE DECISIONS. 6. Commissioners cannot give a second notice for the organi- zation of a new district where a meeting has been held and officers chosen under the first notice, 176 7. A commissioner of common schools is answerable only for moneys which come into his hands, 184 S. Commissioners of com. schools must furnish answers to ap- peals brought from their deci- sion in refusing to alter a school district,. 187 >. Commissioners of com. schools must make an annual account in writing lo their successors in office, of all school moneys received and expended by them, 189 10. A transfer of vouchers is not a sufficient account, 169 11. If commissioners neglect to ac- count, they may be prosecut- ed by their successors, 189 12. If a commissioner of common schools absconds with school moneys in his hands, it is a loss to the town, 234 IS. A commissioner who has sign- ed a receipt for school moneys, in conjunction with his col- leagues, is not answerable, unless the moneys actually come into his hands 234 14. Quere? Whether two com- missioners can make a valid apportionment of the school moneys ? 256 1 5. Commissi on ers of com . schools may certify that more than $400 is necessary for a school- house, after that sum has been expended 258 16. Commissioners of com. schools cannot fix a site for a school- house, 261 17. Commissioners of com. schools have no authority to receive and decide upon appeals from school districts, 264 18. Commissioners of com. schools are entitled to such compen- sation for their services as may be voted by the inhabi- tants of the town. (But see note,) 275 19. Commissioners of com. schools cannot charge a per centage on the school moneys receiv- ed and paid over by them, and .1 deduct such per centage from those moneys, 2?.- 20. Commissioners and inspectors of common schoob are enti- tled to such compensation M may be voted by the electors of the town at their annual town meeting, (hot see note,) 28 21. If theie are but two commis- sioners of common schools in office, they may act as sucb until a third is appointed, .... 232 22. Commissioners of com. schools have no authority to declare void the proceedings of school district meetings, 30 See Alteration in SchoolDittriets, 6. Annual Meetings, 4. Annual Reports of Trustees, 1,6, 7. Errors and Omissions, 5, 6. Joint School Districts, 1, 2, 3,4. Notice, 11, 14,18.19. Organization of School Dis- tricts, 2. Penalties, 1. Property of School Districts , 3,9 Public or School Moneys, 4 r 5. Records, 1,4,6. School Districts, 3, 16. School- House, 8. Site for School-House, 11. Superintendent, 5. Taxation and Taxes, 72, 7$. Trustees of School District*, 37. Vacancies in Office, 2, 3, 4, 5. CONTRACTS. See Trustees of School Districts. 16, 25, 27, 32. CONTROVERSIES. See Alterations in School Dis- tricts, 4. CORPORAL PUNISHMENT. 1. Corporal punishment has no sanction but usage, 101 CORPORATE POWERS. See Trustees of School Districts, 34. COSTS OF SUIT. See Taxation mid Taxes, 30. COURT OF CHANCERY, DECI- SIONS OF. 4. Paige, 384, 350 INDEX TO DECISIONS. 451 DAMAGES. See Punishment. DEBTS. See Property of School Districts, 9. DECISIONS. See Superintendent. DEEDS. See Taxation and Taxes, 46. DISSENSIONS. See School Districts, 9. DISTRESS. See Collector, 8, 4, 6, 7. DIVISIONS OF TOWNS. See Totems, Division of, 1. DOMICIL. See Residence. DOUBLE DISTRICTS. See Joint School Districts. EDMESTON. See Town Funds and Lands, 3. ELECTION. 1. An election need not be held in the day time, 146 2. The annual election in a school district having been neglected foi two years, the Superinten- dent will order one to be held, 202 8. District officers duly elected cannot be displaced at an ad- journed meeting on a reconsi- deration of the choice before made, 280 See Annual Meetings, 1, 4. Commissioners of Common Schools, 6. Records, 6. Trustees of School Districts, 19. Vacancies. ENUMERATION OF CHILDREN. See Children, 6, 10, 11, 13. ERRORS AND OMISSIONS. 1. An error or omission in the as- sessment roll of the town may be corrected or supplied by the trustees of a school dis- trict in making out a tax list, 2 2. An omission on the part of (he trustees to comply with a pro- vision of law before the act containing it has been publish- ed and distributed, ought not to prejudice the equitable rights of the district, 9 3. Errors of form in the annual re- ports of school districts may be corrected, 36 4. An error being shown in count- ing the votes at a district meet- ing fer a tax for building a school-house, a new meeting will be ordered, 12$ 5. When defective reports are made by trustees of school dis- tricts, commissioners should give time to correct them, and retain a portion of the public money in their hands to abide the result of such correction, 181 6. Errors committed by the com- missioners of common schools in apportioning the school mo- neys, cannot be corrected by their successors in office,with- out an order from the Super- intendent, 297 See Records, 1, 2, 3,5. School Districts, 15, 17. Taxation and Taxes, 53. EVENING SCHOOLS. Evening schools may be kept in school districts in Albany, un- under certain restrictions, ... 211 EXECUTORS. Executors are to be taxed where they reside for the personal property in their possession or under the\r control, 157 See Taxation and Taxes, 47. EXEMPTION FROM TAXATION. See Ministers of the Gospel, 1, 2,3,5. Non-Residents, 1, 2, 5, 6. School-House, 1. Taxation and Taxes, 57. Votes and Voters, 9. EXEMPTION FROM TUITION. See Indigent Persons. Trustees of School Districts, 21. Tuition. FABIUS. See Town Funds and Lands, 2. FACTORY. See JVon- Residents, 10. FENCE. See Appendages to a School- House, 2. FUEL. 1. When fuel is furnished in kind, it must be apportioned ac- cording to the time each scho- lar has attended school, 39 2. Unless fuel is provided by tax, it must be furnished by those who send children to school. 452 INDEX TO DECISIONS. If any person neglects to fur- nish his proportion of fuel, the amount may be included in the rate bill or sued for,... 77 3. The only three legal modes of providing fuel explained,.... 113 4. Fuel provided for school districts must not be used for meetings held in the school-house,. . . . 156 5. Fuel, when furnished in kind, must be in proportion to the number of children sent to school, and the number of days' attendance, 170 6. Inhabitants of school districts cannot by a vote to that effect, authorize their trustees to pro- vide fuel in any other mode than that prescribed by law, . 264 See JVbn- Residents, 12, Taxation and Taxes, 20, 60. Teacher, 7. GLOBES. See Taxation and Taxes, 54. GOODS AND CHATTELS. See Collector, 4. GOODS IN A STORE. See Taxation and Taxes, 12, 18. GOSPEL AND SCHOOL LOTS. See Town Funds and Lands, 4, 5. GRASS LAND. See JVon- Residents, 14. GUARDIANS. See Taxation and Taxes, 47. HIGHWAY LABOR. See Votes and Voters, 3, 7. HOLIDAYS. See Schools, 6. INDIAN CHILDREN. If there are, within the bounda- ries of a school district, Indi- an children whose education is provided for by special en- actments, they must not be included in the annual reports of the district, 343 See JInnval Meetings, 7. Property of School Districts, 10. INDIAN LANDS. If there are Indian lands within the limits of a town, those lands may be included within the boundaries of school dis- tricts 343 INDIGENT PERSONS. 1. Indigent persons may be ex- empted from the payment of school bills, whether there is public money to be applied to the term or not, 96 2. The tuition of indigent pupils cannot be paid out of the pub- lic money, 205 3. The exemption of indigent per- sons from the payment of rate bills, is a matter of discretion with trustees, 24 1 See Children, 8. IMPROVEMENTS. See Assessment Roll of Town, 3. INHABITANTS OF SCHOOL DISTRICTS. Inhabitants of school districts have not power to alter the boun- daries of their districts, IS See Fuel, 6. Librarian. Libraries, 3. Public or School Moneys, 29. Rate Bill, 1. Site for School-House, 4, 6, 12, 14. Taxation and Taxes, 6, 10, 25, 60, 62, 63, 65, 69, 75, 80. Teachers, 26. Trustees of School Districts, 15, 38. Votes and Voters, 14. INSPECTORS OF COMMON SCHOOLS. 1. Teachers in joint school districts may be examined by the in- spectors of either town 38 2. Inspectors of common schools must determine the degree of learning and ability necessary for a teacher, 42 3. Inspectors of common schools may refuse to give a teacher a certificate from their personal knowledge that his moral cha- racter is not good 49 4. Inspectors may annul a certifi- cate on account of the immo- ral character of the teacher, although he may perform all his duties in school properly,. 40 5. Three inspectors must sign a certificate of qualification for a teacher, in order to give it va- lidity, 53 6. Quere.-Whether inspectors can annul a certificate except on the grounds on which their au- thority to examine teachers is given? 101 7. In districts lying partly in two or more towns the inspectors of INDEX TO DECISIONS. 453 either town may give a certi- ficate to a teacher, and the in- spectors of any one of the oth- er towns may annul it, 145 8. In districts lying wholly in one town, three inspectors may give a certificate, and the oth- er three may annul it, 145 9. The power of inspectors over the course of studies in schools should, ordinarily, be confin- ed to a general supervision of such studies, 180 10. Inspectors are inexcusable for giving incompetent teachers certificates of qualification,.. 209 11. Three inspectors must sign a certificate of qualification,. .. 274 12. A separate examination of a teacher by three inspectors apart from each other, is not a compliance with the law, ... 274 13. Inspectors should aim to ele- vate the standard of education by a rigid examination of tea- chers 325 14. Inspectors of common schools may give notice that they will meet at certain times and pla- ces for the inspection of teach- ers; but this does not exone- rate them from the duty of meeting at intermediate times when their attendance is re- quired 334 See Certificates of Qualification, 1,2,3,4, 5,6. Commissioners of Common Schools, 32. Minister of the Gospel, 7. Teacher, 3, 6, 7, 9, 12, 16, 23. INTEREST. See Commissioners of Common Schools, 3. Trustees of School Districts, 7. IRREGULARITY. After a lapse of months proceed- ings will not be disturbed on a mere allegation of irregularity, 116 JOINT SCHOOL DISTRICTS. 1. In altering school districts lying partly in two or more towns, a majority of the commissioners of each town must concur,.. 23 2. Joint districts can only be alter- ed by the concurrence of the commissioners of all the towns of which they constitute a part, 172 3. The consent of the trustees of a joint district to an alteration does not authorize the com- missioners of one town to make it without the concur- rence of the commissioners of the other, 248 4. The number of a joint school district should not be changed withoutthe concurrence of the commissioners of all the towns within which the district part- ly lies 305 See Commissioners of Common Schools, 5. Inspectors of Common Schools, 1, 7. Organization of School Dis- tricts, 1, 2. Property of School Districts, S. Taxation and Taxes, 5, 16. JOURNEYMEN. See Votes and Voters, 7. JUSTICES OF THE PEACE. See Superintendent, 2. LABORERS ON CANAL, &c. See Children, 10. LESSEES AND LEASES. See Non- Residents, 9. School-House, 10. Taxes and Taxation, 2. LIBRARIAN. 1. The inhabitants of school dis- tricts may appoint a librarian, and adopt regulations for his government, 2 2. The inhabitants may direct the librarian not to deliver a book to a person who has not re- turned one previously, or un- til he has paid for any injury it may have sustained 290 LIBRARIES. 1. School district libraries are de- signed both for those who have completed their common school education and those who have not, 62 2. In the selection of books, sec- tarian and controversial sub- jects should be excluded 262 3. School district libraries are in- tended for the use of all the inhabitants of the district,. .. 290 4. The right of taking books from the library cannot be restrict- ed to scholars attending the district school, it. 290 454 INDEX TO DECISIONS. See Librarian, 2. Taxation and Taxes, 59. LOSS OF SCHOOL MONEYS. See Public or School Moneys, 5. MAPLE SUGAR LOT. See Non-Residents, 14. MEADOW LAND. See JYon-Residents, 3. MEETING-HOUSE. See Taxation and Taxes, 61. MEETINGS IN SCHOOL DIS- TRICTS. See Aliens, 1. Commissioners of Common Schools, 22. Election, 3. Errors and Omissions, 4. Ministers of the Gospel, 6. JVotices, 1,2, 3, 10, 12, 13, 14, 17, 18, 19, 20. School Districts, 1. Site for School-House, 10. Taxation and Taxes, 69. Trustees of School Districts, 28. Vacancies in Office, 1 , 2. Votes and footers. MILITARY SERVICES. See Votes and Voters, 9. MILL. See Children, 14. JVbn- Residents, 7. MINISTERS OF THE GOSPEL. 1. The real estate of ministers of the gospel is exempt from tax- ation to a certain amount, only when occupied by them , . . . . 22 2. Land occupied by a minister of the gospel, as tenant, cannot be taxed unless its value ex- ceeds$l,500, 61 8. A minister of the gospel is ex- empt from taxation for com- mon school purposes in the same manner as ior other taxes, 73 4. Land belonging to a minister of the gospel, if leased to a te- nant, is taxable, 90 5. The personal property of a mi- nister of the gospel is exempt from taxation; but if the va- lue of his real estate exceeds $1,500 he may be taxed lor the excess, 191 6. A minister of the gospel, being a freeholder, may vote at school district meetings, 224 7. A minister of the gospel cannot be an inspector of common schools, 231 MINOR. 1. If a minor is chosen clerk of a school district, and he officiate* in that capacity , his acts, so far as the public and third persons are concerned, are valid 43 MONTH. 1. A school month is twenty-six days, exclusive of Sundays,. 57 2. A school must be kept twenty- six days for a month, and se- venty-eight days for a quarter, 98 NECESSARY. See Taxes and Taxation, 4. NON-RESIDENTS. 1. The agent or servant of the non- resident owner must reside OB the lot in order to subject such owner to taxation, MI 2. A non-resident owner is taxa- ble for land occupied by an agent: but not if occupied by a tenant: and if it is unoccu- pied , he is taxable for so much only as is cleared and cultiva- ted, 2T 3. Non-residents are liable to be taxed for pastures and mea- dows, as land cleared and cul- tivated 31 4. A non-resident owner occupy- ing a lot by his agent la taxa- ble in the same manner as though he resided in the dis- trict, 50 5. Vacant unimproved lots are not taxable, if the owner is a non- resident. Of a lot of 50 acres, a tenant of is regarded as the agent of the non-resident own- er for the remaining forty,. .. 99 6. Non-resident tenants cannot be taxed under section seventy- eight of the title relating to common schools. (But see note,) 73 7. A saw-mill having an agent or servant in charge of it is taxa- ble to the non-resident owner, 82 8. Land occupied by an agent or servant of the non-resident owner is taxable to the latter, 91 9. A person leasing land at halves of a non-resident owner is tax- able for it 94 10. A factory unoccupied is taxa- ble to the non-resident owner, though a house on the same lot is occupied by a tenant, . . 100 INDEX TO DECISIONS. 455 U. To subject the unimproved part of a lot belonging to a non-resident to taxation, the improved part must be occu- pied by an agent or servant, . 159 12. Non-residents are taxable for fuel if they own improved lands in the district, 207 13. Non-residents are taxable for lands used as pastures, 270 14. Grass land and ploughed land are taxable to the non-resident owner: but a wood lot used for manufacturing maple sugar is not taxable to such owner, 308 15. If a non-resident owner of tax- able property sends his child- ren into the district in which such property lies, for the pur- pose of attending school, they have a strong equitable claim to be received, unless by their admission the school would become too crowded, 317 See Children, 2. Rale Bills, 3, JVbte, page 44. NOTICE. 1. A new district being formed, a notice to each inhabitant of the time and place for the first meeting is sufficient, 18 2. If the district clerk refuses to give notice of a meeting of the inhabitants, the notice may be given by the trustees, 19 3. The provision requiring three months' notice to trustees of an alteration in their school district is intended for their protection, and to that end is to be benignly construed, ... 29 4. Unless some person claims a re- duction of his valuation, trus- tees are not required to give notice of the assessment of a tax, 40 5. Trustees of school districts must give notice of the assessment of a tax in all cases where a reduction is claimed, or where the valuations of property can- not be ascertained from the last assessment roll of the town, 42 6. In altering school districts, no- tice ought to be given to the parties in interest, although such notice is not required by law, 12 7. If the school district offices are all vacated by resignation, no- tice of such resignation may be given to the town clerk,. . 112 8. Notices for special meetings must be in writing, 186 9. A written notice given by the clerk of a district in pursuance of a verbal direction from the trustees is good, 186 10. The proceedings of a meeting held without any attempt to give a legal notice are not va- lid, 186 11. Notice must be given to the real parties in interest, where the commissioners of common schools take no pains to sus- tain their proceedings, 187 12. Notices for special meetings must be personally served, . . 204 13. If the clerk gives a verbal no- tice for a special meeting to part of the inhabitants and a written notice to the residue, the proceedings are not void, but may be set aside on show- ing cause, 223 14. If a wjitten notice of the time, place, and object of a meeting called to organize a school dis- trict, is left at the house of one of the inhabitants in his ab- sence, all the others being no- tified according to law by per- sonal service of the notice, it is sufficient, though the notice so left does not show that the meeting is called by the com- missioners of common schools, 259 15. Trustees are not entitled to no- tice of an appraisement until after it is made, 259 16. In forming a new district, no- tice of the alteration may be served on a trustee set off to the new district, 259 17. If at an annual meeting a vote is passed in relation to the erection of a school-house or the choice of a site, and a spe- cial meeting is subsequently called under a notice to recon- sider the proceedings of the annual meeting, it is a suffi- cient designation of the object of the meeting to justify the inhabitants in rescinding or modifying such vote, 353 18. When a new district is formed, if the commissioners of com- mon schools neglect to issue a notice for 'he first district meeting, within twenty days, 456 INDEX TO DECISIONS. they may issue it at a subse- quent time, 358 19. If a notice is issued for the first district meeting in a new dis- trict, formed without the con- sent of the trustees of the dis- trict or districts from which it was taken, and the time fixed for such meeting is within three months after service of notice on such trustees of the alteration made in their dis- tricts, the notice issued for such first district meeting is void, and the commissioners may issue another at a subse- quent time, 358 20. If the notice for the first dis- trict meeting in a new district is not void, but merely defec- tive in form, application may be made to the Superinten- dent to amend it, 358 See Annual Meetings, 2, 5. Alterations in School Dis- tricts, 7, 10. Appeals, 4. Commissioners of Common Schools, 6. School Districts, 6. Taxation and Taxes, 59, 70, 79. Trustees, 8. OATH. See Assessment of Taxes, 1. OATH OF OFFICE. See Trustees, 5. OFFICERS OF SCHOOL DIS- TRICTS. The acts of an officer de facto are valid so far as the public and third persons are concern- ed 16 See Aliens, 2. Annual Meeting*, 4, 9. Commissioners of Common Schools, 6. Elections. Minor. Penalties. Records, 6. Resignation. Votes and Voters, 1, 11. OMISSIONS. See Errors and Omissions, I, 2. Records, 2, 5. Refusal to serve, I. School Districts, 17. ORGANIZATION OF DISTRICTS. 1. The formation of a new town does not affect the organiza- tion of school districts. A dis- trict intersected by the line of division between the new town and the town from which it is taken, becomes a joint district, 1 2. On the division of a town and the formation of a new one, the commissioners of common schools of the new town can- not disturb the organization of a school district lying partly in both, without the concurrence of the commissioners of the other .... IS See Commissioners of Common Schools, 6. School Districts, 2, 3, 12. Records, 6. PARENTS. See Children, 2. 3, 8, 9. Residence, 4. PASTURES. See Non- Residents, S, 13. PERSONAL PROPERTY. See Executors. Ministers of the Gospel, 5. Taxation and Taxes, 12, 18, 47, 58, 76. PENALTIES. 1. Suits for penalties against dis- trict officers for neglecting to perform the duties of their of- fice, must be brought by com- missioners of common schools, 164 2. The penalty provided in case district officers neglect (o per- form the duties of their office, is intended for cases of total neglect 164 See JVon-Residentx, 14. PLOUGHED LAND. See Trustees of School Districts, 12. POOR-HOUSES. 1. Childi en in poor-houses are not to be included in the annual reports of school districts, ... 25 2. Children of the overseers of poor-houses are to be enume- rated by trustees of school dis- tricts, 88 See Children, 14. PREMIUMS FOR SCHOLARS. See Rate Bills, 4. PRIVATE PROPERTY. See Site for School- House, 1. PROCEEDINGS. See Annual Meetings, 11. Commissioners of Common Schools, 22. INDEX TO DECISIONS. 457 See Irregularity. Notice, 10, 11, 13, 17. Void Proceedings. Votes and Voters, 8, 10, 12. PROMISSORY NOTES. See Trustees of School Districts, 35. Taxation and Taxes, 36. PROPERTY OF SCHOOL DIS- TRICTS. See School-House, 3, 4, 5, 6, 17. 1. If a part of the value of the pro- perty of an old district is award- ed to a new district on account of a person not liable to be tax- ed in the latter for a school- house, the amount is to be al- lowed to the credit of all the inhabitants, 64 2. No appraisement of a school- house and other property is necessary when persons are set off from one existing dis- trict to another, 66 S. In apportioning the value of a school-house belonging to a district lying partly in two towns, the commissioners should follow the assessment rolls of the towns, 78 4. An appraisement of a school- house, postponed for good cause, will be confirmed when made subsequently to the for- mation of the new district,. .. 81 5. Mode of proceeding in apprais- ing school-houses explained,. 88 G. No person who is set to a new district can, without his con- sent, be deprived of his right to receive a portion of the va- lue of the school-house of the district, from which he is ta- ken, 92 7. In appraising the school-house and property of a district lying partly in two towns, the com- missioners of both must unite, 144 9. The apportionment of the value of the school-house and other property of a district, need not be filed with the town clerk in order to give validity to the proceedings, 144 9. In appraising a school-house, when a new district is formed, the commissioners must de- duct debts due from the dis- trict retaining the school- house, 167 10. When persons are annexed to a new district without their consent, and are not liable to be taxed in it for a school- house, the portion of the value of the school-house in the dis- trict from which they are ta- ken allowed to the new dis- trict, on account of the taxa- ble property of such persons, goes to the benefit of all the inhabitants, 196 11. Every person set off to a new district is entitled to his share of the value of the school- house from which he is^taken, whether he has contributed to its erection or not, 246 12. If through an erroneous im- pression as to the title of the site of the school-house, the commissioners appraise it at too low a sum, the proceeding is not void, but may be vacat- ed on an appeal, 258 13. If all the persons set off to a new district relinquish their interest in the school-house in the old district, it need not be appraised, -. 259 14. When a school district is dis- solved, the value of the school- house, and other property, ought to be distributed among the inhabitants according to their taxable property, 270 See Site for School-House, 9. Taxation and Taxes, 38. Trustees of School Districts, 29. PROPERTY, RIGHT OF, IN THE SOIL. See Taxation and Taxes, 38. PUNISHMENT. If a teacher inflicts unnecessari- ly severe punishment on a pu- pil, he is answerable in dama- ges. His government should be mild and parental; but he is responsible for the mainte- nance of discipline in his school, 101 See Corporal Punishment, 1. Teachers, 13. PUBLIC OR SCHOOL MONEYS. 1. If the commissioners of common schools know a district report to be eironeous, the public money may be withheld, and the case submitted to the Su- perintendent 20 2. If, for causes not to be control- led, a school has not been kept 458 INDEX TO DECISIONS. three months during (he pre- ceding year hy a qualified tea- cher, the district will be al- lowed a share of the public money, 34 3. All children residing in a dis- trict are to have the benefit of the public money, if they at- tend school, without reference to their ages, 34 4. If school moneys apportioned to school districts cannot be re- covered of the commissioner who received them, the loss falls on*the districts, 41 5. If a bank fails, and the commis- sioners of common schools have In their hands hills of the bank, received as school mo- neys, the loss falls on the school districts, 51 6. The public money can only be applied to the benefit of such schools as are established by trustees of school districts,. . 55 7. If a district directs the public moneys to be divided, the vote should be passed during the year in which the moneys are to be applied, 62 8. Public money cannot be paid to a district unless a school has been kept therein three months by a qualified teacher, and unless all moneys receiv- ed the previous year have been paid to him, 64 9. The public money must be paid to teachers for services ren- dered between the January preceding and the January following the time of receiv- ing it, 70 10. If a person agrees to pay lor a certain number of scholars he is to have the benefit of the public money in reduction of their school bills, S3 11. If a school district loses its por- tion of the public money in consequence of mislaying its annual report, the loss will, on application to the Superin- tendent, be allowed out of the moneys distributed the next year, 99 12. If, from unavoidable necessity, a balance of the public moneys remains in the hands of the trustees, the district may re- ceive its share of the public moneys the next year, 106 13. A school district formed in Oc- tober, may receive a portion of the public money, when the districts, from which it was taken, have complied with the law, 110 14. If a school has not been kept in a district three months dur- ing the preceding year, by a qualified teacher, in conse- quence of any over-ruling ne- cessity, the district will be al- lowed a portion of the public money Ill 15. When a new district is formed, the public moneys on hand in the old district should be equi- tably divided, 125 16. Public moneys are to be equi- tably divided when a new dis- trict is formed, 137 17. Public money should be fairly divided between the summer and winter terms, 162 18. A vote to divide public money into portions may be taken at any time before the money is expended, 169 19. A district cannot make a se- cond division of the public money after a rate bill has been made out and delivered to the collector, 169 20. If trustees pay public money to a teacher not qualified, they may be prosecuted for the amount as for a balance in their hands, 212 21. If one district is united to ano- ther, the public money belong- ing to either must be applied for the common benefit of all, 224 22. Whvn a new district is formed and goes into operation before the apportionment of school moneys is made, it must re- ceive its share of those mo- neys, 237 23. If a district entitled to receive the public money is dissolved, and part of it annexed to a district not so entitled, the latter can receive no public money in consequence of such accession, 243 24. An apportionment of the school moneys after the time pre- scribed by law, is good, 294 25. If a district is divided immedi- ately after the school moneys are distributed, and the per- sons set off continue to send INDEX TO DECISIONS. to school in the district, those moneys should be applied for their benefit in common with others, 276 26. Treasurers of counties cannot deduct from the school mo- neys the commission of one per cent, to which they are entitled, 28 27. If a teacher is taken sick, and another cannot be procured in time to have the school kept three months, the Superin- tendent will, on showing the facts, allow the district a share of the public money, 294 28. If public money is paid to a teacher not qualified, and the trustees or inhabitants replace out of their private funds, the amount so paid, the dis- trict will be allowed to parti- cipate in the apportionment of the public moneys 298 29. If trustees engage a teacher for a specified term, and the inhabitants of a school district, without good cause, withdraw their children from the district school, and send them to a private teacher, the Superin- tendent will allow the greater part of the public money to be applied to the term for which the teacher was engaged by the trustees, 301 50. The public money cannot be paid to teachers for services rendered during the year pre- ceding the receipt of such mo- neys, 313 51. If a school district formed nine months before the first of Ja- nuary, is unable to procure a suitable room for keeping school, and cannot succeed in building a school- house in time to have a school kept three months by a qualified teacher, the Superintendent will, on application to htm, al- low such district a portion of the public moneys, if the time during which the inhabitants have contributed to the sup- port of a school by a qualified teacher in the new district, and in the district from which it was taken, is equal to three months, 355 See Annual Reports of Trustees, 1,3,5,6,7. See Children, 1,12. Commissioners of Common Schools, 1, 2, 7,9, 12, 13, 14, 19. Errors and Omissions, 6, 6. Indigent Persona, 1, 2. Schools, 5, 7. School Districts, 17. Teachers, 12, 17, 19, 22, 24. Towns, Division of, 1, 2, 3. Trustees of School Districts, 7, 11, 13, 20. PURCHASES BY INDIVIDUALS. See School Districts, 2, 7. Taxation and Taxes, 27, 58. PURCHASER. See Taxation and Taxes, 1. QUARTER OF A YEAR. A quarter of a year is ninety-one days, 57 See Mont , '\ RAIL-ROAD COMPANIES. See Taxation and Taxes, 78. RATE OR SCHOOL BILLS. 1. In making out rate bills to pro- vide for the payment of teach- ers' wages, inhabitants of school districts can only be charged for so much time as their children have actually attended school, 15 2. The jurisdiction of the trustees and collector of a school dis- trict, in collecting rate bills by warrant, is limited to the district, 78 3. Rate bills must be collected of residents by warrant, and of non-residents by prosecution, 78 4. Trustees have no right to in- clude in a rate bill a sum of money to procure premiums for scholars; nor can a tax be laid for the purpose, 124 5. Rate bills for teachers' wages should be promptly made out and collected, *. 258 6. Trustees must make out rate bills from the lists kept by the teacher, 268 See Collector, 13. Children, 5. Fuel, 2. 3, 4. Indigent Persons, \ , 3. Public or School Moneys, 19. Schools, 8. Suits. I. Taxation and Taxes, 15, 34. Tax Lists, 2. Teachers, 9, 15, 19, 20, 22, 25, 27. 460 INDEX TO DECISIONS. See Trustees of School Districts, 2, 11, 21, 23,30. Warrant, 5. REAL ESTATE. See Ansessment Roll of Town, 3. Ministers of the Gospel, 1 , 5. Taxation and Taxes, 12, 13, 18, 26, 27, 78. RECORD BOOK. See Taxation and Taxes, 45. RECORDS. 1. The formation of a new district not having been recorded at the time it was formed, on ap- plication to the Superinten- dent of Common Schools, the commissioners will be author- ized to enter their proceedings of record 1 2. If the record of an alteration in a school district does not show that the consent of the trus- tees was obtained, the fact may be proved by other testi- mony, and the omission does not invalidate the proceedings, 79 8. Where the proper records have not been made, the legal ex- istence of school districts will be presumed, if they have been organized for a length of time, 79 4. The loss of the record of a school district does not disor- ganize it, but the commission- ers should describe the boun- daries anew, 103 5. An omission to record an altera- tion in a school district does not render the proceeding void, 146 6. If a school district has been re- cognized as legal for a length of time, regularity in its orga- nization will be presumed in fhe absence of the proper re- cord, and the commissioners of common schools cannot form the district anew and or- der an election of officers un- der such circumstances, 197 7. A school district reported to the Superintendent from the year 1822 to 1835 was held to have a legal existence, though the record of its organization was signed by only one of the com- missioners of common schools, 248 See Commissioners of Common Schools, 5. School Districts, 10, 15, 16. REFUSAL TO SERVE. 1. A refusal to serve as an officer of a school district vacates the office, 314 2. A refusal to serve must be shown by an express declara- tion, and cannot be inferred from a neglect to perform the duties of the office, 314 See Trustees of School Districts, 19. RELIGIOUS OPINIONS. See Teacher, 6. REMOVALS. See Children, 11. RENEWAL OF WARRANT See Warrant, I, 2, 3, 4. RENT OF SCHOOL ROOM. See School-House, !0. Schools, 1. Taxation and Taxes, 23. Trustees of School Districts, 6. REPAIRS. See School- House, 10. Trustees, 10. Taxation and Taxes, 8, 20, 79. RESIDENCE. 1. A man of lawful age hired out for a year or six months, and having no family, is a resident of the district in which he is hired, 88 2. A person hiring out his services for a limited period to an in- habitant of a school district, roust, if of age, be deemed a resident of the district, unless he has a family and domicil elsewhere, 292 3. If a person removes from one school district into another in the same village, and takes lodgings for his family until he can find a permanent place of residence to suit him, he is a taxable inhabitant of the dis- trict into which he has so re- moved, 305 4. The residence of the parent is the residence of the child, . . 317 See Children, 4. Rate Bill, 3. Votes and Voters, 2, 4. RESIGNATION. A verbal resignation by district officers is good, lig See Notice, 7. SATURDAY. Sec Schools, 4, 5. Teachert, IS. INDEX TO DECISIONS. 461 SAW-MILL. See JVbn- Residents, 7. SCHOOLS. 1. If the children residing in a school district are too numer- ous to be instructed in one school, the trustees may hire one or more additional teach- ers and the necessary rooms for the accommodation of the additional schools, when au- thorized by a vote of the in- habitants; but the compensa- tion of the teachers must be provided for in the same man- ner as though only one in- structor had been employed,. 2. Schools should not be kept more than six hours per day, 3. Select schools cannot be kept in district school-houses, 119 4. School may be kept on Sunday for the benefit of persons who observe Saturday as holy time, and the teacher must be paid for that day by those who send to school , 138 5. A teacher may receive the pub- lic money if he dismisses his school on Saturday and keeps it open on Sunday, 138 6. On certain holidays schools may be dismissed, 139 7. If a school has not, in conse- quence of any overruling ne- cessity, been kept 3 months by a qualified teacher, the dis- trict will be allowed a share of the public money on applica- tion to the Superintendent,.. 153 8. If a child attends school half a day, it is to be reckoned as half a day, 162 9. The scholars may be diviiied and put in different rooms, . . 208 10. Schools must be kept in the district school house, except- ing in extraordinary cases,. . . 271 See Children, 2, 3, 4, 8. 9. Evening Schools. Libraries, 4. Non-Residents, 15. Public or School Moneys, 2, 6, 8, 14, 31. School Districts, 4, 8, 17. School- House, 9. Teachers, 5, 13. Trustees of School Districts, 15. SCHOOL BILLS. See Rate Sills. Taxation and Taxes, 15. SCHOOL DISTRICTS. 1. The vote of a district meeting declaring the district dissolved has no binding force, 63 2. Purchases subsequent to the or- ganization of a school district are not to affect its bounda- ries, 69 3. Commissioners of common schools cannot interfere with the organization of a school district, while an appeal be- fore the Superintendent, in respect to such organization, is pending, 69 4. New districts should not be formed without sufficient strength to support respecta- ble schools, 107 5. School districts must be com- posed of contiguous farms, . . 109 6. Where a new district is formed, and the trustees of the district from which it is taken do not consent to the alteration, no act can be done in pursuance of it until three months after notice 122 7. Purchases of land subsequent to the formation of a new dis- trict do not affect its bounda- ries 128 8. School districts should not be so reduced in strength as to be unable to maintain respectable schools, 136 9. Dissensions in school districts cannot be allowed to be made a ground for altering or break- ing them up, 136 10. If a district has had no clerk or record for two years, it is not for that reason dissolved,. 146 11. School districts should not be formed with less than forty children between five and six- teen years of age, 220 12. If part of the inhabitants of a district separate from the rest, and build a private school- house, it will not be deemed a reason for organizing them into a separate district, 233 13. The bad management of the affairs of a district is not a suf- ficient reason for setting ofl an inhabitant, 255 14. A district ought not to be al- tered for the temporary conve- nience of an individual, 255 15. If a new district, formed with the consent of the trustees of 462 INDEX TO DECISIONS. the districts from which it was taken, has gone on in good faith to build a school-house, and a school has been kept ten months, irregularities in its for- mation will not be noticed, af- ter the lapse of two years, if the record of the proceedings of the commissioners in form- ing it is regular, and no ap- peal has been made, 295 16. Commissioners of common schools will not be permitted to deny the legal existence of a district when their own re- cords show it to have been re- gularly formed, 295 17. If a new district is formed so soon before the first of Janua- ry as not to have had time to have a school kept 3 months by a qualified teacher, and if part of said district is taken from a district in which a school has been kept (hree months hy a qualified teacher, and the residue from territory not belonging to any district, such new district should be al- lowed a share of the public money, 349 See Alterations in School Dis- tricts. Indian Lands. Inhabitants of School Dis- tricts, 1. JVotice. 1. 3, 6, 14, 16, 18, 19, 20. Property of School Districts. Public or School Moneys, 5, 7, 8, 11, 12,18, 14,15, 16, 21,22, 23,25,31. Records, 1, 2, 3, 4, 6, 7. School- House, 5, 6. J7. Superintendent, 3. 5, 7. Taxation and Taxes, 27, 42, 65. SCHOOL-HOUSE, 1. A tenement leased for a school- house cannot be taxed, 8 2. Persons annexed to a school dis- trict, after the school-house has been built and paid for, cannot be compelled to con- tribute to the expense of its construction , 32 8. A person set off from one school district to another is not enti- tled to any part of the value of the school-house or property of the distr ct from which he is detached, 85 4. The value of the school-house and other property is only to be apportioned when a new district is lonned, 9f 5. When a new district is formed, the school-house and other pro- perty of the district, from which it is taken, must be appraised and apportioned at the same time, 37 6. When a new district is formed, and a sum of money is receiv- ed as its proportion of the va- lue of the school-house of the district from which it is taken, this sum must be applied to the erection of a school-house in the new district, and in re- duction of the taxes of the persons on account of whose property it was received,. ... 39 7. A school-house built by sub- scription may, if under the control of the trustees, be kept in repair by a tax on the pro- perty of the district, 47 8. The certificate of the commis- sioners that more than four hundred dollars is necessary for a school-house, should be given before the additional sum is voted, 48 9. Trustees of school districts can- not allow any part of the dis- trict school-house to be occu- pied excepting for the purpo- ses of the district school, . ... 51 10. A school-house may be kept in repair by tax, if the district has a lease of the land on which it stands 61 11. School-houses may be used for Sunday schools, 91 12. School houses cannot be used for any other than common school purposes, excepting by general consent, 99 13. A vote of a majority of the in- habitants does not render it proper to use school-houses for any other than their legitimate purposes, 99 14. A school-house cannot be sold under execution on a judg- ment against the trustees of the district, 127 15. There can be no partnership in the erection of a district school- house 201 16. No more money can be ex- pended on a school-house than is necessary for common school purposes, INDEX TO DECISIONS. 17. In apportioning the value of a school-house when a new dis- trict is formed, the omission of one of the persons set off can- not be made a ground of ob- jection to the proceeding by an inhabitant of the old district,. 259 See Commissioners, of Common Schools, 15. Fuel, 4. Notice, 17. Property of School Districts, 1, 2, 3, 4, 5, 9, 10, 11, 12, IS. 14. Public or School Moneys, 31. Schools, 1, 3, 10. School Districts, 12. Site for School- House. Taxation and Taxes, 7, 8, 9, 31,32, 33, 35, 38, 40, 41, 42,57,61,65, 69, 72, 73, 79. Trustees of School District*, 10, 14, 15. SEAL. See Warrant, 4. SEPARATE NEIGHBORHOODS. Separate neighborhoods can only be set off to form districts with the inhabitants of adjoin- ing states, 294 See Children, 12. , SERVANT. See Non-Residents, 1, 2, 4, 5, 7, 8,11. SITE FOR SCHOOL-HOUSE. 1. Private properly cannot be ta- ken for a site for a school- house without the consent of the owner, 26 3. If a district is unaltered, the site of the school-house cannot be changed by a vote of 14 against 8, as this is not the legal ma- jority required, 105 3. If the title to the site of the school -house fails, a new one may be fixed by a majority of votes 107 4. Sites for school- houses should not be fixed without a fair ex- pression of the opinions and wishes of the inhab^ants, . . . 132 5. If the title to the site of a school- house fails, the inhabitants may select another precise.y as though the district had ne- ver possessed one, 132 6. A school-house being abandon- ed, and the right of occupan- cy failing with it, a new site may be chosen by a majority of votes, 142 7. When the site of a school-house has been fixed, it may be chan- ged by a majority of votes at any time before the school- house is built or purchased,. . 182 8. If a site is chosen for a school- house and the owner refuses to give a conveyance, a new one may be chosen by a ma- jority of votes, 196 9. The site of a school-house, if ac- tually owned by the district, is a part of its property, sub- ject to appraisement when a new district is formed, 200 10. If at a meeting called to fix the site of a school-house a reason- able time has not been given for all the inhabitants to assem- ble, a new meeting will be or- dered, 219 11. If the inhabitant agree that the commissioners may select a site, the selection ought to be acquiesced in, 261 12. When the site of a district school-house is chmged pur- suant to the act of 17th Feb- ruary, 1831, the inhabitants have power to direct the sale of the former lot and site, . . . 311 13. Whenever the site of a district school-house is legally chang- ed, otherwise than by the act of 17th February, 1831, the trustees have power to sell and convey the former lot and site without a vote of the in- habitants of the district 311 14. If the inhabitants of a school district authorize the trustees to select a site for a school- house, it is not a legal site un- til subsequently fixed by a vote of the inhabitants, 353 See Alterations in School Dis- tricts, 5, 9. . Commissioners of Common Schools, 1, 4, 16. Notice, 17. Property of School Districts, 12. Taxation and Tares, 8, 31, 32, 35, 38, 40, 46, 74. Votes and Voters, 12. SINGING SCHOOLS. See Taxation and Taxes, 60. SLOOP. See Vessels, 2. 464 INDEX TO DECISIONS. SPECIAL MEETINGS. See Notice, 8, 12, 13. Vacancies in Office, 1. STORE. See Taxation and Taxes, 12, 18. STUDIES. See Inspectors of Common Schools, 9. Teachers, 20. SUITS. 1. A resident cannot be prosecut- ed by trustees for a tax or for tuition bills, 254 2. If a person removes from a dis- trict after a tax list is made out, he may be prosecuted for his part of the tax if he does not pay voluntarily, 291 See Commissioners of Common Schools, 11. Penalties, 1. Hate Bills, 3. Taxation and Taxes, 30. Trustees of School Districts, 12, 31. SUMMER. See Public or School Moneys, 17. SUNDAY. See Schools, 4, 5. SUNDAY SCHOOLS. See School-House, 11. SUPERINTENDENT. 1. The daily opinions of the Super- intendent, given in reply to abstract questions and exparte representations, are not to be classed among those decisions which the law declares to be , final, 4 2. Superintendent cannot interfere with proceedings before justi- ces of the peace; but his opi- nion will be given with a view to the amicable adjustment of controversies 15 3. The Superintendent will not in- terfere with the general ar- rangement of school districts in a town, excepting in special cases where cause is shown,. 35 4. The decisions of the Superin- tendent are final, 44 5. If a school district is established by a decision of the Superin- tendent, it cannot be dissolv- ed by the commissioners of common schools, 44 6. The Superintendent of common schools will not take cogni- zance of controversies in school districts, in respect to which the parties have commenced litigation in the courts, 59 7. The Superintendent has only an appellate jurisdiction in the formation and alteration of school districts, 184 8. The Superintendent will not give opinions to be used in court 285 See Annual Meeting, 3. Annual Reports of Trustees, 5. Appeals, 1, 3, 4. Elections, 2. Errors and Omissions, 6. Public or School Moneys, 11 , 27, 29, 31. Schools, 7. School Districts, 3. Taxation and Taxes, 25, 65. Teachers, 23. Trustees of School Districts, 10. Void Proceedings, 1. Votes and Voters, 8. SUPERVISORS. See JLssessmant Roll of Town, 6. SUPREME COURT, DECISIONS OF. 1. The People vs. Collins, 7 John- son 549, 10 2. Ring vs. Grout, 7 Wendell 341 18, 44, 117 3. Dubois vs. Thome, 8 Wendell 518, 27, 74 4. Robinson vs. Dodge, 18 John- son 351 2S 5. Sanders vs. Springsteen, 4Wen- del!429, 96 6. Rowland vs. Luce, 16 Johnson 135, 143 7. Keeler vs. Chichester, 13 Wen- dell 629 144 8. Spafford vs. Hood, 6 Cowen 478 165 9. Baker vs. Freeman, 9 Wendell 36, 16 10. Easton vs. Calendar, 11 Wen- dell 90 227 11. Wilcox vs. Smith, 5 Wendell 231 231 12. Silver vs. Cummings, 7 Wen- dell 181,.... 191, 282, 314, 333 13. McCoy vs. Curtice, 9 Wen- dell 17, 258, 328 14. Reynolds vs. Moore, 9 Wen- dell 35, 260 15. Alexander vs. Hoyt, 7 Wen- dell 89, 281 16. Suydamand Wyckoffvs. Keyi, 13 Johnson 444, 282 INDEX TO DECISIONS. 465 17. Sacavool vs. Boughton, 5 Wen- dell 170 18. Brewstervs. Colwell, 13 Wen- dell 28, 19. Hubbard vs. Randall, ICowen 262, 20. Ward vs. Aylesworth, 9 Wen- dell 281, TAXATION AND TAXES. 1. Land purchased after a tax is voted, but before the tax list is made out, must be assessed to the purchaser if he resides in the district, 2. Persons leasing specific portions of a lot are to be taxed for so much as they lease, 3. Rule of taxation applied to a particular case, 4. A tax maybe levied in a school district to build a wood-house and necessary, 5. If a farm lies partly in two school districts, it is to be taxed in the district in which the occu- pant resides, 6. Taxes can only be voted by the inhabitants of school districts for the objects enumerated by law, 7. If the trustees of a school dis- trict expend money for re- pairing the school-house with- out being authorized by the inhabitants, a tax to cover the expenditure may be collected, if voted at a subsequent time, 8. A tax voted to repair a school- house should not be collected, if the district has no title to the site, and the owner has for- bidden the repairs to be. made, 9. A person set off'without his con- sent from a school district, cannot be taxed for a school house, it within four years he has paid a tax for that purpose in the district from which he was thus set off, 10. Persons about to remove from a district must be included in a tax list, if they are actually inhabitants ofthe district when the list is made out, 11. A tax being voted to build a school-house, the tax list made out and a warrant issued, the collection of the tax can not be suspended by vote of a district meeting, 12. A store and lot must be taxed in the district in which they are 282 333 333 338 16 17 21 24 27 41 60 64 66 68 30 situated; but goods in a store are to be taxed in the district in which the owner resides, 71 13. No real estate, except such aa lies in a school district, can be taxed in it for common school purposes, 73 14. Bridge companies are taxable in the school districts where the tolls are collected, 74 15. A tax can not be laid on the property of a district to pay school bills, 77 16. A. B. having two farms sepa- rated by a district line, is tax- able in each district, 81 17. The vendor of a farm, remain- ing in possession, is liable for taxes assessed on it, 88 18. Real estate is taxable where it lies, and personal property where the owner resides, .... 86 19. Rule of taxation applied to a particular ease, 89 20. Taxes for fuel or repairs may be voted at annual meetings, 91 21. Separate tenancies are excep- tions to the general rule of taxation with respect to farms lying partly in two districts, . 102 22. Trustees are bound to know the condition of the taxable property of their districts, so that in assessing taxes no per- son shall be improperly taxed, 108 23. A tax to pay the rent of a school room cannot be assess- ed on those who send children to school, 114 24. Taxes ought to be assessed within the time prescribed by law; butquere? whether trus- tees may not assess them after the expiration of the time? .. 117 25. If the inhabitants of a district direct a lax to be collected in a mode not recognized by law, and the trustees execute such direction, the Superintendent will not interfere, 117 26. The toll-house and lot of a bridge company are not taxa- ble as real estate, 132 27. Rule of taxation in relation to real estate purchased after the formation of a school district, applied to certain cases, 140 28. A distinct possession carries with it a liability to taxation,. 142 29. Two taxes voted at the same time may be included in the same tax list, 158 4G6 INDEX TO DECISIONS. 30. A tax cannot be voted to pay costs of suit recovered against the trustees of a school dis- trict, 166 31. A tax to build a school-house may be raised, but should not be expended, before the dis- trict has acquired such an in- terest in the site as lo be able to control the house, 16f 32. A tax cannot br raised to build a school-house on a site select- ed without legal authority, (see note,) 33. When an old school-house is sold and a new one built, a district cannot raise by tax $400 in addition to the avails of the sale of the old house,, . 183 34. Trustees cannot reassess a tax to make up a deficiency on account of the inability of an individual to pay his portion; nor can they make out a new rate bill in such a case, 185 85. A tax to build a school-house cannot be expended until a site is chosen and a title to it obtained, 187 86. Promissory notes should not be taken for taxes, 187 37. Taxes must be collected in the mode prescribed by law, .... 192 88. The ownership of the soil car- ries with it a right of property in permanent erections on it: but if a school-house is built by subscription, on a site pur- chased by a district, a tax may be voted to purchase the house, 193 39. A tax may be voted for t-.vo authorized objects without specifying the amount to be raised for each, 195 40. A tax may be voted to repair a school-house, though the dis- trict has no title to the site,. . 195 41. Persons annexed to a new dis- trict with their consent, may be taxed for a school -house, though they may have paid a tax for the jwrpose within four years, 196 42. If a school district is broken up, the persons belonging to it are liaMe to be taxed for a school-house in the districts to which they are annexed, though they may have paid a tax for the same purpose with- in four years, 203 43. A tax must be for a specific object, 218 44. Trustees cannot levy a tax without a vote ol (he district, 222 45. A tax cannot bo voted to buy a record book for a school dis- trict, (but see note ) 228 46. In voting a tax to purchase a site, a sufficient sum may be included to pay for recording the deed 229 47. Trustees, guardians, executors and administrators are taxa- ble in their representative character where they reside for personal property in their possession, whether the real parties in interest are benefit- ed by the expenditure of the tax or not, 230 48. Money cannot be raised by tax in a school district for contin- gent uses, 233 49. Taxes must be paid in money, 245 50. A district may repeal a vote to raise a tax if no proceedings have been commenced in pur- suance of such vote, 261 51. Persons worth fifty dollars may vote and must he taxed, though they may have been omitted in the town assess- ment, 262 52. It may happen that persons not liable to be taxed in a school district, are entitled to vote to raise taxes on the district,. . . 262 53. Errors in assessing taxes may be corrected after one month, 275 54. A tax cannot be voted for globes and school apparatus, . 280 55. Taxes should be promptly col- lected, ; 282 56. If a tax is voted in express terms, and a direction subse- quently given as to the time and manner of collecting it, the direction rs void, 282 57. The provision exempting from taxation for building a school- house persons who have with- in four years paid a lax for the purpose in another district, frnrn which they have been set off without their consent, does not extend to tavfs voted to furnish a school-house with necessary appendages, 284 58. If a taxable inhabitant sells his farm and remain* in the dis- trict, he is liable to be faxed on the amount of the purchase INDEX TO DECISIONS. 467 money paid or seen rod to he paid as personal |> operty, and the purchaser is taxable for the faun according r<> its asses- sed value on the last assess- ment r, sub. 5 382 Persons exempt from tax for building, 91, 38J Remedy against owner, where tenant pays tax for, $93, 384 When on division line, or joint dis- trict, how te icher and school in- spected, $51, 374 SCHOOL MONEYS, When apportioned by Superinten- dent, 2 .'. 364 How apportioned v\ lien census def, c- tive, 5 364 How when town altered, 6, 3G4 Certificate of apportionment, to whom given, 7, 364 When paid to county treasurer, 11, 365 Duty of county treasurer in relation to, 12, 13, 14 365, 366 When paid to commissioners, 13, . 365 When ap|>ortioned by commissioners, $ 19, sub. 6 367 To be applied exclusively to pay qua- lified teachers, 368, 438 To be divided by vote of meeting, $85 sub. 9 382 Town school fund, 418 Arising from gospel nnci school lots, how applied 420, 421. 422 In case of appeal, to be retained by commissioners, (regulation !5.) ... 444 When double the. amount of appor- tionment to be raised on town, ... 437 How to be applied in separate neigh- borhoods, $ 24 3U9 SEPARATE NEIGHBORHOODS, When to IK? set off and how, 19, sub 2 367 How to report, li.9 387 Penally for false report, 110, 387 Form of report [to embrace only the children residing in this state, and the form to be the same as in ordi- nary districts,] 4W SUPERVISORS. To require collector to pay money to commissioners, 17, 366 When to raise a sum c qnal to school moneys. 16, 36*1 To prosecute commissioners, on no- tice from Superintendent, $ 33, .. 371 To divide moneys arising from gospel and sch' ml lots, 421 SUPERVISORS' C EHK, II s duty in relation to apportionment of school moneys, ^ 15, 3W SCHENECTADY, Apportionment of school money, $ 190 406 Duty of county treasurer. \S191, ... 406 iMityofscho .1 commissioners, $ 192, 40t Duty of assessors. \> 193, 407 Duty of trustees of school districts, v\194 407 pporti mment of moneys collected by lax. 199, 408 TAXES, Duty of board of supervisors in rela- tion to 36f. How voted, and for what purposes,. 377, 418 Limited 377, 37fi How levied and applied, where dis- trict is divided. x\79, 380 How apportioned, ^86, 383 Who exempt from, 91 384 In what time to be assessed, v \ 92,.. 384 Remedy of tenant against owner for, \S93 384 Warrant for, v\ 98 386 What real estate liable, 383 TAX LIST. To be made out within one month, $92, 384 Form of, 427 Against whom n ade out, $ 86, 383 Warrant to be attached, $ 98, 99, 100, 101 385 TEACHERS, To be inspected annually, $ 107,... 387 Trustees to contract with and pay them, sub. 8, 85, 382 Form of certificate for, 443 M.-iy be re-examined and certificate annulled, 48, 49, 373 How inspected for district formed from two towns, 51, 374 FORMS AND REGULATIONS. 479 Departments for educating, 4, 418 TOWN CLERK, To be clerk of commissioners, 43,. 372 His general duties as such clerk, .... 372 To assemble commissioners on notice from county clerk, li>8 372 TOWN COLLECTOR, To pay school money to commission ers,17, 366 When to pay to county treasurer, 18, ... 366 TREASURER OF COUNTY, When to apply for school moneys, 12, 365 To give notice to commissioners, 13, 365 To hold the same subject to orde. of such commissioners, 13, 365 Moneys remaining in his hands how disposed of, $ 14, 366 When town moneys to be paid to him, $18, 366 TROY. Four first wards a district, 147,.... 395 Inspectors and trustees, 148, 395 Trustees to he sworn, 149, 395 Penalty for neglect, 150, 395 School moneys how paid, 151, ... 395 School-house how repnirtd, 152,.. 395 Aldermen of 5th and 6th wards, 153, 395 Tuition to be graduated, $ 154, 396 Indigent persons to be exempted, 154, 396 Commissioners an-! inspectors how chosen, 155, 396 Districts may bo set off, 1 56, 396 Schools in 1st district, $ 157, 396 Taxes may be raised, 153, 397 TRUSTEES, Their consent required in altering district, 21, 363 Moneys withheld from, it'their report is defective, 22, 23, 24, .... 368, 369 To have notice that teacher's certifi- cate is to be annulled, 48, 373 How chosen, 61, or appointed, 376, 380 To call special meetings, 63, , .... 377 To raise tax for proportion of school- house when district is divided, 79, 380 Tenure of office, 80.81, 380 Forfeiture for refusal to serve, 82,. 380 Resignation of, 83 381, 425 Their general duties & powers, 85 381 To apportion taxes, 86, 87, 88,.... 31 To ascertain valuations, 89, 90,... 31 To make out tax list in one month, . 384 To annex warrant, $98, 99, 100, 101, 385 To commence suit when commis- sioners withhold money, 103,... 386 Their annual report, 104, 105,.... 386 To apportion fuel, 95, 384 How to report in districts formed in two or more towns, $ 108, 387 Penalty for false report, 110 387 To hold property of district as a cor- poration, $ 111, :; 38" To account to successors and district, 112, 113 388 Forfeiture and remedy against former trustees, 114,115, 116 3* When to appoint collector, 121,... 389 When to sue collector, i23, 389 When to sue delinquent in their name of office. 115, 123,... 388, 389 Recoveries against them, how to be indemnified for, 438 UTICA. School moneys how paid, 204,.... 409 Trustees to report and account, 205, 409 Tax for repairs and fuel, 206 409 Schools to be established, 207,.... 410 School moneys how paid, 65, 410 Former acts repealed, 69, 410 City to be considered a town note, 410 VOTERS, Their qualifications, 60, 376 Penalty upon those not qualified,.... 376 List of, to be made in certain cases, 71, 378 WARRANT, How issued and renewed, 98, 102, 385 Form of warrant for tax list, 427 Form of warrant for rate bill 427 Effect of warrant, 99, 100, 101,.... 385 ttk , A W 5 ^^: 4^ *. y'r- ^-v*i. K4fr ' UNIVERSITY 0V - A 000977992 -%'3ffe.RCULAnNG FOALL i/ERS LB 2529 1837 LIBRARY USE ONLY