THE GIFT OF 
 
 .'Ci.....'^. .N\A..«rvvrv«r«...,. 
 
 h.:..%l>'j.%.^U \.(^.|a3c].., 
 
CORNELL UNIVEHSITV UBRAHY 
 
 3 1924 101 205 759 
 
Cornell University 
 Library 
 
 The original of tliis bool< is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924101205759 
 
CODE 
 
 PUBLIC INSTRUCTION 
 
 OF THE 
 
 STATE OF NEW-YORK. 
 
 PRKPAEED AND PUBLISHED BT ORDER OP THE LEGISLATURE, 
 UNDER THE DIRECTION OF THE 
 
 SUPERINTENDENT OF PUBLIC INSTRUCTION. 
 
 ALBANY: 
 
 WEED, PAESONS AND COMPANY, FEINTEES. 
 1856. 
 
N 'i-'^'j-x-z\ 
 
 THIS VOLUME BELONGS TO THE LIBRARr OP THE SCHOOL DISTRICT 
 TO WHICH IT IB SENT. IT IS TO BE KEPT, HOWEVER, IN THE CUSTODY 
 OF THE DISTRICT CLERE, AND DELIVERED BY HIM TO ANY TAXABLE 
 INHABITANT OR VOTER OF THE DISTRICT, TO BE RETAINED NOT 
 EXCEEDING THREE DAYS ; EXCEPT THAT WHEN ANY ANNUAL, SPECIAL 
 OR ADJOURNED DISTRICT MEETING IS TO TAKE PLACE WITHIN FIVE 
 DAYS, THIS BOOK IS NOT TO BE DELIVERED TO ANY INHABITANT, BUT 
 MUST BE RETAINED BY THE CLERK AND PRODUCED BY HIM AT SUCH 
 MEETING FOB CONSULTATION BY THE VOTERS. 
 
 WHEN SENT TO ANY SCHOOL OFFICER, HE HOLDS THE SAME ONLY 
 IN HIS OFFICIAL CAPACITY, AND MUST DELIVER IT ON THE EXPIRATION 
 OF HIS TERM TO HIS SUCCESSOR IN OFFICE. 
 
PREFACE. 
 
 The following pages contain a selection from the decisions rendered by 
 the Superintendents of Common Schools, and their successor, the under- 
 signed Superintendent of Public Instruction, since the publication of the 
 volume known as Common School Decisions, by Gen. Dix, in IBS'?. 
 Very many of the decisions made in the intervening period relate to 
 the construction of statutes which have been so materially changed as 
 to render their interpretation no longer important to the school officers. 
 Many more were devoted to the discussion of questions relating to the 
 expediency of proposed alterations in the boundaries of districts, the 
 location of school-houses, and other subjects of merely local interest. 
 Those only have been reported which convey instruction upon points 
 which the experience of the department has shown most frequently to 
 give rise to doubts and misunderstanding, and to embarrass the practical 
 administration of our school system. Of such points there are very few 
 which have not been decided in numerous cases, but the repetition of 
 similar decisions has been avoided as far as practicable. 
 
 The legislature having directed the publication and distribution of 
 the laws relating to schools in the same volume with a Digest of the 
 Decisions of the State Superintendents, while the latter was in prepara- 
 tion, it seemed advisable to arrange, in the form of comments upon 
 the various sections of the statutes, much that would otherwise have 
 found a place in the Digest. Greater facility of reference was thus 
 secured, and the opportunity ofiFered of giving such instructions as may 
 serve to anticipate and prevent the most common occasions of difficulty. 
 These may seem to the intelligent reader as in many instances unneces- 
 sarily minute, and as presupposing an almost incredible inattention on 
 the part of school officers to the ordinary forms df business and to the 
 
IV , PREFACE. 
 
 precautions against litigation, which every prudent man is in the habit 
 of observing. The experience of the department, however, suggests the 
 apprehension that the error will be found rather on the side of omission 
 than in giving information that is not required. The changes in the 
 law affecting the local administration of district affairs have been very 
 trifling, but the constant repetition of inquiries in regard to the modes 
 of proceeding under it, indicates that the exposition cannot be made too 
 specific or minute for the practical wants of a class of officers so 
 frequently changing, and so destitute of facilities for obtaining legal 
 advice, as those of the school districts. 
 
 It is but just to add that the legal comments, which will be found 
 under the various sections of the laws, have been the work of E. Pbshine 
 Smith, Esq., Deputy Superintendent, and that the whole work has 
 received the benefit of his experience in the department, and of his legal 
 knowledge and acumen. 
 
 V. M. RICE, 
 Superintendent of Public Instruction. 
 
 AxBANT, Novemher 25, 1856. 
 
DIGEST OF DECISIONS 
 
 or 
 
 STATE SUPERINTENDENTS. 
 
 Commissioners cannot declare void proceedings of their predecessors, though 
 they may annul, or rescind them. 
 
 The town superintendents of the towns of Seneca, Gorham and Benton, 
 declared illegal the proceedings of a previous board, forming District No. 
 13, from parts of the said three towns, for an alleged want of authority. 
 The district, if legally organized, might have been annulled, but they 
 had not power to declare void the proceedings of their predecessors. 
 The law confers no such power upon them. The question of illegality 
 must be referred to the Superintendent of Public Instruction, or deter- 
 mined by some other competent tribunal. 
 
 Per I)ix, August 19, 1837. * 
 
 An adjourned meeting cannot rescind an election of district officers. 
 Per Dix, November 18, 1837. 
 
 Nor can an officer, once elected, be displaced by vote of district. 
 Per Dix, November 9, 1838. 
 
 Non-resident children attending the district school, without any 
 previous contract or agreement with the trustees, are on the same terms 
 as other children. 
 
 Per Dix, October 28, 1837. 
 
 A tax may be levied to finish the erection of a school-house com- 
 menced by subscription, provided the district own the site ; if not, the 
 subscribers must first relinquish their title to the district. 
 Per Dix, May 11, 1838. 
 
 Notice of alteration of a district should be served on dissenting 
 trustee. 
 
 Per Dix, February 17, 1838. 
 
 rDlcSKST.l 1 
 
2 DIGEST OF DECISIONS. 
 
 Notices should be served on opposing and not on consenting parties. 
 PerDi2„ApriI9 1838. 
 
 Public money cannot be paid for wages of a past year. In other 
 ■words, public money apportioned for any year, must be expended for 
 services performed within that year. 
 
 Per I)ix, March 26, 1838. 
 
 Any lawful meeting may, by vote, appropriate the public money oa 
 hand or to be received. 
 
 Notice of meetings should specify the objects for which they aro 
 called ; but omission is not fatal. An aggrieved party may appeal. 
 Per Dix, April 20, 1838. 
 Per Spencer, March 7, 1840. 
 
 Inhabitants have no right to reelect against his will, a person whose resignation 
 has been accepted. 
 
 Daniel Lawrence, whose resignation of the office of trustee of District 
 No. 2, Hamburgh, had been accepted by three justices of the peace of 
 said town, was subsequently reelected. 
 
 The election was set aside on appeal. The law having constituted 
 the justices sole judges of the propriety of a resignation, their decision 
 is final, and the inhabitants have no right to disregard it. 
 Per Dix, May 9, 1838. 
 
 A teacher who does not keep a proper list of pupils and their attendance, cannot 
 recover his wages. The teacher's list is the basis of a rate bill, which the 
 trustees cannot legally make without it. 
 
 Per Dix, April 21, 1838. 
 
 The trustees of District No. 6, Coxsackie, refused to pay Daniel 
 Searles, a certain balance claimed by him as due for his services as 
 teacher. He admitted that he could not furnish them with an attend- 
 ance list, as required by law, but alleged that the former trustees had 
 directed him to charge different rates of tuition for different studies. 
 Held, that the contract was illegal, and could not be enforced against 
 their successors. No legal rate-bill could be made out, for want of a 
 legal attendance list. 
 
 Per Spencor, July 7, 1841. 
 
 Verbal notice to clerk to call a district meeting is sufficient. A 
 trustee who attends cannot object that he did not authorize the call. 
 Per Dix, November 24, 1838. 
 
 In an appeal to set aside the proceedings of a meeting on account of 
 illegal voting it is not enoiigh to allege that a man was not a legal 
 voter. The specific grounds of disqualification should be set forth. 
 Per Dix, December 1, 1838. 
 
DIGEST OF DECISIOJ^S. 8 
 
 Trustees may contract ■with a teacher to pay him any stipulated sum 
 for wages ; but a tax, or rate bill, cannot be levied for his board separately, 
 as contradistinguished from the remainder of his wages. He must 
 provide for his own board, or it must be paid for by the voluntary con- 
 tributions of the inhabitants. 
 
 Per Dix, December 15, 1838. 
 
 A pupil should not be dismissed from school, except for a degree of 
 moral depravity, which would render his association dangerous to other 
 scholars, or for violent insubordination which would render it impracti- 
 cable to maintain discipline and order. 
 
 Per Dix, January 19, 1839. 
 
 A school district cannot by vote authorize trustees to borrow money 
 on its credit. If the trustees advance money to purchase a library, they 
 may repay themselves out of money voted by tax for that purpose, or 
 received from the state, but they cannot charge interest. 
 
 A tax for contingent expenses is erroneous ; but the district may 
 vote to raise a specified sum, to be expended in the purchase of enume- 
 rated articles. 
 
 Per Spencer, March 29, 1839. 
 
 A two story school-house may be built upon land leased, with the agreement 
 that the rent, or consideration of the grant, shall be the use by th« lessor, 
 of the upper story out of school hours. 
 
 The consistory of the Reformed Dutch Church, in the town of Green- 
 bush, granted to District No. 2, of said town, a lot of land for a school- 
 house site, so long as the same should be used for that purpose, reserving 
 an annual rent. Subsequent to the execution of the lease, an agreement 
 was entered into between the trustees and the consistory, that the 
 school-house should be built with two stories, and that when the upper 
 story was not wanted for school purposes, the consistory might use it, 
 and such use, while permitted, should be in full payment for the rent. 
 With full knowledge of this agreement, the district, 33 to 1, voted to 
 raise a tax of $400, to procure the site and erect a sdiool-house. Held, 
 that the use of the upper story, by the consistory, was a fair equivalent 
 for the rent, and that the agreement was not improper or illegal. 
 Per Spencer, April 23, 1839. 
 
 The public money must be applied to the payment of the wages of 
 qualified teachers, and for no other purposes. Debts due the district, or 
 bought by the trustees, cannot be offset against the wages. Nothing 
 but payment to, or on the order of, the teacher is a compliance with the 
 law. 
 
 Per Spencer, April 23, 1839. 
 
 In the absence of any legal provision on the subject, the district may 
 fix the date of their annual meeting, three, six, or nine months, or any 
 
4 DIGEST OF DECISIONS. 
 
 time within the ensuing year. The district officers, however, should 
 not be elected until the time is fixed, in order to prevent any dispute as 
 to their term of office. 
 
 Per Spencer, May 6, 1839. 
 
 School may be opened with prayers, provided that it he done before school hours, 
 and that there be no compulsion to enforce attendance. 
 
 In an appeal to the superintendent, certain inhabitants of District 
 No. 15, Barre, complained that the teacher, with the permission of the 
 trustees, " made prayer part of school discipline." The trustees replied 
 that they had permitted the teacher to have prayers, on condition that 
 they should be had previous to school hours, and they alleged that he 
 did not occupy school hours. The superintendent dismissed the appeal, 
 with the following remarks : 
 
 " In this conduct of the trustees, the superintendent can perceive no 
 cause of complaint. Both parties have rights ; the one to bring up 
 their children in the practice of publicly thanking their Creator for his 
 protection, and invoking his blessing , the other, of declining in behalf 
 of their children, the religious services of any person in whose creed 
 they may not concur, or for other reasons satisfactory to themselves. 
 These rights are reciprocal, and should be protected equally ; and 
 neither should interfere with the other. Those who desire that their 
 children should engage in public prayer, have no right to compel other 
 children to unite in the exercise, against the wishes of their parents. 
 Nor have those who object to the time, place or manner of praying, or 
 to the person who conducts the exercises, a right to deprive the other 
 class of the opportunity of habituating their children to what they con- 
 ceive an imperious duty. Neither the common school system, nor any 
 other social system, can be maintained, unless the conscientious views of 
 all are equally respected. The simple rule, so to exercise your own 
 rights, as not to infringe on those of others, will preserve equal justice 
 among all, promote harmony, and insure success to our schools. In the 
 present case, the superintendent thinks the trustees had lawful right to 
 permit the teacher to commence the business of the day by public 
 prayer, with the children of such parents as desired it ; and they were 
 also right in directing that such exercises should not take place during 
 school hours, nor forni a part of school discipline." 
 
 Another branch of this first question is, whether the teacher has a 
 right to compel the children to kneel, during prayer, or to dispense with 
 their ordinary business. 
 
 The answer already given proceeds upon the principle that prayer is 
 no part of the business of a common school, but that parents may place 
 their children under the superintendence and government of a teacher 
 for that purpose. Of course his jurisdiction would extend to that only. 
 But others have no right to disturb the performance of what is con- 
 sidered a sacred duty. As the one class is required to abstain from 
 all attempts to compel the children of the other class to engage in an 
 exercise which the laiter disapprove, so the latter should abstain from 
 
DIGEST OF DECISIONS. 5 
 
 interrupting such exercise, and should instruct their children, accord- 
 ingly, not to enter the school room, until the usual hour of commencing 
 «chool, and not to disturb those within by any noise, or other conduct 
 calculated to annoy them. And the teacher should allow the children 
 of all parents, who do not desire them to engage in prayer, to with- 
 draw from the room, or to absent themselves from it. But if they 
 come into the room before the usual school hours, and choose to remain 
 there during prayer, they must preserve the order and decorum befitting 
 such an occasion. 
 
 Per Speneer, May 13, 1839. 
 
 District officers cease to be such, when set off from an old district to a new one. 
 
 If a new district (15) was erected out of No. 2, and No. 2 was not 
 declared a new district, it is in law the same district, although its terri 
 tory may be diminished ; and the trustees and ofBcerti in office at the 
 time of the division, and residing in No. 2, will continue such during 
 the year for which they were elected. But such of them as reside in 
 District No. 15, and do not change their residence to No. 2, cease to be 
 officers of No. 2, by virtue of the provision of the statute, which declares 
 in reference to a Jocal officer, that a vacancy is created by an incumbent 
 ceasing to be an inhabitant of the district for which he was appointed. 
 Per Spencer, May 15, 1839. 
 
 A person elected at the same time, clerk and trustee, and accepting 
 the office of trustee, vacates the clerkship, and a new clerk must be 
 elected or appointed in his place. 
 
 Per Spencer, May 22, 1839. 
 
 Trustees are bound to ^en a district school, whenever the inhabitants or any of 
 thorn, are willing to bear the expense, and the district cannot abridge their 
 powers. 
 
 One inhabitant with four children, and another with two children, 
 requested the trustees of District No. 1 2, Vernon and Stockbridge, to open 
 a summer school. The trustees refused, assigning as a reason that they 
 desired a division of the district, and were disposed to render the pre- 
 sent organization as little beneficial as possible. 
 
 It was held that it was their duty to have a school kept whenever 
 there was a number of children to attend, sufficient to defray the 
 expense ; or if a portion of the public money had been assigned to each 
 term, whenever the public money and rate-bills would defray the 
 expense. The duty is as applicable to summer as to winter schools. 
 The very object and business of their office is to provide schools, and no 
 district meeting can abridge their powers, or relieve them from the per- 
 formance of their duty. 
 
 Per Spencer, July 17, 1839. 
 
6 DIGEST OF DECISIONS. 
 
 The dissolution, or annulling, of a district is not an alteration. 
 
 When an alteration is made, the presumption arises that something 
 of the original remains. Its total destruction precludes such a pre- 
 sumption. 
 
 Under the constitution of 1822, the legislature could not pass any law 
 creating, continuing, altering, or renewing any body politic or corporate 
 without a vote of two-thirds in its favor. 
 
 The legislature repeatedly passed laws repealing charters, on the ground 
 that a repeal was not an alteration, and that such repeal did not come 
 within the spirit of the provision, any more than it did within its letter. 
 Per Spencer, July 26, 1839. 
 
 A school district cannot delegate the power to select a school-house site. A de- 
 signation should be specific as to location and size. 
 
 The inhabitants of District No. 15, in the town of Smyrna, at their 
 first meeting, resolved that the trustees purchase a site for the school- 
 house, on the corner of Benjamin Hartwell's land, or on Seth Shep- 
 ard's land where the cooper's shop now stands. 
 
 The trustees selected the corner of Benjamin Hartwell's land, paid 
 forty dollars for the site, and contracted for the erection of a house. 
 
 They then called a special meeting, for the purpose of ratiiying what 
 they had done, and raising money to finish the house. 
 
 The meeting, by a vote of 26 to 12, refused to ratify their selection, 
 and passed a resolution that the site should be " at a certain beech tree 
 in widow Brown's hollow." 
 
 The supreme court, in the case of Benjamin vs. Hall, IT Wendell, 
 437, decided that the district could not delegate the power to designate 
 a school-house site to the trustees. It cannot inake any difference 
 whether a general authority to select is given, or whether the authority 
 is to choose between two points. 
 
 The designation made by the special meeting is too indefinite. Ver- 
 bal explanations, not a part of the record, though given at the meeting, 
 cannot be permitted to locate the spot. The vote was utterly void for 
 uncertainty. 
 
 Per Spencer, August 26, 1839. 
 
 Any subsequent resolution, directly, or necessarily repugnant, to a 
 previous one, repeals it. 
 
 Per Spencer, September 7, 1839. 
 
 That part of the district library, purchased with money raised by tax 
 upon the district, may be sold. 
 
 Per Spencer, September 17, 1839. 
 
 Three qualified voters constitute a valid meeting. 
 
 The annual meeting of District No. 9, Erin, and No. 12, Elmira, in 
 1839, was duly notified and held, at the time and place appointed at 
 
DIGEST OF DECISIONS. 1 
 
 the last preceding annual meeting. The district clerk and two other 
 persons only were present. The proceedings of the meeting were 
 regular. The law has not specified what number shall constitute a 
 district meeting, and when the notice has been fair and public, and the 
 meeting held at the usual time and place, and the proceedings regular, 
 it must be deemed valid. 
 
 Per Spencer, October 22, 1839. 
 
 A trustee cannot be librarian. 
 
 A librarian is subject to the direction of the trustees, and responsible 
 to them. There is an incongruity in a man being subject and responsible 
 to himself. There is the same incompatibility between the offices of 
 librarian and trustee, as collector and trustee. 
 
 Per Spencer, November 25, 1839. 
 
 When a school-house is so decayed as to be no longer adapted to, its 
 purposes, the district may raise money by tax to build a new one, by a 
 majority vote, and without a special notice of the intent to propose such 
 a tax, at an annual or a special meeting. 
 
 Per Spencer, January 15, 1840. 
 
 The occupancy of a school-house su£Scient notice to purchaser of land. 
 
 Twenty years previous to the date of appeal, District No. 6, Linck- 
 laen, had taken a lease of a site for the school-house, for as long a period 
 as the same should be occupied for a district school. James S. Graves 
 purchased the land and appurtenances, without any reservation, and 
 forbade the trustees from entering upon it, or from occupying the 
 school-house. 
 
 Mr. Graves purchased the land subject to the lease, and the fact that 
 the land was occupied by the district for a school-house and site, was 
 sufficient notice to him. The district has a rightful claim to the posses- 
 sion of the land under the lease, and should take legal measures to assert 
 their right. The occupancy is sufficient notice to the purchaser of the 
 title of the district, and he is bound to ascertain it at his peril, notwith- 
 standing the omission to put the lease upon record. 
 
 Per Spencer, January 23, 1840. 
 
 Trnstcos are not empowered to receive a note in payment for a tax imposed by 
 them, and cannot maintain an action to enforce payment. 
 
 The trustees of District No. 8, in the town of Mentz, took a note from 
 S. P. Clark in payment of a tax assessed upon his farm. Upon appeal 
 it appeared that Mr. Clark had been erroneously taxed in District No. 
 8, while he was yet a resident of District No. 7. Held that the note 
 was void, and could not be collected, even if the tax had been legally 
 
 Per Spencer, March 24, 1840. 
 
8 DIGEST OF DECISIONS. 
 
 An order by a board of officers of two towns, dissolving a joint district, and 
 setting off a part thereof to a district partly in a third town, valid as to dis- 
 solution, but illegal as to annexing part to district partly in third town. 
 
 The commissioners of Argyle and Fort Edward, on the 31st Decem- 
 ber, 1838, dissolved joint District No. 4, in said towns, and annexed one 
 portion thereof to district No. 15, in Argyle, and the residue to District 
 No. 3, in the town of Fort Edward. District No. 3, was a joint dis- 
 trict, partly in Fort Edward and partly in Greenwich ; and the commis- 
 sioners of the latter town were not notified of the meeting and did not 
 attend. There may be cases where an order, void in part, is void alto- 
 gether. In this the commissioners of Argyle and Fort Edward had 
 jurisdiction over District No. 4, but not over District No. 3. The order 
 for the dissolution of District No, 4, is therefore valid, and having no 
 necessary connection with that part of the order annexing a part thereof to 
 District No. 3, must stand, while ^e part of the order affecting District 
 No. 3, is void, for want of jurisdiction. 
 
 Per Spencer, May 21, 1840. 
 
 The same principle is established in another case. 
 
 On the 20th of April, 1840, the commissioners of the towns of New- 
 stead and Clarence, set off from joint District No. 4, in Clafence and 2 
 in Ncwstead, all that part of the district lying in the town of Clarence. 
 
 Subsequently, and on the same day, the commissioners of Clarence 
 formed District No. 19, in said town, out of the territory so set off, and 
 a portion of District No. 5 in the same town ; and also the farms of 
 four persons set off on the same day by the commissioners of Clarence 
 and Lancaster from two joint districts in said towns. 
 
 The acts of the commissioners were strictly in compliance with the 
 law. A joint board was first formed and the inhabitants intended to be 
 annexed to the new district were set off from the joint districts. Then 
 the commissioners of Clarence within whose separate jurisdiction the 
 inhabitants so detached reverted, very properly annexed them to the 
 new district. This was the true mode of procedure. The powers of 
 the joint board ceased when the territory ceased to be a joint district. 
 Per Spencer, June 18, 1840. ' 
 
 Notice of alteration must be given before order can take effect. 
 
 "When a district has been altered without the previous consent of the 
 trustees, a notice in writing of the alteration must be served upon them. 
 This notice is essential to the completion of the transaction, as without 
 it the order cannot take effect. It cannot be presumed that the notice 
 has been given because the order has been made. The doctrine of 
 presumption applies only to those cases where the act in question should 
 have been performed in the regular and ordinary course, previous to the 
 final act, and was necessarily incidental to it ; as after a sale upon 
 execution, a levy will be presumed. A notice in writing is a condition 
 
DIGEST OF BECISIONS. 9 
 
 subsequent to an order for alteration, and until it is given the order lies 
 in abeyance, and without eflFect. 
 
 Per Spencer, July 27, 1840. 
 
 The establishment of a district by a decision upon appeal to the 
 department, is final and conclusive ; and the district is not subject to 
 alteration by the local authorities, while the circumstances remain 
 unchanged. But it is absurd to contend that when the circumstances 
 under which a decision is pronounced, have materially changed, and 
 after the districts or either of them have increased or diminished in 
 territory, number or valuation, the local authorities are precluded from 
 interference, by the conclusive operation of a decision, founded on an 
 entirely different state of facts. Such a doctrine would be entirely 
 inconsistent with reason and good sense. 
 
 Per Spencer, September 24, 1840. 
 
 The county treasurer is bound to pay over to each town all the school 
 money apportioned to it and received by him from the state treasury. 
 He cannot retain a per centage for receiving and disbursing, out of the 
 money in his hands. Whatever claim he has is a charge against the 
 county. 
 
 Per Spencer, October 12, 1840. 
 
 The trustees are bound to call district meetings when requested to do so by a 
 respectable number of inhabitants for a legitimate object. 
 
 One of the trustees of District No. 19, partly in Liecester and partly 
 in Perry, resigned his office, and subsequently united with fifteen others 
 in a petition to the remaining trustees to call a special meeting to fill 
 the vacancy, and to transact such other business as might be deemed 
 necessary. 
 
 The trustees declined to mate the call on the ground that they were 
 apprehensive that the meeting if called, might make such disposition 
 of the public money as would interfere with previous arrangements, 
 and prove detrimental to the school then in operation. 
 
 The filling of an existing vacancy was a proper and legal purpose, and 
 the meeting, if called within thirty days after the happening of the 
 vacancy, might have elected a person. Before an appeal could be 
 decided, the time within which the inhabitants can be called together, 
 will have expired, and the vacancy must be filled by appointment. 
 The trustees have no right to conjecture that a meeting will adopt 
 measures to injure the school. The principle cannot be sanctioned for 
 a moment, that the trustees may refuse to call a meeting of the inhabi- 
 tants, upon the ground that the latter may adopt measures at variance 
 with the views of the former, as to the interests and welfare of the 
 district. The trustees are the representatives and servants of the dis- 
 trict, bound to carry out and obey the will of the inhabitants, when 
 
 fDlGEST.] 2 
 
10 DIGEST OF DECISIONS. 
 
 legally expressed, and not warranted in attempting in any manner to 
 thwart their wishes. 
 
 Per Spencer, December 23, 1840. 
 
 Trustees cannot dismiss a teacher, on the ground that some of the inhabitants are 
 dissatisfied with him, while they themselves are not dissatisfied. 
 
 James M. Grooty was employed to teach school in District No. 2, 
 New Baltimore, for five months, at 111 a month, on condition that if 
 the trustees should find any fault with him at the end of a month, they 
 were to notify him, pay him for the month's services, and dismiss him. 
 He taught school from the 9th Novemher to the 21st day of January, 
 when the trustees dismissed him, on the ground of dissatisfaction on the 
 part of some of the inhabitants, at the same time publicly stating that 
 they had no cause of complaint. 
 
 One month was ample time to discover faults of character, discipline, 
 government and modes of teaching, and if the trustees did not, within 
 that time, give Mr. Grooty notice, they could not subsequently dismiss him, 
 and release themselves from their contract. A mere allegation that 
 the inhabitants were dissatisfied, would be insufficient cause of dismissal 
 at any time. They should be able to show who are dissatisfied and for 
 what cause. 
 
 The teacher did not undertake, expressly, or by implication, to satisfy 
 every person in the district, and it would have been absurd to require 
 or expect it. The trustees were ordered to reinstate Mr. Grooty in his 
 school, and at the end of five months from November 19, to pay him 
 his wages at 111 per month, without any deduction for the time between 
 his dismissal, and his reinstatement. 
 
 Per Spencer, March 6, 1841. 
 
 Children of non-residents are not entitled to attend a district school 
 without permission of the trustees, and upon such terms as may be 
 agreed upon. They cannot be permitted to share in the public money, 
 appropriated to the district, under any circumstances. 
 Per Spencer, March 26, 1841. 
 
 A conditional consent to the alteration of a district cannot be given. 
 The trustees mnst either give or withhold their consent. They can 
 annex no conditions. 
 
 Per Spencer, April 12, 1841. 
 
 If the annual meeting be fairly and legally called, if there be nothing 
 in the case to show a design to take any undue advantage of the majority, 
 if there be no surprise or fraud of any kind, and the proceedings be in 
 due and usual form, and those in attendance wait a reasonable time, any 
 number of persons is competent to transact business. Persons who 
 neglect to attend until an hour has elapsed after the time of meeting, 
 
■ DIGEST OF DECISIONS. 11 
 
 specified in the notice, and the meeting has adjourned, have no right to 
 call for a reorganization, and much less right to organize a new meeting. 
 , Per Spencer, May 5, 1841. 
 
 When the district has given no direction, and the trustees have 
 already appropriated the public money to a particular term of school, 
 the district has no further control over the disposition of it. In the 
 absence of any specific directions by the district the trustees can apply 
 the money as they may deem best for the interests of the schools. 
 Per Spencer, June 15, 1841. 
 
 "When a site has been designated and a tax raised for building a 
 school-house, a building committee may be appointed by the meeting. 
 But contracts are to be made and money to be paid out by the trustees, 
 and the building committee must be regarded as the agents of the 
 trustees, to carry out the direction of the meeting. As agents of the 
 trustees, the latter will be responsible for the fulfillment of their con- 
 tracts up to the amount of the tax. 
 
 Per Spencer, June 19, 1841. 
 
 The acts of trustees, defacio. holding office under color of an election, subsequently 
 declared void and set aside, are valid, and binding upon their successors. 
 
 Samuel S. Lord and John S. Panlow, were elected trustees of District 
 No. 6, Lincklaen, at a meeting which was, on appeal, decided to be ille- 
 gal, and the proceedings thereat void. 
 
 Before the decision, however, the trustees had contracted to build a 
 school-house, in accordance with the proceedings of the meeting at 
 which they were elected, and had hired a teacher for the winter school, 
 and agreed to pay him $24 of the public money, and had levied and 
 partly collected a tax of $50, voted by said meeting toward building the 
 school-house. 
 
 Their successors refused to fulfill their contracts, and they appealed. 
 
 Held, that until the decision declaring void the proceedings of the 
 meeting that elected them, they were to all intents and purposes the 
 legal officers of the district, so far as the public and third persons were 
 concerned. They acted in their official and not in their individual 
 capacity, for the district and not for themselves. Tlie collection of the 
 tax assessed by them could not be resisted ; all their contracts made 
 within their official jurisdiction were legal and binding. They were 
 competent to transact all the business of the district. Their successors, 
 under the decision, succeeded not merely to all their rights, but also to 
 all their legal liabilities, and were bound to execute all their contracts 
 entered into while acting under color of a legal election. 
 Per Spencer, June 25, 1841. 
 
12 DIGEST OF DECISIONS. * 
 
 If commissioners withhold assent to raise a tax larger than S400, their refusal is 
 subject to review upon appeal. 
 
 The inhabitants of the village of Cuba had been united in one district 
 by the consolidation of two others. They had been oifered a site for a 
 school-house, in a central and commodious location, upon the sole con- 
 sideration that they should erect upon it a house worth $800. They 
 unanimously voted to accept the site and raise the tax, and applied to 
 the school commissioners for consent to levy that sum. Consent was 
 refused on the ground that the consolidation of the districts would be 
 the means of breaking up the select school hitherto maintained in the 
 district, and further that the inhabitants were unable to bear the in- 
 creased burdens of such an organization. 
 
 The commissioners have a discretionary power to grant, or refuse 
 their consent. But in this case it was not wisely exercised. They 
 were bound to have a stronger interest in the improvement of the com- 
 mon schools, than in the welfare of a private select school. The inha- 
 bitants, who ought to understand their own interests, and know their 
 pecuniary resources, had unanimously resolved to raise the tax, and 
 shoulder the burden of the new organization. The commissioners 
 ought not to assume that they had overestimated their ability. 
 
 The majority of the inhabitants of a district, may consist of persons 
 destitute themselves of pecuniary resources, and desirous to avail them- 
 selves of the property of the minority to build an unnecessarily costly 
 school-house for the district. The check, which the commissioners 
 possess, to abuses like this, is wise and salutary, and that check was 
 undoubtedly conferred, with a view to the possible happening of cases of 
 this description. 
 
 The discretion exercised in this case, like that of granting or refusing 
 a certificate to a teacher, is the subject of appeal. The authority of 
 the superintendent upon appeal, extends to all matters arising under 
 the school laws. His decisions have been treated as conclusive by the 
 courts, and acquiesced in by the legislature and the people. 
 
 The commissioners were ordered to give their consent to the tax of 
 $800. 
 
 Per Spencer, July 19, 1841. ■ 
 
 Subsequently the same case came up a second time, on the refusal of 
 the commissioners to obey the order of the superintendent. The pre- 
 vious decision was sustained and enforced in an elaborate opinion, from 
 which we take the portions treating of discretionary powers, and the 
 appellant jurisdiction of the school department. 
 
 " The discretion of public officers is a legal one, to be governed by 
 ■sound principles, and not by the capricious whim of the individual, and 
 the instances are frequent, where courts of law regulate and direct the 
 exercise of discretionary power by officers, where third persons have an 
 interest in such exercise. The only discretion which courts do not 
 undertake to control, is that which, according to Justice Sutherland, 
 £ Wendell, 125, 'is not and cannot be governed by any fixed principles 
 
DIGEST OF DECISIONS. 13 
 
 and rules.' Few matters would seem more susceptible of the application 
 of fixed rules, than the size of a schpol-house, necessary to accommodate 
 properly a given number of children, the amount of money required for 
 its construction, and the ability of a district to raise a given sum. So 
 that even upon any of the ordinary processes of law, this would be a 
 case where the discretionary power of commissioners could be regulated 
 and controlled. But when we consider that a tribunal has been erected 
 for the express purpose of supervising all the officers engaged in the 
 administration of the common school system ; that there is scarcely an 
 act to be performed by them, which does not involve more or less dis- 
 cretion, and that an appeal is given from all these acts in the most com- 
 prehensive terms ; we see at once that the rules which would govern 
 fegal proceedings on common law process, are not the proper guides, 
 and that we must recur to broader and more enlarged principles. 
 
 " The word appeal comes from the civil law, and its nature and 
 oflBce is to substitute the appellate tribunal for that whose acts are 
 examined ; andlif the case be one involving discretion, then the appeal 
 invokes that very discretion in the superior, in the same manner and to 
 the same extent! that it was possessed by the inferior. ' The cause is in 
 the appellate court' say the supreme court of the United States, in 
 1 Wheaton 112 ' as if it were in the inferior court." 
 
 "The great inajority of cases decided in this department are those in- 
 volving more or less discretionary power. 
 
 " The statute itself enumerates many cases that are entirely of a dis- 
 xretionary character. The decisions of district school meetings upon 
 any subject upon which they are competent to act, such as the designa- 
 tion of the site of a school-house, the amount of money to be raised 
 by tax, and the omission to levy taxes, involve large discretion, but are 
 nevertheless subject to appeal by the express words of the law. The 
 formation and alteration of school districts, must be guided by a sound 
 judgment upon various facts and circumstances, such as the number of 
 children, the amount of taxable property, the extent of territory, and 
 the convenience of the inhabitants. Some fixed rules may be applied^ 
 but in many cases, the decision must depend on general ideas of the 
 propriety and fitness of things. 
 
 " Among cases not enumerated, and which fall within the fourth sub- 
 division of the section conferring the right of appeal, the following are 
 of daily occurrence, viz : The granting, or refusing a license to a teacher ; 
 the valuations of school-houses, or other property on the formation of 
 new districts ; the refusal of trustees to call special meetings, to employ 
 teachers, or to keep the schools open, and the employment and dismissal 
 of teachers ; the government of the school, the admittance, and expul- 
 sion of scholars, ikc. Indeed it would be difficult to specify a single act 
 which any officer concerned in the administration of the system may 
 perlbrm, that has not been the subject of appeal. 
 
 "The present case presents less opportunity for the exercise of discre- 
 tion than many of those above enumerated. The expense of a school- 
 house must depend upon its size and materials. Its size, the number 
 
U DIGEST OF DECISIONS. 
 
 of rooms, and the proper conveniences^ will depend upon the number of 
 children in the district of the proper age to occupy it. The only other 
 element for consideration, is the ability of the district, a fact easily 
 ascertained from the assessment roll. There is, therefore, nothing in 
 the nature of the decision to be made, to prevent its being reviewed and 
 examined upon fixed and settled principles. 
 
 " So far as our laws aflford any analogy in cases of appeal, there does 
 not appear to be any distinction between discretionary and other cases. 
 Thus appeals to county judges from commissioners of highways, respect- 
 ing the opening, altering and discontinuing of highways, necessarily 
 involve that discretion which depends on private judgment. 
 
 " Upon the most mature deliberation then, I cannot doubt that the 
 granting or refusing of a certificate, that a larger sum than $400 should 
 be raised for building a school-house, is necessarily the subject of an 
 appeal to the superintendent. And as in all cases of appeal, the statute 
 declares his opinion to be ' final,' there must be some mode of giving 
 it efi'ect. In the present case, the commissioners decline obedience to 
 the order, directing them to grant the required certificate. From that 
 refusal, an appeal has been made, and the commissioners have answered. 
 The whole system must be very defective, if there be no power to have an 
 act pcrfonned, which the competent tribunal has determined to be legal 
 and proper. Perhaps the appellants may enforce the order of the 
 superintendent, by an application to the supreme court for a mandamus. 
 
 " But if there be a more direct, simple and less expensive remedy, I 
 am bound to pursue the pohcy of the statute, in erecting this tribunal, 
 by furnishing it. I think there is. It is a universal principle, recognized 
 in England and in this country, that the court to which a writ of error, 
 or an appeal is brought, is bound to render the judgment which the 
 inferior tribunal should have rendered. Upon this principle this 
 department may authorize the inhabitants of the district, at a lawful 
 meeting, to raise the additional sura necessary for building a new 
 school-house, that being the judgment or decision, which, in the opinion 
 of the superintendent, the commissioners should have made. I find an 
 order of my immediate predecessor, founded on this principle, and 
 analagous to the one proposed to be made on this appeal, in the case of 
 the trustees of school District No. 30, in Johnstown, in Common 
 School Decisions, page 161. The inhabitants of the district had 
 authorized the trustees to make such repairs to the school-house as they 
 should think necessary and proper, and in pursuance of such axithority 
 they had contracted with a workman to make the repairs, and agreed 
 to pay him $30. But the district refused to vote more than $25. On 
 appeal, the superintendent, Mr. Dix held that the district was bound to 
 indemnify the trustees ; and he ordered that the trustees should make 
 out a tax list for the whole amount, and collect it." 
 
 In pursuance of this opinion the district was authorized to raise a 
 tax of $400, over and above the $400 which the district could other- 
 wise raise, and the trustees were empowered to levy and collect it. 
 Per Speacer, September 18, 1841, 
 
DIGEST OF DECISIONS. 15 
 
 Where a teacher is improperly dismissed, he is eatitled to full wages for the period 
 named in the contract. 
 
 A. B. Braley had been employed to teach school in District No. 1, in 
 the town of Carroll, for four months, at |13 per month. After he had 
 taught two and a half months, some of the inhabitants withdrew their 
 children for fear the rate bill would be too large. For various causes, 
 others followed their example, until the school dwindled down to two or 
 three scholars, when the trustees ordered him to quit, about three 
 weeks before the expiration of his term, upon the understanding that he 
 should complete it if called upon. 
 
 A special meeting, subsequently held, passed a vote to pay the teacher 
 for the time actually employed, and no longer. The trustees refused to 
 pay him for the full time and he appealed. He had performed, or been 
 at all times ready to perform the contract on his part, he was duly 
 qualified, his school had been visited by the town and county authorities 
 and approved by them. The vote of the district could not affect the 
 rights of the parties. The trustees were bound to fulfill the contract, 
 and to make out a rate bill. 
 
 Per Young, March 19, 1842. 
 
 The inhahitants legally assembled at any district meeting may vote to raise a tax 
 
 for any purpose authorized by law. 
 In case of vacancy two or even one, trustee may do any official act. 
 The expense of investigating a title is a part of the expense of a site, and may ho 
 
 legally included in a tax. 
 
 At a meeting held in District No. 3, WilHamsburgh, on the third day 
 of December, 1852, a tax of $5985.56, was voted, and among the items 
 making up the aggregate, were $50 for investigating the title to the site, 
 $20 for hiring a room, and $10 for furnishing fuel for a colored school 
 and $601.81 for exemptions of indigent children and $3.75 for a tax 
 book. 
 
 It was on appeal, objected that these items wore illegal, and impro- 
 perly included in the tax. It was, olso, in the first instance, objected 
 that the meeting was called by but two trustees, there being a vacancy, 
 and but two in office at the time. 
 
 On these points the superintendent says : 
 
 When a vacancy exists in the office of trustee, the remaining trastees 
 are expressly authorized by law to call a meeting of the inhabitants to 
 fill such vacancy, and the inhabitants when legally assembled at any 
 annual, or special meeting have power to raise a tax for the various pur- 
 poses recognized by law. There is no doubt that two, or even one, 
 trustee may legally do any official act during the actual existence of a 
 vacancy in the office of their, or his colleagues. 
 
 It has been held that the expense of recording of a deed, may be 
 included in a tax for purchasing a site, inasmuch as it is necessary to 
 perfect the title. On the same principle, the expense of investigating 
 the title, is a necessary part of the expense of procuring a site. 
 
16 DIGEST OP DECISIONS. 
 
 The items for exemptions, and for the rent of room and cost of fuel 
 for the colored school, are expressly authorized by law. The trustees 
 have power to exempt indigent persons from the payment of rate bills, 
 and their exercise of the power is conclusive, unless set aside on appeal. 
 
 The purchase of tax book is an item not often necessary, but in a 
 district comprising the most populous portion of a large village, divided 
 into 5000 lots and upwards, with a valuation of $2,000,000, the 
 expense of making up a tax list is no inconsiderable item. 
 Per Young, April 25, 1842. 
 
 Districts have not power at an adjourned meeting, by reconsidering and rescind- 
 ing its former proceedings, to displace officers elected at the annual meeting. 
 
 District No. 19, in the town of Watervleit, held its annual meeting 
 on the 29th of March, 1842, and elected its district officers. The 
 meeting then adjourned to April 6, and a resolution to reconsider and 
 rescind the proceedings of the annual meeting was adopted, by which 
 it was attempted to displace one trustee and the district clerk, and elect 
 others in their places. 
 
 The department has uniformly held that the officers chosen at the 
 annual meeting are the legal officers of the district, until by resignation, 
 death, removal from the district, refusal to serve, or expiration of term, 
 a vacancy occurs, proper to be filled by election or appointment. 
 When an election has been held in due form, the elective power is 
 exhausted. And when a man entitled to hold office has been elected 
 and consented to serve, there is no power to take it from him, or debar 
 him from-assuming its duties. 
 
 Per Young, May 2, 1842. 
 
 Children of temporary residents are to be enumerated in the annual reports of 
 trustees. 
 
 The language of the law is that "all children actna,lly residing in the 
 district on the first day of January, although such residence may be 
 temporary, shall be included in the reports of the trustees." And 
 again. "All children included in the reports of the trustees of any 
 school district shall be entitled to attend the schools of such district." 
 
 These provisions were evidently intended especially to meet the case 
 of the children of laborers on our public works, and others temporarily 
 residing in school districts. 
 
 Per Young, May 27, 1842. 
 
 An election set aside, when four voters elected at the very hour of meeting, and a 
 majority came in half an hour. 
 
 At the annual meeting held in District No. 1, in the town of McDo- 
 nough, September 12, 1841, four persons having met precisely at the 
 hour to which the meeting stood adjourned, elected the district officers, 
 without waiting for the residue of the inhabitants, a large majority of 
 whom appeared within half an hour. This was a manifest case of sur- 
 
DIGEST OF DECISIONS. 11 
 
 prise. An undue and unnecessary advantage was taken of the majority 
 of the inhabitants, and ofBcers, not of their choice, imposed upon them. 
 Per Young, October 3, 1842. 
 
 An alien, who is a legal voter, may hold office in a school district. 
 
 Mr. George Oliver, an alien, who was entitled to hold real estate, 
 having taken the necessary legal steps for that purpose, was elected 
 trustee of school District No. 1, Bombay, on the 4th day of October, 1842. 
 
 The superintendent said he was unable to see any good cause why 
 any inhabitant of a school district, legally authorized to vote therein, 
 should not be admitted to a free participation in the offices of the 
 district, or rather why he should claim an exemption from the burdens 
 which the law devolves upon the other inhabitants of the district, in 
 supervising its affairs from year to year. There is in reality very little 
 analogy in cases of this description, to those against which our laws in 
 refei'cnce to aliens wore intended to provide. I am therefore disposed 
 to hold any and every legal voter in a school district eligible as an 
 officer therein. 
 
 Per Young, November 18, 1842. 
 
 When different parcels of property, of different quality and value, 
 lying in two districts, are so coupled together in the town assessment 
 roll, in one aggregate valuation, that their separate value is not appa- 
 rent, and cannot be fixed, without an exercise of judgment on the part 
 of the trustees, a new valuation should be made, and notice given. 
 Per Young, Nov. 23, 1842. 
 
 The wages of a teacher employed for the winter term, may be paid 
 from the school money to be received the next spring. 
 
 Per Young, November 28, 1842. 
 
 In the absence of any specific directions by the district, the trustees 
 may apply the public money to the summer and winter terms of a school 
 in such proportions as they may deem just. 
 
 Per Young, January 10, 1843. 
 
 A district meeting may prescribe the terms of a contract for building a school- 
 house. 
 
 The trustees of District No. 13, in the town of Bethany, refused to 
 pay Daniel R. Prindle the sum of $72.50 upon his contract for building 
 a school-house : 1st. On the ground that they had not executed the 
 contract; and 2d. Tliat the school-house was useless to the district 
 because the right of way to it, over intervening lands, could not be 
 obtained. 
 
 The district meeting, which voted the tax for building the school- 
 house, had prescribed the terms of the contract, and the same was 
 drawn up at the time by one of the trustees, and signed by the con- 
 tractor. The trustees were directed to superintend the erection of the 
 
 pDlGEST.] 8 
 
18 DIGEST OF DECISIONS. 
 
 house according to its terms, and to fulfill it on the part of the district. 
 The builder fulfilled his part, and the trustees reocgnizei the contract 
 by superintending and directing the work. 
 
 The trustees, as the agents and servants o'" tiie district, are the proper 
 and indeed only persons to tnake and execute Bargains and contracts on 
 the part of the district. But the meeting was competent to specify the 
 terms of a Contract, arid in this case did so, and one of the trustees 
 drew it, according to the terms prescribed. The contractor executed it 
 on his part, and perfonhed it. The trustees, by recognizing it and direct- 
 ing the work, were in fact parties to it, although they did not sign it. 
 
 The remaining objection is entirely groundless. The contractor for 
 building the school-house, cannot be in any way responsible for a failure 
 of title to the site, or a right of way to it. The question of title and 
 right of way is between the district and the grantors, or owners of the land. 
 
 Haying collected the tax of ITZ.SO, levied to pay for the house, they 
 are legally and equitably bound to pay over the proceeds to the con- 
 tractor. 
 ' Per Young, February 3, 1843. 
 
 The law has not specified any time, within which a warrant for tne collectiori of 
 a tax shall be delivered to the collector. 
 
 Where a tax was voted in June, 1841, and the tax list was made out, 
 ■within the time and in the mode required by law, but the warrant for 
 collecitibn was not issued till January 31st, the delay was held not to 
 aflfect its legality, or validity. 
 
 Per Young, March 21, 1843. 
 
 A teacher, for an act of disobedience, ordered a boy, fifteen years of 
 age, to hold out a book, of the ordinary size used in schools, at arm's 
 length, level with his shoulder. The boy, after holding it in that posi- 
 tion from five to eight, or ten minutes, let it fall and said he could not 
 h,p.ld it any longer. On being ordered to hold it out again, he peremp- 
 torily refused. The teacher, then, with a curled maple rule, over 
 twenty inches long, one and threerquarters wide, and half an inch thick, 
 struck him from fifteen to twenty blows on his back and thighs, and in 
 BO severe a manner as to disable him from leaving school without assis- 
 tance, A physician was called and found his back and limbs badly 
 bruised and swollen. The teacher on the succeeding day, sent to him a 
 physician, who pronounced ' him "very badly bruised." It was ten or 
 twelve days before he so fai recovered as to be able to attend school. 
 
 The ' superintendent expresses his unqualified disapprobation of a 
 Punishment, so severe and unreasonable. If the disobedience of the boy 
 had been the result of sheer obstinacy and willfullness, it could not justify 
 the infliction of fifteen or twenty blows with such a bludgeon, tipon the 
 back arid limbs of the boy, disabling him for a fortnight. Such a 
 measure of punishment for such an offence, would be sufficient ground 
 for aunuUing his certificate. 
 
 Per Young, March 29, 1843. 
 
DIGEST OF DECISIONS. 19 
 
 When a board of town ofBcers is called together, for the purpose of 
 altering a joint district, a majority of the officers from each town must 
 vote in the affirmative to give validity to an order for alteration. 
 Per Young, March 28, 1843. 
 
 The inhabitants of a school district have no power to direct the trustees to levy 
 a tax, to pay the expenses of an arbitration in settling difficulties in a district. 
 
 The decision of the county superintendent declaring that the inha- 
 bitants of District No. 13, in voting a tax to defray or reimburse 
 the expenses of an arbitration, and other liabilities which had accrued 
 in settling the difficulties to which the district had been exposed for the 
 past nine months, had transcended the powers conferred on them by law, 
 is strictly in accordance with the previous adjudications of this depart- 
 ment, and with the well settled principles by which it has been uniformly 
 governed in the disposition of cases of this nature, and must accordingly 
 be affirmed. The law has distinctly defined the purposes for which a 
 school district tax may be voted ; and the inhabitants can in no case go 
 beyond them. That the expenses for which the tax in this case was 
 imposed, were incurred by the trustees, under the sanction and directions 
 of a district meeting, cannot afi"ect,-th,e principle ; the district had no 
 legal authority to pass such a vote, and it was in no sense obligatory 
 either upon the inhabitants or trustees. The only mode by which the 
 trustees can be indemnified for the expenditures incurred by them, is by 
 voluntary contribution. They cannot legally enforce the collection of 
 a district tax for this purpose. 
 
 Per Young, September 12, 1843. 
 
 The inhabitants of a school district have power to vote a tax to pay the arrears 
 of uncollected rate bills. 
 
 The trustees and collector are the agents of the district, and the 
 district may hold them to a strict account, and may call upon them 
 personally to respond for any loss incurred by their official negligence. 
 But the inhabitants have the right to determine whether the negligence 
 is of such a character as under the circumstances is excusable, and con- 
 sequently to vote a tax to satisfy the loss. 
 
 Per Young, November 15, 1843. 
 
 A ballot for three trustees being had, and but one elected, a motion to reconsider 
 was made, pending which the meeting adjourned. The vote to reconsider 
 at the adjourned meeting sustained, and the election of three trustees 
 declared valid. 
 
 At the annual meeting held in District No. 4 in Ballston, on the 
 2d day of October, 1843, the inhabitants balloted for three tnistees. 
 On counting the ballots it appeared that one trustee only had been 
 elected. A motion was made to reconsider the whole proceeding in 
 relation to the election of trustees, pending which the meeting.adjourned 
 for one week. At the adjourned meeting the motion for recoi&ideration 
 
20 DIGEST OF DECISIONS. 
 
 was put and prevailed and three persons were then chosen trustees by 
 ballot. 
 
 From this proceeding the appellant took an appeal to the county 
 superintendent, claiming to have been duly elected at the first meeting 
 and denying the legal right of the inhabitants at the adjourned meet- 
 ing to reconsider the said vote. 
 
 The county superintendent sustained the appeal. 
 
 It is obvious vhat the election of trustees was not completed at the 
 first meeting. One trustee only (the appellant) was chosen ; at the 
 adjourned meeting the inhabitants took up the business of the annual 
 meeting where they had left it, and agTeed to the motion to reconsider. 
 After such reconsideration three other persons were duly elected. The 
 adjourned meeting was a continuance of the annual meeting, and it was 
 undoubtedly legally competent for the inhabitants at either meeting to 
 reconsider or rescind the whole or any part of their proceedings. Had 
 it been otherwise the district must have been left with one trustee only. 
 
 The decision of the county superintendent must be reversed. 
 Per Young, November 15, 1843. 
 
 If a portion of the inhabitants in a school district meeting voluntarily withdraw 
 therefrom, those remaining may organize and proceed to do the business for 
 which the meeting was called. 
 
 This is an appeal from the proceedings of the last annual meeting, 
 held in District No. 13, Walworth and Ontario. The meeting as des- 
 cribed by each of the parties, was a strong one, and many attempts 
 were made to elect district ofiicers, every candidate nominated being 
 voted down. At length a portion of the inhabitants withdrew from 
 the meeting, among whom were the moderator and old officers of the 
 district. The rest of the inhabitants immediately chose a new mode- 
 rator and proceeded to elect district officers for the ensuing year and to 
 transact the business usual at an annual meeting. 
 
 As there was no adjournment, but a voluntary withdrawal of the 
 appellants, those who remained had a legal right to organize anew and 
 proceed to business. The proceedings of the meeting are therefore 
 declared to be regular and the appeal dismissed. 
 
 Per Morgan, March, 1848. 
 
 An annual meeting will be held to be legal, although the proper notices are not 
 given, if the inhabitants assemble at the time and place to which it was 
 adjourned the previous year. 
 
 Per Morgan, November, 1848. 
 
 It is the duty of the trustees, at the request of a respectable number of the legal 
 voters of a district, to call a special meeting, although the inhabitants may 
 have acted upon the same subject in school meeting. 
 
 A school meeting in District No. 2, in Litchfield, directed about 69 
 of the library money to be expended in the purchase of globes, and also 
 voted a tax of $270, for the purpose of bmlding a new school-house. 
 
DIGEST OF DECISIONS. 21 
 
 The trustees refused to call a special meeting for the purpose of taking 
 a new vote of the district upon the question of building a school-house, 
 though requested to call such meeting by fourteen legal voters of the 
 district. The trustees were wrong in their refusal to call a district 
 meeting, at the request of so large a number of the' inhabitants. It is 
 proper that the legal voters should have an opportunity, if they desire 
 it, to vote again upon the question. It is therefore ordered that the 
 trustees call a meeting, in accordance with the request of the appellants. 
 Per Morgan, February, 1848 
 
 An annual meeting cannot be held at any particular time, unless it was adjourned 
 to some particular day, or the trustees have given special notice for it. 
 
 The facts in the case are as follows : For several years the annual 
 meetings of the district had been held on the 2d Tuesday of Octo- 
 ber, according to the adjournment of each preceding annual meeting, 
 except that the annual meeting of 1847 was adjourned without date, 
 and the meeting held on the 2d day of October, 1848, was supposed 
 to be authorized from the custom of the district, although the annual 
 " meeting of the preceding year did not adjourn to that date. 
 
 The meeting of the 2d Tuesday of October, 1848, was organized 
 without the notices being given by the district clerk as required by law 
 and without the authority of the trustees. Under, these circumstances 
 the trustees called a special meeting to be held the 24th day of No- 
 vember, 1848. The decision of this appeal depends upon the legality 
 of the meeting and not upon the regularity of the proceedings, for if the 
 decision depended upon the regularity of the proceedings, this depart- 
 ment would regard them as valid, unless duly appealed from. But 
 district meetings which are strictly illegal cannot be made legal by the 
 lapse of time. 
 
 It is provided by §65 of the School Laws that "at each annual 
 meeting, the time and place of holding the next annual meeting shall 
 be fixed," and in case the district omit to designate the day for holding 
 its annual meeting, the trustees can appoint the time. This does not 
 give the district authority to establish any date for holding the annual 
 meeting for a series of yeare. 
 
 The meeting of the 2d Tuesday of October, could not therefore 
 be regarded as the annual meeting of the district, on the ground that 
 the annual meetings of former years had been held at that date by re- 
 gular adjournments. Either the time should have been designated at the 
 annual meeting of 1847, or the trustees should have called the meeting 
 and the proper notices should have been given. 
 
 Per Morgan, January, 1849. 
 
22 DIGEST OF DECISIONS. 
 
 When the assessment roll of a town is at the county seat in the custody of the 
 board of supervisors, and a tax is voted in its absence, it is a sufficient ex- 
 cuse for not making out the tax list within thirty days after it is voted. 
 The statute is merely directory. 
 
 At a district meeting in the town of Wilson, held November 28, 
 1848, a tax of fifteen dollars was voted for the purpose of furnishing 
 the school with wood during the winter. 
 
 The last assessment roll of the town being at the county seat, the 
 trustees did not make out the tax list within the time directed by law. 
 Thinking the tax had become void, they gave the district clerk a verbal 
 notice, to cause a special meeting to be held the 20th day of November, 
 for the purpose of voting the tax again. The meeting was held and the 
 tax voted. Also a tax was voted to repair the school-house, without 
 the proper notice being given. Objection being made by some of the 
 inhabitants to this meeting : 1st, because the notice of the trustees was 
 not written, and 2d, because a tax was voted to repair the school-house 
 without the proper notice ; 
 
 The trustees called another meeting, to be held the 23d December, 
 for the same purpose. At this meeting the motion to raise the tax for 
 wood was negatived. 
 
 From this vote the trustees appeal. According to a vote of the 
 district at the annual meeting, the trustees assumed responsibilities in 
 behalf of the district for which they were directed to raise a tax. 
 Although the tax list may not have been made out within thirty days 
 after the tax was voted, no subsequent vote of the district could change 
 their liability to taxation for wood. The trustees acted under the 
 direction of the district, and could not therefore be made personally 
 responsible, if they acted in good faith. The statute relating to the 
 time of making out a tax list is directory merely, and a failure to comply 
 with it, through accident or for good reasons, does not render a tax that 
 has been voted illegal. The trustees in this case had good reasons for 
 not completing the tax list in thirty days, to wit, the absence of the 
 assessment roll. The trustees are hereby authorized to levy the tax 
 voted at the annual meeting. 
 
 Per Morgan, January, 1849. 
 
 An arbitration between the trustees of a school district and a person having a 
 claim against it. is proper and lesal, and the award binding on the parties. 
 Per Morgan, February 19, 1848. 
 
 It Is the duty of the collector to obey the mandate of his warrant, and proceed to 
 collect the tax or rate bill. If he neglect to do so, he is liable to be fined. 
 Tlie trustees cannot release the bail of the collector from the obligations of 
 his bond. 
 
 Tlie tmstces of District No. 7, in Cuba, delivered a rate bill and 
 warrant to the collector of the district for collection, and required of 
 him a bond, conditioned for the payment of money received by him, 
 
DIGEST OF DECISIONS, 23 
 
 which ■was given. Having discovered an error in the rate bill, the 
 trustees took it from the collector to correct it, without procuring the 
 assent of the state superintendent. While the rate bill was in their 
 hands, the bail of the collector demanded a release from his bond. ,. 
 
 After waiting several days for the collector to procure new bail, an^ 
 his neglecting to do so, the trustees appointed another collector. If the 
 trustees released the bail of the collector it was at their own risk, as he 
 was bound for the collection of the rate bill and the faithful application 
 of the money collected. He did not cease to be the collector of the 
 district on the demand of his bail to be released, and if he refuse or 
 neglect to perform any of the duties of his office he is finable. His 
 office not being vacant the trustees could not appoint another to fill his 
 place, and the acts of the trustees in so doing are illegal. 
 Per Morgan, November, 1848. 
 
 'When costs have been incurred against district officers in suits hy or against 
 them in the discharge of their official duties, a majority of the voters of the 
 district may allow the amount, and the trustees assess the same by tax, or 
 the claimants may present their claim to the board of supervisors. 
 
 The inhabitants of District No. 4, on the 4th September last, audited 
 the account of the trustees for costs and expenses incurred in certain 
 suits commenced by and against them and their predecessors in office, 
 and directed the amount so audited and allowed to be collected by a 
 tax. The superintendent on a careful examination of this case is satis- 
 fled that the account was made out and presented in good faith, that 
 the items were such as the district were fully competent to pass upon, and 
 that the tax directed to be levied for their payment was equitable and 
 just. 
 
 Per Morgan, October, 1849. 
 
 8 Howard's Reports, 125. 
 
 It is illegal for trustees to enumerate children in their districts, betvveen, the ages 
 of five and sixteen, unless they compose a part of the family of their parents 
 or guardians or employers, if such parents cr guardians or employers 
 reside at tiie time in such district. 
 
 The trustees in District No. 5, in the town of Davenpprt,; ii^cjuded in 
 their annual report, dated Dec0niber 31, 184-8, sixty-two chi]dr,en under 
 sixteen and over, five years of age -attending' a private school under 
 charge of S. D. Ferguson. The children attending this private school 
 had parents residing mostly in New-York and Philadelphia, and the 
 parents of none of them in the district. Five of said sixty-two children 
 were orphans. It was not .known to the department whether the said 
 orphans were supported by Mr. Ferguson, or were boarded . like the 
 rest, or were sent to school by their guardians, but the latter is supposed 
 to have been tlie truth. 
 
 The school law, §118, of 1847, directs the trustees to include 
 in their report all children over five and under sixteen years of 
 age, who shall, at the date of such report, actually be in the distrid;, 
 
24 DIGEST OF DECISION'S. 
 
 composing a part of the family of their parents or giiardians or 
 employers, if such parents or guardians or employers reside at the time 
 in such district. From this law it would seem to be very clear, that not 
 one of the sixty-two children attending Mr. Ferguson's school could be 
 lawfully enumerated in the annual report of the trustees. 
 
 Tlic trustees of District No. 5, were therefore wi'ong in including these 
 children in their report. 
 
 Per Morgan, March, 1849. 
 
 A teacher's certificate of qualification, cannot te annulled without siving; hira 
 notice and a reasonable opportunity, if he desire, to appear and be heard in 
 defence. 
 
 Tlie trustees of District No, 5, in Guilford, employed Mr. Matteson to 
 teach their school for the winter term. The school commenced Novem- 
 ber 1, 1847. November 26, 1847, Mr. Carhart visited the school, exam- 
 ined Mr. Matteson, and gave him a certificate. December 6, the super- 
 intendent stopped at the door of the school-house and told the teacher 
 that complaints had reached his ears in regard to his mode of punishing 
 scholars, and intimated that his certificate might be annulled. December 
 20th, the superintendent served a notice upon the teacher, that he should 
 annul his certificate unless certain complaints " arising from his mode of 
 punishment" were cleared up. December 25th, the teacher wrote the 
 superintendent requesting an investigation of the charges and complaints 
 against him. January 5th, the superintendent annulled the certificate and 
 gave notice thereof to the trustees, without having given the teacher any 
 opportunity to reply to or explain the charges made against him, and 
 assigning as his reasons therefor, the complaints mentioned in his previous 
 notice, and his own observations. The trustees all signed a paper stating 
 that in their opinion, the charges against the teacher were of a trivial 
 character, and wholly unfounded, and that the course of the superintendent 
 was "underhanded, prejudiced and ungentlemanly," and "meets our un- 
 qualified disapprobation." 
 
 The conduct of the town superintendent in this case will hardly 
 admit of a reasonable explanation. He visits a school twice and then 
 gives a teacher a legal certificate. In loss than a month he gives the 
 teacher notice of his intention to annul his certificate, without having 
 in the meantime visited the school or required a reexamination, and 
 upon complaints not stated in writing or assuming any tangible shape, 
 but so far as appears at the time, mere hearsay reporte, and neighbor- 
 hood gossip. The pretence that the superintendent had become satis- 
 fied from "personal observations" that the teacher was unqualified, is 
 very strangely inconsistent with the fact that he made no " personal 
 obsei-vations" after granting the certificate. The teacher requested 
 specifications of the charges. None were given. . lie desired to be 
 heard in answer to whatever could be alleged against him. No oppor- 
 tunity was allowed. 
 
 A certificate of qualification should not be annulled without a statement 
 of the complaint, and an investigation of its truth, and an opportunity 
 
DIGEST OF DECISIONS. 25 
 
 given to the teacher to be present during such investigation. Such are 
 the rules prescribed by this department in proceedings to annul a 
 teacher's certificate, and they are a part of the law. Tlie supenntendent 
 proceeded in this matter without a proper and needful statement of the 
 charges and specifications, and without giving the teacher an opportunity 
 to be heard in defence. 
 
 It is therefore decreed that the order of the town superintendent, 
 annulling Mr. Matteson's certificate be set aside. 
 
 Per Morgan, February, 1848. 
 
 When a town superintendent connives with a trustee to procure his resismation, 
 and conceals it from the district, so that tht inhabitants cannot elect a 
 successor within thirty days after the resignation, and the town superinten- 
 dent then makes the appointment, the department will set the appointment 
 aside and order a new election. 
 
 Mr. Johnson, a trustee in District No. 4, Florence, proffered his 
 resignation of ofilce to the superintendent, which was accepted. This 
 was done secretly, and obviously with the intention that the district 
 should be unacquainted with it until after the expiration of thirty days, 
 when the town snperintendent could appoint a successor. It is stated 
 that the town superintendent gave one of the trnstees notice of the 
 resignation, but it is clearly shown and is not denied by the town 
 superintendent, that this was done with a view of seeming to fulfill, 
 rather than to carry out the meaning of the law, and allow the district 
 to elect a successor, since this trustee was very cautious about letting 
 any one know it. 
 
 The district not being permitted to choose the trustee, the town 
 superintendent made the appointment the day before the expiration of 
 the thirty days. This department cannot suffer a district to be imposed 
 upon or deprived of any privileges by the management of officers or 
 the intrigue of individuals. It is therefore ordered that the appointment 
 of trustee made by the town superintendent of Florence, to supply the 
 vacancy occasioned by the resignation of Mr. Johnson, as trustee of 
 District No. 4, in said town, be set aside, and that the trustees of said 
 district call a special meeting of the inhabitants to fill the vacancy. 
 Per Morgan, February, 1489. 
 
 It is not in the power of a district meeting to control the trustees in the exercise 
 of their duty of prosecuting delinquent predecossovs for not rendering an 
 annual account, or for not paying over a balance of money remaining in 
 their hands. A resolution attemptiug to limit their power in this respect is 
 void. 
 
 A special meeting held in District No. 18 in the town of Sodus, 
 Febrnary 22, 1848, 
 
 Resolved, That a former resolution directing measures to be taten to 
 collect certain arrearages alleged to be due from former trnstees should 
 be rescinded ; and further, that no civil proceeding's should be com- 
 
 [DlGEST.] 4 
 
26 DIGEST OF DECISIONS. 
 
 menced by the trustees of the district for school moneys not paid over 
 by former trustees, unless by a special resolution of the district. 
 
 Both resolutions mentioned in the appeal were adopted, under a 
 misapprehension of the powers and duties of the inhabitants when 
 assembled in school district meetings. 
 
 Every trustee is bound by law yearly to render an account to the 
 district, of the moneys received and paid out by him, and to file said 
 account with the district clerk, and also upon going out of oflBce to pay 
 over any balance of money remaining in his hands to his successors in 
 oflSoe. 
 
 For any neglect or refusal to render such account or to pay over such 
 balance, the delinquent forfeits to the use and benefit of the district the 
 sum of $25.00, to be sued for and recovered either by his successors in 
 office or by the town superintendent. The town superintendent (super- 
 visor) may also sue the trustees for unpaid balances in their hands. It 
 requires no vote of the district to authorize such suit to be brought, 
 and a vote directing such suits to be brought, or not to be brought, is a 
 nullity. 
 
 Per Morgan, March, 1848. 
 
 The trustees of a school district have no power to correct a tax list after a por- 
 tion of the tax has been collected without permission from the department 
 of public instruction. 
 
 The town superintendent of Crown Point, having, February 19, 1847, 
 regularly formed a new district in said town, served a notice upon Aaron 
 T. Townsend, a taxable inhabitant of said district, together with a copy 
 of the order forming the district, requiring him to notify each taxable 
 inhabitant of a district meeting to be held on the first of March follow- 
 ing. Accordingly notice was given to the inhabitants by notifying them 
 of the time and place of holding the meeting. 
 
 A meeting was held on the 1st of March, and adjourned to the 15th, 
 at which a tax was voted to build a school-house. The tax list was 
 made out by the trustees within thirty days, as required by law, and 
 was put into the hands of the collector on the 22d of January, 
 1848. On the 5th of February, the trustees corrected the tax list 
 without the approval of this department, Having discovered errors in it 
 and attaching the corrected list to the old warrant delivered it to the 
 collector. This was an irregularity on the part of the trustees after a 
 portion of the tax had been collected. The original tax list is the one 
 which is in force, and if the trustees have discovered an error in it they 
 may, after refunding any amount that may have been collected on such 
 tax list, if the same shall be required, amend and correct such tax list in 
 conformity to law, and redeliver it to the collector with the old warrant 
 attached. 
 
 Per Morgan, June, 1848. 
 
DIGEST OF DECISIONS. 27 
 
 Where one trustee engages a teacher to teach in the place designated by a district 
 
 meeting and the other two engage a teacher to teach in a place selected by 
 
 themselves, neither is a legal scliool. 
 One trustee cannot legally engage a teacher for the district, neither can two trus-. 
 
 tees legally engage a teacher, to teach in a place designated by themselves 
 
 when the district have selected another place. 
 
 The school-house in District No. 1, Guilford, Chenango county, was 
 destroyed by fire in January, 1847. In February following, the inha- 
 bitants in district meeting, voted to hire a temporary place for the 
 school. Accordingly a school was regularly opened on the 12th of 
 May, 1847, in the place so designated. In the following winter two of 
 the trustees opened a school in another place, without the vote of the 
 district and gave an order upon the town superintendent for two-thirds 
 of the teacher's money apportioned to the district, which was paid. 
 
 In the meantime, Mr. Mills, the other trustee opened a school in the 
 house which had been designated by the district for the summer school. 
 
 Each party claims a right to the public money, but neither is entitled 
 to it, as neither school was legally established. 
 
 In all cases the inhabitants of a district are to designate the place 
 where the school shall be kept, and trustees alone are responsible for 
 the expenses incurred in support of a school opened by them without 
 this authority from the district. 
 
 One trustee cannot hire a teacher or open a school without the con- 
 currence of at least one other trustee. Nor is any act of the trustees 
 valid, without all being consulted, and without a concurrence of a 
 majority. 
 
 The public money obtained on the order of the two trustees, could 
 not be applied to the payment of their teacher, as the school was not 
 a district school. 
 
 It is therefore hereby adjudged and decided, that the public money 
 apportioned to District No. 7, Guilford, for teacher s wages, cannot be 
 applied to the payment of either of the teachers employed in the schools 
 hereinbefore mentioned. 
 
 Per Morgan, Jula«14, 1848. 
 
 Trustees have no lion on moneys belonging to the district, for expenses incurred 
 
 by them in its behalf. 
 If they have been dhected by the district to act, they can indemnify themselves 
 
 by levying a tax without a vote of the district for that purpose. 
 
 Mr. Charles Kendall, a trustee of District No. 3, Bethany, Genesee 
 county, had in his hands $18.18 belonging to said district. At a 
 special meeting, held May 6, 1848, said sum was appropriated by a vote 
 of the district for the purchase of a stove and other purposes. 
 
 Mr. Kendall claims that the district should pay him for the use of a 
 stove bought by him, and placed in the school-house without the 
 authority of a vote of the district. The district refused to purchase the 
 stove of Mr. Kendall, bought by him in good faith, and he retains in his 
 hands $3 for the use thereof. The good or bad designs either of 
 
28 DIGEST OF DECISIONS. 
 
 Mr. Kendall or of the district, can in no wise aiFect the case, so as tc 
 render the district liable for the stove. 
 
 Mr. Kendall also claims that he should be allowed $3, which he 
 alleges he paid for the district, in pursuance of a vote of the district. 
 It is not stated when nor for what purpose the $3 were expended, 
 nor are any dates given, except that the annual report of the trustees 
 in 1847, acknowledged the $3, as a debt due Mr. Kendall from the 
 district. But the district clerk certifies that the records of the district 
 contain no mention of the said |3. . 
 
 Mr. Kendall fails to establish a good claim against the district for 
 the 16. 
 
 Per A. Gr. Johnson, Dep. Supt., August 5, 1848. 
 
 The official acts of two trustees, performed without notifying or consulting the 
 other, are illegal and void. 
 
 At a district meeting held in District No. 7, Guilford, Chenango 
 county, September 5th, 1848, a resolution was passed directing the school 
 to be kept in a room near Samuel Godfrey's, three years from the 
 1st day of April preceding. 
 
 It appears that the school-house in District No. 7, was burned in 
 January, 1847. On the 20th of February, 1847, a meeting was held in 
 the district, at which a site for a school-house was designated. This 
 meeting was adjourned to the 27th of the same month, when the 
 vote establishing the site was rescinded. Two of the trustees called 
 a special meeting, to be held on the 15th of September, 1847, 
 without notifying or consulting the other trustee. At this meeting, a 
 tax was voted to pay for the site of a school-house, without designating 
 the same, and also a tax to build a school-house. 
 
 The two trustees made out a tax list, dated December 24, 1847, and 
 dehvered it with their wai'rant attached, to the collector, on the 4th 
 of January following, more than three months after the tax was voted. 
 With the money thus raised, a school-house was built upon the site 
 selected by the district, on the 20th day of February, but which 
 was annulled by said district, at the adjourned meeting of the 27th 
 of the same month. 
 
 The proceedings, in raising the tax and building the school-house 
 cannot be sustahied. The meeting called by two trustees, without 
 consulting or notifying the other trustee, was illegal, and the votes of 
 that meeting were void. 
 
 It is therefore decided that the house built upon the site not esta- 
 blished by the district, and with a tax not legally raised, is not the 
 school-house of the district, and that the vote of the district taken at 
 the meeting of the 5th of September, 1848, ordering the school to be 
 kept " in the room near Samuel Godfrey's," was legal. 
 
 Per Morgan, November 16, 1848. 
 
DIGEST OF DECISIONS. 29 
 
 Where a person voted at a district meeting on the ground that he had $50 in per- 
 sonal projjcrty liable to taxation, it is the duty of the trustees to include him 
 in their tax list, even thouah his name be not on the assessment roll of the 
 town, and if they neg'ect to do so, the department will set aside their assess- 
 ment, and order them to include the person so left out. 
 
 At a district meeting held in District No. 8, Marcy, Oneida county, 
 on tlie 18th day of August, 1848, a tax of $100 was voted to be 
 raised by two equal installments, for the purpose of building a school- 
 house. 
 
 The trustees made out a tax list for the whole amount, and after 
 giving the notice required by law, and no one appearing before them to 
 claim reduction, delivered it with their warrant attached to the collector. 
 
 Objection is now made to this assessment, becanse persons are not 
 included in the tax list who voted at the meeting to raise the tax, upon 
 the qualification of having personal property to the amount of $50 liable 
 to taxation. 
 
 In making out the tax list, trustees should assess all the taxable 
 inhabitants of their district, whether they are included in the last 
 assessment roll of the town or not. But they are not required to 
 include a person in a tax list, upon the supposition that he has personal 
 property liable to taxation. They must have satisfactoiy proo*' of it, as 
 that a person has come into possession of property since the last assess- 
 ment roll of the town, by inheritance or otherwise, or as in the present 
 case, that a person voted at & district meeting under the qualification of 
 having $50 personal property liable to taxation. 
 
 The trustees must include such persons in their tax list. It is there- 
 fore hereby decided that the tax list made out by the trustees of 
 District No. 8, Marcy, in which all the taxable inhabitants of the district 
 were not included, is illegal. 
 
 Per Morgan, Noveraher 20, 1848. 
 
 Trustees of a school district have the sole power of making contracts relating to 
 their districts, and of accepting the work performed under them. 
 
 Tlie trustees of District No. V, Depuyster, St. Lawrence county, by 
 authority from the district, contracted with a builder to construct a 
 school-house, to be completed by the 1st of November, 1848. The 
 house was not completed until about a month after the time specified, 
 and w as not such an one in every particular as was contemplated in the 
 contract. 
 
 After consultation, the trustees accepted the building, thinking it 
 better to do so than to subject themselves and the district to further 
 trouble. 
 
 The acceptance of the building is appealed from, on the ground that 
 the taxable inhabitants of the district have been wronged. 
 
 The trustees of a school district have the sole power of making con- 
 tracts relating to their district, and of accepting the work performed 
 under them. And in the absence of fraiid or bad faith, there appears 
 to be no way of rendering them liable for their acts. 
 
30 DIGEST OF DECISIONS. 
 
 In the present case, there appears to be no evidence of bad faith or 
 intention to defraud the district. This department cannot therefore 
 interfere. 
 
 Per Morgan, January 27, 1849. 
 
 The trustees of a district are the only legal authority by which the vote of a 
 district can be carried into execution. 
 
 At a special meeting held in District No. 2, Centreville, Allegany 
 county, November 4th, 1848, it was voted to change the site of the 
 school-house, by a majority of votes. The district being an altered one 
 this vote was sufficient. 
 
 Tlie site selected is situated at the extreme southern part of the 
 district, making the distance which children residing in the extreme 
 northern part of the district would be compelled to travel, about four 
 miles. 
 
 The inhabitants authorized Mr. Asa Bobbins to superintend the 
 removal of the house, without being associated with the trustees. 
 
 The trustees forbade Mr. Robbins to move the house from the old 
 site. He, however, disregarding their remonstrance, located it upon 
 the new site. 
 
 The tnistees of a district are the only legal authority by which the 
 votes of the district can be carried into execution. And although the 
 inhabitants at a district meeting may direct that the trustees shall 
 contract with a certain person to perform certain work, and that such 
 person shall be associated with the trustees in such work, they cannot 
 authorize such person to do any act, nor can the district contract with 
 him, except through the trustees 
 
 The vote directing Mr. Robbins to superintend the removal of the 
 school-house without the intervention of the trustees, was therefore 
 illegal. And Mr. Robbins became a trespasser, after being forbidden by 
 the trustees to move the school-house. 
 
 Per Morgan, February 3, 1849. 
 
 It is the duty of the inhabitants of a school district to dispose of the old school- 
 house, and to apply the avails thereof towards purcha-sing a new house 
 and site. Neglecting so to do, this department will set aside proceedings to 
 raise a tax for building the new house. 
 
 The points relied upon by the appellants are in substance, as follows : 
 1st. That the district not being an altered one, and the site having 
 been changed by a majority vote, and without the certificate of the 
 town superintendent, the proceedings were invalid on this account. 
 
 To this it is a sufficient answer that the district had no title to the site 
 on which the school-house stood, and it was therefore lawful for a ma- 
 jority of the inhabitants to direct the purchase of a site without the 
 certificate of the town superintendent. 
 
DIGEST OF DECISIONS. 31 
 
 2d. That the house owned and occupied by the district as a school- 
 house, was not sold and the avails applied in diminution of the tax for 
 building a new house. 
 
 This point, in the judgment of the superintendent, is well taken. The 
 tax payers of the district had a right to the avails of the sales of the 
 old house in diminution of their tax, for building the new one ; and in 
 the absence of any direction of the district on the subject, it was the 
 duty of the trustees to have sold the house and applied the proceeds to 
 the reduction of the aggregate amount voted by the district for the 
 purchase of the site and the building of the house. For aught that 
 appears to the contrary, the sum that might have been realized on the 
 sale might have swelled the entire appropriation for building the house 
 to a sum exceeding $400, and thereby rendered the certificate of the 
 town superintendent necessary. 
 
 Upon the whole the superintendent sees no sufiicient reason for dis- 
 turbing the proceedings in this case, further than to direct the trustees, 
 forthwith to dispose of the house formerly belonging to the district, on 
 the best terms they can procure and to apply the avails in reduction of 
 the aggregate amount of the , tax for purchasing the site and building 
 the house. For this purpose the further collection of the tax list here- 
 tofore made out will be suspended, and the amount collected refunded 
 and a new tax list and warrant made out for the amount remaining after 
 the application of the avails of the sale of the old house in accordance 
 with law. 
 
 Per Yonng, January 24, 1844. 
 
 Trustees should always exercise a liberal discretion in exempting indigent per- 
 sons from the payment of teachers' wages. 
 
 The appellant, Henry Pulver, complains that the trustees of District 
 No. 9, Redhook and Milan, have not exempted him from the payment 
 of teachers' wages, which he claims they should have done on account 
 of his indigent circumstances. 
 
 It appears that said Pulver has a family of four children, that he is in 
 poor health, and has no means of supporting himself and family except 
 by his feeble exertions as a day laborer which attbrd a scanty supply. 
 
 Trustees should always exercise a liberal discretion in exempting indi- 
 gent persons from the payment of teachers' wages. Poverty should 
 never be an excuse for depriving any children in a district of the privi- 
 leges of the school. 
 
 The trustees of said district are therefore hereby required to exempt 
 Henry Pulver from the payment of teachers' wages in the rate bill 
 which is now in the collector's hands, and to make his proportion of the 
 rate bill a charge upon the district. 
 
 Per Morgan, November 28, 1848. 
 
32 DIGEST OF DECISIONS. 
 
 A school district has no authority by law, and this department -will not permit the 
 inhabitants, to give a perpetual lea'-e for the site of a school-house. Tha 
 district should have the fee simple before building. 
 
 The trustees of District No. 5, in the city of Troy, called a special 
 meeting of the district to be held on the 29th of February, 1848. This 
 meeting was organized and adjourned to the 27th of March following. 
 
 At the adjourned meeting, a resolution which had been introduced at 
 the previous meeting and laid on the table for future action was called 
 up. The resolution was amended, and as amended adopted unani- 
 mously. The resolution adopted read as follows : 
 
 "■Resolved, That the trustees of School District No. 5, of the city of 
 Ti'oy, be directed by and with the consent of the school commissioners 
 ' of the city of Troy, to lease from Messrs. Marshall, Belding and Christie, 
 lots Nos. 14, 15 and 16, on the north side of Christie-street, in the 6th 
 ward of the city of Troy, at a yearly rent not exceeding the sum of 
 $34 per annum with the privilege of buying off said rent at seven per 
 cent within ten years from date." 
 
 The contemplated lease was for the site of a school-house. 
 
 The only question necessary to be considered is this : 
 
 Can a school district lease or purchase a site for a school-house in 
 the manner contemplated in the resolution before mentioned? 
 
 By the 4th and 5th clauses of § 62, chap. 480, Laws of 1847, the inha- 
 bitants of a district have power to designate a sitp for a district school- 
 house, and to lay such tax on the taxable property 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 repair and furnish the same with the necessary fuel and appen- 
 dages, and § 82 authorizes the trustees to carry such vote into effect. 
 
 The word lease used here must be interpreted to mean a lease for a 
 limited term, one, two or three years, of a lot of land and building to 
 be used by the district till such time as a suitable site can be procured 
 in fee, or the conveyance of a lot of land to the district to be the pro- 
 perty of the district so long as it shall be occupied for a school-house 
 site. 
 
 Under the new constitution no agricultural land can be leased, for a 
 longer period than twelve years, and although individuals in cities may 
 still lease building lots for longer terms or in perpetuity, it is certainly 
 desirable that land to be used as the site of a school-house should be 
 free from any and every incumbrance. 
 
 The statute confers no authority upon a school district to purchase 
 land and give a mortgage or any other security for the consideration 
 money. In the section authorizing the inhabitants to lease, authority 
 is given to raise a tax for that purpose. It cannot be, therefore, that 
 the authority to lease gives the inhabitants the privilege of voting that 
 such a contract shall be entered into as will entail a perpetual debt upon 
 the district and put the people to the necessity of raising a tax to pay 
 the rent every year throughout all coming time. It has heretofore been 
 
DIGEST OF DECISIONS. 33 
 
 held that the district could not purchase a site and give a mortgage for 
 the purchase money, one-half to be paid in five years, the balance in 
 ten years. This department has also repeatedly held that districts could 
 not be permitted to buy a site and erect a school-house upon land incum- 
 bered by mortgage. 
 
 No good reason can be given against permitting the district to give a 
 mortgage for the purchase money of a site, which will not bear with 
 equal force against permitting them to enter into a contract, by which 
 the site of the school may be subjected to a perpetual incumbrance. If 
 a mortgage is given, the interest must be paid annually, and the princi- 
 pal within some specified time. If a perpetual lease is given, the 
 interest of the stipulated value of the land must be paid annually, but 
 the principal cannot be paid at all except at the option of the lessor. 
 The fact that the principal cannot be demanded, is not a sufficient reply 
 to the objection, for the real difiiculty is that the lien and incumbrance 
 can only be removed with the consent of persons claiming the lien. 
 
 What is this contract as contemplated in the resolution ? It is jusc 
 this. The lots are assumed to be worth about $487. The present 
 owners say that the district may have an unconditional title in fee 
 conveyed to them at any time in ten years, on the payment of that sum 
 and the interest annually, at 1 per cent. But if the $487 is not paid 
 within ten years, then the owners may demand $500 or a $1000, or 
 just such sum as they may think proper. 
 
 A mortgage may be foreclosed, if interest and principal, or either, are 
 not punctually paid, and the premises sold, but in that case the proceeds, 
 after paying the debt and costs, are refunded to the mortgagor. 
 
 If rent is not punctually paid, the landlord may reenter and take 
 possession of the premises leased, together with all the improvements, 
 oud may have judgment for costs. 
 
 If, therefore, any incumbrance upon a school-house site is allowable, 
 a mortgage would be preferable to a perpetual lease. 
 
 The appeal is therefore sustained, and the resolution adopted by the 
 meeting of the 27th March aforesaid is set aside and declared null and 
 void. If the district need a new school-house, the site for it must be 
 purchased, and a tax levied to pay for it. 
 
 Per Morgan, July 6, 1848. 
 
 In designating a site for a school-house, the description should he by metes and 
 bounds, and the (Quantity of land should be staled, that every inhabitant 
 of the district may be able to vote intelligently. 
 
 At a special meeting held in District No. 6, Lansing, March 1, 1849, 
 resolutions were passed to change the site of the school-house "to the 
 first corner north of the road, on a piece of land owned by Mary 
 Dickerson ;" to raise a tax to purchase the new site, and also a tax of 
 $300 to build a school-house, &c. 
 
 The notices for this meeting having been deficient and improperly 
 given, another special meeting was called, to be held March 15, 1849. 
 
 [Digest.] 5 
 
34 DIGEST OF DECISIONS. 
 
 At this last meeting, a resolution was passed confirming the proceedings 
 of the meeting of the 1st of March. 
 
 The principal point in the case is, that the site was not sufficiently 
 designated. 
 
 The resolution to move the site " to the first comer north on the 
 road," is too vague and indefinite, and cannot he regarded in law. It 
 does not state whether the trustees are authorized to purchase one-half 
 acre or five acres on the corner, nor is the description of the land given 
 sufiicient to give an idea of its location. 
 
 In designating a site for a school-house, the description should be by 
 metes and bounds, and the quantity of land should be given, that every 
 inhabitant of the district may be able to vote intelligently. 
 Per Morgan, April 18, 1849. 
 
 When the trustees have contracted, to locate the school-house on any particular 
 place upon the site, in the absence of any instructions from the district, this 
 department will not interfere. 
 
 The trustees located a school-house a few feet less than four rods from 
 the south line of their lot which, is bounded on the highway. The 
 appellants and a majority of the district desired to leave fitli four rods 
 in front. The trustees, however, in the absence of any explicit instruc- 
 tions or direction from the district, agreed upon the present location and 
 entered into a contract with a builder who had commenced his work 
 prior to any instructions from the district. The trustees having gone on, 
 for aught that appears to the contrary, in good faith in the location of 
 the house prior to any expression of the wishes of the district, and 
 having entered into contracts and incurred liabilities in the prosecution 
 of the work, it is deemed unwise and inexpedient to subject the district 
 to the expense which must be incurred by a change in the location. 
 
 The appeal is dismissed. 
 
 Per A. Q. Johnson, Dept. Supt., August 30, 1849. 
 
 A majority of voters at a school district meeting may empower the trustees to 
 purchase additional territory adjoining tlie school-house site, for the purpose 
 of enlarging their grounds for school purposes. It is not a case of removal 
 of site. 
 
 The only question involved in this appeal is whether the purchase of 
 an additional quantity of land adjoining that on which the former school- 
 house of the district had been erected, and which was burned down, 
 rendering it necessary for the district to build a new one, and the re- 
 building of the district school-house wholly or in part upon the new 
 ground thus purchased, is such an act as requires the assent of two-thirds 
 of the voters present at a district meeting called specially for the purpose 
 under the provisions of § 1, No. 85, of the Laws relating to common 
 schools. I do not doubt the legal right of a majority of the voters in 
 any district meeting duly convened, to lay a tax upon their district to 
 purchase ground additional to and adjoining a site already owned by the 
 
DIGEST OF DECISIONS. 35 
 
 district, if such ground be suitable for the purpose of the existing site, 
 and the school, — such as play ground for the children, wood-house or 
 other appendages. Nor could the certificate of the town superintendent 
 be necessary to render such an act legal any more than for building a 
 wood-house, or repairing the school-house. The district, as I under- 
 stand the case, owned no more ground than was covered by the build- 
 ings. Now what were the acts which the law intended to prohibit the 
 mere majority from doing after a site had been purchased and a school- 
 house built or purchased for the district while the same remained un- 
 altered ? 
 
 Certainly not to prevent the purchase of more ground immediately 
 adjoining, if necessary, nor the erection of additional buildings thereon, 
 if the exigencies of the district required it for the accommodation of the 
 school, or even the erection of a new house should it be necessary. 
 
 These are acts which, in my judgment it is perfectly competent for 
 the majority of the inhabitants of the district to perform, when assem- 
 bled in a school district meeting. I cannot hold this to be such a 
 change of site as comes within the provisions of the section above 
 mentioned. 
 
 Per N. S. Benton, July 10, 184G. 
 
 The department will annul the certificate of a teacher for cruel and unreasonable 
 discipline in the government of a school. 
 
 Mr. Ely was employed as a teacher in District No. 7, Amity, by the 
 trustees, on the 4th of December last, and soon afterwards commenced 
 his school, under a certificate of qualification, granted by the town 
 superintendent. From the statement of the respondents, in answer to 
 the appeal, it appears " that much dissatisfaction prevailed in the dis- 
 trict, on account of the severe, not to say outrageous manner pursued 
 by tlie teacher in punishing the scholars. And on a visitation of the 
 school on the day above referred to by the town and county superinten- 
 dents, but twent3^-eight out of fifty-eight children on the teacher's list 
 were present. " The great part of the absentees, Bly acknowledged, had 
 been driven from the school in consequence of his severity, &c. He also 
 remarked to us, that ' if he could get rid of a few more, he thought he 
 could govern the rest.' " 
 
 The respondents further state, during the examination " the greatest 
 confusion, insubordination and anarchy continued ;" that the teacher 
 was informed at the close, and after the children had left, in the most 
 kind and friendly manner that some method better calculated to pre- 
 serve order in his school must be adopted, and he was advised to 
 " address his pupils in a spirit of kindness, <fec.," at which he evinced 
 great anger, announced his intention " to adopt and persist in his own 
 course, and to receive dictation from no man." The superintendents 
 then informed him, that in their judgment the indiscriminate use of 
 the rod was improper, that the "insubordinate conduct of his pupils 
 was in a measure owing to his indiscriminate and severe use not of a 
 rod, but of a bush about throe-quarters of an inch in diameter, and tliree 
 
36 DIGEST OF DECISIONS. 
 
 feet long, with several branches well twisted together," and that unless a 
 reformation in this respect was promised, they should be under the 
 necessity of depriving him of his certificate. 
 
 This he peremptorily refused to do, and distinctly informed the 
 superintendents that he should continue the same course of discipline he 
 had adopted for the government of his school. Under these circum- 
 stances, they deemed it their duty to annul his certificate. 
 
 The practice of inflicting corporeal punishment upon scholars, in any 
 case whatever, observes General Dix, has no sanction but usage. The 
 superintendent is not prepared, in the present imperfect condition of educa- 
 tional science, entirely to prohibit its use as a means of school discipline, 
 but he will sustain town and county superintendents in every effort to 
 restrict it to the smallest possible compass consistent with the preserva- 
 tion of order and government, and he will in no case tolerate the 
 slightest abuse in the discretion conferred in this respect by usage, or 
 otherwise, upon teachers. 
 
 In this case the town and county superintendents were amply justi- 
 fiable in annulling the certificate, and their proceedings are therefore 
 confirmed, and the appeal dismissed. 
 
 Per S. Young, February 1, 1844. 
 
 Every contract made with teachers in our common schools necessarily includes 
 the condition that the agreement cannot be binding for a longer period than 
 teachers may hold certificates of qualification, and on the annulling of their 
 certificates all claitn for future services ceases. 
 
 The appellant in the year 1845, had made a contract with the trus- 
 tees of school District No. 10, in the town of Champion to teach the 
 district school for a limited period, and at a stipulated price per month 
 for: his services ; and, before the expiration of the term limited by the 
 contract, on the 2Yth day of November, 1845, for causes satisfactory to 
 that ofiicer, the town superintendent annulled the certificate of qualifi- 
 cation, which act was afiirmed by the county superintendent. 
 
 On appeal to the depaitment, it was deemed advisable for the reasons 
 stated in the decision then given, not to interfere with the acts of these 
 ofiicers, by a formal reversal of their decisions. 
 
 The appellant claimed of the trustees of the district his wages, under 
 his contract, for the unexpired term after the annulment of his certificate, 
 as before ihentioned, and those oflBcers or a majority of them having 
 refused payment he appealed to the county superintendent, who declined 
 interfering on the ground that the appellant had no legal claim to com- 
 pensation under his contract from the time his license as a teacher was 
 annulled* And from this determination, the appellant has again appealed 
 to this department. 
 
 Every contract made by trustees with a teacher in our common 
 schools necessarily includes the condition that the agreement cannot bo 
 binding upon them for a longer period than the teacher may hold a 
 certificate of qualification. I do not mean by this that trustees cannot 
 with a fiiU knowledge of all the fects in regard to a want of license 
 
DIGEST OF DECISIONS. 37 
 
 make a contract with an unlicensed teacher which will bind them per- 
 sonally, but I do hold that this department cannot in the exercise of its 
 rightful powers and jurisdiction he called npon to enforce a performance 
 of uny such contract. 
 
 I assume that when the trustees made the contract with the appellant 
 for his services as a teacher, both parties understood that the appellant 
 had a proper license, and that the contract was to cease whenever he 
 became legally disqualified as such, but if he be able to establish a 
 diiferent contract by competent proof then he must resort to another 
 tribunal, for this department cannot afford him any relief. 
 
 The decision of the county supei^ntondent is affirmed and the appeal 
 dismissed. 
 
 Per N. S. Benton, July 13, 1846. 
 
 A teacher employed under a contract, to teach by the month, specified as twenty- 
 six days, is entitled to dismiss sciiool every Saturday afternoon, or each alter- 
 nate Saturday, according to the custom of the country, and the trustees have 
 no right to withhold any portion of the amount due him for so doiug. 
 
 A contract was made between Mary Dwight and Jacob Harder, one 
 of the trustees of District No. 1, Windsor, and part in Conklin, by 
 which she was to teach the district school at three dollars a week for 
 an indefinite time. 
 
 The trustees dissenting on the 22d day of November, a new contract 
 was made between said Mary Dwight and Jacob Harder, with the con- 
 sent of the other trustee, Alanson Alden, by which she was to teach 
 four months, at the rate of twelve dollars per month of twenty-six days. 
 
 The said Mary Dwight taught from November 22, 1847, to March 
 21, 1848, inclusive, a period of one hundred and twenty-one days, 
 deducting Sundays. She therefore taught four months of twenty-six 
 days, according to contract. 
 
 But it is alleged by Harder, that the said Mary agreedi to teach 
 Saturdays or lose those days. The said Mary denies this, and alleges 
 that "Saturdays" were not mentioned when the contract was made. 
 The affidavit of Jared N. Hoadley, confinns the allegations of said 
 Mary Dwight. Hoadley swears that Maiy Dwight agreed to teach 
 twenty-six days for $12, on condition that she taught four months. 
 
 Hoadley's affidavit proves a contract by the month, at $12. Such a 
 contract would authorize the teacher to dismiss her school every holiday 
 and Saturday afternoon, or every alternate Saturday, according to the 
 custom of the district. And the custom of dismissing school eyery 
 Saturday afternoon or every alternate Saturday, is a good and wholesome 
 one. 
 
 The amount withheld by the trustees from Mary Dwight is $3,11. 
 
 It is adjudged and decreed that said Mary is entitled to receive from 
 said trustees said sum of $3.11, in addition to the sum of $44.89 ailready 
 paid to her, and the tmstees are hereby ordered to pay the same to her 
 forthwith. 
 
 Per Morgan, June 7, 1848. 
 
38 DIGEST OF DECISIONS. 
 
 A teacher can only be employed by the trustees. Therefore a vote taken at a 
 district meeting to dismiss a teacher and substitute another in her place, is 
 illegal and void. 
 
 Samuel T. Peck and James Smith, two of the trustees of District 
 No. 1, Livingston, hired Miss Susannah Smith to teach their winter 
 school, to commence November 30th, 1848. Mr. Lament, the other 
 trustee, was consulted, but did not consent to the contract. 
 
 Miss Smith commenced the school in the school-house of the district, 
 at the stipulated time. 
 
 Mr. Lament not being satisfied with the agreement of the other trus- 
 tees, hired Miss Horford to teach a sbhool in another room. 
 
 At a special meeting held in the district, January 20th, 1849, for the 
 purpose of voting a tax to repair th# school-house, and for other pur- 
 poses, a vote was taken and carried to substitute Miss Horford in the 
 school-house, as teacher, in place of Miss Smith. 
 
 From this proceeding the two trustees appeal. 
 
 In employing teachers, the trustees should consult, as far as possible, 
 the wishes of the inhabitants of the district. But when the trustees 
 have contracted with a teacher, thereby binding themselves and the 
 district, the inhabitants cannot free themselves from the obligations thus 
 imposed by the official acts of the trustees. 
 
 Teachers can be employed only by trustees. 
 
 A contract made by two trustees, the third being consulted, is valid ; 
 but one trustee can perform no official act, without the concurrence of 
 at least another, and a consultation with both. 
 
 In this case. Miss Smith was legally employed as the teacher for the 
 district, and could not be dismissed except by the trustees. Therefore 
 the proceedings of the district meeting on the 20th January, to dismiss 
 Miss Smith and substitute Miss Horford as teacher, were illegal and 
 void, and Miss Horford is not entitled to receive any of the public 
 money or to continue her instruction in the district school-house. 
 Appeal sustained. 
 
 Per Morgan, March 17, 1849. 
 
 When an inhabitant moves from one school district into another for the purpose 
 of avoiding an enumeration of his children in the former district, and imme- 
 diately after the enumeration moves back, the town superintendent sliould 
 apportion the money drawn on account of his children to the foimer district. 
 
 In this case the appellants transferred their residence from Joint Dis- 
 trict No. 3, Cherry Creek and Ellington, where they have for several 
 years resided, to District No. 1 in Cherry Creek, on the 30th of Decem- 
 ber last, with the obvious intention and design of having their children 
 enumerated in the latter district, where they generally attend school, 
 owing to some difficulties existing in District No. 3. On the 1st of 
 January, both the appellants returned to their former residences in the 
 latter district where they have since remained, and which is their per 
 manent residence. 
 
DIGEST OF DECISIONS, 39 
 
 Tlie town superintendent under these circumstances very properly 
 refused to sanction the fraudulent attempt to evade the spirit and intent 
 of the law, and apportioned the money drawn on account of their chil- 
 dren to District No, 3. In this he has been sustained by the county 
 superintendent whose decision must be affirmed. 
 
 Per S. Young, April 10, 1844. 
 
 A mortgage given to secure the purchase money of real estate, is subject to tax- 
 ation in the district where the mortgagee resides. 
 
 From the statements of the county superintendent in this case it 
 appears that on the 1 2th of March last, a tax was voted in District No. 8, 
 in which the appellant resides, for the purpose of erecting a school- 
 house, which was duly assessed on the taxable inhabitants, according to 
 law by the trustees on the 23d of the same month. At the time of voting 
 the tax the appellant was the owner of a farm in the district, which was 
 leased to a tenant whose term expired on the 1st of April subsequently. 
 On or about the 18th of March intermediate the voting, and the assess- 
 ment of the tax, he sold the farm to a non-resident of the district and 
 took a mortgage for the purchase money, stipulating to give possession 
 on the expiration of the lease, from which period interest on the amount 
 secured to be paid by the mortgage was to commence. The principal 
 question involved in the appeal is as to the right of the trustees to tax 
 the appellant for the amount secured to be paid as the purchase money 
 of the farm sold by him. The county superintendent decided that the 
 trustees were legally authorized to include the amount in their tax list, 
 under the head of personal property, from which decision the present 
 appeal is brought. The rule of law in this respect, has been correctly 
 stated by the county superintendent. It is that where a farm is sold the 
 vendor remaining in the district is taxable for the avails of such sale as 
 personal property, whether such avails are in the shape of money or 
 securities for its payment, while the purchaser or his agent, whether 
 resident or non-resident is taxable for the real estate. In the present 
 case the form of the appellant had been sold and a mortgage executed 
 for the purchase money prior to the assessment of the tax previously 
 voted ; and in accordance with the principle above laid down, the appel- 
 lant was clearly taxable for such purchase money as personal estate and 
 the purchaser as the non-resident owner of the real estate. Nor can this 
 principle be in any respect affected by the arrangement between the 
 parties relative to the period when possession was to be taken or interest 
 to commence running on the mortgage. 
 
 Per S. Voung, December 4, 1844. 
 
 It is the duty of the trustees in laying a tax to assess the samo against every 
 Ijerson within tlie district who owns or is iu possession of taxable property 
 at the time of making out such tax list. 
 
 On the 3d day of February, Mr, Iloyt sold all nis real estate in said 
 district to William Moroau, and executed and delivered a deed to him. 
 
40 DIGEST OF DECISIONS. 
 
 Mr. Hoyt remains in possession and by the contract will remain in pos- 
 session till April 1, 1848. February 15, 1848, the trustees of the district 
 proceeded to make out a tax list upon a tax voted January 15, 1848, to 
 build a school-house. They with a full knowledge of the above sale and 
 conveyance assessed Mr. Hoyt with the farm and real estate so sold. 
 
 Mr. Hoyt claims that the land should have been assessed to Mr. 
 Moreau. 
 
 The trustees were right. By § 85, chap. 480, Laws of 1847, the 
 trustees are required to apportion a tax upon " all the taxable inhabi- 
 tants holding property in the district, according to the valuations of the 
 taxable property which shall be owned or possessed by them at the time 
 of making out such list." Mr. Hoyt, at the time of making out the list, 
 had not given up possession and must be considered the possessor. 
 
 It is to be presumed, that the purthase money is not to be paid until 
 possession is delivered, in which case the trustees could not assess the 
 price of the farm to Mr. Hoyt as personal property. The appeal is 
 dismissed. 
 
 Per Morgan, March 18, 1848. 
 
 Contiguous territory lying partly in two or more districts, occupied and cultivated 
 as one farm is taxable in the district in which the occupant resides. 
 
 The facts in this case as submitted are as follows : 
 
 Whitman was the owner and occupant of a farm in District No. 12, 
 but recently purchased another lot of land contiguous to his farm and 
 lying in District No. 2, and removed his residence to District No. 2. 
 
 Whitman, residing in No. 2, is taxable in No. 2, for all the land he 
 occupies and cultivates which is composed of contiguous territory. 
 
 The fann lying in No. 12, on which he formerly resided lying conti- 
 guous to the farm upon which he now resides in No. 2, and both farms 
 being occupied by him, is taxable in No. 2 and not in No. 12. 
 
 But the tenant of Wliitman is a resident of No. 12, and must be taxed 
 there, for the house and garden occupied by him. 
 
 Per Morgan, June 7, 1848. 
 
 Where a tax payor, voluntarily moves from one district tn another he is liable to a 
 ■ tax for building a school-house in tlie latter district, even if within four years 
 he has paid a tax for that purpose in the district from wliich he removes. 
 
 Benjamin Mix, the petitioner, owns a farm partly situated in District 
 No. 16, and partly in No. 10, Gouverneur, St. Lawrence county. Until 
 last August he lived within the bounds of No. 16, but at that time he 
 moved into district No. 10. While a resident of No. 16, he contributed 
 his share of the expense of building a school-house in that district. 
 This was about eight years since. 
 
 The inhabitants of No. 10, have recently raised a tax to build a new 
 school-house and have included the farm of Mr, Mix in their tax list 
 Ho wishes to be released from the payment of the tax. 
 
DIGEST OF DECISIONS. 41 
 
 This petition must be denied because the law exempts only those who 
 have been set off from another district without their consent within four 
 years from the payment of a tax for building a school-house. 
 
 Mr. Mix voluntarily moved from No. 16 to No. 10, and moreover 
 upwards of four years have elapsed since he was taxed for building a 
 school-house, so that he cannot claim exemption on either ground. 
 
 The petition is dismissed. 
 
 Per A.. G. Johnson, Dept. Supt., August 7, 1848. 
 
 In levying a tax for the purchase of a school-house site, the district is not 
 
 limitel as to the amount to be raised. 
 The certificate of the town superintendent is not necessary, and the district may 
 
 by a majority vote raise such an amount as sliall be necessary for tlie purpose. 
 
 At a special meeting' of the innabitants of District No. 5, Troy, held 
 July 20, 1848, a site for a school-house was designated and a tax of four 
 hundred and seventy-five 'dollars was voted to pay for the same. The 
 site thus designated was for the second school-house in the district. 
 
 The appellant desires that the proceedings be set aside for the follow- 
 ing reasons : 
 
 1. Because the commissioners did not certify that a larger sum than 
 four hundred dollars was necessary to purchase the site. 
 
 2. On the ground of expediency. 
 
 By sub. 8, § 62 School Laws, provision is made for designating sites 
 for two or more school-houses in a district. 
 
 With the consent of the town superintendent (or the commissioners, 
 as in this case) the inhabitants of a district, when legally assembled, 
 may by a majority of votes of the legal voters present, designate a site 
 for the second school-house in their district and may lay a tax upon the 
 taxable property of the district to purchase such site. The limitation 
 to four hundred dollars does not apply to such cases. The section which 
 requires the consent of the town superintendent to raise a larger sum 
 only applies " to building, hiring or purchasing a school-house." (See 
 § 70, School Laws.) 
 
 The proceedings of the meeting of July 20, were legal. 
 
 As to the question of expedienc}' this department does not feel at 
 liberty to interfere without proof of palpable wrong, or abuse of power, 
 which does not appear in this case. 
 
 This decision is not intended to favor the abandonment of the old site. 
 
 The appeal dismissed. 
 
 Per Morgan, September 26, 1848. 
 
 It is the duty of the trustees to expend the library money on or before the 1st 
 
 day of October of the year in which it is received. 
 Library money can in no case be expended for teachers' wages without permission 
 
 of the State Superintendent. 
 
 This is an appeal from the. proceedings of a special meeting of the 
 inhabitants of School District No. 4 in the town of Danube, Herkimer 
 county, held December 31, 1847, pursuant to notice. 
 
 rDiGEST.l C 
 
i2 DIGEST OF DECISIONS. 
 
 At said meeting it was 
 
 Besoloed, unanimously, thattlie amount of library money now on hand 
 (19.58) be appropriated for the payment of teachers' wages for the pre- 
 sent term. 
 
 Resolved, By a majority, by a vote of eight to four, that one-half of 
 the school library money which will be allotted to the district the coming 
 year, be appropriated to the winter term, and the remaining half to the 
 summer term for the payment of teachers' wages. 
 
 The trustees ought to have expended the $9.58 of library money on 
 or before the 1st day of October last. Not having done so,' the town 
 superintendent must withhold from their district the said sum of 19.58, 
 and also the appropriation of library money for the coming year. 
 
 The first resolution appropriates money which the town superinten- 
 dent cannot legally pay over to the trustees or their order ; it is there- 
 fore nugatory. 
 
 The second resolution is null and void, for two reasons : 1st. By 
 reason of not having expended the last year's appropriation of library 
 money on or before October 1, 1847, the district is not entitled to any 
 future appropriation, except with the leave of this department ; 2d. 
 Because the law of December 15, 1847, which took effect January 5, 
 1848, provides that library money shall not hereafter be expended for 
 teachers' wages in any case, without the previous approbation of the 
 State Superintendent. 
 
 Therefore the proceedings of said district are hereby annulled. 
 Per Morgan, January 20, 1848. 
 
 A motion put to vote by any person other than the chairman of the meeting, is 
 
 irregular and void. 
 The inhabitants of a district have no power to dissolve or annul tne district. 
 
 The first meeting in District No. 9, Lloyd, Ulster county, was held 
 August 23, 1848, at which the following proceedings were had : 
 
 A chairman and clerk, pro tern., were chosen. The officers of the dis- 
 trict were elected, and a site for the school-house designated. During 
 these proceedings some difficulties arose upon questions of order. 
 
 A motion was made and seconded, that the meeting declare the 
 district to be annulled, which the chairman refused to put, when the 
 mover called for the ayes and noes, and declared the motion to be 
 carried. 
 
 A motion was then made to adjourn, but not being seconded the 
 chairman refused to put it to vote. 
 
 The mover called the ayes, and declared the meeting adjourned, 
 whereupon many withdrew. 
 
 The meeting continued its organization, and transacted business after 
 the withdrawal of some of the inhabitants. 
 
 The appellant desires that the proceedings of the meeting held after 
 the motion to adjourn was made, be decljired void. 
 
 The motion to dissolve the district was entirely out of order, as it 
 was upon a question over which the district had no control. A motion 
 
DIGEST OP DECISIONS. 43 
 
 to adjourn cannot be put to vote until it is seconded. The chairman 
 was therefore correct in refusing to put to vote either of these motions. 
 
 A motion put to vote by any other person than the chairman of the 
 meeting, is void. 
 
 The appeal is dismissed, and the proceedings of the meeting con- 
 firmed. 
 
 Per Morgan, December 22, 1848. • 
 
 If the trustees of a school district refuse to levy a tax, in pursuance of chap. 214, 
 of Laws of 18J7, to pay costs of school district officers, who have sued or 
 hoen sued in the discharge of their official duties, tiiis depaptment cannot 
 interfe e. 
 
 The proper remedy is an application to the supreme court for a mandamus. 
 
 The tnistces of District No. 7, De Kalb and Canton, refuse to levy a 
 tax of $115.73, as directed by chap. 214, Laws of 1847, to remunerate 
 the appellants for costs and expenses incurred by them as former 
 trustees of the district. 
 
 An appeal is taken to this department. 
 
 The superintendent is of opinion that this appeal cannot be enter- 
 tained. The proper remedy of the appellants under the act referred to 
 is by application to the supreme court for a mandamus. 
 Per Morgan, January 4, 1850. 
 
 A notice priven by the district clerk for a meetinij is legal, though the directions 
 of tlie trustees to the clerk to give such uotice were verbal. 
 
 A special meeting was held in District No. 5, Lisbon, St. Lawrence 
 county, December 30, 1848, pursuant to a notice given by the clerk for 
 the purpose, and the site of the school-house was voted to be changed. 
 
 The appellants object to the proceedings of the meeting, 
 
 Because the notices of the meeting by the district clerk were upon 
 the verbal direction of the trustees. 
 
 If the district clerk gives the proper notices for a special meeting the 
 proceedings of that meeting will not be held to be illegal, although the 
 trustees may have given the clerk only a verbal direction to give the 
 notices. 
 
 The proceedings of the meeting therefore are legal and regular. 
 
 Appeal dismissed. 
 
 Per Morgan, March 6, 1849. 
 
 The clerk of a district has no power to authorize any person to give notices for 
 a district, or to do any other act. 
 
 The trustees of District No. 14, Lockport, called a special meeting, to 
 be held on the 22d day of March, 1849, and directed the clerk of the 
 district to give the proper notices. 
 
 Most of the notices were given by a son of the clerk. The meeting 
 held in pursuance of such notice is alleged to be illegal. 
 
44 DIGEST OF DECISIONS. 
 
 It is the duty of the district clerk to give all notices for school 
 meetings in his district, and in case of his refusal or of a vacancy in 
 the office of clerk, a trustee may give them. 
 
 But the clerk of the district has no power to authorize any other 
 person to give the notices or to perform any other duties of his office. 
 The town superintendent only can, in certain cases, authorize any 
 inhabitant of the district to give notices of special meetings. 
 
 The appeal is sustained, and the proceedings of the meeting are 
 declared illegal and void. 
 
 Per Morgan, April 7, 1849. 
 
 When the trustees make any change in the valuation of property, differing from 
 the valuation, as appears by the assessment roll, they should give twenty 
 days' notice of the changes they have made to the inhabitants of the district 
 affected thereby. 
 
 The appellant in this case represents that on or about the 2d of 
 March last, a tax was voted for the support of schools at a special 
 meeting called and held in District No. 1, under the provisions of the 
 new school law ; and that the trustees, in apportioning the tax thus 
 voted, altered the valuations of the taxable property of the district from 
 the assessment roll of the town in several instances specified by the 
 appellant, and among others, in his own case, without giving the notices 
 prescribed by law, in consequence of which a larger sum has been 
 assessed to him and others than was equitable and just. 
 
 The trustees in their answer, do not deny the charge that a departure 
 from the last assessment roll of the town, was made by them in ascer- 
 taining the valuation of the taxable property referred to, without giving 
 the notice prescribed by law, but claim that the valuations put by them 
 on such property were substantially correct, and in accordance with the 
 standard adopted by the assessor. 
 
 The superintendent is of opinion that the defense thus set up by the 
 trustees, is invalid and untenable. The law specifically requires that 
 in all cases where the valuations of taxable property cannot be ascer- 
 tained from the last assessment roll of the town, the trustees shall 
 ascertain the same from the best means of information within their 
 power, giving notice to all persons interested, and proceeding in the 
 same way that town assessors are required to proceed in the firet 
 instance. Unless therefore this requisition is strictly complied with, 
 the assessment thus made by the trustees is illegal and invalid, what- 
 ever may be the standard of valuation adopted by them, or whether 
 such valuations are just and equitable or not. 
 
 The persons interested in such alteration were entitled to notice in 
 the mode prescribed by law, and to an opportunity of appearing before 
 the trustees, and claiming a reduction of their assessments as so ascer- 
 tained ; and they may legally avail themselves of the omission to give 
 such notice, either to resist the collection of the tax thus illegally 
 imposed, or to bring an appeal to this department for such redress as 
 
DIGEST OF DECISIONS. 45 
 
 may be in its power to afFord. The tax list being void in part, is void 
 throughout. 
 
 It is accordingly hereby ordered that the tax list made out by the 
 trustees of District No. 1, in the town of Fowler, in pursuance of the 
 vote ot the special meeting held in said district be and the same is 
 hereby set aside, and the trustees are directed, and required within thirty 
 days from the date hereof to make out a new tax list in accordance with 
 law, and to deliver the same with their warrant annexed, to the collec- 
 tor of the district for collection, refunding if required any amount here- 
 tofore illegally collected. 
 
 Per Morgan, June 4, 1850. 
 
 A resident of a district is not responsible for the tuition of a non-resident pupil 
 who simply boards with the former, unless the trustees notify him at the 
 commencement of the school that he will be held responsible for the tuition. 
 
 In this case the appellant represents that the trustees have charged 
 him eighty-two cents for the tuition of Erastus Hibbard, the son of a 
 non-resident of the district, and who was a mere boarder in his house ; 
 and he alleges in express terms, that he did not send him to the school 
 nor engage to pay his tuition, and that he had no control or jurisdiction 
 over him. No answer has been put in by the trustees, although a copy 
 of the appeal duly verified was served upon one of their number on the 
 28th of April last. The statement of the appellatit therefore must be 
 taken to be true, and under such circumstances he cannot be regarded 
 as legally liable for the tuition of the boy. If the trustees had design- 
 ed to hold him responsible, it was their duty to have apprized him of 
 the fact at the commencement of the term. Not having done so they 
 must look to the father of the boy. 
 
 It is therefore ordered that the trustees strike from the rate bill the 
 charge against the appellant for the tuition of Erastus Hibbard. 
 Per Morgan, May 18, 1849. 
 
 A person elected as a librarian of a school district cannot be displaced except by 
 a direct procedure on the part of some competent legal authority, on infor- 
 mation in the nature of " quo warranto," or on appeal from the election, even 
 though the incumbent be an infant. 
 
 This was an appeal originally brought to the county superintendent 
 of Saratoga, from the refusal of the trustees to deliver over to the charge 
 of the appellant the library of the district, he having been chosen unani- 
 mously as librarian at the annual meeting of the district, on the first 
 Monday in October last. In their answer to the appeal the trustees place 
 their refusal upon the ground that the appellant is a minor and could not 
 therefore execute a valid bond for the preservation and safe-keeping of 
 the books belonging to the district library. The county superintendent 
 very properly overruled this defense, holding that the appellant though 
 ineligible must be recognized as the librarian '■'■ de facto" of the district 
 so far a* the public and thii-d persons are concerned and that his right to 
 
46 DIGEST OF DECISIONS. 
 
 the office coald not Be tried in this indirect way. No principle of law is 
 better settled than that the actual incumbent of an office holding under 
 color of a legal election or appointment can be displaced only by a 
 direct procedure on the part of some competent legal authority on in- 
 formation in the nature of a quo warranto or otherwise ; and that his 
 acts so far as the public are concerned, will be recognized as valid and 
 legal to all intents and purposes while he continues to execute the office 
 under claim of title. In this case the appellant was unanimously elected 
 librarian of the district, notwithstanding his admitted ineligibility, and 
 it does not rest with the trustees to deprive him of the office in this in- 
 direct mode. They might have appealed from such election, placing 
 their appeal expressly upon the ground of his ineligibility, and the 
 county superintendent might have set aside the election and ordered a 
 new meeting to fill the vacancy. But not having resorted to this remedy, 
 they cannot refuse to deliver over to him the library of the district on 
 the ground of such ineligibility ; nor are they warranted in assuming 
 that the property of the district will be unsafe in his hands on the 
 ground of his want of responsibility. They may remove him from office 
 whenever he willfully disobeys their directions in any matter relative to 
 the preservation of the books and appurtenances of the library or for 
 any willful neglect of duty, &c., &c. But they cannot refuse to recog- 
 nize him as the legally elected librarian of the district. 
 
 They are therefore hereby directed to deliver the library of the dis- 
 trict into his hands, and the decision of the county superintendent is 
 hereby affirmed. 
 
 Per Young, January 20, 1845. 
 
 It is a rule of this department, that all acts of school district officers will be 
 regarded as regular, unless duly appealed from. 
 
 This appeal is brought from the proceedings of a special meeting 
 held in District No. 9, Preble and Scott, August 5, 1848, for the pur- 
 pose of receiving the report of Elam Dunbar, as trustee of said district, 
 the said Dunbar having resigned his office in December, 1847. 
 
 It is immaterial whether the meeting of August 5, 1848, which 
 received and accepted the report of Mr. Dunbar, was regular or not. 
 His report and the complaints made against him were of acts previous 
 to the meeting of December, 1847, at which he resigned, and at which 
 his report should have been made and accepted. 
 
 It is a rule of this department, that all acts and proceeding of school 
 officers will be regarded regular, unless duly appealed from. Whatever 
 therefore may have been the neglect of duty of Mr. Dunbar, while in 
 office, provided he has not rendered himself liable by squandering or 
 losing moneys belonging to the district, he will be regarded as having 
 discharged his duties faithfully. 
 
 Appeal dismissed. 
 
 Per Morgan, January 24, 1849. 
 
DIGEST OF DECISIONS. 47 
 
 Where a trustee is elected to the office of supervisor, the term of his trusteeship 
 is in no wise affected thereby. 
 
 In October, 1846, Matthew Brown was chosen trustee of District 
 No. 11, Bethel, for a full term of three years. In the spring of 1848, 
 he was elected supervisor of the town. It being supposed that his 
 office of trustee became vacant by accepting the office of supervisor, 
 Mr. Thomas C. Horton was elected to fill the supposed vacancy in 
 October, 1848i 
 
 The law which existed previous to the time the present law took 
 eifect, prohibited the supervisor of a town from holding the office of 
 trustee. The present law, however, does not contain such a prohibition. 
 The election of Mr. Brown did not therefore aifect his tenure of the 
 office of trustee. He is the legal trustee, and the election of Mr. Horton 
 in his stead was irregular. 
 
 Per Morgan, April 10, 1849. 
 
 This department will, on proper application, direct an increased proportion of 
 the public monej- to be applied to reduce the rate bill, to be made out at 
 the close of the term, where the inhabitants or any considerable portion of 
 them withdraw their support from a teacher duly qualified, without good 
 cause. 
 
 The principle has been repeatedly recognized by this department, 
 that when the inhabitants of a school district or any considerable por- 
 tion of them withdraw their support from a teacher duly employed by 
 the trustees, and suitably qualified, without any justifiable cause, leaving 
 those who continue to send to the school, to defray the principal burden 
 of the expense, an increased proportion of the public money, appli- 
 cable to the pa3anent of teachers' wages, will, on a proper application, 
 be directed to be applied in diminution of such expense, on the rate 
 bill to be made out at the close of the term. In this case several of 
 the inhabitants withdrew their children from the school, and sent them 
 to a private school established in the neighborhood, for no other reason, 
 so far as appears from the testimony, than that arising from the price 
 contracted by the trustees to be paid for the teacher's services, which was 
 6l4 per month. It is in evidence that iie held a certificate of qualification 
 in due form ', that he sustained a good examination and taught a good 
 school ; and in the absence of any well founded objection to the charac- 
 ter or qualifications of the teacher, it was incumbent upon the inhabi- 
 tants to sustain the school during the term for which he was employed. 
 Two-thirds of the children usually in attendance were withdrawnfrom the 
 school, and the rate bills as to those who continued to send were exorbi- 
 tantly increased, and justice and equity require that the superintendent 
 should relieve them from this hardship. 
 
 The decision of the county superintendent, directing five-sixths of 
 the public money to be applied to the support of the winter school, is 
 accordingly hereby affirmed, and the appeal dismissed. 
 
 Per N. S. Benton, October 15, 1845. 
 
48 DIGEST OF DECISIONS. 
 
 Trustees in the absence of express directions from the district, may, in their dis- 
 cretion, apply the public money for the support of schools as they may deem 
 proper, but when they apply more than (f ) two-thirds thereof for the sup- 
 port of the winter school, the Superintendent of Public Instruction will 
 interfere. 
 
 It seems that the trustees applied more than two-thirds of the public 
 money for the support of the winter school in 1846, leaving the balance 
 for the summer school. In the absence of any express direction on the 
 part of the district, the trustees have a legal right in their discretion to 
 apply the public money as they may deem proper, which discretion will 
 always be controlled by the department, when those officers apply more 
 than two-thirds of the public money to the winter schools, leaving the 
 balance for the summer schools. The act which should have been 
 appealed from, was the payment of nearly all the public money towards 
 the support of the winter school in 1846. The trustees having tha 
 strict legal right to do as they have, and no legal steps having been 
 taken to correct it (more than thirty days having elapsed before the 
 bringing of the appeal), as a legal consequence they are bound to make 
 out their rate bill in accordance with their former acts, that is, apply 
 the residue of the public money to the summer school, and make out 
 their rate bill for the balance. 
 
 Per N. S. Benton, April 8, 1847. 
 
 Thfe public money apportioned for o'lle year cannot be applied to the payment of 
 teachers' wages of a previous year, except when a term embraces a portion 
 of two years, in which case the public money of either year may be applied 
 indiscriminately to that term. 
 
 The appellees (two of the trustees) gave an order upon the tpwli 
 superintendent of Hoosick for $10 to be paid out of the apportion- 
 ment of public money for 1849, in favor of the teacher for the summer 
 term of 1848. The public money apportioned for one year cannot be 
 applied to the expenses of a previous year,,, ejccept when the term 
 embraces a portion of two years ; in whichjoase the public money of either 
 year may be applied indiscriminately to that term. 
 
 The trustees could not legally 'apply any of the apportionment for 
 1849, to the payment of the'teacher of the summer of 1848. 
 
 The appeal is sustained. 
 
 , ' Per Morgan, April 3, 1849. 
 
 Trustee? have no power to provide by the same rate bill, for the compensation of 
 teachers for different terms of instruction. 
 
 This appeal presents the question whether the wages of the same 
 teacher, employed for different terms, but at the Same rate of conipen- 
 s.ition can be legally included in the same rate bill, treating the two 
 periods as one term, and assessing the balance of the teacher's wages 
 after applying a portion of the public money thereto, upon the inhabi- 
 tants sending to school. 
 
DIGEST OF DECISIONS. 49 
 
 Superintendent Dix held, in a similar case, that it was wholly inad- 
 missible to provide by the same rate bill for the compensation of two 
 teachers for different terms of instruction. ( See Common School Deci-^ 
 sions, p. 165.) This decision is in strict accordance with the letter 
 and spirit of the schodl act, and conformable to principles of equity. 
 No rule of legal or equitable right calls for or can sanction the imposition 
 of a tax or burthen upon any individual school district inhabitant unless 
 he shall have voluntarily placed himself in a condition to have that 
 burthen or tax imposed according to the express terms of the law, under 
 which the school district officers act. 
 
 , Per Morgan, July 22, 1849. 
 
 A rate bill cannot be legally made out for any otber purpose than teachers' wages 
 and for fuel. 
 
 The trustees of District No. 6, Cameron, hired a teacher in the winter 
 of .1847-8 for three months. He. taught about two months, when he 
 discontinued his school which was not opened again during the winter. 
 The teacher was paid twenty dollars of public money, the balajice re- 
 maining unpaid. Sometime in November, 1848, the trustees made out 
 a rate bill for the. amount remaining unpaid, and included in it a tax for 
 fuel, and also a tax for sundries, amounting to $3.00. 
 
 It is objected that the tax of $3.00 cannot legally be included in a 
 rate bill. The objection is well taken. A rate bill can be made out for 
 no other purpose than for teachers' wages, and for ■ &el. The trustees 
 could not, therefere, legally include the tax of $3.00 in the rate bill. 
 Per Morgan, March 5, 1849. 
 
 An inhabitant cannot gain a residence in another district by taking a portion of 
 his family with himself thereto, so as to send his children to school therein. 
 
 The following statement of facts is submitted by the parties : 
 
 Barclay Miller owns a farm in District No. 5, upon which he lived 
 till the spring of 1847, when he removed to another farm in District 
 No. 12, leaving his son in the occupancy of the farm in No. 5. 
 
 On or about the 25th of November, 1848, a district school was com- 
 menced in No. 5, to which Mr. Barclay Miller sent part of his children. 
 Upon the representation of the teacher that the school was already too 
 large, the trustees directed him to dismiss Mr. Miller's children from 
 school. 
 
 Whereupon Mr. Miller came with his children and a part of his fur- 
 niture to his son's house in No. 5, leaving his wife at his "house in No. 
 12. His son went to the farm in No. 12, but left his wife at the house 
 in No. 5. Mr. Barclay Miller has, since this arrangement, sometimes • 
 lodged at his house in No. 12, and his son has also occasionally lodged 
 at the house in No. 5. Barclay Miller took with him to No. 5, his ' 
 horses and milch cows, but had stock on both farms, and has since killed ' 
 his hogs at the house in No. 12, and there packed the pork. 
 
 Under this statement of facts Barclay Miller cannot claim to be a 
 resident of District No. 5. The trustees have power to dismiss hi.s 
 
 rDioKST.] 7 
 
50 DIGEST OF DECISIONS. 
 
 children from the school, or if they permit them to attend, they are nol 
 entitled to share in the public money of the district, nor can they be 
 lawfully enumerated, as children residing in the district. Mr. Miller is 
 a resident of No. 12, and his children must be there enumerated. 
 Per Morgan, January 11, 1849. 
 
 AVhere .the inhabitants at a district meeting direct tlie trustees to do an act which 
 they are authorized by law to direct, as the removal of a school-house, the 
 trustees may levy a tax to defray the expense, without a vote of the district. 
 
 The inhabitants of District No. 11, town of Wilna, voted a new site 
 for the school-house, and directed the trustees to move the house by 
 a "bee." 
 
 The trustees made a " bee," but there not being much of a " turn out" 
 on the part of the inhabitants, they were only able to get the school- 
 house into the highway. ■ Foreseeing the difficulty attending the removal 
 by such means, and not receiving the requisite aid, the trustees moved 
 the school-house to the site selected at an expense of $25.00 
 
 A special meeting was called on the 4th Decepaber, 1847, without 
 stating the object of it in the notices, at which a tax was voted to meet 
 the expenses of the trustees. Only four legal voters were present at the 
 meeting. 
 
 The vote directing the trustees to move the house by a " bee" was 
 void, as they could have no authority over voluntary aid, and could not 
 depend upon it as a means of moving the school-house. 
 
 When the inhabitants of a district direct the trustees to perform a 
 wort where expenses are to be incurred, the trustees are authorized to 
 raise the amount thereof, by tax, without a vote of the district. In this 
 case the trustees would necessarily incur an expense in moving the 
 school-house, which is chargeable to the district and can be collected by 
 tax the same as if it were voted. (SchoolLaws, No. 134.) And although 
 the vote of December 4, 1847, to raise the tax was illegal on account 
 of the want of proper notice, the levying of the tax was legal on the 
 ground that the trustees possessed the requisite power, without a vote 
 . of the district to raise the tax. 
 
 The appeal is dismissed. 
 
 Per A. Q. Johnson, Dept. Snpt., August 3, 1848. 
 
 In the alteration or formation of school districts, out of territory lying in two or 
 more towns, the order making the same must show that the town superin- 
 tendents of the respective towns united in making the order. 
 
 It appears from the papers transmitted to the department in this case 
 by the county superintendent, that the order for the transfer of Mr. 
 Safford from Joint District, No. 6, in Essex and Westport, to District 
 No. 8, of the former town, was made by the town superintendent of 
 Essex alone, without the presence and concurrence of the superintend- 
 ent of Westport. 
 
DIGEST OF DECISIONS. 61 
 
 It is true that it is alleged by the superintendent of Essex, in his 
 answer to the appeal, that the alteration was made with the " concur- 
 rence of the town superintendent of Westport," but the order, a copy 
 of which is appended to the appeal, purports to be made by the super- 
 intendent of Essex alone, and no reference whatever is made to the 
 superintendent of Westport, and by the uniform decisions of the depart- 
 ment, no alteration of a district can be legally made, except by the 
 action of a joint board, consisting of the requisite authority of the 
 several towns, from parts of which such joint district is composed. 
 Neither the previous nor subsequent concurrence, formally or informally, 
 of the representatives of either town to such alteration, can Supply the 
 defect arising from their absence at the time of making the order. 
 They must meet and constitute a board, otherwise the proceedings are 
 void. 
 
 This objection appearing in this case upon the papers, must be 
 regarded as fatal to the validity of the order appealed from, and the 
 decision of the county superintendent must be reversed. 
 Per 8. Young, August 6, 1844. 
 
 When a trustee is absent from a district, so as to be unable to act with his asso- 
 ciates, the town superintendent, on the application of the other trustees, will 
 appoint a successor. 
 
 Some time in the month of September last, Mr. Gilbert, who had 
 been elected a trustee of District No. 9, visited the western part of the 
 state, in company with his wife, whose parents resided there, for the 
 benefit of her health. Leaving her, he returned, harvested his crops, 
 and early in October, again left, with the avowed intention of remaining 
 until the ensuing spring. The other two trustees being unable to agree 
 in the management of the affairs of the district, and the emplojrment 
 of a teacher for the winter term, applied to the town superintendent to 
 fill the vacancy which they supposed to exist in the district, in order to 
 enable them to organize the winter school. 
 
 For all practical purposes, it is evident that a proper case for the 
 action of the town superintendent was presented ; Mr. Gilbert indeed 
 may not have lost his legal rights as a resident of the district, but he 
 had, at all events, ceased to be an inhabitant, and had expressly avowed 
 his intention not to return to the district until the ensuing spring. 
 
 The department is disposed to coincide with the county superinten- 
 dent in the opinion that an actual vacancy existed, created, if not by 
 " removal from the district," in the legal acceptation of the term, by 
 a virtual " refusal to serve," or incapacity to act, and that the interpo- 
 sition of the town superintendent, by the appointment of a trustee in 
 his place, was legal. 
 
 Per S. Young, December 26, 1846. 
 
62 DIGEST OF DECISIONS. 
 
 Where trustees have employed a teacher for a certain period, and before the expi- 
 ration thereof, they agree with him to continue for a month longer, the inha- 
 bitants sending to the school during the original term are not liable for any 
 portion of the teacher's wages for the additional month, unless they send to 
 the school during that time. 
 
 In such case the trustees should make out separate rate biUs. 
 
 The facts in this case are substantially as follows : The trustees hired 
 a teacher for the term of four months at a specified compensation. Sub- 
 sequently and prior to the expiration of the tenn, they contracted with 
 the teacher to continue in the school for an additional month ; contrary, 
 however, to the expressed wishes of a large majority of the inhabitants 
 of the district and patrons of the school. Of twenty individuals who 
 had sent during the term of four months, only eight continued to send 
 during the additional month. . 
 
 In making out their rate biU, the trustees, after deducting the public 
 money applicable to the term, charged the aggregate balance due the 
 teacher for the whole five months upon all the inhabitants who had sent 
 to the school during any portion of that time, in proportion to the 
 number of days and the number of children sent. The appellants being 
 of the opinion that those who had not sent; during the last month ought 
 not to pay any portion of the wages of the teacher accruing in that 
 month, and that two separate rate bills should be made out, the one for 
 the original term of four months and the other for the supplementary 
 term, brought the case before the county superintendent, who held that 
 one rate bill only was necessary for the whole five months ; that the 
 second contract was a mere extension or prolongation of the first ; and 
 that the trustees being legally coiapetent so to extend or modify the 
 original contract with the assent of the teacher, the entire term must 
 be regarded as one and indivisible. From this decision an appeal has 
 been taken to this department. . ' 
 
 In the opiiiion of the present superintendent, the view thus taken of 
 the eflfeet of the agreement, made with the teacher by the trustees, is 
 erroneous, so far at least as the rights of the inhabitants interested in 
 the rate bill are concerned ; as between trustees and teacher the transac- 
 tion may perhaps admit of the construction contended for by the 
 colmty superintendent. But the inhabitants of the district sending to 
 school, had, it seems to me, a clear right to regard the original tenff 
 for which the teacher w£is hired, as closed at the expiration of four 
 months, and to insist upon the rate bills being made out for that term, 
 reserving to themselves the option of continuing to send to school for 
 the additional month or not. They signified their wishes to this effect 
 to the trustees, prior to the expiration of the four months. If it is in 
 the power of trustees so to enlarge or prolong a contract made for a 
 specified term, to extend the liability of the inhabitants sending to 
 school, and that against the express wishes of the district, where is the 
 limitation of this power? The contract to hire for the additional 
 month, must, as between the parties to this appeal, be regarded as a 
 
DIGEST OF DECISIONS. 53 
 
 new and independent contract, and the trustees are hereby directed to 
 make out their rate bill accordingly. 
 
 Per N. S, Benton, March 13, 1845. 
 
 When a trustee is unable to discharge his duty as such trustee, by reason of 
 imprisonment, the town superintendent may appoint his successor after the 
 expiration of thirty days from the time of such imprisonment. 
 
 -• 
 
 The facts of this case appear to be as follows : 
 
 Some three or four months previous to the annual meeting for the 
 choice of district officers, one of the trustees for District No. 2, of the 
 town of Evans, county of Erie, was arrested on execution, and commit- 
 ted to the jail limits of the county, where he has since been and still is 
 confined. 
 
 At the annaal meeting of the district, a motion was made to elect a 
 trustee in the place of the individual thus imprisoned, but the majority, 
 thinking there was no vacancy to be filled, refused to elect, and subse- 
 quently the town superintendent appointed Chauncey Stone, a trustee, 
 in the place of Enos Avery, the former incumbent. 
 
 An appeal was taken to the county superintendent of Erie county, 
 who reversed the action of the town superintendent, and annulled the 
 appointment. 
 
 Section 71, of Common School Laws, published in 1844, authorizes 
 the town superintende;it to appoint any person residing in the district, 
 to supply any vacancy occasioned by the death of the incumbent, 
 refusal to serve, removal out of the district or incapacity of any officer, 
 when the vacancy shall not have been filled by a district meeting 
 within one month after the same shall occur ; and the only question 
 now presented is, had either of these contingencies happened one month 
 previous to the time the appointment was made ? 
 
 It would not, I think, do to hold that no other than a legal incapa- 
 city should operate to create a vacancy, nor will it do to say that a 
 refiisal to serve may not be as strongly inferred from the acts of an 
 mcumbent as by a direct assertion that he will not discharge the duties 
 of his office. 
 
 Mr. Avery, no doubt, is an inhabitant of the district in every legal 
 sense, yet in point of fact he is actually incapacitated from the discharge 
 of. his' -duties as trustee, by reason of his confinement upon the jail 
 limits out of his town and out of the boundaries of his district. 
 
 The decision of the county superintendent is therefore reversed, and 
 that of the town superintendent affirmed. 
 
 Per N. S. Benton, October 8, 1846. 
 
54 DIGEST OF DECISIONS. 
 
 Taxation of a person having the naked possession of land without color of title. 
 A previous case commented on and explained. 
 
 On the first day of April last, Mr. Davis executed and delivered a deed 
 of his farm to Mr. Frost, the owner of the adjoining land, receiving from 
 hini a payment of 1900, in cash and the promissory notes of third per- 
 sons, and a mortgage for the residue of the purchase money. On the 
 12th day of April, the trustees made out a tax list, and, as Mr. Davis 
 still continued in possession of the farm ■ he had sold, assessed him for 
 the value thereof.. Upoti his objecting, and stating to the trustees that 
 he was in possession only at suSferance, while waiting for the opening 
 of lake navigation to transport his family and effects to Wisconsin, the 
 trustees proposed to assess him for the price of the farm as personal 
 property. To this he replied that he had already made^ a contract for 
 the purchase of a farm in Wisconsin, and bound himself to pay a larger 
 sum than that for which he had sold his farm, and offered to make an 
 aflidavit that his debts exceeded the value of his personal property. 
 The trustees being satisfied of the truth of his statement, but supposing 
 themselves bound to assess him for the farm by a decision of the super- 
 intendent (for which see pp. 39, 40, ante), united with Mr. Davis in 
 Bubraitting the facts for a decision. 
 
 The trustees have been misled by overlooking the distinction between 
 the present case and that to which they refer. In the former case, Mr. 
 Hoyt reserved the right of possession for a definite period, and was the 
 actual owner, with all thei responsibilities of ownership, until tjiat period 
 arrived. In this case, Mr. Davis, though actually in possession, is with- 
 out any claim of title to possession for an hour. Mr. Frost is the admit- 
 ted owner, though he has not exercised his extreme right by inhospita- 
 bly turning his neighbor out of doors. As such owner he is liable to be 
 taxed for the real estate purchased. 
 
 The facts conceded in respect to the indebtedness of Mr. Davis are a 
 conclusive answer to any supposed obligation on the part of the trustees 
 to assess him for personal estate, though the fact that he is about to 
 remove, and can receive no benefit from the tax, has no legal import- 
 ance in the question. 
 
 Per A. Q. Johnson, Dep. Supt., May, 1849. 
 
 A tax may be voted, levied and collected in a school district to purchase a site 
 and school-house, but the money cannot be applied until a valid title is 
 obtained. 
 
 The appellants in this case seek to set aside the proceedings of a 
 special meeting held in District No. 9, on the 29th of November last, 
 - at which resolutions were adopted for the purchase of a new site and 
 house, upon the ground that a valid legal title cannot be obtained to 
 such site and house. They allege that the house was built by private 
 subscription, and is now owned by various persons in and out of the 
 ■district, some of whom will not consent to transfer their right to the 
 district. This allegation, vague and general as it is, is explicitly met 
 and denied by the trustees, who assert that they can procure a good 
 
DIGEST OF DECISIONS. 65 
 
 title. This question of title, however, is one which cannot come up at 
 this stage of the proceedings. The tax voted may legally be levied and 
 collected, but cannot be applied until a valid legal title is obtained. 
 
 From the proofs before him, the superintendent entertains no doubt 
 of the suflSciency of the title, and so much of the appeal as relates to 
 this portion of the proceedings of the meeting is therefore dismissed. 
 Per Morgan, January 18, 1851. 
 
 When a tax list has been made out, but not delivered to the collector, it is no 
 objection to the trustees calling another meeting of. the inhabitants to 
 reconsider the proceedings of the meeting at which the tax was voted, if 
 requested by a respectable number of the inhabitants. 
 
 In this case, the appellants seek to set aside the proceedings of a 
 special meeting, held on the 20th of February last, at which a previous 
 vote of the- district relative to the length of time during which a school 
 should be taught, was reconsidered, and a less period adopted. Under the 
 preceding vote, the tax list had been made out by the trustees, but the 
 warrant had not been delivered to the collector. The superintendent 
 is of opinion, that under such circumstances it was legally competent to 
 the inhabitants to reconside*the previous vote. 
 
 Per Mprgan, April 23, 1850. 
 
 ICrustees have no power to set aside or invalidate the proceedings of a district 
 
 meeting upon the assumption that they were illegal. 
 Though illegal votes are cast at such meeting the trustees cannot set aside the 
 
 proceedings. The remedy is by appeal. 
 
 On the 1st day of October last, at an adjourned meeting of the tax- 
 able inhabitants of District No. 2, in Belmont, held for the purpose of 
 locating a site for the school-house, a site was fixed on the land of Wink- 
 ley and Smith, and the " sum of $200.00 voted to build a school-house 
 thereon. A confirmation and renewal of the vote fixing the site was 
 had on the 30th of November last, at a special meeting of the district, 
 more fully attended by the inhabitants, but no tax was voted for build- 
 ing the school-house. On the 14th of December a vote was adopted 
 locating the site on lands of E. Stanton, Jr., and the sum of $200.00 
 directed to be raised for building. On the 11th of January last, the site 
 was again changed to the lands of Winkley and Smith, and the same 
 ambunt voted to be raised for building the school-house thereon. Not- 
 withstanding this last and final vote of the district, and in the absence 
 of any appeal from the proceedings, the trustees have determined to 
 apply the tax voted to build a house on Mr. Stanton's land, on the alle- 
 gation that an illegal vote was received at the last meeting by means of 
 which the vote was invalidated and the preceding vote remained in force, 
 and from this determination of the trustees the present appeal is taken. 
 
 If any of the proceedings of the meeting held on the 11th of Janu- 
 ary wore illegal the appropriate remedy of the trustees or of any persons 
 aggrieved was by appeal to this department. It is not within their 
 
56 DIGEST OF DECISIONS. 
 
 power to set aside or invalidate those proceedings on their mere assump- 
 tion of such illegality. The money directed to be raised at that meet- 
 ing, in the ahsence of any appeal within the time and in the mode 
 prescribed by law, must be applied according to the vote then taken, 
 and any other application of it will be illegal and invalid and will sub- 
 ject- the trustees to personal responsibility to the district for the amount 
 so expended, and to the forfeitures and penalties prescribed by law. 
 
 The allegation, moreover, of the trustees that an illegal vote was cast 
 at the meeting referred to by which the result was changed, is wholly 
 unsupported by the facts, as they appear from the papers. 
 
 The proceedings of the meeting of the 11th of January, are therefoje 
 hereby confirmed and, the trustees directed to apply the tax voted 
 accordingly. 
 
 Per Morgan, February 11, 1850. 
 
 The town superintendent of the town in which the school-house of a joint district 
 is located, must grant the certificate of qualification to the teacher who 
 teaches therein. 
 
 This is an appeal from the action of the trustees of Joint District 
 No. 9, Preble and Scott, Cortland county, «i hiring Albert R. Ingraham 
 as a teacher in said district. 
 
 The facts in this case show that the said Ingraham applied to Abra- 
 ham Woodard, town superintendent of Preble, in which town the 
 school-house is situated,- for a license to teachj and was rejected for 
 want of the requisite qualification^ He afterwards applied to the 
 superintendent of the town of Scott, and from him obtained a certificate 
 to teach. 
 
 . This was illegal. The town superintendent of the town of Preble, in 
 which the school-house was located, could alone grant the certificate. 
 Per Morgan, January, 1848. 
 
 "trusteeg should not admit non-resident children into their school contrary to the 
 ii^structions of the inhabitants in district meeting assembled. 
 
 Quaere: Does not ^ 1, chap. 151, Laws of 1851, vest an exclusive discretion in 
 the trustees 1 
 
 This is an appeal from the decision of the county superintendent of 
 common schools, sustaining the decision of the trustees in admitting 
 children of non-resident parents into their district school, contrary to 
 the instructions of the inhabitants of said district at their annual 
 meeting. 
 
 As a general principle it is the duty of trustees to carry into effect 
 the instructions of the district in reference to those matters over which 
 they are allowed by law to exercise a discretionary control. Had the 
 vote of the inhabitants in this case been a full and fair expression of the 
 wishes of the district in reference to the admission of non-resident 
 children, the superintendent would have deemed it his duty to carry 
 the resolution into effect, however ill-judged such a vote might be 
 
DIGEST OF DECISIONS. 57 
 
 regarded under the circumstances of the case ; but it is evident from the 
 testimony on the part of the respondents, that this vote was improperly 
 and unfairly obtained — that it does not represent the wishes or views of 
 a majority of the inhabitants, but on the other hand, that a decided 
 preponderance against such a proposition has been distinctly manifested 
 on the part of those inhabitants of the district most interested in sus. 
 taining the school. It does not appear that the admission of thesg 
 children in any respect injures the school or embarrasses its operations . 
 on the contrary, the trustees are enabled by such accession to sustain' 
 teachers of a higher order of qualification, than would otherwise be in 
 their power. However, the public money of the district into which 
 these children are admitted, cannot be appropriated in diminution of the 
 charge for their tuition. 
 
 Per Young, August, 1843. 
 
 The Department of Public Instruction, in the formation and alteration 
 of school districts, acts upon one uniform rule, never (except in certain 
 special cases and for the most urgent reasons) to permit new districts to 
 be formed with a less number of children between the ages of five and 
 sixteen years, than from thirty-five to forty, and never to countenance 
 or sanction changes or alterations of districts which shall reduce the 
 number of school children in a district below what has been found from 
 practical experience, would afford an average attendance sufficient to 
 give full employment to a competent teacher. 
 
 Per N. S. Benton, Juno 80, 1847. 
 
 The Superintendent of Public Instruction will reverse an order of a town super- 
 intendent annexing one district to another, whore the inhabitants of either 
 are opposed to the union, and have sufficient means for the support of a 
 school, it being a;n abuse of his discretion. 
 
 This is an appeal from an order of the county superintendent of 
 Gf eene county, who confirmed the proceedings of a town superintendent 
 of the 28th June last, uniting Districts No. 2 and 19, of the town of 
 Catslrill. The county superintendent sustained the order of the town 
 superintendent and dismissed the appeal. From this decision this appeal 
 is brought. 
 
 From a careful examination of the papers in the case, the superinten- 
 dent is compelled to diff'er in opinion with the county superintendent 
 and town board, by whose order the union of Districts No. 2 and 19 
 has been eff'ccted. It appears that sufficient importance has not been 
 given to the facts that the inhabitants of District No. 2 almost unani- 
 mously remonstrated against the proposed union ; that they have every 
 necessary facility within themselves, as at present organized, to sustain 
 a good school ; that for several years past they have done so, and that 
 they do not need any accession of territory, taxable property or inhabi- 
 tants ; that district No. 19, so far as wealth and children of the proper 
 age to attend school are concerned, is far more able to keep up an efficient 
 organization than District No. 2 ; and that the failure of the inhabitants 
 
 rDiOBST.l 8 
 
58 DIGEST OF DECISIONS. 
 
 in District 19, under such circumstances, even to procure a school 
 house, so far from entitling them to special* consideration, ought upon 
 every ■ principle, to operate adversely to their claim. Doubtless the 
 union of two districts contiguously situated, and together occupying a 
 small area, would prove mutually advantageous, provided such union 
 could be eifected by the general consent and cooperation of the inhabi- 
 tants interested. But in the absence of such consent, and especially in 
 the face of a determined and unanimous opposition, to such an arrange- 
 ment on the part of one of the districts proposed to be united, a con- 
 solidation could, in the judgment of the department, only prove detri- 
 mental to the cause of education, and subversive of the best interests of 
 all concerned. No good reason can be perceived why the inhabitants 
 of District No. 19 should not promptly avail themselves of the ample 
 means at their command, to organize and efficiently sustain a school of 
 the highest grade of excellence, instead of permitting their territory to 
 be parcelled out into private and select schools. They do not need 4he 
 aid of District No. 2, in order to the accomplishment of this object. 
 The decision of the county superintendent is hereby reversed. 
 Per Young, August, 1843. 
 
 It is the settled policy of the Department of Public Instruction, to favor the con- 
 solidation of weak a;id inefficient districts. 
 
 The town superintendent of Independence, Allegany county, had 
 consolidated two weak and inefficient districts, Nos. 7 and 11. Upon 
 an appeal to the county superintendent, he reversed the order of the 
 town superintendent, upon the sole ground that it was, apparently, the 
 only means of putting an end to the quarrels and dissensions that had 
 unhappily arisen in the consolidated district. The county superinten- 
 dent at the same time admitted that the organization, as made by the 
 town superintendent, was " the most judicious one that could be entered 
 into under existing circumstances," and that although not perfect, " it was 
 the best that could be made until the population of the neighborhood 
 becomes more dense." 
 
 The State Superintendent reversed the decision of the county super- 
 intendent, and confirmed the order of the town superintendent, strongly 
 reprehending the bad policy of reestablishing two weak and inefficient 
 districts, obviously incapable of maintaining an adequate organization. 
 Per Young, December 20, 1844. 
 
 The superintendent has power to remove a trustee from office, for corruption or 
 intentional neglect of official duties, or for willful disobedience of the orders 
 of the department. 
 
 On the 20th of December last, the trustees in District No. 6, in the 
 town of Somers, were directed and required by an order of this depart- 
 ment, within ten days from the service upon them of snch order, 
 to execute a certain tax list and warrant, made out by Jacob G. 
 Purdy, one of the trustees, for the collection of the amount voted at a 
 
DIGEST OF DECISIONS. . 59 
 
 special meeting held in said district' on the 2'7th of September last, for 
 building a school-house and out buildings, and fencing the site, deduct- 
 ing therefrom the sum of $8.50, the balance remaining in the hands of 
 said trustees, on the sale of the house belonging to said district. 
 
 A copy of this order was served upon the two trustees who refused 
 to sign the tax list and warrant on the 25th of December. On the 2d 
 day of January, the trustees met by previous appointment. The tax 
 list was produced, and the $8.50 above named deducted therefrom, 
 when the two trustees for the first time interposed aii objection, that a 
 certain pijce of land was included in the tax list which was not taxable 
 in the district, and insisted upon its deduction, although no legal claim 
 to that effect had been made by the owner or occupant of the land 
 within the time prescribed by law. On the ensuing day, the trustees 
 had another meeting, but Carpenter and Ferris still declined, on various 
 pretenses, signing the tax list, and have, up to the present period, 
 refused or neglected to carry into effect the order of the department. 
 
 This refusal is sought to be justified by them updn several grounds, 
 among which the most important are that Purdy refused to make the 
 necessary correction of the tax list, and also to account to his colleagues 
 for certain pecuniary transactions of the district. Neither of these 
 excuses can be received. If there were any error in the tax list, as pre- " 
 sentcd to them for signature, it was clearly within their power as the 
 majority of the trustees, to have made the requisite correction in the 
 mode prescribed by law. Whatever may have been the conduct of Mr. 
 Purdy, it constituted no sufficient grounds for a refusal on their part to 
 coinply with an express order of this department. They have manifested 
 a determination to resist the explicit direction of the superintendent in 
 the premises, and to evade the performance of their duties as trustees. 
 In pursuance, therefore, of the authority wsted in me by chap. 382, § 15 of 
 the Laws of 1849, 1 do hereby remove the said Carpenter and Ferris 
 from office as trustees of District No. 6 in the town of Somers. 
 Per Morgan, January 28, 1851. 
 
 When the Inhabitants of a school district at their annual meeting, elect trustees, 
 their proceedings will be held legal, although, such election is made by a 
 small minority of the inhabitants. 
 
 This is in substance an appeal from the refusal of the trustees of 
 District No. 11, to grant an order upon the town superintendent for a 
 portion of the public money belonging to the district, applicable to the 
 payment of teachers' wages in favor of a duly qualified teacher employed 
 by the appellants while acting as trustees under color of a legal election 
 by the district, and who taught in the school-house of the district. The 
 annual meeting at which both sets of trustees were chosen was notified 
 to be held on the 2d of October, 1843, at 6 o'clock, P. M., at which hour 
 five inhabitants only were in attendance. They, however, organized and 
 elected district officers, in accordance with law. After their adjournment, 
 but before leaving the house, the residue of the inhabitants came in and 
 insisted upon a re-organization which was accordingly had, without the 
 
60 , DIGEST OF DECISIONS. 
 
 participation, however, of tlie inhabitants first assembled, and the appel- 
 lants were elected trustees. The county superintendent having been 
 consulted, gave his opinion that the latter election was legal and valid; 
 and in accordance with this opinion the appellants proceeded to employ 
 a teacher and take upQU themselves the discharge of their official duties 
 without opposition. The persons first elected, however, without ques- 
 tioning or controverting the right of the appellants to the use of the 
 district school-house and the colitrol of the district property generally, 
 employed a teacher who taught under their direction and in accordance 
 with a vote 6f the inhabitants first assembled, in a private hpus.e, in a 
 part of the district remote from the school-house. After the termma- 
 tion of both schools the question of the legality of the elect/ion of the 
 officiating trustees was submitted to this department, and the persons 
 first elected declared- to be the only legal trustees. They accordingly 
 took possessiop of the books, papers and other property of the district, 
 gave an order for a portion of the public money in the hands of the 
 town superintendent in favor of the teacher employed by them, and 
 who was duly qualified, and refused to recognize the teacher employed 
 by the appellants. Prom this refusal to recognize the teacher employed 
 by the appellants, the present appeal was brought. 
 
 The county superintendent, conceiving himself bound by the prior 
 decision of the department declaring the first election valid, felt it his 
 duty to dismiss the appeal and refer the rights of the parties to the 
 department. 
 
 . Although there can be no -doubt of the validity and legality of the 
 first election, yet the official acts of the persons subsequently chosen, 
 under color of a legal election, and who took upon themselves the office 
 of trustees, will be recognized and protected for all practical purposes as 
 trustees, until the. decision of the department declaring their election 
 illegal, was obtained. Their employment of a teacher prior to such a 
 decision, was therefore an official act, and inasipuch as the teacher 
 contemporaneously employed by the legal trustees has been paid, and 
 there still remains a balance of public money applicable to the payment 
 of teachers' wages in the hands of the town superintendent, it is the 
 <iuty of the trustees, and they aref hereby directed to draw an order for 
 such balance on the town superintendent, in favor of the teacher so 
 employed by the appellants, while acting as trustees under claim of a 
 legal election, and to make out a rate bill and warrant in the mode 
 prescribed by law for the residue of his wages, against the inhabitants 
 who sent to school. By this disposition of the case, it is conceived 
 substantial justice will be done to all parties, and the rights of none 
 infringed. It is the misfortune of the appellants that they were not 
 more punctual in their attendance tipon the annual meeting of the 
 district. 
 
 Per a. Young, October 7, 1844. 
 
DIGEST OF DECISIONS. 61 
 
 The illegality or irregularity of the election of trustees, is no excuse for a town 
 superintendent for refusing to pay over the public money, upon the order of 
 such trustees. He must he governed by the report of these officers, made 
 in conformity to law. 
 
 The town superintendent of the town of Spencer, 'Koga county, 
 declined to pay over, on the order of the trustees of District 3, in said 
 town, in favor of a duly qualified teacher, a portion of the school 
 moneys apportioned to said district, and from this act the trustees 
 appealed to the county superintendent, who sustained the ^peal, and 
 ordered the town superintendent to pay the money over, for the purr 
 poses and in the manner prescribed by law. Town superintendents 
 will not be permitted to inquire, as in this case, on being presented 
 with a written order, signed by the trustees of a district, into the 
 validity of the appointment or election of the persons claiming to act, 
 and who are acting as such officers. Such an order, duly receipted by 
 the person in whose favor it may have been drawn, would be a perfect 
 protection to him. It is not pretended that this money is withheld for 
 any defect in the last annual report, or that schools have not been 
 taught in' conformity w'ith the requirements of law. As a general 
 principle, collateral matters cannot be drawn in question, involving 
 judicial cognizance, hy any officer, when called upon to discharge a 
 mere ministerial duty. And the town superintendent in this case 
 assumes to decide who are not the trustees of the district, a matter 
 entirely beyond his jurisdiction. The decision of the county superin- 
 tendent, therefore, ordering, him to pay over the money to the trus- 
 tees as aforesaid, was correct, and is hereby affirmed. 
 
 Per N. 8. Benton, January 29, 1846. 
 
 Neither the Department of Public Instruction, nor the moderator of 
 a school district meeting, has any right, under the statute, to prohibit 
 any male person who makes the declaration required.,!^ 'law, from 
 voting ; but it will be the duty of this department to. correct and set 
 aside ail proceedings consummated or carried by votes clearly illegal, 
 the resvUt depending upon them. It is the duty of the person acting as 
 chairman or moderator of a district meeting, to permit any person 
 challenged to make the declaration required by statute, and any refusal 
 to perform this duty, will be good ground for setting aside the proceed- 
 ings of a school district meeting. 
 
 Per N. S. Benton, J»ly 12, 1847, 
 
 A. stove and pipe are necessary appendages to a school-house, and proper objects 
 fof the levying of a district tax. 
 
 At a district school meeting, held in the town of Rodman, on the 
 20th day of November Ipst, a vote was taken and a resolution passed 
 to levy a tax upon a district to purchase a stove and pipe for the use of 
 the school-house in the district. 
 
62 DIGEST OP DECISIONS. 
 
 The appellants claim that the district has no authority to levy a tax 
 for such a purpose. In the opinion of the superintendent a stove and 
 pipe arc necessary appendages to a school-house and legitimate objects 
 for the levy of a district tax. The proceedings of the meeting in voting 
 the tax aforesaid are hereby affirmed. 
 
 Per N. S. Benton, December 31, 1847. 
 
 A district may purchase a site by a majority vote. It is different from changing 
 a, site. 
 *• 
 This is a case in relation to the proceedings of a school district meet- 
 ing in the town of Koyalton. The district, it seems, has never been 
 the legal owner of a site; it undoubtedly has a right to procure 
 one by a majority of the votes at a district meeting, and without the 
 formalities required in case of a change of site. 
 
 r.see no objection to the mode adopted by the district in the purchase 
 of the land. A deed should, however, be obtained by the district, pre- 
 vious to the expenditure of any money on the house, so that the title 
 may be secure. 
 
 Per Dtx, November 5, 1838. 
 
 Persons who are by their profession dedicated to the service of God and the euro 
 of souls, and having a license to preach, or who have complied with the form 
 and mode of ordination, are ministers of the gospel within the law. 
 
 This is a case arising in a school district in Philadelphia, Jefferson 
 county, where the trustees doubted the right of a person claiming to be 
 a clergyman, to be exempt from taxation. 
 
 The intention of the law relating to the taxation of property belong- 
 ing to ministers of the gospel, must be considered as applicable only to 
 those who are by their profession dedicated to the service of God and 
 the cure of souls. In a church whore a license to preach is required, 
 or where a form of ordination is necessary the license should be obtained 
 or the form complied with in order to entitle an individual to exemption 
 under the law. I am of opinion that a license limited in point of time, 
 is sufficient to entitle the individual holding it, to an exemption for the 
 time during which it continues. 
 
 Per Dix, June 11, 1838. 
 
 Town superintendents can pay over public money only upon the 
 written order of the trustees or a majority of them, to the teacher enti- 
 tled to receive the same. 
 
 Per Mprgan, May 29, 1851. 
 
 Tho State Superintendent will, on proper application, remove a trustee for 
 unwarrantable neglect of official duty. 
 
 Elisha Bedell, one of the trustees of school District No. 1, in the town 
 of Hempstead, is charged with a willful disturbance and interruption of 
 the school taught by Mary Augusta Brown, in said district. Mr. Van 
 
DIGEST OF DECISIONS. 63 
 
 Cott, another of the trustees, is charged with a refusal to unite with 
 one of his colleagues in prosecuting for such dffense, in acoordance with 
 the statute. 
 
 It is in evidence that Mr. Bedell went to the school room, and in tho 
 presence of the scholars used angry and abusive language to the teacher, 
 openly countermanded her orders in condueting.the school, and caused 
 the school to be thrown into disorder, and that both teacher and pupils 
 were much frightened by his language and threatening manner, and 
 for some time after she was unable to proceed with the school. 
 
 The evidence is confirmed by the report of a committee of ten 
 appointed by the inhabitants of the district, at the annual meeting to 
 visit and examine the school, who, in concluding their statement, 
 observe that they '' were compelled to the opinion &at Mr. Bedell has 
 thereby disqualified himself for the office of trustee, and that it is 
 evidently for the welfare of the school that he should forthwith resign 
 his office." 
 
 This array of evidence is met only by a general and unsatisfactory 
 denial by Mr. Bedell. 
 
 There can be no doubt, in the opinion of the superintendent, from 
 evidence, that Mr. Bedell has been guilty of a gross and unjustifiable 
 violation of law and neglect of official dtiy. The same conduct in an 
 individual not oflBcially connected with the school, would unquestionably 
 have incurred the- penalty prescribed by law ; and it certainly does not 
 mitigate the offense or change its nature, that it was committed by an 
 officer specially charged with the preservation of quiet and order in the 
 school, and with the protection and guardianship of its interests. 
 
 The act of 1845, to prevent disturbances in schools, above referred 
 to, makes it the special duty of the trustees of any school district in 
 which any such offense shall be committed, to prosecute such offender, 
 before any officer having cognizance of such offense. Mr. Van Cott, 
 one of the two remaining trustees, having been called upon for the per- 
 formance of this duty, positively refused to comply with said request, 
 and still refuses so to do. This is clearly an unwarrantable neglect of 
 official duty, for which no defense is interposed ; and the said Elisha 
 Bedell and Nicholas Van Cott are hereby removed from office as trus- 
 tees of said district. 
 
 Per Morgan, July, 1851. 
 
 Notice of the object of an annual meeting is not required by law. Every inbabi- 
 tant is presumed to know that arvy business aifecting the interest of the 
 district may be transacted without special notice thereof. 
 
 This is an appeal from the proceedings of the annual meeting of a 
 district held October T, 1851. 
 
 At an adjourned annual meeting, held in the district April ^th, 1851, 
 a resolution was passed to change the site of the school-house, and the 
 necessary taxes were voted to purchase the site and to move the school- 
 house, The proceedings of this meeting are presumed to have been 
 
64 DIGEST OF DECISIONS. 
 
 On the 7th of October, 1851, the annual meeting was held. The 
 customary notices for an fcnual meeting were posted' in the district but 
 no particular business was specified except that oflScers would be elected. 
 
 At this meeting a resolution was passed reconsidering and rescinding 
 the proceedings of AprU Yth, 1851, so fai as related to the change of 
 site for the scLool-house and the raising of taxes to defray the expenses 
 of the same. 
 
 It is alleged that special notice should have been given of the inten- 
 tion to reconsider the proceedings of the meeting of April Tth to make 
 the proceedings binding. 
 
 This department has always maintained the rule, and the law pre^ 
 scribes that the object for which a special meeting of a district is caUed, 
 shall b'e specified in the notice of such meeting. But an annual meet- 
 ing is always an adjourned meeting. It is not necessary to give special 
 notices, as every inhabitant of the district is presumed to know when it 
 will be held, and also that any business which, may properly come 'before 
 any district meeting, may be transacted at this. It is the meeting of 
 the district, and every inhabitant is bound to be present to promote the 
 interests of the district as well as to protect his own rights. 
 
 The whole business of the meeting of April 7th, was subject to review 
 and it was competent to reconsider and rescind- the whole or any part 
 thereof except so far as the trustees had carried out the vote of the 
 first meeting, or incurred debts or responsibilities undrer it; 
 Per Morgan, December 30, 1851. 
 
 Whenever the inhabitants of a school district arc misled by the erroneous advice 
 of the town superintendent, and their rights become jeopardized thereby, this 
 department will interpose for their relief, it. being a case of surprise. 
 
 This is an appeal from the proceedings of an annual meeting in a 
 district on the 6th day of October last, in ViOting to, change the site of 
 the school-house, and to levy a tax to purchase a new site and build a 
 school-house thereon. 
 
 The appellants ask that the- proceedings of said meeting, may be set 
 aside so far as they relate to their '■ votes, on the ground fliat ttiey did 
 not suppose that resolutions upon these subjects could be passed at an 
 annual meeting, and therefore they were not present at the meeting 
 above referred to. Annexed to the appeal are the affidavits of seversd 
 taxable inhabitants, of the district stating that they were infohned by 
 the town superintendent, that the site of the school-house could not be 
 changed except at a special meeting duly called for that purpose. It 
 appears that (juite a large number of the inhabitants of the district who 
 were desirous of being present, whenever the resolution to change the 
 site of the school-house was to be acted upon, believed this information 
 to be correct, and therefore did not attend the annual meeting. That 
 such- information was given by- the town superintendent is in tact conce- 
 ded by him in a letter to this department, although he states that soon 
 after his conversation with the appellants he found lipon- examining the 
 statute, that the opinion which he had expressed was incorrect. 
 
DIGEST OF DECISIONS. GB 
 
 Inasmuch as the appellants have been misled by his information and 
 advice, it appears to me that such a case of surprise is made out, as 
 calls for relief from this department. 
 
 The prayer of the appellants is granted. 
 
 Per H. S. EandaU, March 25, 1852. 
 
 It is not necessary that a majority of all the taxable inhabitants should be 
 obtained, in addition to the consent of the town superintendent, in order to 
 change the site, but only a majority of those present, and voting at a meet- 
 ing duly notified. 
 
 This is an appeal from the proceedings of a special meeting held in 
 said district on the 18th day of October, 1851. 
 
 At this meeting, it appears that resolutions were passed changing the 
 site of the school-house, and authorizing the collection of $10.00 by 
 tax, for purchasing a new site, and $175.00 for building a new school- 
 house thereon. The appellant alleges that these resolutions were not 
 passed in the manner required by law, and that the town superinten- 
 dent never legally gave his consent to the proposed change of site. 
 
 The appeal papers concede that the resolution to change the site, 
 was passed by a vote of a majority of all the taxable inhabitants of tho 
 district who were present and voted at the meeting. Therefore, if the 
 consent of the town superintendent was given in accordance with law, 
 the resolution to change the site was passed by the required legal 
 majority of the inhabitants. For it is not necessary, that in addition to 
 the consent of the town superintendent, a majority of all the taxable 
 inhabitants residing in the district should be obtained, in order to 
 change the site, but only a majority of those present and voting at a 
 meeting duly notified. 
 
 It appears by the answer that the town superintendent did give his 
 consent in writing, to the proposed change, on condition that the 
 requisite majority of the inhabitants of the district should be in favor of 
 the change. This consent became absolute the moment the condition 
 was complied with. The requisite was obtained upon the passage of 
 the resolutions. 
 
 Appeal dismissed. 
 
 Per H. S. Randall, March 25, 1852. 
 
 Where a town superintendent decides that a vacancy exists in the oflSce of 
 trustee, ho should wait one month after announcing his decision, before 
 assuming to fill the vacancy. 
 
 This is an appeal from a decision and order of the town superinten- 
 dent of Beekmantown, on the 22d day of November last, deciding that 
 there were two vacancies in the office of trustee in said district and 
 appointing two persons to fill such vacancies. 
 
 From a careful examination of the papers, I am satisfied that tho 
 town superintendent was correct in deciding that the vacancies existed ; 
 but the district being a joint one lying partly in two different towns, it 
 required the action of the town superintendents of both towns to fill 
 
 [DiOKST.] 9 
 
66 DIGEST OF DECISION'S. 
 
 tlie vacancies by appointment. The appointments wiich were made 
 ^vere therefore void, although the town superintendent in proceeding to 
 fill the vacancies may have acted in perfect good faith. 
 
 But even if he had the right to fill the vacancy, I am of opinion that 
 he should have waited one month after announcing his decision, that 
 the office was vacant, in order that the inhabitants might have an oppor- 
 tunity to supply the vacancies if they desired to do so.- 
 
 Therefore it is hereby declared that the appointments so as aforesaid 
 made, were and are irregular and void, and the clerk of said district is 
 hereby ordered, within ten days after he receives this order, to call a 
 special meeting for the purpose of filling the vacancies which exist in 
 the ofiice of trustee in said district, &c. 
 
 Per H. S. Eandall, March 26, 1852. 
 
 Where a huilding committee in concert with the trustees are invested with discre- 
 tionary power by resolution of a district and have entered upon the execu- 
 tion of their trust, by maliing contracts for materials, &c., the district can- 
 not control or interfere with their plans. 
 
 This is an appeal from the proceedings of a building committee 
 appointed to take charge of building a new school-house, and from the 
 refusal of the trustees to call a special meeting for the purpose of com- 
 paring drafts and models of architecture and adopting the best plan, for 
 building a school-house, wood-hous^ and other fixtures belonging to the 
 same. 
 
 In reply to the appeal the trustees and building committee, allege 
 that on or about the 8th day of March last, at a special meeting called 
 for the purpose, the district voted to build a new brick school-house 20 
 by 25^ feet; that Benjamin Wright and others, then submitted their 
 plans or drafts for building said house which were voted down by the 
 raeeting. A vote was then passed giving the trustees and building com- 
 mittee discretionary power in regard to building and furnishing said 
 house in the best and cheapest manner according to the size above 
 mentioned. 
 
 They further allege that in pursuance of such vote, they went on and 
 purchased brick and materials and entered into a contract, for laying 
 the brick and stone, and lathing and plastering the interior of the build- 
 ing, and procured window frames and doors and sash with glass set, and 
 that the walls of the house were now up and the roof nearly completed. 
 
 Under such circumstances, the superintendent is of the opinion that 
 it is now too late to interfere with the proceedings of the building com- 
 mittee. The district might have restricted their powers by a vote for 
 that purpose, -when they were appointed, but having failed to do so, and 
 having vested them with a discrctidn' in the discharge of their duties, 
 there is nothing in the case which calls for the interposition of this 
 department. 
 
 Per H. S. Randall, May 19, 1852. 
 
DIGEST OF DECISIONS. 67 
 
 Who are legal voters at district meetings, and what vote necessary to raise tax by 
 installments. 
 
 The qualification of voters in school district meetings, is defined in 
 § 59, chap. 480, Laws of 18^7. (No. 84, School Laws and Forms for 
 1848.) 
 
 Every person, to be a voter in a school district meeting must, there- 
 fore, be a male twenty-one years of age, and a resident of the district. 
 Any person having these three qnalifications, and " entitled to hold 
 lands in this state, who owns or hires real property in such district, 
 subject to taxation for school purposes," is a voter. . 
 
 This clause authorizes aliens, who have declared their intention to 
 become citizens of the United States, and who have filed a certificate 
 of such intention in the oiEce of the Secretary of State, to vote, provided 
 they own or hire real property in the district. It also authorizes 
 tenants of houses or lands, subject to taxation in the district, to vote, 
 whether they pay the taxes or not. Legal voters at town meetings, who 
 have paid a rate bill for teacher's wages within one year preceding, are 
 also voters in the district where they reside. 
 
 Any person who has a family, and is a legal voter at town meetings, 
 and has personal property liable to be taxed in the district, exceeding 
 $50.00 in value, exclusive of such as is exempt from execution, is also a 
 voter. 
 
 A man without a family, having personal property exceeding $50.00 in 
 value, liable to taxation, is also a voter, because his property is none 
 of it exempt from execution. 
 
 Hence it follows that while on the one hand, in some cases, aliens, 
 not legal voters at town meetings, may be legal voters at district school 
 meetings ; on the other hand, in all cases, legal voters at town meetings, 
 who do not own or hire real property, and who have not personal pro- 
 perty exempt from execution, exceeding $50.00 in value, are not legal 
 voters, in district school meetings. And as to be " a male of fiill age, 
 and a resident of the district," is an essential qualification of every voter, 
 women are necessarily denied the privilege of voting in any case. 
 
 A district meeting legally called and assembled, may, by a majority 
 of those present and voting, vote to raise $400.00 or less, for the purpose 
 of building a school-house ; and also any sum necessary for the pur- 
 chase of a site. And if the town superintendent shall certify in writing, 
 that a larger sum is necessary for building a school-house, and shall 
 specify the sum, any amount not exceeding the sum so specified, may be 
 raised by a majority of the legal voters present and voting at the meet- 
 ing. (§ 10, chapter 480, Laws of 1847. ) 
 
 School districts are not permitted to mortgage or incumber their 
 school-house lot. But in order to enable a district to raise a large sum 
 of money, without the necessity of laying a tax for the whole of it in 
 one year, § 71, chapter 480, Laws of 1847, provides for raising a tax by 
 installments. 
 
 The words " taxable inhabitants," in this section, being used without 
 limitation or qualification, must be construed to mean all who are liable 
 
68 DIGEST OF DECISIONS. 
 
 to be taxed, and who attend the meeting — citizens, aliens, women, 
 minors, residing in the district. The number of taxable inhabitants can 
 be ascertained from the last assessment roll of the town. A majority 
 of such inhabitants attending, to be ascertained by taking and recording 
 the ayes and noes, is necessary to the validity of a vote to raise a tax 
 by installments. But this majority must be made up of legal voters, 
 for although this section of the statute requires a majority of all 
 the taxable inhabitants attending to have their names recorded in 
 the aflSrmative, it does not make all the taxable inhabitants legal 
 voters for the purposes of such a vote. Who then are legal voters 
 under this section? The same persons and no others, authorized to 
 vote by § 59, hereinbefore quoted. Neither women nor minors, nor 
 persons not liable to be taxed, can vote upon the question of raising a 
 tax by installments. Therefore, a man who hires a house, and is a legal 
 voter at district meetings in ordinary cases, but who is not on the 
 assessment roll, and pays no taxes, cannot vote upon this question. If 
 one person owned all the land of a school district, and it was all 
 assessed to the owner, the tenants could not vote upon this question, 
 unless they were assessed for personal property. Non-residents, 
 although taxable, are not such " taxable inhabitants," within the mean- 
 ing of this section, as to be enumerated in estimating the number of 
 taxable inhabitants in the district, and they are not voters in any case. 
 The tax raised by virtue of this section, must also be raised by equal 
 annual installments, for example : If it be voted to raise $1000.00 in five 
 equal annual installments, the sum to be raised each year must be $200.00, 
 and not as some have supposed, $200.00 with the interest, that is 
 $20T.OO at the end of the first year, $214.00 at the end of the second 
 year, and so on. Trustees and others must therefore make their con- 
 tracts accordingly. 
 
 Per Morgan, September 26, 1848. 
 
 A chairman of a school district meeting is entitled to a vote upon all questions 
 involving the levying of a tax. 
 
 This is an appeal firom the proceedings of the annual meeting held in 
 said district on the 5th day of April last, in voting a tax of $400.00 for 
 the purpose of building a school-house therein. It appears by the 
 papers in the case, that the resolution by which the tax was authorized, 
 was passed by a vote of six to five against the same. The appellant 
 claims that the resolution was illegally passed, because, 
 
 1. The clerk of the meeting refused to call the name of the chair 
 man, denying his right to vote ; 
 
 2. That had the chairman been allowed to vote, he would have voted 
 against said resolution ; and 
 
 3. Tliat one of the votes in favor of said resolution, was given by a 
 person who was not a legal voter in said district. 
 
 In their answer to the appeal, the trustees concede that the chairman 
 was not permitted to vote upon said resolution, but they deny that he 
 
DIGEST OF DECISIONS. G9 
 
 was lawfully entitled to vote thereon, on the ground that he was chair- 
 man of the meeting and only entitled to a casting vote. 
 
 The trustees having made this concession have clearly shown that the 
 proceedings of the meeting were not legally conducted, inasmuch as a legal 
 vote was rejected, which if received might have affected the result of the 
 vote upon the resolution. The chairman was equally entitled to vote 
 upon the question of raising the tax with the other tax payers and 
 voters of the district, and the meeting had no right to deprive him of 
 his privileges Or others of the benefite which they might have received 
 had his vote been counted. 
 
 It is therefore ordered that the proceedings of the meeting aforesaid, 
 so far as the same relate to the resolution authorizing a tax of $400.00 
 for the purpose of building a school-house, be and the same are hereby 
 set aside. . 
 
 Per H. S. Kandall, June 25, 1852. 
 
 Trustees have the power to exempt indigent persons either wholly or in part 
 from the payment of a rate bill, and to collect the same by tax upon the 
 district, but for an abuse of this power, this department will set aside their 
 proceedings. 
 
 The facts of this case as agreed upon and submitted are substantially 
 as follows : 
 
 On the 22d day of June last, the trustees made out a rate bill to 
 collect the sum of $320.00 due for teachers' wages. In so doing they 
 exempted in the first place several of the persons named in the rate 
 bill fiom the payment of any part of the amount assessed against them, 
 and then all others from the payment of one-half of their assessments. 
 
 The whole amount of the exemptions was $239.29, and to collect 
 this sum, the trustees made out a tax list against the taxable inhabitants 
 of the district. In this tax list is included one of the persons who was 
 wholly exempted, and all of those who were exempted in part, from the 
 payment of their rate bill, and are assessed for real property situated in 
 the district. From the proceedings of the trustees, as above stated, this 
 appeal is brought on the ground that the exemptions were irregular and 
 unauthorized by law. 
 
 The statute has vested in the trustees of school districts, the power 
 of exempting, either wholly or in part, as they may deem expedient, 
 such indigent inhabitants as may in their judgment be entitled to 
 exemption from the payment of a rate bill, and to collect the amount 
 of such exemptions by a tax upon the district. 
 
 This provision of the law is a wise and humane one, and whenever 
 the authority is judiciously exercised by the trustees in behalf of those 
 who need its benefits, their action will not be disturbed by this depart- 
 ment. 
 
 But the legislature, in passing such a statute, in my judgment never 
 designed that it should have so extensive and sweeping an effect as has 
 been- given to it in this case. It was intended for the benefit of those 
 whose circumstances were such as to render them unable to procure the 
 
10 DIGEST OF DECISIONS. 
 
 means of paying for the tuition of their children. There doubtless 
 were many of this class in the district referred to, and in reference to 
 whom the trustees have very properly exercised the ' power vested in 
 them by law. But it appears to me they have gone beyond the intention 
 of the statute. They have exempted every inhabitant of the district 
 who sent to school, from the payment of at least one-half of his rate 
 bill, apparently without any reference to the amount of property owned 
 by each. This they had the power to do, provided such inhabitants 
 were unable to pay the amount assessed against them. But the fact 
 that every one of those who were exempted m part, were assessed upon 
 the tax list for real property situated in the district, furnishes strong 
 evidence of an ability to pay. If the property was incumbered to the 
 extent of or beyond its value, the trustees should have made that fact 
 appear. There is, however, no testimony upon that point, and as the 
 case now stands, I am of opinion that all of those who were exempted in 
 part, and one of those who was wholly exempted were not entitled to 
 the benefits of the statute. 
 
 For the reasons above stated, it is therefore ordered that the tax list 
 and warrant above referred to be, and the same is hereby set aside. 
 
 Per H. W. Johnson, Dep. Supt., August 11, 1852. 
 
 When an appeal is pending before this department, all proceedings in the dis- 
 trict from whence the appeal comes, in relation to the subject matter involved 
 in the appeal, are stayed until the decision of the appeal. " 
 
 This is an appeal from the proceedings of a special meeting held in 
 said district on the Yth day of June last. 
 
 By the papers in the case, it appears that the meeting was called for 
 the purpose of organizing the district and choosing district officers, and 
 that the same was held while an appeal was pending in relation to the 
 action of the town superintendent in forming the district. This fact 
 being conceded, the proceedings of the meeting must be set aside, for 
 the appeal stayed all proceedings in relation to organizing the district 
 until it was finally decided, and the meeting therefore could not legally 
 be held. 
 
 It is therefore ordered that the proceedings of the meeting held in 
 said district on the "Zth day of June last, be and the same are hereby 
 set aside. 
 
 Per H. S. Randall, October 13, 1852. 
 
 A school-house cannot be used for any other than school purposes except by the 
 unanimous consent of the taxable inhabitants of the district. 
 
 This is an appeal taken from the action of the trustees of School 
 District No. 16, in the town of Almond, Allegany county, they having 
 suffered the school-house in said district to be opened and employed for 
 the holding of public meetings, resulting in great damage to the building, 
 the fences around it, and the books belonging to scholars. 
 
DIGEST OF DECISIONS. 11 
 
 It is also objected that the school is frequently required to he dismissed 
 from one to two hours earlier than usual, on the days when meetings 
 are held in said school-house, &c. 
 
 The employment of a school-house for public and especially for reli- 
 gious meetings, when, not wanted for school purposes, has been a time- 
 honored custom upon which the superintendent is reluctant to intrench. 
 Nor should there be in his opinion, any objection raised against the 
 practice except in case of flagrant misemployment of the district pro- 
 perty. But the question being raised, the necessity of deciding it accord- 
 ing to the law of the land, devolves upon the State Superintendent. 
 
 The trustees of each school district have the custody and control of 
 the school-house, for the purposes defined and specified in the act con- 
 ferring this authority. In general, school-houses are built for the pur- 
 pose of public instruction by teachers holding regular certificates of 
 qualification, and also to furnish a place for the holding of school district 
 meetings and for no other purpose. No inhabitant of a district can be 
 taxed for firewood employed in warming a room for religious exercises, 
 or cleaning it and repairing the wear, however slight, which attends 
 such use. It is not within the power of a majority, however large, to 
 authorize a" tax for any such purpose,' nor to devote the district property 
 to any object outside of the purposes of common school instruction 
 which may expedite in the slightest degree the period when such tax 
 will become necessary against the willof asingle dissentient tax payer, 
 however ungenerous and unreasonable may be his objections. 
 
 In short the employment of school-houses for such objects is only 
 tolerated by general consent. ■ This department never raises the question. 
 On the contrary, it approves the liberality of sentiment which permits 
 ihe use of these edifices for all praiseworthy objects of public interest, 
 whether denominated religious or secular. It is, however, under the 
 necessity of sustaining the objection when it is made. It is very pro- 
 bable that those who procure such a decision will soon find occasion to 
 regret it, in consequence of being themselves excluded from the use of 
 the school-house for some purpose in which they may take an interest. 
 The exclusion of all persons from occupation of the school-house for 
 other than common educational purposes, applies necessarily to every 
 occupation whether religious or otherwise. 
 
 The appeal is sustained. 
 
 Per E. P. Smith, Dep. Supt., July 17, 1855. 
 
 The assent of a majority of the officers constituting the board is necessary to the 
 
 validity of any order altering a district ; and 
 If the district he a joint one, a majority of the officers of each of the towns from 
 
 which such district is formed. 
 
 This is an appeal from the supervisors, town superintendents and town 
 clerks of the towns of Argyle and Fort Edward on the 10th day of 
 February last, setting off a part of the above named district to Joint 
 District No. 8, of said towns. 
 
72 DIGEST OF DECISIONS. 
 
 It is conceded in this case, that the order was made without concur- 
 rence of the supervisors and town clerk of Fort Edward. The alteration 
 is therefore void, for it is well settled that the assent of a majority of 
 the officers of each of the towns from which a joint district is formed, is 
 necessary to the validity of any order altering the same. 
 
 The order above referred to is therefore hereby set aside. 
 Per H. S. Kandall, May 13, 1853. 
 
 Where a claim against a school district has heen presented to the board of super- 
 visors, and the board direct or refuse to direct the amount to be levied and 
 collected uoon such district, an appeal will not lie to this department. 
 
 The appellant m this case seeks, among other things, to obtain pay- 
 ment of a claim which he makes against the above named district for 
 costs and expenses incurred in suits brought against him in his official 
 capacity. 
 
 To establish the validity of this claim, he has set forth the proceedings 
 of several meetings held in said district at various periods, from 1849 to 
 the fall of 1852, and has given a detailed statement of the manner in 
 which the claim accrued. 
 
 In reference to the whole question, it is sufficient to say that it appears 
 from the evidence before me, that this claim has twice been presented 
 to the board of supervisors of the county of Oswego, for allowance, ii» 
 pursuance of chapter 172, of the Laws of 1847, and each time the boar() 
 have refused to direct the amount to be collected out of the district 
 From such a refusal, the law has made no provision for an appeal U 
 this department or to any other tribunal. It was evidently the inten- 
 tion of the act of 1847, to make the decision of the board of supervisor 
 in such cases final and conclusive in the premises. I have therefore no 
 power to grant the relief asked for. 
 
 Appeal dismissed. 
 
 Per H. S. Kandall, May 12, 1853. 
 
 Where an adjournment of a special district meeting is had for a period more than 
 one month, notice of the object of such adjourned special meeting is neces- 
 sary. 
 
 The appellant in this case seeks to set aside the proceedings of an 
 adjourned school meeting, held on the 2d day of July last, and the 
 proceedings of the trustees in making out a tax list to collect a tax 
 voted at said meeting. 
 
 By the papers before me, it appears that a meeting was held on the 
 24th day ot May last, for the purpose of selecting a site and voting a 
 tax for building a school-house. This meeting wa& adjourned to the 2d 
 day of July. It is conceded by the trustees, that no notice of the 
 adjourned meeting was given, and they claim that none was necessary. 
 The omission to give this notice, is one of the grounds of complaint in 
 the appeal. 
 
 By § 81 of the School Law of 1847, clerks of school districts 
 are required to give notice in writing, of the time and place for any 
 
DIGEST OF DECISIONS. IS 
 
 adjourned district meeting, when the same shall be adjourned for a 
 longer period than one month. From this section, it is manifest that 
 notice is required in all cases where a meeting has been adjourned 
 for more than one month. A failure to give such notice would be fatal, 
 as a failure to give afty notice of the time and place of holding the 
 annual meeting. The adjournment in this case exceeded one month, 
 and therefore notice of the meeting should have been given. As it was 
 entirely omitted, the proceedings were irregular, and must be set aside. 
 Per H. 8. Randall, October 6, 1853. 
 
 No notice of an assessment is required except where an original valuation is 
 made ; nor is a notice that a tax list has been placed iu the hands of a col- 
 lector for collection necessary. 
 
 The appellants m this case seek to obtam an order setting aside a tax 
 list on the following grounds : 
 
 1. That the trustees did not give any notice to the tax payers to meet 
 and review their assessment roll. 
 
 2. That they did not give any notice that said tax list was completed 
 and that the trustees would meet on a certain day to receive payment 
 of taxes without any per centage. 
 
 3. That the collector did not advertise according to law that he would 
 receive voluntary payment of taxes. 
 
 These objections are untenable. The present school law does not 
 require any notice of an assessment . to be given by the trustees of a 
 district except when an original valuation is to be made, which was 
 not done in this case. Nor does it require the collector to give any 
 notice whatever that a tax list has been placed in his hands for collec- 
 tion. All of the formisr provisions of law requiring such notices to be 
 given have been repealed. 
 
 The appeal is therefore dismissed. 
 
 Per H. S. Randall, May 26, 1853. 
 
 Trustees have the power, when in their discretion circumstances require it, to 
 establish temporary branch schools in a district, and employ a teacher, with- 
 out any vote of the district, and a due pro[Sortion of the public money should 
 be applied to the payment of such teacher. 
 
 It is, perhaps, to be regretted that the law has left so much to the 
 discretion of trastees, in reference to the institution of temporary 
 branch schools. Such schools frequently become necessary, owing to 
 some extraordinary circumstances which for the time being exist in a 
 district. Whenever such necessity does arise, the trustees have an 
 undoubted right to exercise the discretion which the statute has vested 
 in thera, by employing a teacher, and opening a temporary school for 
 the accommodation of the children, without aiiy vote of the inhabitants. 
 In this district the majority of the trustees have, on several occasions, 
 determined that such necessity did exist ; and the inhabitants, at their 
 annual meetings in 1850 and 1851, have approved that determination 
 by directing the application of a part of the public money to the sup- 
 
 [DlGEST.] 10 
 
T4 DIGEST OF DECISIONS. 
 
 port of the branch school. The institution of such a school in this dis- 
 trict, has also met the approval of the town superintendent of Whites- 
 town, as appears from a letter addressed by him to the department, and 
 a decided majority of the taxable inhabitants have expressed themselves 
 satisfied with the proceedings of the majority of the trustees as appears 
 by a petition accompanying the answer. 
 
 Under these circumstances, though it does not clearly appear that all 
 the proceedings of the district in relation to the institution of the branch 
 school have been strictly in accordance with law, I am of opinion that 
 harmony and good order which are so essential to the prosperity of a 
 school will be best secured, and the interests of a majority of the inha- 
 bitants be best promoted, by sanctioning the proceedings of the trustees 
 in establishing the school in question and allowing a portion of the 
 public money to be applied towards its support. 
 
 The proceedings of the trustees are therefore affirmed and the appeal 
 dismissed. 
 
 Per H. S. Kandall, Juno 16, 1853 
 
 A supervisor and town clerk cannot act in the formation or alteration of a school 
 district, without the presence of the town superintendent. 
 
 The appellants in this case seek to set aside an order made at a 
 meeting of the town superintendent of Jefferson, and the supervisors 
 and town clerks of Blenheim and Jefferson, on the 30th day of April 
 last, forming a new district, to be composed of parts of District No. 6, 
 Jefferson, and No. 3, Blenheim. 
 
 From an examination of the papers, I am of the opinion there is a 
 fatal objection to this order. 
 
 It appears that the town superintendent of Blenheim was not present 
 at the meeting of the board, and did not participate in making the 
 order. The supervisor and town clerk of that town were members of 
 the board, but they had no authority to act without the presence of 
 the town superintendent. The statute authorizes them to be associated 
 with him in forming or altering school districts. In no case, however, 
 does it authorize them to act' without him. The board, therefore, had 
 no power to alter any district located in that to^n. 
 
 The order therefore is hereby set aside. 
 
 Per H. S. RandaU, August 18, 1853. 
 
 The right of an acting town superintendent to the office will not be inquired into 
 collaterally. 
 
 This is an appeal from an order, setting off a portion of School Dis- 
 trict No. 8, in the town of Preston, to District No. 2, of the town of 
 McDonough. 
 
 The principal ground of appeal, and the only one considered is, that 
 Isaac S. Stafford, acting as town superintendent of Preston, had no 
 right to assist in making this order, for the reason that he had removed 
 
DIGEST OF DECISIONS. 15 
 
 from the town, and thereby vacated his office. The fact that he was 
 the acting town superintendent of Preston, is conceded in the appeal. 
 
 This being the case, his right to hold the office cannot be called in 
 question in this proceeding. That is a question which can only be 
 tried by an action at law brought ■ for that purpose. - The courts have 
 uniformly held that the right of a person -to a public office cannot be 
 inquired into collaterally. 
 
 Under the former practice, it could only be tested by a writ of " quo 
 warranto." It can now only be tested by an action in the nature of a 
 " quo warranto." 
 
 This objection, therefore, to the order is overruled. 
 
 Per H. S. Randall, October 26, 1853. 
 
 This department will set aside the proceedings of a district meeting, when undue 
 ao/oantage is taken of those of the inhabitants who do not happen to be pre- 
 sent at the precise hour the meeting is called, especially where the custom 
 has been to hold open until one hour after the time mentioned in the notice 
 before organizing. 
 
 This IS an appeal from the proceedings of the annual meeting held in 
 the district on the first day of October last. 
 
 The appellants allege that the meeting was called to be held at six 
 o'clock in the evening, at about which time three only of the legal voters 
 of the district met at the school-house and immediately organized and 
 proceeded to elect officers, and to make a division of the public money 
 for the ensuing year ; as soon as this business was transacted they 
 adjourned for ayear. Soon after and about seven o'clock in the evening, 
 several other legal voters appeared at the school-house accompanied by 
 one of the trustees, who was prepared to submit his annual report, but 
 they found the meeting had been held and adjourned as above stated. 
 They further allege that it had been the custom in that district at their 
 annual meeting to wait until one hour after the time specified in the 
 notice before organizing the meeting. 
 
 As no answer to 'the appeal has been received, these allegations must 
 be deenied established. If they were untrue those who sought to sus- 
 tain the proceedings of the meeting were bound to deny them. 
 
 Upon this statement of the facts I am of opinion that the proceed- 
 ings of the meeting should be set aside. There was more haste in the 
 transaction of the business than was required, and many were doubtless 
 led to suppose, by the former practice of the district, that nothing would 
 be done before the hour of seven in the evening ; besides an opportunity 
 ought to have been given to the trustee whose term expired, to make 
 his annual report. It may lead to serious embarrassment and difficulty 
 hereafter if it is omitted. 
 
 The proceedings of said meeting are therefore hereby" set aside. 
 Per H. S. Kandall, November 29, 1853. 
 
T6 DIGEST OF DECISIONS. 
 
 The mere act of voting to select a, particular piece of land upon which to erect a 
 school-house, does not establish the site. It must be followed by an actual 
 leasing or purchase. 
 
 The appellants in this case allege,' that on the 31st day of May, 1851, 
 at a special meeting regularly called, a resolution was passed authorizing 
 the selection of a site for building a school-house on the, land of Mr. 
 Fenner, and the collection of a tax to pay for the same. 
 
 The trustees assessed the tax, and about 145.00 of it was collected, 
 but they neglected to purchase the site. On the 12th day of March, 
 1853, at a regularly called meeting, a resolution was passed, authorizing 
 the selection of a site on the land of J. H. Dwick,'and a tax of 1350.00 for 
 building a school-house. The trustees then took the money which had 
 been collected for the purchase of the site first selected, and with it 
 purchased the Dwick site. It is claimed by the appellants that it was 
 illegal to change the site, after the money had been collected to pay 
 for the same ; that no cha:nge could be made without the consent of 
 the town superintendent, and that it was illegal to use for the 
 Dwick site, the money that had been raised for purchasing the 
 " Fenner" site. 
 
 In reply to these allegations, the trustees state that after the meeting 
 of May 31, 1851, and on the 15th of November of that year, at a special 
 meeting legally held, a resolution was passed rescinding the resolution 
 of the former meeting, authorizing the selection of a site upon the land 
 of Mr. Fenner. At a subsequent special meeting, a resolution was 
 passed authorizing the selection of a site upon the land of Mr. Dwick, 
 No action was taken at that meeting in reference to the disposition to 
 be made of the money which had been raised for the purchase of a site, 
 but at the annual meeting held since this appeal was brought, the 
 trustees were directed to use the money in the pvirchase of the " Dwick 
 site." 
 
 The case referred to by the appellants, in Barbour's Supreme Court 
 Reports (vol. 4, p. 25), in support of their first objection, does not 
 sustain the point they raise. The court merely decides that a district 
 cannot legally rescind a resolution imposing a tax, after the tax list has 
 been made out and the tax partly collected. That decision is in 
 accordance with repeated decisions of this department in which it has 
 been held, that a district could not legally rescind a resolution confer- 
 ring any authority upon the trustees, after they have entered upon the 
 performance of the duty imposed by the resolution. But these decisions 
 do not touch this case. The resolution authorizing the collection of 
 the tax, was distinct and separate from that authorizing the selection of 
 the site, and the repeal of the latter in no respect affected the right 
 of the trustees to collect the tax. Besides, it is conceded and in feet is 
 made the subject of complaint by the appellants, that the trustees had 
 not taken any steps towards purchasing the site named in the resolu- 
 tion which was rescinded. If they had not, the district clearly pos- 
 sessed the power of rescinding the resolution in the manner they did, 
 
DIGEST OF DECISIONS. 11 
 
 unless their action had so established the site that it could not be 
 changed without the consent of the town superintendent. The mere 
 act of voting to select a particular piece of land upon which to erect a 
 school-house does not establish the site. Something more is necessary 
 to accomplish that. The vote must be followed up by an actual leasing 
 or purchase. In this case there is no pretense that a title to the site 
 could not be procured. But it is alleged that the trustees neglected to 
 procure it, although they might have done so, and the district after 
 wards took from them the authority to make the purchase. This, I 
 think, they had a right to do without the consent of the town superin- 
 tendent, if they deemed it proper. I can therefore perceive no ille- 
 gality in the proceedings of the meeting, in selecting a site upon the 
 land of Mr. Dwick. 
 
 The appeal is therefore dismissed. 
 
 Per H. 8. Randall, Novemljer 29, 1853. 
 
 It is the duty of trustees when requested by a respectable number of the taxable 
 inhabitants of their district to call a special meeting for the transaction of 
 any legal and proper business, which such petitioners may desire to bring 
 before it. 
 
 This is an appeal from the refusal of the respondents to call a special 
 meeting of the inhabitants and legal voters of the district for the pur- 
 pose of taking into consideration the application and division of the 
 public money of said district on the request of twenty taxable inhabi- 
 tants thereof. The trustees in their answer set forth certain facts and 
 circumstances existing in the district which in their judgment justified 
 them in declining to call such meeting and in making such disposition 
 of the public money as they should deem expedient. 
 
 This view of the subject cannot in the opinion of the superintendent 
 be sustained. It is the duty of the trustees of a school district, when- 
 ever requested by a respectable number of inhabitants and legal voters 
 of a district, to call a special meetii^ for the transaction of any legal 
 and proper business which such inhabitants may desire to bring before 
 it. The object of the petitioners in this case was unquestionably a legal 
 and proper one. The inhabitants and legal voters of the district are 
 authorized to make such disposition of the public money among the 
 several terms of the school as they may judge proper, and it is only 
 when they omit to act in the matter that the trustees are empowered to 
 exercise their own discretion. If an improper disposition of the public 
 money is made by the inhabitants, an adequate remedy is prodded 
 by appeal to this department. The circumstances, therefore, set 
 forth by the trustees in their answer were insufficient to justify them 
 in their refusal to call the special meeting called for. The trustees 
 therefore are hereby ordered, within fiive days after the receipt of this 
 order, to cause notices to be given for a special meeting of the legal 
 voters of the district, to be held within ten days thereafter, for the pur- 
 pose of taking into consideration the application and divisipn of the 
 public money of said district for the ensuing year, &c. 
 
 Per E. W. Leavenworth, February 28, 1854. 
 
78 DIGEST OF PECISIONS. 
 
 Where trustees give their order for a greater amount of puhlic money to pay a 
 teacher than is in the superintendent's hands, and, to make up the deficiency, 
 anticipate the public money for a succeeding year, and pay it out of tlieir 
 own funds, they are without remedy ; the deficiency should be collected by 
 rate bill. 
 
 This is an appeal from the order of the trustees for the amount of 
 public money due a teacher employed by them, including a balance of 
 S6.50 advanced by one of the trustees on a previous order made at the 
 termination of the summer school. Tlie appellants insist that the bal- 
 ance should have been raised by rate bill on the inhabitants sending to 
 school during that term. 
 
 From the papers in the case it appears that Harriet A. Cooper, a 
 legally qualified teacher, was employed by the trustees to teach the 
 summer school at $12.po per month ; that at the expiration of her term 
 an order and certificate was drawn on the town superintendent for the 
 whole amount of her wages, $36.00, of which $29.50, being the whole 
 amount of teachers' money in the hands of the town superintendent 
 belonging to the district for the current year, was paid, and the balance, 
 $6.50, advanced to the teacher by Mr. Allen, one of the trustees; that 
 Miss Cooper, prior to the expiration of the summer term, was reemployed 
 for the winter term at $16.00 per month, at the expiration of which, 
 and on the 10th of March last, the trustees gave her an order on the 
 town superintendent for $62.50, being the amount of her wages for that 
 term, with the addition of the $6.50 advanced by Mr. Allen, as aforesaid ; 
 and that such order was accepted by the town superintendent, payable 
 from the teachers' money to be apportioned to the district for the pre- 
 sent year. 
 
 The superintendent is of opinion, under these circumstances, that the 
 trustees erred in including in their order and certificate for the winter 
 term the balance due on the summer term. After exhausting the public 
 money applicable to the latter term, they should have collected the 
 balance by rate bill ; if they were at liberty to anticipate the public 
 money for a succeeding year by advancing the amount due, they might, 
 upon the same principle, continue such a procedure indefinitely, and there- 
 by thwart the obvious intention of the law and the views and wishes of the 
 inhabitants of the district. The amount in controversy in the present 
 case is small, but the principle involved is one of the utmost importance 
 to the proper administration of the system of public instruction. 
 
 The trustees are, therefore, hereby directed to amend their order and 
 certificate in the hands of the town superintendent, by reducing the 
 amount to $56.00, the sum due on the winter term, and to make out a 
 rate bill and warrant' in the mode prescribed by law for the collection 
 of the balance from those who sent to school during the summer term. 
 Per E. W, Leavenworth, April 5, 1854, 
 
DIGEST OF DECISIONS. 79 
 
 Where inhabitants hare heen property set off from one district to another and the 
 town clerk has omitted to record the same, they will be regarded as inhabi- 
 tants of the district to which they have been annexed after being acquiesced 
 in for five years 
 
 Appeal from the proceedings of a special meeting held on tlie 28tli 
 of March last, authorizing the trustees to levy a tax on the district to 
 defray the expense of moving the school-house to the new site or to let 
 the job of moving the same to the lowest bidder. The appellants in 
 support of the appeal allege, 
 
 That seven persons, who attended the meeting and voted, were not 
 inhabitants of and legal voters in said district, having been annexed in 
 1839 to Joint District No. 1, Blenheim and Fulton, and there being no 
 record in the town clerk's oflBce of either of said towns of their subse- 
 quent transfer, either to District No. 5 or any other district. 
 
 In reply to this allegation the aflSdavits of the town superintendents 
 of Fulton and Blenheim for the year 1849 are produced, showing that 
 the individuals referred to and their property were in the spring of that 
 year transferred by them from Joint District No. 1 to District No. 5, 
 and that the order made by them to that effect was transmitted or deli^ 
 vered to the town clerks of their respective towns for record. It also 
 appears from the affidavit ot the appellants that from that period to the 
 present the persons so transferred have acted in and been regarded as 
 inliabitants of District No. 5, and their children enumerated therein. 
 Under these circumstances and after an acquiescence of five years the 
 proof of such transfer must be regarded as sufficient, notwithstanding 
 the omission of the town clerks to record the same. 
 
 Per V. M. Rice, May 12, 1854. 
 
 A tax voted for the purchase of a site cannot be raised by installments. A tax list 
 for the whole amount must be made out within thirty days from the voting 
 of the tax. 
 
 This is an appeal from the proceedings of an adjourned special meet- 
 ing, held on the 4th of May last, at which the site of the school-house 
 of the district was changed and a tax of $200.00 voted to build a school- 
 house thereon and to fence the site, such tax to be collected in two 
 equal installments, one-half on the 1st of September and the remainder 
 on the 1st of December next. 
 
 There is an objection appearing upon the face of the proceedings, 
 which is fatal to the validity of the vote for raising the tax for pur- 
 chasing the site. The superintendent is unable to find any authority 
 in the school law for raising the amount provided for by the vote of 
 the district in two installments, one payable in September and the 
 other in December next. When a greater sum than $400.00 is directed 
 to be raised for building a sehool-house, in the manner prescribed by 
 § 71 (No. 93), School Laws, such amount may be raised in equal 
 annual installments, as therein provided ; but where the amount to be 
 raised is for the purpose of a site, no provision exists for raising such 
 
80 DIGEST OF DECISIONS. 
 
 amount by installments, and the law requires the tax list for the wholo 
 amount to be made out within thirty days from the voting of the tax. 
 The resolution referred to was therefore illegal and invalid for this 
 cause, and so much of the proceedings of the special meeting appealed 
 from as relates to the raising of the tax of 1200.00 to purchase and 
 fence the site, payable in installments, as therein specified, is hereby 
 set aside^ 
 
 Per V. M. Rice, Supt., June 12, 1854. 
 
 A^ school district cannot be formed out of the central portion of another district, 
 leaving the territory of the latter disconnected. 
 
 This is an appeal from the order of the town superintendent of 
 Fremont, Sullivan county, creating a new district (No. 6) from territory 
 now known as District No. 5 of said town. 
 
 The appellants raise the following point : 
 
 1. Said order of the town superintendent erects a new district (No. 6) 
 in the central portion of District No. 5, thus disjoining the parts of said 
 District No. 5. 
 
 The question to be considered is : 
 • Can a district be formed out of the central portion of another district, 
 leaving the former disjointed ? The answer is clearly in the negative, 
 as has been the uniform ruling of this department. (See Common School 
 Decisions, p. 109.) In the case there cited, Superintendent Dix pro- 
 perly remarks that school districts must be formed of contiguous farms. 
 If -the example of forming them of farms not adjacent to each othei 
 should be sanctioned, it is difficult to foresee what disorder and confu- 
 sion it might not create, besides opening a door to unequal and unjusi 
 organizations. 
 
 It is therefore decided that the order of the town superintendent, as 
 hereinbefore recited, is illegal, and the same is hereby set aside. 
 Per V. M. Rice, September 18, 1854. 
 
 Where one trustee employs a teacher without consulting with his associates, and 
 his action is silently acquiesced in until the expiration of the term, their 
 approval of the contract will be implied, and they should sign an order for 
 the public money for teachers' wages when applied to. 
 
 This is an appeal taken by a teacher from the action of two of the 
 trustees of School District No. 8, in the town of Oxford, Chenango 
 county. Said trustees refiise to sign an order upon the town superin- 
 tendent of Oxford for the sum of $20.00 to compensate the appellant 
 for her services as teacher of the school in said district, upon the ground 
 that the appellant was employed in January, 1854, as teacher by George 
 Stratton, the third trustee, upon his own responsibility, the respon- 
 dents not having been informed by said Stratton of the emplo)rment of 
 the appellant, nor of the conditions either of time, wages or qualifica- 
 tions ; and that therefore appellant is not entitled to any share of the 
 public money for the school taught by her last winter. 
 
DIGEST OF DECISIONS. 81 
 
 It appears that said Harriet Webb was employed by one of the trus- 
 tees in his official capacity to teach a public school, in said district at 
 the rate of two dollars a weelt, and that she was so employed ten weeks. 
 Neither of the other trustees appear to have dissented. They cannot 
 be presumed to have been ignorant of the fact, and must be considered 
 as having acquiesced. This is the view which would be taken in any 
 court of judicature having jurisdiction of the case. 
 
 The appeal is therefore sustained, and the town superintendent of the 
 town of Oxford, is hereby ordered to pay to the said Harriet Webb, for 
 her services as teacher in said district, the sum of $20.00 from the share 
 of the public money belonging to said district. 
 
 Per V. M. Eice, October 23, 1854. 
 
 An alien, though he has tjiken the incipient measures to be naturalized, is not 
 qualified to vote at a school district meeting in the district where he resides, 
 unless an affidavit of that fact be filed and recorded in the office of the 
 Secretary of State. 
 
 This is an appeal taken by five of the inhabitants from the proceed- 
 ings of a special school district meeting, holden in District No. 6, in the 
 town of Montague, Lewis county, in the early part of October, 1854. 
 
 The appellants aver that persons not duly qualified to vote did vote 
 *t said meeting, and that their votes affected the result. It seems that 
 the only material vote of the meeting was carried by two majority, 
 whereas the right of three persons to vote, who voted with the majority, 
 was doubtful. One of them was a man working for a resident of the 
 district, but whether he was of legal age and possessed the other requi- 
 site qualifications is by no means certain. 
 
 The other two persons, Messrs. Fuller and Boyd, are aliens, and only 
 during the week that the meeting of May, 1854, stood adjourned to, 
 did they file their intentions of becoming citizens. An alien, though 
 he has taken the incipient measures to obtain naturalization, cannot 
 hold real property or be a qualified voter at a school district meeting in 
 the district where he resides. 
 
 He is required to make a deposition or affirmation in writing, before 
 an officer authorized to take the proofs of deeds to be recorded, that he 
 is a resident of and intends always to reside in the United States and 
 to become a citizen thereof as soon as he can be naturalized, and that 
 he has taken such incipient measures as the laws of the United States 
 require to enable him to obtain naturalization, which shall be certified 
 by such oflicer, and be filed and recorded by the Secretary of State in 
 a book to be kept by him for that purpose, and such certificate, or a 
 certified copy of it, shall be evidence of the facts therein contained. 
 
 As Messrs. Fuller and Boyd did not comply with the requirements 
 of the statute, and therefore could not become owners of taxable pro- 
 perty, the conclusion becomes a necessary sequence that the vote was 
 void. 
 
 Per V. M. Rice, October 30, 1854. 
 
 [Digest,] 1 1 
 
82 DIGEST OF DECISIONS. 
 
 Tho statute directing town superintendents to pay out public money only to quali- 
 fied teachers duly employed upon the order of the trustees employing them, 
 was enacted for the purpose of prerenting embezzlement by trustees, and if 
 he pays the public money to a trustee or other person than the teacher with- 
 out his order, he does it at his peril. 
 
 This is an appeal taten from the action of the trustees in School 
 District No. 9, in the town of Otto, Cattaraugus county, by a teacher 
 duly employed in said district during the last winter, on the ground, of 
 withholding from him a portion of his salary, amounting to the sum of 
 $15.86. TTie appeal is without answer. ^ 
 
 The appellant testifies 'that while he was engaged in the employ 
 of said trustees, two of them, to wit, Isaac Keed and Daniel R. Grinals, 
 wrote an order for the residue of the public money apportioned to .said 
 District in 1853, making it payable to appellant ; that Beed went with- 
 out appellant's knowledge or consent and drew said money in appellant's 
 name from the town superintendent of Otto, which money amounted to 
 $15.86, as aforesaid; that when appellant closed his term, said trustees 
 (two of them) gave him another order upon said town superintendent 
 for 152.56, to be paid in part of the residue of the public money appor- 
 tioned in 1854 ; that said superintendent paid $36.64 on said order and 
 retained it in his possession, but refused to pay any fiirther amount, 
 saying that he had paid the remainder to said Isaac Eeed, one of the 
 trustees of said district. 
 
 The provision of the law which directs town superintendents to pay 
 out public money only to qualified teachers duly employed, upon the 
 order of the trustees employing them, was enacted for the express pur- 
 pose of preventing the opportunity of embezzlement by trustees. If in 
 the face of this fact public money is paid- to a trustee, in the name of a 
 teacher or otherwise, without a properly attested order from the person 
 to whom it is due, the town superintendent does it upon his own respon- 
 sibility. In the case in controversy, the trustee, Reed, is liable for the 
 means by which he obtained) the money, and the town superintendent 
 of Otto is responsible to School District No. 9 for the amount paid by 
 him to Reed, and he must make good the deficiency, looking to Reed 
 for reimbursement. 
 
 This appeal is accordingly sustained, and the town superintendent of 
 Otto is hereby ordered to pay to said Hosea Edwards, teacher aforesaid, 
 the sum of $15.86 claimed by him, and to preserve District No. 9 good 
 in that amount, not charging said district for the amount paid illegally 
 by him to said Isaac Reed. 
 
 Per V. M. Bice, November 11, 1854. 
 
 Where two trustees employ a teacher, without consulting the third, the contract 
 is binding only upon those wbo send to the school and the trustees making 
 the bargain, unless the conduct of the third trustee is such that his acquies- 
 cence may fairly be inferred. 
 
 This is an appeal of a trustee of School District No. 6, in the town 
 of Vernon, Oneida county, from the action of his two colleagues, upon 
 
DIGEST OF DECISIONS. 83 
 
 the ground that a teacher has been employed to instruct the school af 
 said district, commencing on the 30th day of October last, and to con- 
 tinue through the winter, in and relating to which engagement the 
 appellant was not consulted, and had no knowledge. The respondents 
 acknowledge the fact as charged, pleading that they had no suspicion 
 that he would object. 
 
 The basis of this appeal rests upon broad principles, involved in the 
 general laws of trust which govern all fiduciary transactions. Contracts 
 entered into by all the trustees of a school district, and signed by two 
 of them, are binding ; and when so signed, the presence of the third is 
 presumed until the contrary is ' shown. Two trustees can contract 
 against the will of the third, if he was duly notified of a meeting of the 
 trustees, or was consulted and refused to act. (9 Wendell, 17.) 
 
 The appellant not being consulted in the contract with the teacher. 
 Miss Delia A. C, Alford, could in no sense be responsible, unless when 
 he discovered the fact he should have acquiesced. 
 
 Yet no fiduciary transaction can exist without ail parties to it are 
 cognizant. The contract in question is binding only with the respon- 
 dents and those sending to the school, but is void so far as the trustees 
 officially and the district are concerned. 
 . The appeal is therefore sustained. 
 
 Per V. M. Rice, November 21, 1854. 
 
 Trustees have the power to call special district meetings whenever they shall 
 deem it necessary and proper, even though a meeting for the same purpose 
 s'tands adjourned for a period more or less remote. . 
 
 This is an appeal taken by three taxable inhabitants of School District 
 No. 11, in the town of Skaneateles, Onondaga county, from the proceed- 
 ings of the trustees of said district, in relation to a tax levied therein, by 
 the order of a special district meeting, The appellants state, that at a 
 meeting held in said district, January 14th, 1854, permission having been 
 obtained from the town superintendent, a tax of $500.00 was voted for 
 the purpose of building an addition to the school-house, which tax was 
 duly collected ; that the work was let to two bidders, for $525.00, 
 without consulting the district, or being authorized by a special meet- 
 ing, thus exceeding their powers ; that at the annual meeting, the dis- 
 trict refused to vote a tax for the additional $25.00 ; that a specisd 
 meeting was called for the purpose of voting upon such tax, and heW 
 on the 18th of November, 1854; which meeting, without entertaining 
 the proposition, resolved, by a vote of 19 against 10, to adjourn twenty- 
 five weeks ; that directly afterwards, the trustees called another special 
 meeting, of which they gave notice themselves (the clerk having refused) ; 
 that said meeting was held on the 25th of November, and by a vote of 
 24 against 21 levied the said tax of $25.00; that said meeting wa? 
 held in the afternoon, contrary to the usual custom of the district, ana 
 at a time when a previous meeting, called to consider this very 
 question, stood adjourned. 
 
84 DIGEST OF DECISIONS. 
 
 There can be no doubt of the authority of the trustees of school 
 districts to call special meetings whenever they shall deem it necessary 
 and proper. 
 
 The statute declares this right in express terms, without regard to 
 the circumstance that a meeting is already called, or stands adjourned 
 for a period more or less remote. It is not difficult to imagine cases in 
 which the interests of the district would sustain serious damage, if it 
 was necessary to defer action till a period fixed by a previous meeting. 
 Exigencies often arise, imperatively requiring that the inhabitants of a 
 school district assemble within the shortest time practicable, and of 
 these the trustees are to be the judges. 
 
 The appeal is dismissed. 
 
 Per V. M. Kice, January 22, 1855. 
 
 Trustees cannot retain moneys in their hands to compensate Ihem for S'jrrices 
 
 which they may have rendered as trustees. 
 The office is merely honorary. 
 
 The trustees of School District No. 5 have retamed in their hands 
 dififerent sums, amounting in the aggregate to $16.60, as it is stated in 
 the appeal, for their services in bringing teachers to the district, taking 
 them to be examined and carrying them home. 
 
 The only case in which a charge for expenses of transporting teachers 
 could be sustained, would be where it was part of the contract with the 
 teacher that her expenses for traveling should be defrayed. In this 
 case tlwy would constitute and should be charged against the teacher as 
 wages paid. The trustees are entitled to no remuneration from the 
 district for their services in that capacity, the office being purely 
 honorary. 
 
 They can retain no money for themselves except when they might 
 have paid it for similar services to third persons, and then 6nly for pur- 
 poses expressly enumerated in the statute ; carrying teachers to or from 
 the place of their employment is not among those purposes. 
 
 The appeal is therefore sustained, and the trustees above named are 
 severally ordered to pay to the town superintendent, for the use of the 
 district, the amount which appears by the account aforesaid to have 
 been illegally expended and retained by them. 
 
 Per V. M. Rice, February 19, 1855. 
 
 Trustees are to assess the road bed of a turnpike precisely as if that portion of it 
 lying in their district belonged to an individual not owning the remainder; 
 unless the net annual income of the company over and above all expenses for 
 repairs, &c, is less than five per cent upon the original cost, in which case 
 the road is exempt from taxation. 
 
 The turnpike company were not assessed upon the town roll, and the 
 trustees admit that they gave no notice of the completion of their roll, 
 and consequently neither the appellant nor any other person had the 
 opportunity of calling for the correction of the valuation of the com- 
 pany's property. The appellants swear positively that the property of 
 
DIGEST OF DECISIONS. 85 
 
 tte company assessed at $600.00 is worth $2000.00, and the respondents 
 in their answer show that they assessed it simply as they would agricul- 
 tural property at $30.00 per acre, and apparently without allowing any- 
 thing for the labor and materials employed in making the land covered 
 by the road bed productive and valuable as a turnpike. It is of course 
 impossible for the superintendent to judge to what degree this valuation 
 may be erroneous. It is sufficient objection, however, that the appel- 
 lant has not had the opportunity, which the statute designed to 
 secure, of producing such evidence to the trustees as he deemed 
 proper to induce them to increase this valuation and thereby lighten 
 the burden of his own taxation. The judgment of the supreme court, 
 in the case of the "Albany and Schenectady Railroad Company vs. 
 Osborn," (12 Barb. Supreme Court Reports, 223), shows that the appel- 
 lant is mistaken in supposing that the value of the stock is to control 
 the trustees in judging of the value of that portion of the plank road 
 in their district. They are to assess the road bed precisely as if that 
 portion of it in the district belonged tO; an individual owner, not owning 
 the remainder, unless the net annual income of the company over and 
 above all expenses and repairs and collection of tolls is less than five 
 per cent upon the original cost of the road, in which case the road is 
 exempt from taxation. (Laws of 1854, p. 168.) 
 
 Per V. M. Rice, March 24, 1855. 
 
 In the apportionment of public money, trustees should be governed by the wishes 
 of the district;, therefore, when the inhabitants at a district meeting adopt a 
 resolution in reference to the apportionment of the public money which 
 was not by its terms restricted to one year, the trustees should regard it as 
 continuous in its operation. 
 
 It is stated to have been the custom of the district to apply two- 
 thirds of the public money to the winter term, and the remainder to 
 the- summer term. The appellant desires this apportionment to be 
 continued. He states that no vote was taken on the subject of a divi- 
 sion at the last annual meeting, under the impression probably that 
 such direction was in force for a period longer than a year. 
 
 It is not perceived that the statute requires the inhabitants to reite- 
 rate their wishes annually in this respect, and as it is a matter in regard 
 to which the interests of the district are not liable to change from year 
 to year, there is no reason of policy requiring such an interpretation. 
 If the last resolution adopted by the district in.relation to this subject 
 was not by its terms restricted in its operations to a year, or some 
 other definite period, the trustees should regard it as still in force and 
 as furnishing the rule for their action. 
 
 As it does not appear from the appeal what the fact may be in rela- 
 tion to this point, the superintendent can only indicate the principle 
 which should govern. 
 
 It is inferred, from the statements of the appeal, to be quite probable 
 that a portion of tlie $52.00, said to be due to the teacher for wages, 
 was earned by service rendered prior to the 1st day of last January, in 
 
86 DIGEST OF DECISIONS. 
 
 which case it should not be compensated from the money apportioned 
 this year, but a rate bill should be issued, the amount collected upon 
 which shall be employed to remunerate said teacher, or to replace the 
 sum, if it has been borrowed from the apportionment of this year. 
 The appeal is sustained. 
 
 Per E. P. Smith, Dep. Supt., April 24, 1855. 
 
 Where there is a deliberate omission to notify any taxable inhabitant of a special 
 district meeting, at which a tax is voted to change site and build a new 
 school-house, this department will hold the tax list inoperative as to those 
 so omitted to be notified. 
 
 The appellants were set oif to District No. 8, on the 17th of January 
 last, by an order, to take effect on the 1st day of May instant. After 
 the making of this order, several meetings were held in District No. 4, 
 of which the appellants had no notice, and which they did not attend, 
 under an apparent belief, on all hands, that they had ceased to be 
 voters in that district. At these meetings the site of No. 4 was changed 
 to a point more remote from the appellants than its former situation, 
 and a tax of $400.00 was authorized for building a new school-house. 
 On the 9th of March, three of the appellants were served with a written 
 notice that a meeting of Joint District No. 4, Scott and Sempronius, 
 would be held on the 16th of that month, the notice not specifying the 
 object of the meeting. At that meeting resolutions were passed, reci- 
 ting that doubts were expressed in regard to the legality of the calls of 
 the meeting before referred to, and reaffirming and adopting the votes 
 for the release of the old site, the location of the new one, and for a tax 
 of $400.00. Under the authority of this last meeting, the trustees have 
 made out a tax list, including the appellants, from which and from the 
 proceedings of such meeting the latter appeal. 
 
 The facts are presented upon an agreed statement signed by the 
 appellants and trustees. There appears to have been a deliberate omis- 
 sion to notify the appellants of the meetings subsequent to January 
 iVth, and an omission to give them a notice. of the object of the 
 meeting of March 16th, which, taken in connection with the manifest 
 injustice of subjecting them to taxation for a school-house from which 
 they are to receive no benefit, are sufficient grounds for declaring the 
 tax list inoperative as against them. 
 
 The appeal is therefore sustained so far as the same relates to the tax 
 list, and the trustees are authorized and directed to correct and amend 
 the same by striking out the names of the appellants, and apportioning 
 the amount of taxes assessed to them upon the remaining taxable inha- 
 bitants and property of such district, in proportion to the valuation 
 thereof. 
 
 Per E. P. Smith, Dep. Supt., May 9, 1855. 
 
DIGEST OF DECISIONS. 87 
 
 .Town superintendents have no authority to alter the boundaries of a school dis- 
 trict, if the same have been established by this department upon appeal, until 
 after the lapse of three years from the time they were so established, without 
 express permission of the State Superintendent. > 
 
 The appellants, in making their annual report, enumerated among the 
 children of their district the five children of Mr. William Raynor. In 
 making his apportionment, the town superintendent deducted these 
 children from the enumeration of District No. 22, on the ground that 
 they and their father were residents of the adjoining district^ No. 21. 
 The trustees of the latter district answer the appeal. 
 
 It appears from the evidence that the farm of Mr. Raynor was taken 
 froni District No. 22, some five or six years since, and annexed to district 
 No. 21, by an order! of the town superintendent, that officer not being 
 aware that the line between the said districts had been established in 
 1830, by the State Superintendent, upon appeal. 
 
 It has been held that town superintendents have no power to, alter 
 the boundaries of a school district if the same have been established by 
 this department, upon appeal, unless consent shall have been previously 
 given by the State Superintendent for such alteration. This rule was 
 established to prevent the decisions of the department from being 
 deprived of any practical efi'ect, as might be the case if, immediately 
 after the decision, a new order could be made preciscl)- or substantially 
 similar to the one which has been set aside. 
 
 This reason fails, however, when lapse of time and a consequent 
 change of circumstances may have made the reasons no longer appli- 
 cable which controlled the decision. As this is a subject of regulation, 
 it will hereafter be held that, after a lapse of three years from the time 
 when the boundary of a district shall have been established by this 
 department, upon appeal, it shall no longer be requisite to apply for 
 express permission of the State Superintendent to authorize a local 
 officer to make an alteration of the same. 
 
 In the case under consideration the appeal should be sustained, with- 
 out reference to the above mentioned objection. ■ It is the duty of the 
 town superintendent to apportion the public money according to the 
 number of children in the several districts " as the same shall have 
 ■appeared from the last annual reports of the trustees," and not other- 
 wise. If he deems the report incorrect it is proper for him to call upon 
 the trustees to correct it, and if they refuse to db so, they may, perhaps, 
 render themselves liable to the penalty imposed for willfully signing a 
 felse report, with the intention of causing the town superintendent to 
 apportion and pay to their district a larger siun than its just proportion 
 of the school moneys of the town. The report, however, is conclusive 
 until it shall be amended by the trustees, or the question be determined 
 on appeal. 
 
 Per V. M. Rice, May 12, 1855. 
 
88 DIGEST OF DECISIONS. 
 
 The drawing of an order for public mon^y is a ministerial act, which does not 
 necessarily require the presence of the entire board of trustees. 
 
 The drawing of an order is a ministerial act, which does not necessarily 
 require the presence of the entire board of trustees. It is simply the 
 execution of a contract, which is obligatory upon all of them, if, as is to 
 be presumed, the contract was regularly made. Its validity is not 
 questioned by the appellant. 
 
 The respondents aver that Mr. Payne had refused to act with one of 
 them, and present this as a reason for not consulting him upon drawing 
 the order. 
 
 This would not excuse the omission if the act was one which 
 involved the exercise of judgment, and therefore required a meeting of 
 the entire board. A trustee cannot be permitted to retain his office as 
 a mere obstruction to his colleagues. If he cannot act with his asso- 
 ciates, he should resign ; and if, without resigning, he neglects to perform 
 the duties of hfs office, it is the duty of the town superintendent to pro- 
 secute him for the penalty imposed by the statute. But until he has 
 resigned or been superseded, his colleagues should call upon him regu- 
 larly to take part in their official action, to the end that when his 
 neglect and contumacy shall be established by reiterated refusals, an 
 application may be made to the State Superintendent for his removal. 
 Per V. M. Rice, Supt., June 26, 1855. 
 
 The statute authorizes the asssociation of the town clerk and supervisor with 
 
 the town superintendent, upon the application of the trustees of any district 
 
 to be affected by their action. 
 If only one trustee make such application, such board does not obtain jurisdiction 
 
 of the subject matter ; the application of a majority or all of such trustees 
 
 is necessary. 
 
 In this case, districts situated in both towns being affected by the 
 proposed order, a single trustee of District No. 2, in Halfmoon, and of 
 Joint Districts No. 8 and 18, in Halfmoon and Waterford, applied to 
 the supervisors and town clerks of the two towns to be associated with 
 the superintendents in their deliberations. The order was made by this 
 board,' thus assembled, and the answer sustaining and defending it is 
 signed by every member. 
 
 The appellants insist.that the board was entirely destitute of jurisdic- 
 tion. The statute authorizes the association of the town clerks and 
 supervisors with the town superintendents only upon application of the 
 trustees of any district to be affected by the proposed action. If a ma- 
 jority of the trustees of any one district make the application, it cannot 
 be doubted that jurisdiction is given as to all ; in this case, however, 
 a majority of the trustees of no district made the application, and the 
 supervisors and town clerks, composing a majority of the board, had no 
 authority whatever in the premises. 
 
 Considerable research has failed to discover any adjudged case in 
 which the precise point here presented has been determined. It is, 
 
DIGEST OF DECISIONS. 89 
 
 however, believed to be impossible, in accordance with general princi- 
 ples, to sustain an order made by a tribunal, which in its constitution as 
 a whole has no jurisdiction, although including persons, as in the case of 
 the two town superintendents, who acting alone by themselves would 
 have possessed the requisite authority, and although these persons all 
 concur in the order, and nothing appears showing that their judgment 
 was in any degree controlled or their deliberations affected by the pre- 
 sence of third parties. 
 
 The diflScnlty is, that it must always be practically impossible to ascer- 
 tain whether the decision is in fact the unbiassed judgment of those to 
 whom the duty of making it has been committed by law. It may bo 
 said that a judicial officer is not only blameless but praiseworthy for seek- 
 ing to enlighten his own mind by the suggestions of disinterested and 
 intelligent advisers. There is a manifest difference, however, between 
 his voluntary application, which is consistent with that judicial inde- 
 pendence which it is so important to preserve, and his being subjected 
 to the influence of persons claiming to deliberate with him as a matter of 
 right. It is, moreover, an element in the policy of the law, that all 
 persons^required to exercise judgment for the public good should be 
 held to an individual responsibility, and not be permitted to diminish it 
 by distributing a part of the burden among others. 
 
 The appeal is sustained. 
 
 Per V. M. Rice, July 14, 1855. 
 
 Trustees cannot give notice for themselves, and receive it for the district as trus- 
 tees, of an application to be set off to another district, and assent to being 
 set off in their official capacity. They cannot act in a two-fold capacity. 
 
 The appellants state that two of the trustees of their district mado 
 application to the town superintendent, without giving notice to their 
 colleague, , that their own lands might be set off to District No. 5, and 
 that upon that application, without consent, of the other trustefc, the 
 order was made setting off one of them, Mr. Southworth. It does not 
 appear, although it may be surmised, that Mr. Ellis is the other trustee 
 thus applying. If such was the fact, there would be no notice, in a 
 proper sense, to any trustee of the district. When they applied to be 
 separated, it was in their individual capacity and not in their official 
 character. 
 
 They were acting, "prima facie," not in behalf of but against the 
 district ; applying as private individuals to be set off, and assenting to 
 being set off in the capacity of representatives of a constituency that may, 
 if the practice should be tolerated, be without an opportunity of opposing. 
 It follows, therefore, that notice to them has no effect whatever upon 
 the rights of the district. There is no evidence in this case that any 
 written notice of the order has been served upon the third trustee, or 
 in fact upon any trustee. The contrary is to be presumed, from the 
 fact that one of the answers sets up their application and consent as 
 dispensing with such notice. The order, then, has not taken effect. 
 
 [Digest.] 12 
 
go DIGEST OF DECISIONS. 
 
 There exists a manifest objection to impairing the resources of a 
 feeble district to swell those of one relatively stronger, and it is against 
 the settled ruling of this department. 
 
 The appeal is therefore sustained. 
 
 Per E. P. Smith, Dep. Supt., July 19, 1855. 
 
 The right to vote at a School district meeting does not depend upon the fact that 
 the person offering to vote has been actually taxed, hut rather upon his 
 liahility to taxation. 
 
 A motion to reconsider a vote of a district meeting may be made by a person 
 voting with the minority, unless the meeting have a different rule. 
 
 The objections of the appellants are, that two persons voted at the 
 district meeting, for the change of site, who are not enrolled upon the 
 tax list as taxable inhabitants ; that by the list referred to, there are 
 twenty-six taxable inhabitants; that only twelve "taxable inhabitants" 
 voted in favor and twelve against the resolution changing the site.; 
 that the motion to reconsider a former resolution adopted at a previous 
 meeting, in regard to the site, was made by a person who, at such pre- 
 vious meeting, voted against the resolution of which he moved a recon- 
 sideration. 
 
 The rule of legislative proceedings, which requires a motion for 
 reconsideration to be made by one who voted with the prevailing 
 party, is not binding upon the district meetings, unless expressly adopted 
 by them. There is, therefore, no force in the objection based upon a 
 departure from this rule, as it does not appear to have been acted upon 
 by the inhabitants of District No. 14. 
 
 The respondents allege that fourteen persons voted for the change of 
 site. This is not inconsistent with the allegation of the appellants, for 
 they acknowledge that twelve " taxable inhabitants" thus voted, and 
 they aver that two persons whom they deny to be legal voters also 
 voted" for the resolution. It was then properly passed, provided the 
 two persons named had a right to vote.'- Their title is impeached, on 
 the naked ground that they are not enumerated on the tax list. This 
 evidence is not sufficient to bar their right to vote, which depends not on 
 the fact that they are actually taxed, but upon their liability to taxation ; 
 besides, , they may have been qualified as being authorized to vote at 
 town meetings, and having paid a rate bill within a year, although 
 pdfesessing no pi:operty liable tb taxation. It devolves upon the appel- 
 lants to disclose affirmatively such grounds of objection to one who has 
 been admitted to vote, as, if taken for true, in the very words stated, will 
 repel every presumption by which his claim might be sustained, by 
 showing the absence of some essential qualification. This the appellante 
 have failed to do, and the objection must be disregarded and the appeal 
 dismissed. 
 
 Per E. P. Smith, Dcp. Supt., September 15, 1855. 
 
DIGEST OF DECISIONS. 91 
 
 Town superintendents should always give notice to the trustees of their intention 
 to consider any proposed alteration of theii- district, so that they- may have 
 an opportunity of associating vrith him the supervisor and town clerk. 
 
 On l^e 4th day of April, 1855, the appellees made an order for alter- 
 ing the district, by setting off all that portion situated in the town of 
 Independence, without obtaining the consent or giving notice to the 
 trustees. The original order stated that it was to take effect on the 
 1st day of May, but in the copy served on the appellant thig provision 
 was omitted. r 
 
 The district was established upon an appeal by the State Superintendent 
 in 1844, and no permission was obtained for its alteration. No answer 
 is put in by the town superintendent. 
 
 Without considering the expediency of the order, it is sufficient for 
 the decision of the case that the proeeedings.are entirely irregular. Tlie 
 order could not take effect until three months after service of notice 
 thereof upon the trustees of the several districts affected by the same, 
 except by their assent duly obtained to its provisions. 
 
 The appellant is correct in believing that town superintendents sl^uld 
 always give notice of their intention to consider a proposed alteration, 
 so that the trustees may have the opportunity of associating the super- 
 visor and town clerk in the proceedings and of urging their own objec- 
 tions; Superintendent Benton declares that an omission in this respect 
 renders the order void. 
 
 Tlie appeal is therefore sustained and the order of the town superin- 
 tendent vacated. 
 
 Per V. M. Bice, May 28, 1855. 
 
 The general rule is, that the residence of the parents is the residence of their chil- 
 dren who are for the time heing at service under a temporary engagement 
 or for a period of uncertain duration. Exceptions considered. 
 
 The appellant objects that two persons who performed daily chore 
 work in his family and attended the school in District No. 6, but whose 
 permanent residence was in another district, were excluded from receiv- 
 ing any reduction of their rates by the public money. He acknowledges 
 his liability to pay for the tuition of one of them, Harriet Osterhout, 
 but avers that he gave express notice that he would not be liable for that 
 of the other, who is her brother, Daniel Osterhout. He also submits an 
 affidavit from the fath«r of these children, stating that the contract in 
 relation to Daniel wa.s that he should be permitted to attend school for 
 five days in each week, and that he should work for the appellant upon 
 the sixth and whenever out of school on other days. 
 
 There is often considerable difficulty in determining whether servants 
 employed from other districts, whose engagement is temporary or of 
 uncertain duration, should be enumerated where their employer or 
 where their parent resides; The general rule unquestionably is, that the 
 residence of their parents is the residence of employees. There is an 
 exception, however, in the case of children who may be at service in 
 
92 DIGEST OF DECISIONS. 
 
 this state, but whose parents reside in some other state of this Union oi 
 in a foreign land. In such instances they are to be reported in the dis- 
 tricts in which they actually reside at the date of the report, although 
 that residence may be temporary. It is, however, expressly declared 
 that the report " shall not include children belonging to the family of 
 any person who shall be an inhabitant of any other district in this state, 
 in which such children may, by law, be included in the reports of its 
 trustees." 
 
 It is not consistent with the policy of the school law to allow the 
 resources of a district to be impaired or rendered uncertain, by the 
 capricious withdrawal therefrom, for a season, of children whose parents 
 may prefer the school of a neighboring district. On the other hand, 
 the state has the same interest in the education of those persons whose 
 circumstances require them to resort to domestic service for a livelihood, 
 as in that of more fortunate children. It is sound policy to encourage 
 their employers to permit their attendance at school, by rendering its 
 expense as little onerous as possible. If they are apprenticed during 
 their minority, or if manumitted by their parents, and working for their 
 owijiibehalf, they ought clearly to be enumerated in the district where 
 their employer resides, and their tuition bills should be canceled or 
 reduced by its public money. 
 
 In other instances the question may turn upon the point whether their 
 presence in the district has for its principal object domestic service in a 
 family, and their attendance at school is a mere incident, or whether 
 the attendance at school is the principal inducement, and the service a 
 mere incident to such attendance. It is impossible to lay down a rule 
 with the requisite precision to meet all cases. 
 
 In the case now in controversy, the evidence is insufficient to render 
 the superintendent quite sure that a correct decision is rendered. It is 
 therefore not proper to interfere with the action of the respondents. 
 
 The two children may have been enumerated in No. 6, where theii 
 father resides ; it is affirmed by the . resipondents that this actually was 
 the case. Even though they had also been wrongfully enumerated in 
 District No. 6, it would remain in the power of the trustees, upon being 
 convinced that they were non-residents, to exclude them from the 
 benefit of the public money. 
 
 It is dfenied that the appellant gave notice that he would not be res- 
 ponsible for the tuition of Daniel Osterhout ; but in case he had the 
 general control of him as a servant, the permission to attend the school 
 is sufficient to render him responsible. If on tlie other hand, the con- 
 tract of hiring required him to allow Daniel to attend school, he must 
 be regarded as having contemplated the legal liability which it would 
 impose upon him, and as having regarded the youth's services as a just 
 equivalent. It is by no means to be supposed that the appellant expected 
 to obtain those services at the expense, in any degree, of the district. 
 
 The appeal is therefore dismissed. 
 
 Per V. M. Rice, May 25, 1856. 
 
DIGEST OF DECISIONS. 93 
 
 Presumptively, the trustees of a school district have no right to go beyond the 
 boundaries of their district to tax ; and when they do, it lies upon them to 
 establish the power to tax, and not upon the party taxed to disprove it. 
 
 The trustees, in the answer, rely npon the fact that the appellant did 
 not show that he claimed a reduction of his tax, or that he notified 
 them of the alienation of the property by the taxation of which he is 
 aggrieved. They do not deny any of the facts set up in the appeal. 
 
 The appellant avers that, about two months previous to the making 
 out of the tax list, he had sold the southern part of lot No. 35 (120 
 acres), in parcels, to two persons, who took possession and resided upon 
 it. It is not within the limits of District No. 7, but adjoins land owned 
 by the appellant in that district. This is the only circumstance in 
 support of the authority of the respondents to tax it. The statute, how- 
 ever, requires that it should be owned or possessed by a taxable inhabi- 
 tant of their district at the time of making out such list. 
 
 The power being in derogation of common right, which would exempt 
 all land from being taxed elsewhere than in the district where it lies, 
 must be construed rigidly. The possession of the purchasers is of itself 
 notice of their rights and should put the trustees upon inquiry. 
 
 While the last assessment roll is to guide them in the valuation of 
 any property which they may be authorized to tax, unless the right to a 
 reduction of such a valuation be established, it cannot in the nature of 
 things establish the liability of such property to taxation. Presump- 
 tively, the trustees have no right to go beyond their district limits; when 
 they do so, it lies upon them to establish the power, and not upon the 
 party taxed to disprove it or to take notice that it is about to be exer- 
 cised unless he remonstrates. 
 
 The appeal must be sustained. 
 
 Per V. M. Rice, February 28, 1855. 
 
 A consultation of two trustees, without the presence and advice of the third, can 
 result in nothing which can be regarded as the action of the board, unless 
 the third has been regularly notified and fails to be present. 
 
 The controversy, in this case, respects the validity of the contracts 
 with three different teachers. No one of them has been engaged in a. 
 legal manner, for in no case have the trustees met and consulted 
 together. 
 
 A consultation of two trustees meeting by themselves, without the 
 presence and advice of the third, can result in nothing which can be 
 regarded as the action of the board, unless the third trustee has been 
 regularly notified of a meeting, and continues absent after his colleagues 
 have waited a reasonable time for his attendance. 
 
 The trustees cannot delegate any discretionary power to a third per- 
 son to execute the decision to which they may have arrived ; still less 
 can any one of them do so, although they may doubtless employ the 
 services of a messenger to convey to a proposed teacher intelligence of 
 a positive and unconditional determination ; but this for the sake of cer- 
 
84 DIGEST OF DECISIONS. 
 
 tainty, and to preserve the evidence of the matter, should be reduced to 
 ■writing and authenticated by the signatures of a majority. 
 
 It results in this case that without reference to who may be the legal 
 trustees, none of them have contracted with any teacher in a manner 
 rendering their acts obligatory upon the district. "Whether they have 
 rendered themselves personally responsible to the proposed teacher is a 
 different question, which it is not necessary now to consider. 
 
 The principles herein stated will guide the trustees in contracting 
 with a teacher ; any two of them may fix the time and place of a nieet- 
 ing for the purpose of acting upon this subject, giving the third trustee 
 not less than forty-eight hours' notice of the time and place fixed upon, 
 and the object of the meeting. 
 
 They should examine the certificates of such teachers as may bo pro- 
 posed, and receive from them written propositions specifying the period 
 for which they offer to teach, the amount of their salary, and the manner 
 in which they are to be paid ; and should make and sign a written memo- 
 randum — indorsed upon the written proposition which may be accepted, 
 or repeating it in terms which will identify it — of their action in the 
 premises, filing the same with the district clerk. 
 
 This appeal is sustained. 
 
 Per V. M. Rice, February 23. 1855. 
 
 An annual meetings appointed for tlie 11th July having been noticed for the 10th, 
 but adjourned to the 11th for the transaction of business, held to be legal. 
 
 An estimate of expenditures must be submitted to vote, item by item. 
 
 An item " for sexton, $50 " held to be illegal, being for an officer and purpose 
 unknown to the law. 
 
 Where notice was given of an annual meeting to be held on the 10th 
 of July, and, it being doubtful whether the last preceding annual meet- 
 ing had not fixed the 11th day of July for that purpose, the meeting 
 was adjourned to the latter day without the transaction of any business 
 except the appointment of a chairman, it was held that the meeting of 
 the 11th was regular and its proceedings valid, whether the 10th or the 
 11th was the true iime appointed for the annual meeting. 
 
 It was also held that, whether the chairman elected on the 10th had 
 or had not the right to preside on the 11th by virtue of such election, 
 ,the acquiescence of the voters in his presidency was equivalent to a new 
 election. 
 
 Tlie trustees having presented an estimate for several heads of expen- 
 diture, amounting in the aggregate to $1800.00, and the vote having been 
 taken therei^pon by asking, each inhabitant when he deposited his ballot 
 for district officers whether he voted "tax" or "no tax," without in any 
 other manner submitting the propriety of the items severally, it was held 
 that the tax payers have the right, not only to fix the amount of their 
 contributions but to specify the precise object to which every part thereof 
 should be appropriate*!. The question should be submitted to them in 
 such a form that every one may have the opportunity of offering amend- 
 ments increasing or diminishing the amount to be appropriated to any 
 of the enumerated objects, or of striking out. The proceedings not 
 
DIGEST OF DECISIONS. 96 
 
 having been conducted in such a way as substantially to preserve this 
 right, but on the contrary apparently to subjeqj the voters to the dilem- 
 ma of voting for the estimate as an entire proposition or voting against 
 every part of it, they were held irregular, and were annulled. 
 
 One of the items in the estimate being " for sexton, $50," it was held 
 that the term sexton being unknown to the law as the designation of any 
 district officer, the duties expected of him ought to have been so defined 
 by the resolution as to show upon its fece an intention to appropriate 
 the money for services, like cleaning the school-house, making fires, &c^ 
 which are legitimate objects of taxation. It is not competent to a dis- 
 trict meeting to create a new office having a salary attached to it, though 
 it. is competent to vote compensation for services, not incumbent upon 
 the recognized district officers, but which are proper objects of expenditure. 
 • Per E. P. Smith, Pep. Supt., October 2, 1855. 
 
 The power to admit to the district schools non-resident pupils is vested by 
 statute in the trustees exclusively. 
 
 The inhabitants of District No. 1, Elba, at their annual meeting, 
 September 4, 1855, passed a resolution to exclude non-resident children 
 from the district school. An appeal was brought. 
 
 So much of the resolution as assumes to close the school against 
 pupils from other districts is unauthorized. The trustees are invested 
 with the power to admit such pupils by the express terms of the statute, 
 it is their duty to prescribe the conditions of admission, and they ought 
 to be such as to indemnify the district against any increased expense 
 resulting from the attendance of non-residents. Proper security, more- 
 over, ought to be taken in advance for the payment of any bills for 
 tuition, to which such pupils may be subjected, as they cannot be col 
 lectcd upon a rate bill or by warrant. 
 
 Per E. P. Smith, Dep. Supt., October 20, 1855. 
 
 In making, out a tax list, all the trustees must be consulted and act together. 
 
 Two of the trustees of District No. 1, Hornby, Steuben county, made 
 out a tax list, without notifying or consulting with the third. The 
 other trustee and Ivir. Chalion Headley appealed, and asked that the 
 said tax list be set aside, without pointing out any error or alleging any 
 special grievance. 
 
 It is a clear and undoubted principle that the public have the right to 
 the counsel and service of all the members of a board of trustees, and 
 of every other tribunal, in all their doings which involve the exercise 
 of discretion and judgment. The making out of a tax list is of this 
 character. The trustees, have to determine who are taxable inhabitants, 
 and for what amount they shall be respectively assessed. It is true that, 
 upon examination, they may ascertain that the taxable inhabitants of 
 their district are the same persons and no other than those enumerated 
 in the last completed town assessment roll, and that their property res- 
 pectively remains, without any variation, as it did at the time such roll 
 
90 DIGEST OF DECISIONS. 
 
 was completed. That determination having been reached, the duty of 
 copying so much of the assessment roll as relates to the inhabitants and 
 property of their district is a purely clerical one, which may as well be 
 discharged by one trustee as by three. It is, however, always a preli- 
 minary question, whether such be the feet, and the public have an inte- 
 rest that each of the trustees should be heard upon this question. A 
 trustee who is absent might know and be able to show" his colleagues 
 that a particular inhabitant had received a large accession to his personal 
 property, and thus reduce the contribution of every other tax payer. 
 
 The appeal is therefore sustained and the proceedings of the trustees 
 declared irregular. 
 
 Per B. P. Smith, Dep. Supt., November 8, 1855. 
 
 The town clerk and supervisor have no power to review an order to alter a school 
 district. 
 
 The town superintendent of Bolton had divided District No. 5, in 
 said town, without the consent of the trustees. The latter applied to the 
 town clerk and supervisor to review the order for such division, and 
 from their refusal brought an appeal to the Superintendent of Public 
 Instruction. 
 
 The supervisor and town clerk were correct in holding that they had 
 no jurisdiction to . review aii order made by the town superintendent. 
 The statute provides that . these officers may, upon application of the 
 trustees, associate themselves with the superintendent in determining 
 upon a proposed alteration of a school district. It is implied, from this 
 provision, that the trustees ought to have such notice of a contemplated 
 alteration as would enable them to exercise their right in this respect. 
 The statute, however, does not prescribe such notice or regulate the 
 manner in which it shall be given ; in fact, the trustees might themselves 
 desire an alteration which they knew the superintendent to regard as 
 inexpedient, and it is obvious that, in such case, it would devolve upon 
 them to give notice to him and not to expect one. The spirit of the 
 statute is satisfied whenever it appears in any way that the trustees have 
 had the opportunity of availing themselves of the counsel of the super- 
 visor and clerk, instead of trusting the matter to Ifte unaided judgment 
 of the superintendent. 
 
 In this case it clearly appears, indeed it is not denied, that previous 
 to the making of the order in question, the supervisor, town clerk and 
 superintendent were assembled upon an informal call of the inhabitants 
 to consider the subject of an alteration ; that the trustees were present 
 and had their attention distinctly called ' to the fact that the town clerk 
 and supervisor could act only on their application, and that they stood 
 mute. The objection comes with an exceedingly bad grace from them, 
 that they have been deprived of the opportunity to do that which they 
 had refused to do when it was in their power. It is entitled to no 
 weight whatever. 
 
 Per V. M. Rice, December 1, 1855. 
 
DIGEST OF DECISIONS. 97 
 
 A candidate,for a teacher's certificate should be examined as to learning, morala 
 
 and ability to teach. 
 When a candidate is refused a certificate on the alleged ground of " feelings of 
 
 dissatisfaction on the part of some of the patrons of the school," a new 
 
 examination will be ordered. 
 
 The town superintendesnt of Bums, Allegany county, refused Miss 
 Jane E. Gilbert a certificate of quajification as a teaclier, from wtich refiisal 
 she appealed. 
 
 The evidence in this case renders it exceedingly difficult to ascertain 
 precisely upon what grounds Miss Gilbert was refused a certificate. It 
 tends to show that the superintendent expressed himself satisfied with 
 her education and literary acquirements. If he entertained doubts as 
 to her capacity to impart instruction, the testimony fails to show that 
 he took proper measures, by visiting her school or otherwise, to arrive 
 at an intelligent conclusion on this point. In a letter to her, he referred 
 to " feelings of dissatisfaction on the part of the patrons of the school," 
 as having been considered . by him in arriving at his determination to 
 withhold a certificate. Such feelings or opinions were no proper guide 
 to the superintendent, and should have had no other effect than to 
 induce greater care to examine the foundation of them for himself and 
 decide upon his own knowledge and responsibility. Their existence 
 may be a proper element of consideration, in determining the trustees 
 of a particular district to forego the services of a qualified teacher, but 
 they are no test of competency, and should not have the effect (as they 
 do, if adopted by the superintendent) of excluding a teacher from every 
 district in the town. It follows, that no good reason has been shown 
 on the part of the superintendent for withholding the certificate. On 
 the other hand, it is possible that his conclusion is correct, although 
 founded upon insufficient evidence ; and there is not such affirmative 
 testimony of Miss Gilbert's entire fitness to teach, before the department, 
 as to warrant it in ordering the superintendent to certify to her quali- 
 fications. To justify this, it should have such knowledge as would 
 induce the State Superintendent himself to grant a certificate. 
 
 The appeal can be sustained only so far as to relieve Miss Gilbert 
 from the imputation that a valid judgment has been passed against her 
 qualifications; Perhaps this condition of things sho'iild be satisfactory, 
 as she is entitled, of course, to an examination in any other town where 
 she may be a candidate for employment as an instructress. If, however, 
 she is still 3esirous to act as a teacher in the town of Burns, she may 
 present herself for examination before Wm. W. Payne, late town super- 
 intendent of Burns, Samuel "W. Swaine, of Swainsville, and any other 
 of the former superintendents of Burn^ whom those gentlemen (who 
 are hereby requested, to act in the premises) may select. They will, 
 in case of their acceptance of this commission, appoint a time and place 
 for such examination, and cause reasonaUe notice thereof to be given 
 ^p Mr. Whitney, that he may attend the same, if so disposed. AU far- 
 ther directions are reserved until the coming in of the report of such 
 committee, or further order. 
 
 Per v. M. Rice, December 7, 1855. 
 
 [Digest.] 13 
 
98 DIGEST OF DECISIONS. 
 
 When a district has been altered, the site of the school-house may be changed 
 by a vote of the majority of those present at the meeting. 
 
 The statute confers power to vote a tax to purchase a site or build a school-house 
 at any meeting, although no notice may hare been given of such intention. 
 
 Due notice of a meeting will he presumed, unless the contrary be shown. 
 
 A special meeting of Joint District No. 9, of Manbeim, Herkimer 
 county, and Oppenheim, Fulton county, was held December 19, 1 854, and 
 a vote was passed to change tbe site of the school-house. The meeting 
 then adjourned to receive propositions. On the 23d day of June, 1855, a 
 new site was designated, and at a subsequent adjourned meeting, an 
 adjournment to the 2d Tuesday of October, 1856, was carried. 
 
 The trustees, however, called a special meeting for December 4, 
 1855, at which a tax of $450.00 was raised for purchasing the new site, 
 $1000.00 for building a new school-house, and $200.00 for wood-house 
 and privies. The certificate of the town superintendent, that $1200.00 
 was. necessary for the house and outhouses, had been given. 
 
 The appellant raised the following points : 
 
 1. That the school-house site was illegally changed, no consent of the 
 town superintendent having been obtained. 
 
 It might sufBce to say that no such point was made in the appeal ; 
 but it is conclusively met by the reply of the trustees, which shows that 
 the district has undergone repeated alterations since the erection of the 
 school-house. No consent of the superintendent was necessary to 
 authorize the fixing of a new site by a majority of the votes of those 
 present and voting. 
 
 2. That a meeting which had under consideration the same matters 
 as those brought before the meeting of December 4, 1855, having 
 adjourned to a future day, the inhabitants were in the mean time 
 incompetent to act upon them. 
 
 The answer is this, that the trustees are authorized to call a special 
 meeting "whenever they shall deem it necessary and proper." No 
 resolution of any meeting can deprive them of this power. The inha- 
 bitants assembled under such call are then " lawfully assembled." And 
 the statute confers upon them, when lawfully assembled at any district 
 meeting, the power to vote a tax for the purchase of a site and for the 
 building of a school-house, and the necessary appendages. As the 
 statute authorizes such a vote, and also a vote to sell a former site (pro- 
 vided only that the site shall have been legally changed " at any district 
 meeting"), it clearly dispenses with the necessity of any special notice 
 as a condition precedent of its jurisdiction. It would be another and 
 different question, if there were any pretense that the voters were 
 actually and designedly snrpriseTi by the unexpected introduction of so 
 important a subject. There is no ground for such an allegation in this 
 case. 
 
 3. The appellant objects, that it does not appear by the return of the 
 district clefk, or otherwise, that the legal voters of the district, or any. 
 of them, were duly notified of such meeting. The burden of proof on 
 this point rests on the appellant. The presumption always is that public 
 
DIGEST OF DECISIONS. 99 
 
 officers have done their duty. This presumption is supported in this 
 case by the express statement that one voter received no notice, for it 
 implies that no other failure to give notice could be alleged. Those 
 who attended certainly had notice, and the omission in a solitary instance, 
 is not averred to have been -willful or fraudulent. 
 The proceedings were legal and regular. 
 
 ■ Per V. M. Bice, February 6, 1856. 
 
 A tax by installments cannot be raised for any other purpose than " for building, 
 hiring or purchasing a school-house," and then the tax cannot be raised by 
 installments, unless it exceeds $400.00. 
 
 District No. 3, Berlin, Rensselaer county,- at a meeting held Decem- 
 ber 20, 1855,' voted to repair their school-house, build privy and fence, 
 and move the house, and that the tax for such purpose should be raised 
 by two annual installments. 
 
 The law does not permit the vote of a tax to be raised by installments, 
 for any other purpose than that of building, hiring or purchasing a 
 school-house, and even in that case the tax must not be raised by install- 
 ments unless it exceeds $400.00. 
 
 Per V. M. Rice, February 9, 1856. 
 
 A vote will not be set aside because of illegal votes, when they do not affect the 
 result. 
 
 At the election of a trustee in District No. 2, Rochester, Ulster 
 county, January 15, 1856, four illegal votes were cast for the successful 
 candidate, who, however, had ten majority. 
 
 The reception of the four illegal votes did not affect the result, and 
 the appeal must be dismissed. 
 
 Per E. P. Smith, Dep. Supt., February 28, 1856. 
 
 It is the duty of the trustees to employ a competent teacher, and have a school 
 
 in their district at least six montiu in a year. 
 Trustees should not be teachers. 
 
 The trustees of District No. 8, Preston, Chenango county, had, for a 
 long period neglected to employ a teacher, and no school had been kept 
 in uie district, except for a few days, by one of the trustees. They were 
 requested, December 26, 1855, by all the taxable inhabitants of the dis- 
 trict, to employ a teacher, but hsid neglected to do so. 
 
 An appeal from their neglect was taken and they failed to make a 
 legal answer. 
 
 It is a matter of course, under the circumstances, that the appeal shall 
 be sustained, and the trustees required to proceed without delay to 
 engage a teacher who shall be in possession of a proper certificate of 
 qualification before commencing his labors. 
 
 It is proper to remark, that while the employment of a trustee as 
 teacher is nowhere prohibited, and his assumption of the task of instruct- 
 ing the school may, under some circumstances, be highly praiseworthy, yet 
 
100 DIGEST OF DECISIONS. 
 
 the practice is to be discouraged. The fact that the teacher is one of the 
 board that employs him, and fixes his wages, necessarily gives room to 
 . a suspicion that he may have been able to make a contract more advan- 
 tageous to himself and less advantageous to the district, than if some 
 third party had been employed. Those who represent the public should 
 never put themselves in a situation where their private interests may 
 conflict with those of their constituents. 
 
 Per V. M. Kice, March 18, 1856. 
 
 Land worked under a contract, by which the lessee is to share in the produce 
 thereof, is subject to taxation in the district where it is situated. 
 
 The appellant is the owner of lot No. 34, included in the boundaries 
 of District No. 9, Wirt, Allegany county, and also of lot No. 26, which 
 adjoins it, but is included within the boundaries of District No. 1, and 
 is in the occupation of an inhabitant of District No. 1, holding under a 
 lease, by. which be^ renders a share of the produce to the appellant. 
 The statute expressly provides that any person working land under a 
 contract for a share of the produce of such land, shall be deemed the 
 possessor, so far as to render him liable to taxation therefor, in the dis- 
 trict where such land is situate. The trustees aver that the existence 
 o' auch a lease never came to their knowledge until after the making 
 out of the tax list. This is doubtless true, but they were bound to know 
 the limits of their own district, and were bouifti at their peril not to 
 impose a tax upon any one, in respect to land outside of their limits, 
 unless it was in his actual possession,; constituting a part of real pro- 
 perty "partly within such district and partly in an adjoining district.' 
 
 It is an anomaly that land lying in one district should, under any 
 circumstances, be withdrawn from its liability to support the public 
 burdens of such district, and made to eontribute to those of another in 
 which the owner may reside. The law is to be so construed as to restrict 
 such cases within the narrowest possible limits. 
 
 The appeal is therefore sustained. The trustees must correct their 
 tax list, by excluding therefrom the valuation of lot No. 26, and by 
 assessing so much of the tax as is imposed upon the appellant, by reason 
 ■ of his ownership of such lot, on the taxable inhabitants of the district, 
 iin proportion to their respective valuations. 
 
 Per E. P. Smith, Dep. Supt., May 20, 1856. 
 
 Children of non-residents may he admitted to the district school upon such terms 
 as may -be agreed upon between their parents or guardians and the trustees. 
 
 The contract for admission should be in writing, and the payment of tuition 
 should be exacted in advance. 
 
 Joseph E. "Walton, an inhabitant of District No. 9, Colesville, Broome 
 county, applied to one of the trustees of District No. 4, in the same 
 town, and received permission from him to send his children to their 
 school, for the term commencing May, 1855, and ending March, 1856, "on 
 ithe same conditions as though he had been a resident of said District 
 
DIGEST OF DECISIONS. 101 
 
 No. 4, to wit : He was to furnish his quota of fuel, and enjoy the benefit 
 of the public money in said district." The children attended during 
 the whole term without objection from either of the other trustees, or 
 from any inhabitant of said District No. 4, and the appellant furnished 
 his quota of fuel. The trustee who gave the permission having removed 
 from the district, and the vacancy being filled by an election, the board, 
 as now constituted, "refused to allow him to participate in the benefits 
 of the public money." The appellant asks the interposition of this 
 department in his behalf, and that the trustees may be directed to carry 
 such agreement into effect, "by allowing ine to participate in the benefite 
 of the public money applicable to the payment of teachers' wages." 
 
 Schools are provided primarily for the children resident in the district. 
 The statute declares that they are free to all residents over five and 
 under twenty-one years of age, "as thereinafter provided," that is to say, 
 free as far as the right to attend them is concerned, subject to the lia- 
 bility to contribute by rate bill as provided in § 6, to the payment of 
 atiy balance of teachers' wages, after the application "of the amount 
 apportioned to such district under the provisions of this act, and other 
 public moneys ielonging to the district applicable to the payment of 
 teachers^ wages" Tbis is the only provision in the act defining or 
 limiting the freedom guaranteed to persons residing in the district. The 
 two provisions must be regarded as co-extensive, and embracing only the 
 same class of persons. It follows that residents, and none other than 
 residents, are the subjects of a rate bill. 
 
 It is to be remarked that the sixth section discriminates between the 
 amount apportioned to the district by the provisions of the act — that is, 
 the money derived from the state treasury, to which in common par- 
 lance the meaning of the words "public moneys" is restricted — and 
 "other public moneys belonging to the district applicable to the pay- 
 ment of teachers' wages." These words are broad enough to include, 
 and are to be construed as including, not only the revenues of any 
 permanent local funds, but any sums received for tuition from persons 
 not liable to a rate bill. The latter are to be applied in reduction of 
 the teachers' wages, before the amount can be ascertained for which a 
 rate bill must be made upon the residents of the district. It follows, 
 then, that the appellant is not subject to a rate bill, and, independent 
 of an express contract, can have no interest in the questi<Jn, whether 
 the public money apportioned to a district to which he does not belong 
 is large or small. 
 
 The first section of the act of April 12, 1851, provides that "persons 
 not resident of a district may be admitted into the schools kept therein, 
 with the approbation in writing of the trustees thereof or a majority 
 of them." This provision is only declaratory of the law, as previously 
 understood and expounded by this department. It is doubtless true 
 that a teacher would be at liberty to exclude a pupil not residing in the 
 district, until the written evidence of the assent of a majority of the 
 trustees should be presented. As a matter of reasonable prudence, 
 such permission ought undoubtedly to be put into writing, and should 
 declare precisely the terms upon which it is granted. 
 
102 DIGEST OF DECISIONS. 
 
 In this case, however, no question arises from the ahsence of a written 
 ■permission, because in the first place, the children were not excluded, 
 and in the second, the terms of the agreement are admitted by both 
 sides. It was the business of the trustees, if they disapproved the 
 contract made by one of their number, to have excluded the children 
 absolutely, or to have made a new contract as to the amount to be paid 
 for their tuition. By their acquiescence and inaction they must be 
 deemed to have known and ratified the arrangement made by their 
 colleague, especially as they have received money, or its equivalent for 
 fuel, in pursuance of that contract. 
 
 The proper mode for them would have been to have assented to the 
 continuance of the children in school, upon the appellant entering into 
 a written agreement to pay a definite sum in dollars and cents for their 
 tuition ; or, what is more proper, paying it in advance, that it might 
 become at once and beyond contingency a part of "the public moneys 
 belonging to the district." They could, and in strictness should, have 
 fixed that sum without regard to the attendance or non-attendance of 
 the children. They would have been well warranted in making it 
 somewhat larger than the amount which, was expected to be required 
 from residents. Public policy demands that a parent should not be 
 permitted to withdraw his children from contributing to the support of 
 the school in his own district, without such strong motives as may 
 reconcile him to an increased' expeiise for their tuition. K he choose 
 to send to what, as far as he is concerned,' is a private school, he cannot 
 complain if he is made to pay precisely as if he received no aid what- 
 ever from the public ftinds. 
 
 In this case the making out of the rate bill is to be regarded simply 
 as a mode of computing the amount which the appellant has agreed to 
 pay ; and he must pay it, not because the trustees have authority to 
 Biake a rate bill against him, but because he has agreed to pay what- 
 ever, upon that mode of computation, may be found to be due. 
 
 Per E. P. Smith, Dep. Supt., May 2a, 1856. 
 
 The election of a trustee at an adjourned meeting valid. 
 
 If a trustee renders his annual account to an adjourned annual meeting, he will 
 not he removed because it is unsatisfactory. 
 
 Mr. Isaac Tracy, one of the trustees of District No. 5, Allen, Alle- 
 gany county, omitted to make his annual report to the annual meeting, 
 October 1, 1.855, but claims that one was submitted and made by the 
 clerk at an adjourned meeting, October 2. 
 
 One of the trustees elected at the first meeting reftised to serve, and 
 at the adjourned meeting another was elected to fill the vacancy. 
 
 Mr. Tracy will not be removed because his account was not satisfactory. 
 He is liable to a suit, hereafter, for any money that can be shown by 
 that account, or otherwise, to have come into his hands, and which he 
 cannot prove to have been legally expended or paid to a colleague or 
 successor authorized to receive it. If, on the other hand, he entirely 
 failed to render any account, he is liable to a penalty of 125.00, in 
 addition to a judgment for any moneys proved to be in his hands. 
 
DIGEST OF DECISIONS. 103 
 
 The election of a trustee on the 2d day of October, must be held to 
 have been valid and regular. Admitting that the meeting the previous 
 evening adourned for the sole purpose of having the annual account of 
 the trustees submitted, the adjourned meeting was nevertheless compe- 
 tent -to fill any vacancy which might then exist in district offices. Such 
 a vacancy was created by the refusal of Mr. Lincoln to serve. 
 
 Per E, P. Smith, Dep. Supt., May 31, 1856. 
 
 When the time for annual meeting is not fixed, a notice by the trustees speci- 
 fying a day for the annual meeting is sufficient, and the proceedings at 
 such meeting are legal. 
 
 It is lawful at any district meeting to pass a resolution, with the consent of the 
 town superintendent (school commissioner), designating an additional site, 
 and raising a tax to purchase it. 
 
 The consent of the commissioner need not tie in writing. 
 
 At a district meeting held in District No. 8, Moreau, Saratoga county, 
 held October 1, 1855, a tax of $125.00 was voted to purchase an additional 
 site and to build a school-house thereon, and also of 112.00 for repairs of 
 the old school-house, the assent of the town superintendent to the 
 designation of the additional site having been obtained. At this meeting 
 the appellant was elected trustee. 
 
 On the 29th day of October the appellant presented to his colleagues 
 a tax list for the sums above mentioned, and requested them to meet 
 with him for the purpose of examining and correcting the list, if cor- 
 rections were necessary, and to unite with him in signing the warrant. 
 From their refusal to meet with him or to execute the warrant this 
 appeal is brought. 
 
 On the part of the respondents it is urged that the annual meeting 
 of 1854, failed to adjourn to any particular time and place, and that 
 the notice for a meeting did not specify the objects for which it was 
 called. 
 
 If the time of the annual meeting in 1855 was not fixed at the 
 meeting of 1854 (on which the evidence is conflicting), the trustees 
 had the right to " appoint a day for the holding of the annual meeting," 
 and this they did by subscribing a notice designating the 1st of October, 
 1855, as such day and causing the same to be posted. It is of no 
 consequence that they may have supposed they were only specifying 
 the day to which the meeting stood adjourned. The fact that they 
 so supposed, and that it was the day on which the inhabitants had for 
 years been accustomed to hold their annual meeting, only proves that 
 the day appointed was the precise one on which the inhabitants were 
 prepared to expect their annual assemblage, and upon which they were 
 the least likely to absent themselves from a want of notice. 
 
 If an appeal had been taken from the proceedings of October 1, in 
 proper time, the department would have been disposed to give con- 
 siderable weight to the allegation that a portion of the voters had been 
 surprised, and might have ordered a new meeting, to reconsider the subject 
 notwithstandiiig'those proceedings were entirely legal. It would have 
 done this in the hope that those proceedings might have been a£Srmed 
 
104 DIGEST OF DECISIONS. 
 
 under drcumstances depriving every tax payer of any ground for dis- 
 satisfaction. 
 
 When, however, those who objected to the proceedings instead of 
 taking active measures to set them aside, wait till thirty days, and then 
 rest upon the illegality of the meeting, they must be cottfined to the 
 issue thus made. 
 
 As to the other question, regarding the site, the persons in favor of 
 such new site, were under no obligations to give notice of their design 
 to present such proposition, nor were they bound to consult the trustees 
 in respect to it. Any person at any meeting lawfillly assembled, had 
 the right, without previous consultation with anybody, to propose such 
 resolutions, and the meeting "by a majority of the votes of those 
 present," and with the consent of the town superintendent, could lawfully 
 designate an additional site, and lay a tax to purchase the same, and to 
 build a house upon it. 
 
 The consent of the town superintendent is not required to be in 
 writing, and there is no pretense in this case that he did not consent in 
 fact. Indeed it appears from the papers that he had taken an active 
 part in procuring a deed of the additional site, to be executed to the 
 trustees of the district before the 1st of October. This of itself proves 
 his consent, and is sufficient to support the vote, although it was very 
 proper to put such consent in writing as was subsequently done. 
 
 The respondents are required to meet with the appellant and sign 
 the tax list and warrant. 
 
 Per V. M.-Riee, June 1, 1856. 
 
 The assessment roll of a town, as revised by the assessors and delivered to the 
 supervisors, is complete so far as to bind the trustees in mailing out a tax 
 list. 
 
 The trustees of Joint District No. 1, Gates and Chili, Monroe county, 
 in making a tax list on the 15th day of October, 1855, adopted the 
 valuations of the town assessment rolls for 1854. The rolls for 1855 
 had not then been revised by the supervisors, and as those of the two 
 towns diifered very materially in their valuations of real estate, the 
 trustees considered it unjust to follow them until such revision. In this 
 the trustees erred, and their tax list is consequently erroneous. It has 
 been repeatedly decided by this department, and also by the supreme 
 court, that when the assessment roll has been revised by the assessors 
 and delivered to the supervisors, it becomes so far complete as to bind 
 the trustees. 
 
 If the trustees of a joint district regard the valuations of the two town 
 assessment rolls as not substantially just, as compared with each other 
 so far as such district is concerned, they have the right to apply to the 
 supervisors of the towns, parts of which are embraced within their 
 school district, to determine the relative proportion of taxes that ought 
 to be assessed upon the real property of the parts of such district so 
 lying in different towns. (Sec. 72, chap. 480, Laws of 1847.) 
 
DIGEST OF DECISIONS. 105 
 
 They can resort to this remedy as well after as before the board of 
 supervisors has revised and equalized the town assessment rolls. 
 
 The appeal is sustained, and the trustees authorized to amend their 
 tax list, in accordance with law. 
 
 Per E. P. Smith, June 4, 1856. 
 
 Exemptions must be collected by tax and not by rate bUl. 
 
 John Oliver appeals from a rate bill made by the trustees of District 
 No. 6, Halftnoon, Saratoga county. 
 
 On the 15th day of April, 1855, the trustees were indebted to the 
 teacher, for the term then ending, $56.00. The amount of public money 
 applicable to such term, was $29.72, leaving a balance of $36.28 to be 
 collected by rate bill. Instead of compelling the teacher to wait for the 
 collection of the rate bill, they drew an order on the town superintendent 
 for the whole amount of public money in his hands, $47.86. In other 
 words, they advanced to the teacher $18.14 out of the public money 
 applicable to the summer term, and replaced it by the rate bill, when 
 collected. If there is anything objectionable in this measure, which it 
 is not intended to intimate, Mr. Oliver is estopped from taking the objec- 
 tion, inasmuch as he shows that he himself (being then a trustee,) signed 
 the order. 
 
 On the 15th of April, 1856, the trustees were indebted to their 
 teacher $72.00, to pay which they apply, 1st, the public money of 
 1855, restored by the- collection of the rate bill, $18.14; 2d, $10.62 
 (out of $49.22,) of the public money of the present year, and for the 
 residue, $43.24, they have made out a rate bill and issued a warrant. 
 
 The replication of the appellant shows that the trustees have actually 
 drawn an order on the town superintendent for $15.00, instead of $10.62. 
 The diflFerence corresponds precisely with the amount of exemptions in 
 the last and present rate bills, which should be raised by tax. 
 
 There is no authority to collect it by rate bill, nor should the trustees 
 obtain an advance of it from the public money, through an order drawn 
 professedly for teachers' wages. They are, therefore, directed to deduct 
 the sum of $5.12 ratably from the amount charged to each person 
 not exempted in the rate bill. 
 
 Per V. M. Rice, June 13, 1856. 
 
 Any district meeting may elect an officer to fill an existing vacancy, althongh 
 thirty days may have elapsed since its occurrence. 
 
 The appeal was served June 11, 1856, upon R. S. Scott, town super- 
 intendent, and no answer has been made. It appears that Alexander 
 Fenton, a trustee in Joint District No. 9, in Middletown and Shandaken, 
 removed therefrom about the .1st of April, 1856. On the 28th day 
 of May, 1856, a special meeting was held at which William Jones was 
 chosen to fill the vacancy. The town superintendent, with a full know- 
 ledge of such election, appointed John Newton to fill the vacancy, 
 caused by the removal of Fenton. 
 
 PJlOEST.J 14 
 
106 DIGEST OF DECISIONS. 
 
 The inhabitants, when lawfully assembled at any district meeting, 
 may choose district officers to fill vacancies. (§ 62, chap. 480, Laws 
 of 184V.) 
 
 By § 11, it is provided that in case a vacancy shall not be supplied 
 by a district meeting within one month thereafter, the superintendent 
 of the town may appoint any person residing in such district to supply 
 such vacancy. This provision does not, however, in any way affect the 
 right of the district to supply such vacancy by election, at any period 
 prior to an appointment made by the town superintendent. 
 
 In this case Mr. William Jones having been elected at a special 
 meeting of the inhabitants of the district, previous to the appointment 
 of Mr. Newton, the action must be considered legal. 
 
 The crder of the town superintendent of District No. 9, Middletown 
 and Shandaken, is therefore void. 
 
 Per V. M. Kice, July 31, 1856. 
 
INTRODUCTORY 
 
 LAWS IN RELATION TO SCHOOLS. 
 
 By chap. 36 of the Laws of 1856, the legislature directed a revised 
 edition of the laws in relation to schools to be prepared, and a copy to 
 be furnished to each school district library of this state, in the same 
 volume with a Digest of Decisions of the Superintendents of Common 
 Schools, the preparation of which had been authorized by chap. 397 of 
 the Laws of 1854. The law directs this volume to be entitled the 
 " Code of Public Instruction," and that it be prepared, printed and dis- 
 tributed, under the direction of the Superintendent of Public Instruction. 
 
 No particular method of arranging or numbering the statutes having 
 been prescribed, the plan has been to collect together those sections 
 which related to the same subject, without strict regard to the place 
 they may occupy in the Session Laws, but with such a general adher- 
 ence to the arrangement of the revision of the school laws, in 1847, as 
 was consistent with that leading purpose. The sections are numbered 
 in the order which they assume under this arrangement ; and, at the end 
 of each section, inclosed within brackets, a reference is given to the 
 original statute from which it was taken, indicating the original number 
 of the section, and also to every subsequent statute by which it has 
 been amended or modified. 
 
 No liberty has been taken with the text of the statutes, but they have 
 been printed precisely in the words of their enactment, either as originally 
 passed or as amended by the legislature ; except that where subsequent 
 statutes have rendered it necessary to substitute other words for those 
 contained in the law — as school commissioner or supervisor, in the 
 place of town superintendent — the words thus substituted have been 
 inclosed in brackets, and the authority for the interpolation has been 
 
 ( < 
 
108 INTRODUCTORY TO THE LAWS. 
 
 cited at the end of the section or in the comment^ which follows it. 
 The means are thus furnished to the reader of distinguishing between 
 the authentic language of the legislature and the opinion of the compiler 
 as to the effect of its enactments. 
 
 It was necessary to study the utmost brevity in the comments upon 
 the various sections. An unavoidable result will be, that to the careless 
 reader many questions may appear to have been overlooked, for which 
 an answer will be found upon more deliberate examination. In order 
 to reach the meaning of a statute, every word must be pondered, as if 
 special attention were invited to it by the display of italic type, and by 
 the warning that the word could not be omitted, or any other word 
 whatever substituted in its place, without perverting the intention of the 
 law makers. It would be presumptuous to ask the same minute con- 
 sideration of the comments ; but the school officers, for whose instruction 
 they were prepared, may be assured that a laborious effort has been 
 made to anticipate every question they can have occasion to ask, and to 
 furnish all the information that is practicable. 
 
 There are occasional references, in the comments, to the volume of 
 Decisions of the State Superintendents, published in ISS? by Superin- 
 tendent Dix, under the authority of the legislature. It is cited as 
 Com. School Dec. The references to judicial decisions are for the 
 the most part to those made by the courts of this state. Where the 
 reports of other states or of England are cited, the fact is usually indi- 
 cated by giving the abbreviation for the name of the state, with that of 
 the reporter. 
 
STATUTES RELATING TO COMMON SCHOOLS. 
 
 OF THE POWERS AND DUTIES OF THE SUPERINTENDENT 
 OF PUBLIC INSTRUCTION. 
 
 No. 1. There shall be chosen by joint ballot of the senate 
 and assembly, on the first Tuesday in April next, and every 
 third year thereafter, and as often as a vacancy shall occur in 
 said office, a State Superintendent of Public Instruction, who 
 shall hold his office for three years, and shall be invested with 
 all the powers, perform all the duties, and be subject to all 
 the responsibilities now conferred or imposed by law upon 
 the Secretary of State in his capacity of Superintendent 
 of Common Schools. ( Sec. 1, chap. 97 of 1854, passed March 
 30, 1854.) 
 
 No. 2. The superintendent, so appointed, shall enter imme- 
 diately upon the discharge of his duties, and shall be assigned 
 suitable and convenient rooms in the stat^ hall, to which all 
 books, papers and documents now in the office of the Secre- 
 tary of State, and pertaining to the common school depart- 
 ment, shall be transferred. He shall receive an annual salary 
 of two thousand five hundred dollars, payable quarterly by 
 the treasurer on the warrant of the comptroller, and shall 
 have power to appoint a deputy and as many clerks, not 
 exceeding three, as he may deem necessary ^or the transaction 
 of the business of the department ; but the compensation of 
 such deputy and cler'ks shall not exceed three thousand dollars 
 in any one year, and shall be payable monthly by the treasurer 
 on the warrant of the comptroller and the certificate of the 
 superintendent. ( Sec. 2, chap. 97 of 1854. ) 
 
110 POWERS AND DUTIES 
 
 No. 3. It shall be the duty of the State Superintendent, as 
 soon as may be practicable after the commencement of his 
 official term, to devise a seal, with suitable inscriptions and 
 device, a description of v?hich, together v^ith an impression 
 thereof, shall be filed in the office of the Secretary of State, 
 which shall thereafter be the official seal of the said superin- 
 tendent, and such seal may be renewed from time to time, as 
 often as may be necessary ; copies of all papers deposited or 
 filed in the office of said superintendent, and all acts, orders 
 and decisions made by him, may be authenticated under such 
 seal, and when so authenticated, shall be evidence equally 
 and in like manner with the original. ( Sec. 3j chap. 97 of 
 1854.) 
 
 Chap. 129 of 1838 provides that no " record, whereof a transcript 
 duly certified may by law be read in evidence, shall be removed by 
 virtue of any subpoena duces tecum from the proper office in which 
 such record shall be kept, * * * * unless by 
 
 order of some court of record, made in open court, and entered in the 
 minutes thereof, which order shall specify that the production of such 
 record instead of such transcript is necessary.'' 
 
 The Revised Statutes, sec. 59, title 3, chap. 1, part 3, provide that 
 " whenever a certified copy of any affidavit, record, document or other 
 paper is declared by law to be evidence, such copy shall be certified, by 
 the clerk or officer in whose custody the same is required by law to be, 
 to have been compared by him with the original, and to be a correct 
 transcript therefrom and of the whole of such original ; and if such 
 officer have any official seal by law, such certificate shall be attested by 
 such seal." The 61st section of the same title provides that " in all 
 cases, where the seal of any court or of any public officer shall be author- 
 ized or required by law, the same may be affixed by making an impres- 
 sion directly on the paper, which shall be as valid as if made on a wafer 
 or on wax." 
 
 No. 4. It shall be the duty of the State Superintendent to 
 visit, as often as may be practicable, such and so many of the 
 common schools, academies and other literary institutions of 
 the state as he may deem expedient, to inquire into the course 
 of instruction, management and discipline of such institutions, 
 and to report the results of such visitation and inspection 
 annually to the legislature, with such recommendations and 
 
OF STATE SUPERINTENDENT. Ill 
 
 suggestions as he may deem suitable. (Sec. 4. chap. 97 0/ 
 1854.) 
 
 The Revised Statutes, sec. 1, title 2,'-^!hap. 15, part 1, declared it the 
 duty of the superintendent of common schools " to prepare and suhniit 
 an annual report to the 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. 
 
 3. Plans for the improvement and management of the common school 
 fiind, and for the better organization of the common schools ; and 
 
 4. All such matters relating to his ofiice and to the common schools 
 as he shall deem expedient to communicate. 
 
 Chap. 350 of 1847, in relation to reports of state officers, requires 
 them (including the superintendent of common schools) " to complete 
 their several annual reports for the previous fiscal year, before the expi- 
 ration of the current calendar year, and canse the same to be presented 
 to the legislature iminediately after the commencement of its next 
 annual session." It also requires them to embrace in said annual 
 reports a true account, so far as the same is practicable, of the funds 
 and accounts of which each of said officers is in charge, to the termi- 
 nation of the current calendar year." 
 
 No. 5. The State Superintendent shall be, ex-officio, a mem- 
 ber of the board of regents of the university, and chairman 
 of the executive committee of the board of regents of the 
 State Normal School. ( Sec. 5, chap. 97 of 1854.) 
 
 No. 6. The superintendent of [Public Instruction] may 
 appoint such and so many persons as he shall from time to 
 time deem necessary, to visit and examine into the condition 
 of the common schools in the county where such persons 
 may reside, and report to the superintendent on all such mat- 
 ters relating to the condition of such schools, and the means 
 of improving them, as he shall prescribe ; but no allowance 
 or compensation shall be made to the said visitors for such 
 services. {Sec. 8, chap. 330 of 1839. The words "public 
 instruction" substituted for " common schools, in conformity to No. 
 1 of this compilation. ) 
 
 No. 7. The Superintendent of [Public Instruction], on such 
 evidence as may be satisfactory to him, may grant certificates 
 of qualification, under his hand and seal of office, which shall 
 
112 POWERS AND DUTIES 
 
 be evidence that the holder of such certificate is well quali- 
 fied in respect to moral character, learning and ability to teach 
 any district school within this state, which certificate shall be 
 valid uatil duly revoked by the superintendent. ( Sec. 10, 
 chap. 133 o/"- 1843. The words '^public instruction" substituted 
 for " common schools," in conformity to No. 1 of this compilation.). 
 
 No. 8. Whenever it shall be satisfactorily proven to the 
 State Superintendent that any county or town superintendent 
 or other school officer has embezzled the public money, or any 
 money coming into his hands for school purposes, or has been 
 guilty of the willful violation of any law or neglect of any 
 duty, or of disobeying any decision, order or regulation of 
 the Department of [Public Instruction], the State Superin- 
 tendent is hereby authorized to remove such- officer from such 
 office, by an order under the seal of office of the [Superin- 
 tendent of Public Instruction]. {Sec. 15, chap. 382 o/"1849, 
 substituting " public instruction" for "common schools," in confor- 
 mity to No. 1, and " Superintendent of .Public Instruction" for 
 "secretary of state," in conformity to No. 3 of this compilation.) 
 
 When it becomes necessary to ask the removal of a school oflScer, 
 under the foregoing section, the following practice must be pursued : 
 An affidavit or affidavits must be prepared and duly verified before some 
 officer authorized to administer oaths, chargiilg him with one or more 
 of the offenses of which he is supposed to have been guilty, and which 
 are above enumerated; as with having " embezzled money coming to 
 his hands for school purposes," or with the willful neglect of some 
 specified duty, or with disobeying some decision or order of the Depart- 
 ment of Public Instruction, setting out the date of such order and its 
 requisition in words or in substance. The affidavit, after distinctly 
 stating the charge, should proceed with a specification of the facts by 
 which it is established, which must be set forth with such certainty as 
 to time, place, &c., as to furnish the officer with precise information as 
 to what he is expected to meet, and to enable him to look for repelling 
 testimony. After being verified, a copy of the affidavits, including tho 
 jurat or certificate of the officer administering the oath, must be served 
 upon the officer whose removal is sought, together with a notice of the 
 application, which may be substantially in the following form : 
 
 Sir — -Take notice that the affidavits, with copies of which yon are 
 herewith served, will be presented to the Superintendent of Public 
 Instruction at Albany, and application thereupon made for your 
 
OF STATE StlTERINTENDENT. 113 
 
 removal from the oflSce of trustee of Joint District No. , of Shan- 
 daken, in Delaware coujity, and Denning, in Ulster county ; and that 
 you are required to transmit your answer to such application, duly veri- 
 fied, to the Department of Public Instruction within ten days after the 
 service hereof or the charges contained in such affidavits wiU be deemed 
 to be admitted by you. 
 
 Your obt. servt., 
 
 A. B. (Post-Office Address), 
 
 Port Jervis, Delaware Co. 
 
 • 
 
 A copy of this notice, together with an affidavit proving the service 
 thereof and of the affidavits therein referred to, and Jhe date aTid man- 
 ner of such service, must be transmitted, with the original affidavits to 
 the Department of Public Instruction. No fact, although otherwise 
 tnown^to the department, will be taken into consideration, nor will any 
 paper be read or referred to, in disposing of the case, unless evidence is 
 furnished that a copy of such paper has been served upon the party 
 against whom the complaint is made. He cannot be prejudiced by 
 any statement which he has not been called upon to answer. 
 
 The form of the notice above given indicates the course of the 
 respondent. He is to transmit his sworn answer, together with the 
 affidavits of other persons, if he deems them necessary, to the depart- 
 ment within ten days. If for any reason, as the absence of material 
 Witnesses, he is unable to complete his defense in that time, he should 
 before its expiration transmit his own answer duly verified, with a state- 
 ment, uiider oath, of the facts which render it necessary that the time 
 to procure further evidence should be extended, and stating the earliest 
 day at which he expects to be .able to obtain such evidence. If a pro- 
 bable defense appears from his answer, and the application for fiirther 
 time is reasonable, an order will be made granting it. 
 
 Both parties should have their affidavits, Ac, legibly written upon 
 foolscap paper, if practicable, and upon the same sheet or continuous 
 sheets^' written on both sides, and fastened together in the manner of 
 legal ' pleadings, and not upon separate scraps of paper. Tley should 
 be endorsed with a title, indicating the nature of the application, and the 
 district, town and county where the matter arose, together with thet 
 post-office address of the person transmitting them. Though these may 
 appear trifling minutise, the neglect of them produces great embarrass- 
 ment and delay in a public office which is burdened with a very exten- 
 sive correspondence. 
 
 [OODB.1 15 
 
lU POWERS AND DUTIES 
 
 No. 9. The Superintendent of Public Instruction shall be 
 charged with providing the means of education for all the Indian 
 children in the state. He shall cause to be ascertained the 
 condition of the various bands in the state, in respect to 
 education ; he shall establish schools in such places and 
 of such chat-acter and description as he shall deem necessary ; 
 he shall employ superintendents for such schools, and shall, 
 with the concurrence of the comptroller and secretary of 
 state, cause to be erected, where necessary, convenient build- 
 ings for their accommodation. ( Sec. 1, chap. 71 of 1856. ) 
 
 No. 10. In the discharge of the duties imposed by this act, 
 the said superintendent shall endeavor to secure the coopera- 
 tion of all the several bands of Indians, and for this purpose 
 shall 'visit, by himself or his authorized agent, all the reserva- 
 tions where they reside, lay the matter before them in public 
 assembly, inviting them to assist either by appropriating their 
 public moneys to this object or by setting apart lands and 
 erecting suitable buildings, or by furnishing labor or materials 
 for such buildings, or in any other way which he or they may 
 suggest as most effectual for the promotion of this object. 
 {Sec. 2, chap. 71 of 1856.) 
 
 No. 11. In any contract which may be entered into with 
 the said Indians, for the use or occupancy of any land for 
 school grounds, sites or buildings, care shall be taken to pro- 
 tect the title of the Indians to their lands, and to reserve to 
 the state the right to remove or otherwise dispose of all im- 
 provements made at the expense of the state. ( Sec. 3, cAcp. 
 71 0/1856.) 
 
 No. 12. The Indian children in the state, between the ages 
 of four and twenty-one years, shall be entitled to draw public 
 money the same as ^hite children. The superintendent shall 
 cause an annual enumeration of said Indian children to be 
 made, and shall see that the public money to which they are 
 ratably entitled is devoted exclusively to their education. 
 (/Sec. 4, cAap. 71 0/1856.) 
 
 ' No. 13. To carry into effect the provisions of this act, the 
 sum of five thousand dollars is hereby appropriated out of 
 the surplus income of the United States deposit fund, to be 
 paid by the treasurer, on the warrant of the comptroller. 
 
OF STATE SUPERINTENDENT. 115 
 
 from time to time, to the order of the Superintendent of Public 
 Instruction. {Sec. 5, chap. 71 of 1856.) 
 
 No. 14. The superintendent shall take and file in his office 
 vouchers and receipts for all the expenditures made under 
 this act, subject to the inspection of the joint committee to 
 examine the accounts of the auditor and treasurer, and shall 
 annually report to the legislature all his doings by virtue of 
 the authority vested in him ; and for this purpose said super- 
 intendent may require full and detailed reports, in such form 
 as he may prescribe, from those having the immediate super- 
 vision of any Indian schools in this state. ( <^ 6, chap. 71 of 1856, ) 
 
 No. 15. The institution fOr the deaf and dumb in the city 
 of New- York, and every other similar institution incorporated 
 or to be incorporated in this state, shall be subject to the 
 visitation of the Superintendent of [Public Instruction]. {Rev. 
 Stat,, sec. 1, tit. 3, chap. 15, pa^-t 1st. The words " public instruc- 
 tion" substituted for " common schools," in conformity to No. 1 (f 
 this compilation.) 
 
 No. 16. It shall be the duty of the superintendent, as such 
 visitor : 
 
 1. To inquire from time to time into the expenditures of 
 each institution and the systems of instruction pursued therein 
 respectively ; 
 
 2. To visit and inspect the schools belonging thereto, and 
 the lodgings and accommodations of the pupils ; 
 
 3. To ascertain, by a comparison with other similar institu- 
 tions, whether any improvements in instruction and discipline 
 can be made ; and for that purpose to appoint from time to 
 time suitable persons to visit the schools ; 
 
 4. To suggest to the directors of such institution and to the 
 legislature such improvements as he shall judge expedient; 
 
 5. To make an annual report to the legislature on all the 
 matters before enumerated, and particularly as to the condi- 
 tion of the schools, the improvement of the pupils and their 
 treatment in respect to board and lodging. {Rev. Stat., sec. 2, 
 tit, 3, chap. 15, part 1st. ) 
 
 No. 17. It shall be the duty of the overseers of the poor in 
 each town to furnish the Superintendent of [Public Instruc- 
 tion] with a list of the deaf and dumb persons in their 
 respective towns, so far as they can ascertain them, with Buch 
 
116 POWERS ANt) DtTTlES 
 
 particulars in relation to the condition of each as shall be 
 prescribed by the said superintendent. {See. 1, chap. 223 of 
 ]832 The words " public instruction" substituted for "common 
 schools," in conformity to No. 1 of this compilation. ) 
 
 NoJ 18. From the list thus obtained, the superintendent 
 may select as state pupils such as are properly embraced 
 within the provisions of the existing laWs, and make such 
 regulations and give such directions to parents and guardians, 
 in rielation to the admission of pupils at stated periods, as will 
 remove the inconvenience of having pupils of the same class 
 entering the school at diiferent periods. (Sec. 2, chuf. 223 
 6f 1832. ) 
 
 No. 19. Every indigent deaf and dumb person, resident of 
 this state, between twelve and twenty-five years of age, 
 whose parent or parents, or, if an oi-phan, whose nearest friend 
 shall have been resident in this state for three years, and who 
 may make application for that purpose, shall, until provision 
 be made by law for his or her instruction in some other insti- 
 tution or school, be received into the New- York institution 
 for the instruction of the deaf aind dumb, provided his or her 
 application for the purpose be first approved of by the Super- 
 intendent of Public Instruction. ( Sec. 1, chap. 272 of 1854. ) 
 
 Prior to the passage of this act the number of state pupils had been 
 limited, and they were apportioned equally among the old senate 
 districts, as established under the constitution of 1822. This restriction 
 IS now abrogated ; but it is still necessary that the indigence of the 
 applicant be established by the certificate of the overseers of the poor 
 of the town wherein such deaf and dumb person shall reside, " to the 
 inability of the parent, parents or guardian to pay for his or her board 
 ancl tuition." In case the applicant is over twenty-one years of age, the 
 overseers should certify to the inability of the candidate himself; and in 
 c^se the .parent, parents or guardian (or the applicant himself, if of full 
 age) have the ability to pay any portion of the board and tuition, or 
 for the clothitig, of a deaf and dumb person, the overseers of the poor are 
 required to certify and state the amount. They are also required to state 
 in their certificate that the parent or parents, or, if an orphan, the nearest 
 friend of the deaf mute, have been resident in this state for three years. 
 It is'provided by sec. 3, chap. 244 of Laws of 1838, that "the supervisors 
 of any county in this state, from which state pupils may be selected, 
 
OF STATE SUPERINTENDENT. 117 
 
 whose parents or guardians aire unable to furnish them with suitable 
 clothing, are hereby authorized and required, while such pupils are 
 under instruction, to raise a sum of money for this purpose, not exceed- 
 ing twenty dollars in any one year for each pupil, from said county." 
 
 No. 20. Each indigent pupil, so received into the institu- 
 tion aforesaid, shall be provided with hoard, lodging and 
 tuition ; and the directors of the institution shall receive for 
 each pupil so provided for the sum of one hundred and fifty 
 dollars per annum, in quarterly payments, to be paid by the 
 treasurer of the state, on the warrant of the comptroller, to 
 the treasurer of the said institution on his presenting a bill of 
 the actual time and number of pupils attending the institu- 
 tion, and which bill shall be signed and verified by the oath 
 of president and secretary of the institution. The regular 
 term of instruction for such pupils shall be five years. The 
 indigent pupils provided for in this act shall be designated 
 state pupils, and all the existing provisions of law applicable 
 to state pupils now in said institution shall apply to pupils 
 herein provided for, {Sec. 2, chap. 272 o/'1854.) ' 
 
 No. 21. It shall be lawful for the Superintendent of Public 
 Instruction to continue at the said institution for a period pot 
 exceeding three years, for the purpose of pursuing a course 
 of studies in the higher branches of leaming, such pupils, not 
 exceeding twelve in number, as may have completed their full 
 term of instruction, and who may be recommended by the 
 directors of said institution. ( Sec. 3, cha^i. 272 of 1854. ) 
 
 No. 22. The Superintendent of [Public Instruction] is here- 
 by authorized to visit and inspect the New-York institution 
 for the blind, in all its departments, and to report to the 
 legislature on such matters and things relating to the interests 
 of said -institution as he may deem necessary. {Sec. 6, chap. 
 200 of 1839, The words *' public insti'uction" substituted for " com- 
 mon schools," in ucconlunce with No, 1 of this compilation.) 
 
 No. 23. * • • * « And it is hereby declared that every 
 indigent blind person, resident of this state, between twelve 
 and twenty-five years of age, whose parent or parents', or, if 
 an orphan, whose nearest friend shall have been a resident in 
 this state, and who may make application for that purpose, 
 shall, until provision be made by law for his or her instruction 
 
118 POWERS AKD DUTIES 
 
 in some other institution or school, be received into said insti- 
 tution for the blind and be instructed ir^ literary or school 
 education, and in some trade or employment now or hereafter 
 to be taught and carried on in said institution, provided hia 
 or her application be first approved of by the Superintendent 
 of Public Instruction. {Part of sec. 1, chap. 539 \_Supply Bill], 
 of 1855, Session Laws, p. 1018,) 
 
 Chap. 200 of 1839, authorized the managers of the New-York insti 
 tution for the blind, to receive from each of the old senate districts, as 
 established under the constitution of 1822. eight indigent blind persons 
 in addition to those theretofore provided for by the state, viz., four from 
 each senate district, under chap. 316 of 1834, and four, in addition from 
 each district, under chap. 293 of 1836. The number was thus raised 
 to sixteen from each of the eight former senate districts, or one hundred 
 and twenty-eight in all. They were, in virtue of those acts, to be 
 received " between eight and twenty-five years of age," " in like manner 
 and at the like expense to the state as is provided by law for the indi- 
 gent deaf and dumb." The act of 1839 provides that " all of said pupils 
 shall be instructed for a period not exceeding five years in such studies 
 or employments as now are or may hereafter be taught or carried on in 
 said institution ; but when it may be advantageous to prolong the time 
 of instruction of any one or more of the pupils now in said institution, 
 or of those which may hereafter be received therein, the managers may, 
 in their discretion, retain them for a term not exceeding two years 
 beyond that now provided for by law ; first obtaining for that purpose 
 the approbation of the Superintendent" of [Public Instruction]. 
 
 The supervisors of any county in the state from which state pupils 
 may be sent, whose parents or guardians are unable to furnish them 
 with suitable clothing, are required by sec. 5, chap. 200 of 1839, while 
 such pupils are under insti'uotion, to raise a sum of money for this pur- 
 pose, not exceeding $20 in any one year for each pupil from said 
 county. 
 
 These provisions have not been expressly repealed, and it may be a 
 question how far the act of 1855 is to be regarded as modifying them. 
 May not indigent blind children, to the number of sixteen from each of 
 the former senate districts, still be admitted as state pupils, although 
 between the ages of eight and twelve years ? It will be observed that 
 the aet of 1855 does not limit the term of instruction, and does not 
 pledge the state to any particular rate of compensation for the 
 
OF STATE SUPERINTENDENT. 119 
 
 board and instruction of the pupils. Up to the number of one hundred 
 and twenty-eight, the term of instruction and the allowance to the insti 
 tution, arc fixed by previous laws. 
 
 No. 24. The superintendent shall prepare suitable forms and 
 regulations for making all reports, and conducting all neces- 
 sary proceedings under this title, and shall cause the same, 
 with such instructions as he shall deem necessary and proper 
 for the better organization and government of common schools, 
 to be transmitted to the officers required to execute the pro- 
 visions of this title throughout the state. {Sec. 9, title 2, chap. 
 15, part 1 of the Revised Statutes,) 
 
 The title of the Revised Statutes above referred to, is that " of com- 
 mon schools" embodying all the provisions in respect to their organiza- 
 tion and management, and which, as modified by subsequent legislatiop, 
 are collated in this volume. The succeeding section directed the 
 superintendent to " cause so many copies of the first six articles of this 
 title, with the forms, regulations and instructions prepared by him 
 thereto annexed, to be from time to time printed and distributed among 
 the several school districts of the state, as he shall deem the public good 
 to require ;" and sec. 1 1 provided that " all moneys reasonably expended 
 by him in the execution of his duties, shall, upon due proof, be allowed 
 to him by the comptroUeri and be paid out of the. treasury." These 
 provisions, however, are rendered substantially nugatory by sec. 8, art. 7, 
 of the constitution of 1846, 
 
 ""No moneys shall ever be paid out of the treasury of this state or 
 any of its funds, or any of the funds under its management, except in 
 pursuance of an appropriation by law, nor unless such payment he made 
 within two years next after the passage of such an appropriation act ; 
 and every such law making a new appropriation, or continuing or 
 reviving an appropriation, shall distinctly specify the sum appropriated 
 and the object to which it is to be applied ; and it shall not be sufficient 
 for such law to refer to any other law to fix such sum." 
 
120 APPOETIONMENT OF 
 
 OF THE APPORTIONMENT OF SCHOOL MONEYS. 
 
 No. 25. There shall hereafter be raised by tax, in the pre- 
 sent and each succeeding year, upon the real and personal 
 estate of each county within the state, thi'ee-fourths of a mill 
 upon each and every dollar of the valuation of such estate, 
 for the support of "common schools in this state, to be appor- 
 tioned and distributed by the Superintendent of Public In- 
 struction, in the same manner as the proceeds of the state tax 
 of eight hundred thousand dollars, in lieu of which this tax 
 is substituted, and now required to be apportioned and dis- 
 tributed except as hereinafter provided. The board of 
 supervisors of each county shall assess such amount upon 
 the real and personal estate of such county, in the manner 
 provided by 'law for the assessment and collection of 
 taxes ; and shall annually, as soon a« the aggregate valua- 
 tion of the real and personal estate of their county shall 
 be ascertained, gi^e immediate notice thereof to the Super- 
 intendent of Public Instruction. No clerk of any board 
 of supervisors, or other person who may make out the tax 
 list or assessment rolls of any town, shall omit to include and 
 apportion among the moneys to be raised thereby, the amount 
 hereby required to be raised for the support of schools, by 
 reason of the omission of the board of supervisors to pass a 
 resolution for that purpose. {Sec. 1, chap. 180 of 1856.) 
 
 In addition to the proceeds of the state tax, there are annually 
 apportioned and distributed for the support of common schools : 1st. 
 The revenue of the common school fund, in accordance -with sec. 2, title 
 4, chap< 9, part 1 of the Revised Statutes. 
 
 "There shall be annually distributed, as the revenue of the common 
 school fund, and according to the apportionment of the superintendent 
 of common schools then in force, the sum of one hundred thousand 
 dollars for the support and encouragement of common schools, to be 
 denominated ' school moneys ;' and as often as such revenue shall be 
 increased by the sum of ten thousand dollars, such increase shall be 
 added to the sum to be distributed." 
 
 Under this provision, 1145,000 of the revenue is annually apportioned. 
 The revenue for the fiscal year ending September 30, 1855, was 
 $143,127.73, and the capital at that date $2,457,520.86. The consti- 
 tution provides that " the sum of twenty-five thousand dollars of the 
 revenues of the United States deposit fund shall each year be appro- 
 
SCHOOL MONEYS. 121 
 
 priated to and made part of the capital of the said common school fund." 
 The principal increase of the fund is derived from this source, nearly all 
 the lands belonging to it having been sold. 
 
 2. One hundred and ten thousand dollars for teachers' wages, and 
 $55,000 for district libraries, are also annually distributed from the 
 income of the United States deposit fund. The appropriation of these 
 sums was originally made by chap. 237 of 1838. That act, after making 
 sundry appropriations of the income of the United States deposit fund 
 for literary purposes, provided as follows : 
 
 " § lO. The residue of the income aforesaid, not otherwise appropriated, 
 shall be annually added to the capital of the common school fund ; and 
 the comptroller is hereby authorized and required to invest such surplus 
 moneys in like manner as he is now authorized to invest the moneys of 
 the common school fund." 
 
 In 1847, when the new constitution took effect> and also in 1849, 
 the legislature in the acts appropriating the revenues of the literature 
 and United States deposit funds, reenacted the provision assigning the 
 unappropriated residue of the latter fund to the common school fund. 
 This was apparently done to comply with the provision of the constitu- 
 tion, limiting the operation of a law appropriating money to two years 
 from the date of its passage. It is believed, however, that a law merely 
 designating the fund to which money is to be credited, when it reaches 
 the treasury, does not come within that clause of the constitution, and 
 that the above cited provision of the act of 1838 is still in force, although 
 it has not been reenacted since 1849. 
 
 Chap. 382 of 1849, contains the following provision applicable to the 
 surplus income of the deposit fimd as to all other moneys received on 
 account of the school fund. 
 
 "§ 13. Whenever any money is paid into the treasury of the state 
 for or on account of the common school fund, it shall be the duty of 
 the comptroller to credit the common school fund with interest on the 
 sum so paid in, at the rate of six per cent per annum, for the time the 
 same shall remain in the treasury." 
 
 No. 26. All the moneys received or appropriated by the 
 provisions of this act shall be applied to tlie payment of 
 teachers' vyages exclusively. {Sex, 11, c/iai). 151 of 1851.) 
 
 This provision, it is declared by sec. 1, chap. 425 of 1851, "shall not 
 be so construed as to prevent or prohibit the distribution and application 
 of library money in the manner heretofore prescribed by law." 
 
 ICODE.1 16 
 
122. APPORTIONMENT OF 
 
 No. 27. Every commissioner chosen or elected in pursu- 
 ance of this act, shall receive an annual salary of at least five 
 hundred dollars, to be paid out of the income of the United 
 States deposit fund, appropriated to this pui^pose or to the 
 support of common schools, and it shall be the duty of the 
 Superintendent of Public Instruction to apportion to each 
 county, in his annual apportionment of the income of said 
 fund thus appropriated, five hundred dollars for the salary of 
 each commissioner of common schools in said county, created 
 under authority of this act. {Sec. 12, c/iap. 179 of 1856.) 
 
 The commissioners referred to in the preceding section are the school 
 commissioners appointed for each assembly district, or in certain 
 counties for a section of an assembly district, under the act to provide 
 for a more thorough supervision and inspection of common schools, 
 passed April 12, 1856. 
 
 No. 28. The Superintendent of Public Instruction shall 
 also apportion to each of the cities in this state, having, under 
 special acts, a superintendent of common schools, or whose 
 boards of education choose a clerk doing the duty of super- 
 vision under their direction, out of the income of the United 
 States deposit fund appropriated for this purpose, or for the 
 support of common schools, the sum of five hundred dollars 
 for each member of assembly to which such city shall be 
 entitled according to the unit of representation adopted by 
 the legislature, to be paid into the city treasury, and expended 
 as required by law for the support of schools. ( Sec. 15, c/ia27. 
 179 0/1856.) 
 
 No. 29. It shall be the duty of the State Superintendent 
 of Public Instruction, on or before the first day of January of 
 each and every year, after deducting any portion hereinbefore 
 required to be apportioned for and on account of supervision, 
 to apportion and divide one-third of the remainder of tlie 
 income of the United States deposit fund appropriated by law 
 for the support of schools, and one-third of all other moneys 
 thus appropriated, among the several school districts and 
 separate neighborhoods in this state, from which reports shall 
 have been received, in accordance with law, in the following 
 manner, viz : to each separate neighborhood belonging to a 
 school district in some adjoining state, there shall be appor- 
 tioned and paid a sum of money equal to thirty-three cents 
 for each child in such neighborhood (between the ages of 
 
SCHOOL MONEYS. 123 
 
 four and twenty-one); but the sum so to be apportioned and 
 paid to any such neighborhood, shall in no case exceed the 
 sum of twenty-four dollars ; and the residue of such one-third 
 shall .be apportioned and divided equally among the school 
 districts ; and the State Superintendent of Public Instruction 
 shall, by proper regulations and instructions to be prescribed 
 by him, provide for the payment of such moneys to the trus- 
 tees of such separate neighborhoods and school districts. 
 {Sec. 30, chap. 179 of 1856.) 
 
 Under the former system, the number of children in separato neigh- 
 borhoods, and the number of school districts iu the state to which an 
 apportionment is to be made by the State Superintendent on the first 
 day of January, 1857, would have to be ascertained from abstracts made 
 by the school commissioners of the reports of trustees of school districts 
 rendered between the 1st and 15th day of January, 1866, and contain- 
 ing the statistics of schools and teachers during the year 1855. Such a 
 report must have been made and transmitted to the late town superin- 
 tendent, in order to fulfill the condition that the district be one of those 
 " from which reports shall have been received in accordance with law." 
 It is to be observed that no discretion is vested in the State Superin- 
 tendent to admit a district to a share in the equ&l apportionment of 
 one-third of the public moneys, in case of a failure to make the legal 
 report, whatever mitigating circumstances may exist to excuse the 
 delinquency. The statute requires that the whole of the sum equally 
 apportioned be divided among the districts from which reports have 
 been received. This being done, the money is exhausted, and the quota 
 of a non-reporting district cannot be obtained without a contribution 
 from every other district in the state ; which, even if it were practically 
 feasible to collect, the superintendent has no authority to demand. 
 Tliis consideration enforces upon the trustees of districts the duty 
 of making their annual report in all cases, notwithstanding they may be 
 obliged to admit in their report that they have maintained school for a 
 less period than six months, that they have employed unqualified 
 teachers, or have in other respects failed to comply with the requisitions 
 of law. 
 
 The very prevalent eiTor which leads to numerous fruitless applica- 
 tions to the department for the restoration of a forfeited "district qnota" 
 (as, for the sake of brevity, the share of a district in the one-third of the 
 public moneys equally distributed, will be denominated), arises from 
 
124 APPORTIONMENT OF 
 
 overlooking the fact that the permission which the State Superintendent 
 is authorized, by a subsequent section, to grant, is a permission to be 
 included in the apportionment made by the school commissioners of the 
 remaining two-thirds of the school moneys which are distributed' to the 
 counties and cities in proportion to their population. Such permission 
 relates exclusively to what may, for the sake of convenient brevity, be 
 denominated the "pupil quota" — the portion of the public money 
 distributed to the county on the basis of its entire population, which a 
 district is entitled to receive on its reapportionment by the school com- 
 missioners in proportion to the number of residents between the ages of 
 four and twenty-one years. 
 
 It having been determined whether the district is or is not entitled 
 to a "district quota," by seeing whether a report has been received 
 therefrom in accordance with law and whether it has complied with the 
 requisition of the next succeeding section, the amount of such quota is 
 to be determined according to No. 31, to the remarks under which the 
 reader is referred. 
 
 No. 30. Every district in this state in which a school shall 
 have been taught by a qualified teacher for the time of si.K 
 months, or by successive teachers, whose periods of actual 
 instruction amount in the aggregate to six months, and no 
 other, shall be enumerated for the purpose of the distribution 
 of so much of the school money as shall be divided equally 
 among the districts. {Sec. 2, chap. 180 of 1856.) 
 
 The statute is here imperative that no other district shall be enume- 
 rated, amon^ those to which a " district quota" is apportioned, than 
 those'in which a school shall have been taught by a qualified teacher or 
 teachers for the period of six months. The State Superintendent has 
 no authority to overlook or excuse a delinquency in this particular, no 
 matter what extenuating circumstances may be shown in palliation. It 
 is essential that the teacher should possess a proper certificate of qnali- 
 fication during the whole period of liis instruction, and it is therefore 
 incumbent upon the trustees to require an actual production of the cer- 
 tificate, before entering into any contract with a candidate for the post 
 of teacher in their school, that they may ascertain by its examination 
 whether it is granted by the proper officer, is in due form, and has not 
 expired by lapse of time'. 
 
 The Revised Statutes, sec. 4, title 1, chap. 19, part 1, provide tliat 
 " Whenever the term month is or shall be used in any statute, act, deed, 
 
SCHOOL MONEYS. 125 
 
 ■yerbal or written contract, or any public or private instrument whatever, 
 it shall be construed to mean a calendar and not a lunar month, unless 
 otherwise expressed." 
 
 In accordance with this rule it is conceived that the period between 
 the beginning and the ending of the term of instruction must actually 
 include the full period of six calendar months, or, if there has been an 
 intermediate vacation, that the two periods shall in the aggregate amount 
 to six calendar months. This does not imply, however, that the teacher 
 should actually devote one hundred and eighty-two days to instruction. 
 The month of Febniary, for example, may begin and terminate on Sun- 
 day, leaving but twenty-five secular days ; one of these, the 22d, the 
 birthday of Washington, is very generally observed as a public holiday ; 
 and, when so observed, a teacher is discharged from any, obligation to 
 teach school. There are also four Saturdays, on each of which he is 
 entitled to a half holiday, or to the whole of the alternate ones, accord- 
 ing to the custom of the district. The actual month's work would, in 
 this case, be reduced to twenty-three days. The month of July, of 
 thirty-one days, may include five Sundays and five Saturdays, besides 
 the national holiday, the 4th. In this case the actual period of instruc- 
 tion would be but twenty-two days and a half. In both cases, however, 
 the teacher would, unless a special contract to the contrary was made, 
 be entitled to a full month's wages.* The ordinary month's work for a 
 teacher, in the absence of any special agreement to the contrary, is 
 twenty-four days ; but to comply with the above provision, in respect to 
 the allowance of a " district quota," it is believed that the six months' 
 work must extend through six calendar months. 
 
 No. 31. Every district school in which two or more quali- 
 fied teachers are actually employed at the same time, for the 
 period of six months or over, shall be enumerated as so many 
 districts as there have been teachers thus employed during the 
 year, whether any one or more of them had been continuously 
 employed for the whole period of six months or not, providing 
 the number of teachers actually e;n ployed shall have been at 
 no time less than the number at which the district is enume- 
 rated. Pupils employed as monitors, or otherwise, shall not 
 be deemed teachers for the purpose of such enumeration. 
 {Sec. 3, chap. 180 of 1856.) 
 
 In order to entitle a district to the benefit of this provision, it will be 
 necessary to show a strict compliance with the prescribed conditions. 
 
126 APPORTIONMENT OF 
 
 Whether any further evidence than the annual report of the trustees 
 will be required, it is now premature to determine. The statement of 
 the report must be based upon these facts, or they must be made to 
 appear by an affidavit of the trustees, transmitted to the department 
 before the time of making the apportionment, viz : 
 
 1. That two or more teachers, each of whom possessed a legal certi- 
 ficate of qualification during the whole period which the trustees esti- 
 mate as a part of the six months, have been actually employed in 
 instructing the district school, at the same time, for the period of six 
 months or over. 
 
 The instruction may be given in different rooms or in different build- 
 ings ; for all the pupils within the district, under the tuition of teachers 
 employed by^the trustees in their official capacity, however dispersed, 
 constitute but one school. This principle was settled, in respect to the 
 mode of compensating teachers and the equality of rate bills, as long 
 ago as 1826. [See decision of Supt. Flagg, p. 4, Common Schoool Deci- 
 sion; do., p. 66.) 
 
 It is not necessary that all or either of the teachers should have been 
 continuously employed for the whole period of six months. Thus; two 
 qualified teachers may be employed at the same time during three 
 months in the spring ; a vacation may intervene, and two other qualified 
 teachers may be employed for three months in the summer or autumn. 
 The provision, that " the number of teachers actually employed shall 
 have been at no time less than the number at which the district is 
 enumerated," must be construed as meaning at no time during the six 
 months in which the stated number of teachers is alleged to have beeu 
 employed. A construction which would apply the words no tims to 
 the whole year, would debar a district from a double quota, which, 
 having employed but one teacher in the first four months of 1856, should 
 have engaged two immediately after the passage of the act, and kept 
 them continuously employed for the remaining eight months of the 
 year. It was undoubtedly the intention of the legislature that no 
 teacher should be counted twice, because he may have been employed 
 twelve months, and that no device of average or of equivalents should 
 be resorted to for the purpose of computing the number of teachers ; for 
 example, that three months' instruction by two teachers, and six months' 
 additional instruction by one of them, should not be deemed as amount- 
 ing to six months' employment of two teachers. Any interpretation 
 which would give room for such modes of enumeration would afford an 
 unjust advantage to the schools of the larger cities, in which numerous 
 
SCHOOL MONEYS. I2l 
 
 teachers are employed, and which are kept open during the whole year, 
 with brief intervals of vacation. 
 
 2. It must affirmatively appear that no one of the teachers referred to 
 in the statement was a pupil, employed as a monitor or otherwise, 
 during any portion of the period in which he is enumerated as a 
 teacher. 
 
 The policy of the legislature, in the enactment of this section, was 
 unquestionably to encourage the formation of large schools, riassi- 
 fied in different departments, or separated where necessary in different 
 buildings, in preference to the division of districts and the multiplication 
 of feeble schools. 
 
 No. 32. It shall be the duty of the State Superintendent 
 of Public Instruction, on or before the first day of January 
 of each and every year, to apportion and divide the remaining 
 two-thirds of the remainder specified in the preceding sec- 
 tion (No. 27) among the several counties, according to popu- 
 lation, as the same shall appear from the last preceding state 
 or United States census ; but in counties in which are situated 
 cities having a special school act, he shall apportion to each 
 city the part to which it shall be entitled, and to the remain- 
 der of the county the part to which it shall be entitled ; and 
 he shall certify such apportionment, and every other appor- 
 tionment, to the county clerk of the county to which they 
 shall be made, and to the school commissioner or school com- 
 missioners of such county : 
 
 (1.) And the school commissioner, or school commissioners 
 jointly in counties having more than one commissioner, shall 
 forthwith proceed to set apart, to each separate neighborhood 
 and school district within his or their jurisdiction, the amount 
 apportioned to each by the State Superintendent of Public 
 Instruction ; 
 
 (2.) The commissioner or commissioners shall then proceed 
 to divide and apportion the balance of the public school 
 moneys (apportioned according to population for the support 
 of schools within his or their jurisdiction) to the separate 
 neighborhoods, school districts and parts of school districts, 
 joint with parts in any city or a town in an adjoining county, 
 in proportion to the number of children in each (between the 
 ages of four and twenty-one), as the same shall appear from 
 the report of the trustees of the last preceding school year ; 
 and he or they shall specify, in such apportionment, the amount 
 
128 APPORTIONMENT OF 
 
 apportioned to each for library purposes and the amount for 
 teachers' wages ; 
 
 (3.) But no moneys shall be apportioned or set apart by 
 him or them to any separate neighborhood or school district 
 or part of a district (joint with a part in any city, or with a 
 part in a town in an adjoining county), unless it shall appear, 
 from a report of the trustees thereof for the last preceding 
 school year, that a public school was supported by the inha- 
 bitafits thereof for at least six months during the year ending 
 with the date of such report, by a duly qualified teacher, 
 except by special permission of the State Superintendent of 
 Public Instruction ; 
 
 (4.) The commissioner or commissioners aforesaid shall then 
 set apart, to each town within his or their jurisdiction, the 
 money so set apart and apportioned by them to each separate 
 neighborhood therein, to each school district the school-house 
 of which is therein, and to each part of a joint district therein 
 the school-house of which is located in a city or in a town in 
 an adjoining county; 
 
 (5.) A certificate shall then be made by the commissioner 
 or commissioners, showing the amount apportioned to each 
 separate neighborhood, school district, and part of a district, 
 joint as hereinbefore specified, within his or their jurisdiction, 
 and it shall also show the towns in which they are respec- 
 tively situated; 
 
 (6.) One copy of said certificate, signed by the commis- 
 sioner or commissioners, shall be sent to the county treasurer, 
 and one copy to the State Superintendent of Public Instruc- 
 tion, and to the supervisor of each town ; the commissioner 
 or commissioners shall certify the amount of school moneys, 
 so apportioned, which he shall be entitled to receive from the 
 county treasurer, and the portions thereof to be paid by him 
 for library purposes and for teachers' wages to each district, 
 separate neighborhood and part of a district (joint with a 
 part in a city, or with any town in an adjoining county) ; 
 
 ( 7.) The supervisor shall forthwith make a copy of such cer- 
 tificate for his own use, and deposit the original in the office 
 of the town clerk of his town, and the share of the several 
 towns so apportioned shall be paid over to the supervisors on 
 and after the first Tuesday of February of each year ; 
 
 (8.) Sections four and five of the act entitled "An act to 
 establish free schools throughout the state," pas.sed April 12, 
 1851, are hereby repealed. {Sec. 31, c/tajp. 179 of 1856.) 
 
SCHOOL MONEYS. 129 
 
 For the purpose of facilitating the examination of this long section it 
 has been broken into clauses, separated so as to be typographically dis- 
 tinct and numbered, but otherwise conforming to the text and arrange- 
 ment of the statute book. 
 
 The first clause relates to the duty of the State Superintendent in 
 making the apportionment. It differs from his duty under the law, as 
 it stood prior to 1856, in this, that the apportionment, instead of being 
 made to towns and cities, is hereafter to be made to counties, and to 
 such cities as are governed by special school laws. The practical difference 
 resulting from this is, that under the sub-apportionment made by the school 
 commissioner, each town, or rather the districts in each town, will receive^ 
 over and above their respective " district quotas," a sum of money pro- 
 portioned, not to the aggregate population of the town as compared 
 with that of the whole state, but to the number of persons between four 
 and twenty-one years of age in each, as compared with the entire num- 
 ber of such persons in the county. 
 
 The apportionment by the superintendent is made in the following 
 manner : 
 
 First. The amount to which each city and county is entitled for salaries 
 of school commissioners, or, in the language of No, 27, " for and on 
 account of supervision," is ascertained, and the aggregate of those sums 
 is deducted from the $165,000 appropriated to schools out of the reve- 
 nue of the United States deposit fund, unless a distinct appropriation 
 for this purpose be made by the legislature. 
 
 Second. The sum of $56,000, part of the appropriation of $165,000 
 from the revenue of the United States deposit fund, is apportioned to the 
 several counties and cities, in proportion to their population, for district 
 libraries. 
 
 Third. The residue of the appropriation from the revenue of the United 
 States deposit fund is added to the appropriation from the income of 
 the school fund (now $145,000) and the proceeds of the three-quarter 
 mill state tax, and of their gross sum one-third' is apportioned to the 
 several counties and cities of the state, as follows : 
 
 1. The whole number of children between four and twenty-one years 
 of dge belonging to all the separate neighborhoods of this state, attached 
 to districts in adjoining states, is ascertained, and the product of that 
 number, by thirty-three cents, is deducted from the one-third of the 
 residue of public school money ; the residue of such third is then appor- 
 tioned as follows, viz : 
 
 fCoDBl 17 
 
130 APi'ORTlONMENT OF 
 
 2. The whole number of districts in the state, computed as directed 
 in No. 31, is first ascertained, and the quotient, obtained by dividing 
 the one-third above mentioned by tlie whole number of districts, is 
 taken as the " district quotn. It is then ascertained to what mmibor 
 of " district quotas" each district having its scliool-house in a county 
 or city is entitled, and the multiple of such number, by the amount 
 of a district quota, is assigned as the " apportionment, according to 
 districts," of such city or county. 
 
 Fourth. The remaining two-thirds of the residue of public money is 
 then apportioned to the respective counties and cities in proportion to 
 their population, and is deriominatod, in the certificate, " apportionment 
 according to population/' It is only this sum that is subject to reappor- 
 tionment by the school commissioners; and every special permission 
 granted by the superintendent) to include a district in the apportion- 
 ment Of public moneys, relates only to its share in this sum, or what 
 has been denominated its " pupil quota," and not to the district quota 
 in any case, or to library quota unless specially mentioned. 
 
 The second clause of No. 32 declares the duty of the school 
 commissioners with respect to the "apportionment according to dis- 
 tricts," certified to them by the State Superintendent for their respective 
 counties. This duty is to assign to each separate neighborhood and 
 district the district quota which has already been apportioned to it by 
 the superintendent ; that is to say, to credit each separate neighborhood 
 and district, having its school-house within their county, with its quota 
 or quotas, according to the number of children between four and 
 twenty-one years of age in the Separate neighborhood, and according to 
 the number of teachers employed at the same time for six months or 
 over in the districts respectively. Inasmuch as the apportionment made 
 by the superintendent must have been based upon a report furnished 
 by the school commisssoner or his predecessor in office, a reference to 
 that report will enable him to determine to which districts a double or 
 larger quota has been apportioned, to which districts a single quota, and 
 to which (in consequence of no report having been received from it, or 
 of its having failed to have had a school taught by a qualified teacher 
 for six months or over) none at all. If the records and papers of the 
 school commissioners are properly kept, no difficulty will be found in 
 ascertaining the respective quotas of the districts ; and the requisite infor- 
 mation will be furnished by the department, in cases which appear sus- 
 ceptible of doubt. In case, however, the commissioners find themselves 
 unable to distribute the district quotas without applying for instructions 
 
SCHOOL MONEYS. 131 
 
 from the department, they should not on this account delay the appor- 
 tionment of pupil quotas under the next clause, but make and transmit 
 their certificates, and complete the same by a supplemental certificate, in 
 respect to the district quota, as soon as possible afterwards. The super- 
 visors should not be delayed> in obtaining from the county treasurer 
 what moneys may be wanted for the immediate payment of teachers in 
 their respective towns, by any delay in the commissioners making the 
 apportionment according to pupils. 
 
 The third clause of No. 32 defines the duty of the school commis- 
 sioners in apportioning the pupil and library quota to the respective 
 districts within their jurisdiction. For this purpose they are to ascer- 
 tain from the reports of the trustees of the last preceding school year 
 the number of children between the ages of four and twenty-one years 
 in each separate neighborhood, each district, and each part within their 
 jurisdiction of a joint district, the remaining part or parts of which are 
 situated in a city, or in some town or towns in an adjoining county. 
 
 It may happen that several children are twice enumerated in the 
 reports of the trustees, being claimed as residents of two districts, and 
 that the trustees have not yet been brought to agree in the requisite 
 corrections. In case the doubt relates only to which of two districts, 
 both lying entirely within the jurisdiction of the commissioners, certain 
 pupils should, be assigned, there is no difficulty in arriving at the whole 
 number which is to constitute the divisor of the money apportioned to 
 the county according to population. All there is to do is to exclude 
 them from being counted more than once in making up the sum total. 
 Divide the money apportioned according to population for teachers' 
 wages by the whole number of children, and the quotient will be the 
 sum to which each district is entitled for each pupil resident within its 
 bounds. This sum, multiplied by the admitted nmnber of pupils in each 
 separate neighborhood, district and part, will give "the teachers' money 
 to which such neighborhood, district or part is entitled without dispute. 
 There will then remain unappdrtioned a sum equal to the number of 
 children whose residence is in dispute, multiplied by the common 
 multiple, which indicates the money to which a district is entitled for 
 each pupil. This sum should be stated in the commissioner's certificate 
 as ■" reserved for apportionment by a supplemental certificate ;" and after 
 stating in the certificate the sum to which each district is entitled, 
 without dispute, the additional amount to which it may be entitled 
 should be stated as " contingent upon supplemental apportionment." 
 The object is, that the apportionment should be perfected as far as possi- 
 
132 AiPPOnilONMENT OP 
 
 ble without waiting for the final determination in regard to the small 
 sums in dispute upon appeal to the State Superintendent or otherwise. 
 The same method is applicable to the apportionment of library money 
 which is affected in the same way by any doubt as to the district in 
 which pupils ought legally to be enumerated. 
 
 A case may- arise in which the question is, not whether certain chil- 
 dren should be enumerated as residents of one district within the county 
 or of another, but whether they should be enumerated in the county at 
 all. For example, the trustees of a district may have enumerated the 
 pupils at a boarding school who are the children of residents in other 
 counties of this state) and may not have corrected their report at the 
 time the commissioners are called upon to make the apportionment. 
 To include such children will have the effect to reduce in a slight 
 degree the apportionment of every other district in the county. To 
 exclude them, however, would enhance the teachers' money of every 
 other district, ordinarily by an amount so trifling as to be of no conse- 
 quence to those districts, while it would deprive the district claiming to 
 enumerate them of an amount which might be of serious importance to 
 it. It is advisable, therefore, in cases where any serious argument can 
 be made in support of the enumeration of such disputed residents, to 
 count them in the aggregate of pupils in the county, but to exclude them 
 in apportioning the money to the district in which they are claimed ; 
 stating at the same time in the certificate the amount, to which a decision 
 in favor of the right of the district to enumerate them would entitle it, as 
 " contingent upon supplemental apportionment." If its claim is sus- 
 tained by the department, the supplemental certificate should be filed ; 
 if, on the contrary, the claim is rejected, the sum thus reserved may be 
 apportioned in a supplemental certificate, or, if the amount is very small, 
 may remain in the county treasury and be apportioned with that 
 received the next year. 
 
 The course herein recommended accords with that sanctioned by 
 Superintendent Dix, in 1834 (Common School Decisions, page 181 ), and 
 enjoined by his successors at various times since. 
 
 After the amount to which a district is entitled is thus ascertained, a 
 portion thereof is, in certain cases, to be deducted for the support of 
 schools for colored children. For instructions upon this point, see the 
 remarks under a subsequent section relating to that subject. 
 
 A deduction is also to be made for the public moneys apportioned to 
 any district on account of Indian children who may be enumerated as 
 residents therein, and the amount apportioned on their account to be 
 
SCHOOL MONEYS, 133 
 
 separately stated in the certificate, so that the same may be devoted 
 exclusively to their education in separate Indian schools, if they elect to 
 attend such under the regulations for that purpose to be made by the 
 State Superintendent. 
 
 The fourth clause of No. 32 restricts the apportionment to those 
 neighborhoods, districts and paiis as to which it appears,, from the report 
 of the trustees thereof for the last preceding school year, that a public 
 school was supported by the inhabitants and taught by a duly qualified 
 teacher for at least six months during the year ending with the date of 
 such report, except by special permission of the State Superintendent. 
 
 Section 2, of chap. 237 of 1838, amended the Revised Statutes by 
 requiring school to be kept four months, instead of three, to entitle the 
 distiict to an apportionment, " which four months,'' it declared in express 
 terras, " shall be kept by a qualified teacher or teachers after ohlaining a 
 certificate of competency from the school inspectors," This was a legis- 
 lative exposition of the principle, sufficiontly manifest without it, that a 
 certificate cannot be regarded as having a retroactive operation, and this 
 construction has been enforced by the departnlent in applying the sta- 
 tute of 1851, which extended the necessary period of instruction from 
 four months to six. 
 
 Section 24, title 2, chap. 15, part 1 of the Revised Statutes super- 
 added, as a condition to be fulfilled before a district can be entitled to 
 an apportionment, that it shall appear from the report for the last pre- 
 ceding school year " that all moneys received from the commissioners 
 during that year have been applied to the compensation of such teacher," 
 i. c., a teacher possessing a proper certificate of qualification. Sec. 11, 
 chap. 480 of 1847, rcSnacted this provision, and added to it the further 
 condition that it shall appear from such report " that no other than a 
 duly qualified teacher had, at any time during the year, for more than 
 one month been employed to teach the school in said district." Neither 
 of these provisions have been repealed ; and a failure to comply with 
 either of them will render necessary an application to the Superinten- 
 dent of Public Instruction for an order granting special permission to 
 the commissioners to include the delinquent district in the apportion- 
 ment. 
 
 As every order of the department is in its nature a judicial act, and 
 must be based upon legal evidence, an affidavit, duly verified by the 
 trustees or some of them, must be forwarded, .stating, 1st. The delin- 
 quency which excludes the district from Ijie right to an apportion- 
 ment. If it consist in the fact that a school has not been maintained 
 
134 APPORTIONMENT OF 
 
 for six months by a qualified teacher, the affidavit should set forth 
 precisely how long it was taught by a qualified teacher, and for how 
 long a period, if any, by a teacher not possessing a proper certificate. 
 If it consist in the fact that the money apportioned in the pi'eceding 
 year was not wholly expended, it should state liow much was expended, 
 or how much remained unexpended. All money is to be regarded as 
 expended for which the trustees have given a valid order to a qualified 
 teacher, although such order may be outstanding on the 1st of January, 
 in the hands of such teacher or of his assignee, not -having been pre- 
 sented to the supervisor for payment. 2d. The affidavit must state with 
 precision the facts and circumstances which occasioned the delinquency 
 and are supposed to excuse it. The statute confers the power upon the 
 superintendent to " direct an apportionment according to the cauitable 
 circumstances" where an apportionment shall not have been made to any 
 school district in consequence of any accidental omission to make any 
 report required by law or to comply 'with any other provision of law or 
 any regulation. It is not the object of the statute to relieve the district, 
 when the money is lost by a willful violation of duty or the sheer neg- 
 lect of the trustees. In such cases the law gives the district an ample 
 remedy against them, personally ; and it is against public policy that any 
 encouragement should be given to such neglect, by relieving them from 
 its penalty. Such circumstances as the destruction of a school-house by 
 fire, and the inability after suitable effbrt to procure rooms for tempo- 
 rary use as a school-house ; the casual sickness of a teacher, so late in 
 the year that after reasonable effort another qualified person could not 
 be found to complete the six months' instruction before the 31st of De- 
 cember ; such and similar cases of unavoidable accident and hardship, 
 are those which the law intends as the subject of relief. The facts 
 must be stated, and not simply the conclusions of the trustees in respect 
 to them, for it is the duty of the superintendent to judge of the validity 
 of those conclusions. For example, the trustees may state in all honesty 
 that they were unable to procure a teacher, where if the facts were 
 fairly set forth it would be seen that the only reason of such failure was 
 that thoy offered an entirely inadequate compensation. 
 
 The fifth clause of No. 32 requires the commissioners, after ascertain 
 ing the amount apportioned by them to each separate neighborhood, 
 district and part district, to collect and arrange those amounts, so as to 
 show what and how many of them are to be set apart to each .town 
 within their jurisdiction, Each district lying wholly within their juris- 
 dictiou is to be regarded, for this purpose, as if it were situated entirely 
 
SCHOOL MONEYS, 
 
 135 
 
 within the town which contains its school-house. In the case of a 
 district which possesses two or more school-houses, the whole district is 
 to be regarded as being in that town in which its principal or earliest 
 built school-house is situated. To each town is also to be set apart the 
 apportionment for any part of a joint district lying therein, the other 
 part of which joint district is situated in a city or in an adjoining county. 
 It is only in this case that part districts are recognized in the appor- 
 tionment. 
 
 The sixth clause of No. 32 directs the commissioners to make a 
 certificate, which is to show the amount apportioned to each separate 
 neighborhood, district and part of a joint district (in the case above 
 mentioned ) by them, and also the amount apportioned by the State 
 Superintendent to each separate neighborhood and to each district 
 having its school-house in the county. These should be separately 
 stated. The following form may be adopted for the certificate : 
 
 The undersigned, school commissioners for the county of 
 do hereby certify that the sums of money set opposite to the several 
 separate neighborhoods, school districts and parts of districts, within their 
 jui'isdiction in said county, have been apportioned to them respectively 
 by the State Superintendent of Public Instruction as district quotas, to 
 be applied to the payment of teachers, ana oy the undersigned com- 
 missioners for the payment of teachers' wages and for library purposes, 
 according to the headings of the columns in which said sums are respec- 
 tively set down, viz; 
 
 
 Fob Teachim' WAGEg_ 
 
 Fob 
 
 LtBBAKIES. 
 
 TOTAL. 
 
 
 Dutrict 
 quota. 
 
 Pupil 
 quota. 
 
 
 Srnarate neicrhborhood 
 
 «4 62 
 30 10 
 60 20 
 
 00. 
 
 00 
 
 89 80 
 
 35 70 
 
 106 40 
 
 15 40 
 
 2 10 
 
 to 00 
 2 80.5 
 8 36 
 
 1 22 
 
 16.6 
 
 $14 42 
 
 Dist. No. 1, 
 
 68 60.5 
 
 Dist No 2 . . i 
 
 174 9(i 
 
 (Indians.) 
 
 Part of Joint District No. 3 
 
 Bo. contingent, on supplemental ap- 
 portionment 
 
 16 62 
 2 26.5 
 
 
 
 Aggregate (omitting contingent), . . . 
 
 $94 92 
 
 «167 80 
 
 12 38.5 
 
 S274 60.5 
 
 The table is to be continued in the same manner for each town in the 
 county. 
 
 In the above specimen table, District No, 2 is supposed to have main- 
 tained two teachers for six months, while District No. 1 maintained but 
 one, and Joint District No, 3 to have been entitled to no district quota, 
 
136 APPORTIONMENT OF 
 
 or to have its school-house in an adjoining county or city. In the lat- 
 ter case, its district quota will appear in the certificate of the commis- 
 sioners of such adjoining county or city. 
 
 The separate neighborhood is supposed to have fourteen residents, 
 between four and twenty-one years of age; No. 1, 51 ; No. 2, 152; 
 and the part of Joint District No. 3 to have twenty-two admitted resi- 
 dents, and to claim three in addition, whose residence is disputed, and 
 the apportionment on account of them is therefore set down as con- 
 tingent. 
 
 The seventh clause of No. 33 directs the commissioners to send one 
 copy of their certificate to the county treasurer and another to the state 
 superintendent. 
 
 The most convenient form in which to fUrnish the certificate therein 
 required, to be sent to the supervisor of each town, will be to make a 
 transcript of so much of the table of apportionment as relates to the 
 town, and annex thereto a certificate substantially as follows : 
 
 To the supervisor of the town of 
 
 " The undersigned, school commissioners for the county of 
 hereby certify that the foregoing table is a transcript of so much of the 
 apportionment of school moneys for the year 1851 as relates to the 
 town of , in said county, and that the several sums set oppo- 
 
 site to each separate neighborhood, district and part of a district, are 
 the sums which are to be paid upon the orders of the trustees of such 
 neighborhoods and districts respectively for teachers' wages, and to such 
 trustees for library purposes, according to the headings of the columns 
 in which such sums are respectively contained, and that the total 
 amount of school moneys so apportioned, which you are now entitled 
 to receive from the county treasurer, is $ ." State the aggregate, 
 
 excluding all sums contingent upon supplemental apportionment. 
 
 When the right to any moneys contingently apportioned has been 
 finally determined, the commissioners should transmit to the supervisor 
 of the town a certificate stating that fact, and that he is entitled to re- 
 ceive from the county treasurer the further sums of for teach- 
 ers' wages, and for library purposes, stating the districts to 
 which they have been adjudged to belong. They should also transmit 
 to the county treasurer a supplemental certificate of apportionment, in 
 the form above given, except that it should state that "the sums of 
 money heretofore contingently apportioned have been finally appor- 
 tioned to the respective distripts, &c,, opposite to which they are set, to 
 
SCHOOL MONEYS. 137 
 
 be applied to teachers' wages and to library purposes, according to the 
 heading of the columns," &c. 
 
 No. 33. When the census or returns, upon which an appor- 
 tionment is to be made, shall be so liar defective in respect to 
 any county, city or town as to render it impracticable for the 
 superintendent to ascertain the share of school moneys which 
 ought then to be apportioned to such county, city or town, he 
 shall ascertain, by the best evidence in his power, the facts 
 upon which the ratio of such apportionment shall depend, 
 and shall make the apportionment accordingly. ( Sec. (j, title 
 2, chaj). 15, jmrt 1, Revised Statutes.) 
 
 This section is followed in the Revised Statutes by another, which 
 appears to be rendered inoperative by the statute of 1856, superseding 
 the apportionment among towns by the State Superintendent. As, 
 however, it has never been expressly repealed, and the anomalous con- 
 dition of one county (Schuyler) suggests a case in which an appoition- 
 ment between the towns of a county may still be nccessaiy, the section, 
 7, is here inserted. For similar reasons, and for the further one 
 tliat so much of it as directs the apportionment made by the superin- 
 tendentto be certified to the comptroller, has not been replaced by any 
 subsequent statute, section No. 8 of the same title of the Revised 
 Statutes is also here inserted. 
 
 § 1. Wlienever, in consequence of the division 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 snch 
 county, the superintendent shall make a new apportionment 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 ot 
 apportionment, as to such towns, shall depend. 
 
 § 8. The superintendent shall certify each apportionment made by 
 him to the comptroller, and shall give immediate notice thereof to the 
 clerk of each county interested therein and to the clerk of the city and 
 county of New- York ; stating the amount of moneys apportioned to his 
 county and to each town and city therein, 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. 
 
 No. 34. It shall be the duty of the clerk of the board of 
 supervisors in each county of this state, on the last day of 
 December in each year, to transmit to the Superintendent of 
 
 I Code.] 18 
 
138 PAYMENT OF SCHOOL MONEYS 
 
 common schools [Public Instruction] certified copies of all 
 resolutions and proceedings of the board of supei-visors, of 
 which he is clerk, passed or had during the preceding year, 
 relating to the raising of any money for school or library pur- 
 poses and to report particularly the amount of such moneys 
 directed to be raised each town of said county ; and in case it 
 shall not appear that the amount required by law to be raised 
 for school and library purposes has been directed to be raised 
 during the year by the board of supervisors of any county, 
 the Superintendent of common schools [Public Instruction' 
 and the comptroller may direct that the money appropriatec 
 by the state, and apportioned to such county, be withhelc. 
 until the amount that may be deficient shall be raised, or that 
 so much only of the money apportioned to such county be 
 paid to the treasurer thereof as shall be equal to the amount 
 directed to be raised therein by the supervisors of such county; 
 and in such case the balance so withheld shall be added to 
 the principal of the common school fund. ( Sec. 3, cliap. 330 
 of 1839.) 
 
 It will be seen by No. 4:l,post, that an additional remedy is provided 
 for the case where, though the board of supervisors have directed the 
 raising of the school tax upon their county, the actual collection and 
 payment thereof into the state treasury is delayed beyond the proper 
 time. 
 
 OF THE PAYMENT OF SCHOOL MONEYS INTO THE STATE 
 TREASURY, AND OF THEIR DISTRIBUTION. 
 
 No. 35. Dues to the state, which have heretofore been paid 
 to the secretary of state in the capacity of superintendent of 
 common schools, shall hereafter be paid into the state trea- 
 sury; and all balances, now standing to the credit of the 
 superintendent of common schools or the Superintendent of 
 Public Instruction, shall be immediately transferred to the 
 credit of the treasurer of the state. ( Sec. 1, chap. 228 of 1854. ) 
 
 No. 36. The treasurer shall transfer from one depository to 
 another, by a draft to be countersigned and entered by the 
 Superintendent of Public Inslruction, any school moneys 
 standing to his credit ; and no such moneys shall be transfer- 
 red from one depository to another except by such draft 
 ( Sec. 2, chap. 228 of 185i.) 
 
AND THEIR DISTRIBUTION. 189 
 
 No. 37. All moneys, now authorized by law to be paid or 
 advanced by the superintendent of common schools or the 
 Superintendent of Public Instruction, and all moneys which 
 shall hereafter be authorized to be paid or advanced out of 
 the school moneys, shall be paid by the treasurer upon the 
 warrant of the Superintendent of Public Instruction; but no 
 warrant shall be drawn, unless authorized by law, and shall 
 refer to the law under which it is drawn. ( Sec. 3, chap. 228 
 0/1854.) 
 
 This provision is " limited in its application to school moneys raised 
 by taxation" by the third section of chap. 18 of 1855, No. 39, post. 
 So much of the school moneys as are derived from the revenues of the 
 school fund and of the United States deposit fund are distributed upon 
 the tvarrant of the comptroller, according to a certificate made to hini 
 by the superintendent of the share of such moneys to which each county 
 and city is entitled. 
 
 No. 38. The said superintendent shall countersign and enter 
 all checks drawn by the treasurer in payment of his warrants, 
 and all receipts for school moneys paid to the treasurer, and 
 no such receipt shall be evidence of payment unless so coun- 
 tersigned. {Sec. 4, cJiap. 228 o/1854.) 
 
 Limited, as mentioned in note to No. 37. 
 
 No. 39. The act entitled " An act in relation to school 
 moneys," passed April 15, 1854, shall be limited in its appli- 
 cation to school moneys raised by taxation. ( Sec. 3, ckuj). 18 
 0/1855.) , 
 
 The act herein mentioned consists of the four preceding sections, 
 Nos. 35, 36, 37 38. 
 
 No. 40. The sum annually to be distributed for the encour- 
 agement of common schools shall be paid on the 1st day of 
 February in every year, on the warrant of the comptroller, 
 to the treasurers of the several counties and the chamberlain 
 of the city of New- York. {Sec. 12, title 2, chap. 15, part 1 cf 
 Revised Stututes.y 
 
 The article in which the preceding section is contained is entitled, 
 " Of the Distribution of the Common School Fund;" and the sum 
 annually to be distributed, at the time that article took effect, was the 
 
140 PAYMENT OF SCHOOL MONEYS 
 
 appropriation from the revenue of the common school fund, as stated in 
 the note to No. 25. By chap. 237 of 1838, the sums of $110,000 for 
 teachers' wages, and $55,000 for district libraries, were appropriated 
 from the income of the United States deposit fund, and directed to be 
 distributed " in like manner and upon the like conditions as the school 
 moneys are now or shall be hereafter distributed." The sum required 
 to be distributed on the first day of February, on the warrant of the 
 comptroller, does not include the proceeds of the state tax for the sup- 
 port of schools which are paid on the warrant of the superintendent. 
 See No. 31 and note thereto. 
 
 No. 41. The comptroller is hereby authorized to withhold 
 the payment of any moneys, to which any county may be 
 entitled from the appropriation of the incomes of the school 
 fund and the United States deposit fund for the support of 
 schools, until satisfactory evidence shall be furnished to him 
 that all moneys required by law to be raised by taxation upon 
 such county, for the support of schools throughout the state, 
 have been collected and paid, or accounted for to the state 
 treasurer ; and whenever, in consequence of the failure of 
 any county to pay such moneys, there shall be a deficiency 
 of moneys in the treasury applicable to the payment of school 
 moneys to which any other county 'may be entitled, the trea- 
 surer and Superintendent of Public Instruction are hereby 
 authorized to make a temporary loan of the amount so defi- 
 cient; and such loan, and the interest thereon until payment 
 shall be made to the treasury, shall be a charge upon the 
 county or counties in default, in proportion to the amount 
 and duration of its or their defalcation i-espectively, and shall 
 be added to the amount of state tax, and levieU upon such 
 county or counties by the board of supervisors thereof, at the 
 next ensuing assessment, and shall be paid into the treasury 
 in the same manner as other taxes. {Sec. 2, chap. 18 of\^bb.) 
 
 The object of the legislature in the preceding provision was to pre- 
 vent the moneys raised for school purposes in the several counties from 
 being withheld from the state treasury, and being temporarily employed 
 to supply the deficiencies in the county treasuries arising from delay 
 in the collection of taxes imposed for county purposes. It is therefore 
 required that the county's proportion of the school tax should have 
 been actually collected, and either paid into the state treasury or accounted 
 for — as it might be by receipts from the supervisors of their respective 
 
AND THEIE DISTRIBUTION. 141 
 
 toTyns, showing the payment to them, on account of the apportionment 
 to their towns made by the State Superintendent and the school com- 
 missioners, of an amount equal in tne aggregate to the school tax duo 
 from the county — before the county treasurer is authorized to require 
 from the comptroller a warrant for the amount apportioned to his county 
 from the incomes of the school fund and United States deposit fund. 
 
 It also subjects the county to the payment of interest upon so much 
 of its school tax as is withheld from the state treasury, whenever it 
 becomes necessary to make a loan to famish the state treasury with the 
 funds for the payment of school moneys to any other county which is 
 not in default, and is therefore entitled to immediate payment, 
 
 It is obviously, therefore, the duty of the county treasurer, for the 
 purpose of protecting his county from the liability to the pa3rment of 
 interest on a loan to be made on its account, to regard the first moneys 
 which come to his hands from the town collectors as belonging exclu- 
 sively to the school fund. Other claims may be postponed without 
 incurring a charge for interest, while this cannot. The power and duty 
 of the treasurer and State Superintendent to make loans under this sec- 
 tion is not suspended, when, as is often the case, the legislature extends 
 the time for the collection of taxes; and it would be most unjust that 
 the schools should suffer in those counties which have collected their 
 taxes promptly, for want of the exercise of that power, at the expense 
 of the counties where their collection is delayed, either by an extension 
 of the time for collection or by the return of non-resident lands. In 
 the latter case, the county treasurer can obtain the money or a credit 
 thereof from the comptroller, for all the arrears of taxes admitted by 
 him, and should not therefore subject the school tax to any deduc- 
 tion or reservation on account of returned lands. 
 
 No. 42. The treasurer of each county, and the chamberlain 
 of the city of New- York, shall apply for and receive the 
 school moneys apportioned to their respective counties, as soon 
 as the same become payable. {Sec. 13, tiile2, chap. 15, part 1, 
 Revised Statutes.) 
 
 No. 43. Each treasurer receiving such moneys shall give 
 notice in writing to some one or more of the commissioners 
 of common schools [supervisor] of each town or city in his 
 county, of the amount apportioned to such town or city, and 
 shall hold the same, subject to the order of such [supervisor] 
 
142 PAYMENT OF SCHOOL MONEYS 
 
 commissioaers. {Sec. 14, title 2, chap. 15, part 1, Revised 
 Statutes. ) • 
 
 No. 32, ante, provides for a notice, from tlie school commissioners to 
 the supervisor of each town, of the amount apportioned thereto. The 
 only object of a notice from the treasurer is that the supervisor should 
 be informed that the money is actually in the treasury, subject to his 
 order. While the supervisor should not wait for such notice, the obli- 
 gation to give which is now rather matter of argument than of express 
 injunction, there is an obvious propriety in the treasurer giving it at 
 the earliest possible day. 
 
 No. 44. The public school moneys heretofore paid to town 
 superintendents, or on their orders, shall be paid only to the 
 supervisors of the towns. ( Sec. 19, chap. 179 of 1856. ) 
 
 Treasurers of counties have no right to deduct from the amount of 
 the school moneys apportioned to each town a commission of one per 
 cent. They are unquestionably entitled to such a commission, under 
 sec. 26, 1 R. S., 370, 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, under an appor- 
 tionment, by the superintendent. Tlieir commission is a charge upon 
 the county, and not upon the common school fund. {Com. School, D^c's, 
 279.) 
 
 No. 45. Before the county treasurer of any county shall 
 pay over to the supervisor of any tovpn in said county the 
 public school moneys apportioned for the support of schools 
 therein, he shall require the said supervisor to deposit with 
 him a' bond to the treasurer, in behalf of the town, executed 
 by said supervisor, with two or more sufficient sureties, to be 
 approved by said treasurer, in the penalty of double the 
 amount of said school moneys, conditioned for the faithful dis- 
 bursement, safe keeping and accounting for such moneys, and 
 of all other school moneys that may come into his hands from 
 any other source ; and whenever the said bond shall be for- 
 feited, it shall be the duty of the county treasurer to prosecute 
 for the penalty of the same, in his own name, in behalf of the 
 town, and the money recovered shall be paid over to the 
 supervisor of the town succeeding the supervisor in default. 
 {Sec. 20, chap. 179 '/1856.) 
 
AND THEIR DISTRIBUTION. 143 
 
 The bond to be given under tbis section must be renewed every year, 
 as its penalty in each case is to be double the amount of the school 
 moneys then to be paid. Its form may be as follows : 
 
 Know all men by these presents, that we, John Doe, supervisor of 
 
 the town of , in the county of , and Richard Roe and 
 
 Samuel Styles, of the same town (or as their residence respectively 
 may be), as his sureties, are held and firmly bound unto Stephen 
 
 Holdfast, treasurer of the county of , in the penalty of 
 
 dollars and cents (being double the amount of the public moneys 
 
 apportioned for the support of schools in the town of , aforesaid), 
 
 to be paid to the said Stephen Holdfast, treasurer, his successors in 
 office, attorney or assigns ; to which payment, well and truly to be made, 
 we bind ourselves jointly and severally by these presents, sealed with our 
 
 seals and dated this day of , in the year of our Lord . 
 
 The condition of this obligation is such, that if the above bounden 
 John Doe, supervisor, shall faithfully disburse, safely keep and justly 
 account for the school moneys apportioned as aforesaid, and all other 
 school moneys that may come into his hands from any other source, 
 then this obligation to be void, otherwise to remain in full force and 
 virtue. 
 
 John Doe. [ l. s. j 
 
 Richard Roe, [ l. s. J 
 Samuel Styles. [ l. s. ] 
 
 Tliis bond as a matter of prudence should be acknowledged before a 
 commissioner of deeds or other ofiicer authorized to take acknowledg- 
 ments, and the sureties should be required to indorse upon the bond an 
 afiidavit that each of them is a freeholder, and worth the amount of the 
 penalty over and above all debts incurred or liabilities assumed by him. 
 It is only upon such an affidavit that boftds required in legal proceedings 
 are approved ; and it is a matter of justice to the county treasurer that 
 he should protect himself from personal liability for taking an insufficient 
 bond by following the legal method of ascertaining its sufficiency. If, 
 after such affidavits are indorsed on the bond, the county treasurer is 
 satisfied with the sureties, he should indorse his approval in the follow- 
 ing form : 
 
 I hereby approve the within bond, as to its form and manner of exe- 
 cution and the suflBciency of the sureties therein. Dated . 
 
 Stephen Holdfast, 
 
 Treasurer of County. 
 
U4 PAYMENT OF SCHOOL MONEYS. 
 
 No. 46. In case the commissioners [supervisor] of any 
 such city or town shall not apply for and receive such 
 moneys, or in case there are no commissioners appointed in 
 the same before the, ne*xt receipt of moneys apportioned to 
 the county, the moneys so remaining with the treasurer shall 
 b^ retainjid by him, and be added to the moneys next received- 
 by him for distribution from the Superintendent of common 
 schools [Public Instruction], and be distributed therewith 
 and in the same proportion. { Sec. 15, tit. 2, chap. 15, ^;a/t ] 
 of Revised Statutes. ) 
 
 The commissioners referred to in this section are not the School com- 
 missioners of the county, but " commissioners of common schools," a 
 board of town officers, whose office was abolished by chap. 133 of 1843, 
 and their duties devolved upon the " town superintendent of common 
 scliools." All the duties of town superintendents in relation to the 
 receipt and disbursement of school moneys being, by chap. 179 of 1856, 
 devolved upon the supervisors, the latter officer stands in the place of 
 the former town commissioners of common schools for all the purposes 
 of the preceding sectiouv 
 
 The case provided for by this section is now of very improbable 
 occurrence , and the mode of disposing of the money remaining with 
 the treasurer is inconsistent with the requisitions of subsequent statutes. 
 So far as the money apportioned to the town for " district quotas'' is 
 concerned, it is not a thing of proportion, as between the towns of the 
 county ; and the right of a district thereto, having vested for any one 
 year, is not to be affected by a different distribution made in the suc- 
 ceeding 3'car, The same is true in relation to the money apportioned 
 for pupil quotas and for libraijes. The possession by the county 
 treasurer must be regarded, so far as the rights of the districts are con- 
 cerned, precisely as its possession by the supervisor would have been, 
 had the latter received it, as he ought to have done. Further legislation 
 may be necessary to provide a proper remedy for the districts, in the 
 default of a supervisor to receive and hold the money as their trustee ; 
 but so much of the section as might seem to authorize a distribution of 
 it by the treasurer to the several towns of his county must, from its 
 inconsistency with the existing law, be deemed to be repealed. 
 
 No. 47. The amount of money necessary to pay the salaries 
 of the school commissioners, and which shall be annually 
 apportioned by the State Superintendent of Public Instrnctioa 
 
DISBURSEMENT OF MONEYS. 145 
 
 from the United States deposit fund for that purpose, as here- 
 inbefore provided, shall be drawn from the income of that 
 fund, upon th€ warrant of the comptroller, and retained in the 
 treasury to be paid out by the treasurer to the several school 
 commissioners, upon the order of the said State Superin- 
 tendent. (Sec. 32, chap. 179 o/"1856.) 
 
 OF THE CUSTODY AND DISBURSEMENT OF SCHOOL 
 MONEYS ;BY the SUPERVISORS OF TOWNS. 
 
 No. 48. Whenever the board of supervisors of any county 
 in this state shall have appointed a commissioner or commis- 
 sioners, in pursuance of this act, and such ofiicers shall have 
 taken the constitutional oath of office, henceforth, and after 
 that time, the office of town superintendent of common 
 schools for the several towns in such county shall be abol- 
 ished, and each town superintendent shall forthwith pay over 
 to thie supervisor of his town all school moneys unexpended, 
 with a full statement of all moneys received and paid out by 
 him since the last annual report made by him or his prede- 
 cessor, and of the moneys remaining in his or his predecessor's 
 hands at the time of making such report. He shall also 
 specify in such statement the last apportionment made to the 
 school districts, separate neighborhoods and parts of joint 
 districts in his town, and shall, also state specifically the part 
 of such apportionment paid to each, and the balance thereof 
 due to each. If it shall appear that any former town super- 
 intendent has neglected or refused to render to his successor 
 in office such full statement of all moneys ireceived and paid 
 out by him during his official term or terms, it shall be the 
 duty of the commissioners creat'ed under this act, or any one 
 of them, to require such delinquent town superintendent, by 
 notice in writing, to make such return to the supervisor of his 
 town within twenty days from the date of such service ; and 
 if, after, having been duly served with such notice, he still 
 neglects or refuses to make such return as aforesaid, or show 
 good cause why he has not done so, he shall be guilty of a 
 
 ^nisdemeanor, and it phall be the duty of the supervisor of 
 the town, or of any commissioner created by this act, to sue 
 
 , for and recover all moneys in the hands of any defaulting 
 tovpn superintendent. {Sec. 17, chap. 179 of 1856. ) 
 
 [Code.] 19 
 
146 CUSTODY AND DISBURSEMENT 
 
 No. 49. Every supervisor who shall embezzle any of such 
 moneys, or any moneys that shall come into his hands by 
 virtue of this act, shall be deemed guilty of a misdemeanor. 
 {Sec. 18, chap. 179 oflS56.) 
 
 •No. 50. The said supervisors, in the disbursement of and 
 accounting for school moneys which shall come into their 
 hands, shall be governed by the same laws and rules as are 
 now applicable to town superintendents. Each of the said 
 supervisors shall keep a just and true account of all the school 
 moneys received and disbursed by him during each year, and 
 shall lay the same, with proper vouchers, before the board 
 of town auditors, at each annual meeting of such board. {.Sec. 
 21, chap. 179 0/1856.) 
 
 The law which governed town superintendents, and now governs the 
 supervisors in the disbursement of so much of the school moneys as is 
 apportioned for the payment of teachers' wages, requires them to pay it 
 upon the written orders drawn upon them by a majority of the trustees 
 of each district in favor of qualified teachers. If the order is regular 
 upon its face — that is to say, if it bears the signature of a majority of the 
 persons acting in fact as trustees of a district, under color of an election, 
 in favor of a person whom it states to be a duly qualified teacher em- 
 ployed by them in the district during the year in which it is drawn and 
 in payment of his wages as such teacher — it is a suflScient voucher for 
 the supervisor, and it is not for him to inquire whether the trustees 
 have exceeded their authority or acted improperly in drawing the order. 
 If presented by any other person than the teacher in whose favor it is 
 drawn, it should bear his written indorsement, or order for payment 
 to a specified person. 
 
 Library money may be paid to any person upon the written order of 
 a majority of the trustees, or to either of the trustees upon the written 
 receipt of a majority of them. 
 
 The account to be kept under this section may be a simple cash 
 account, in which the supervisor, ^ersoJiaZZy and in his individual name, 
 is charged with all school moneys received by him and credited with 
 each pajrment, specifying the date, the person to whom and the account 
 on which it was made. It would conduce to accuracy and convenience, 
 in passing his accounts before the board of town auditors, to number 
 each credit consecutively, and to aflSx the same number to the order, 
 receipt or other voucher to be produced in proof of payment and in 
 
OF SCHOOL MONEYS. 147 
 
 support of such credit. This account should be kept in a bound hook, 
 to be handed over to his successor in oflSce, and a transcript of such 
 account be drawn off, and, with the accompanying vouchers, be pre- 
 sented to the board of town auditors for their examination. As that 
 examination may take place before the close of his official term, it would 
 be well, upon its completion, to have the town auditors enter upon the 
 original account, in the blank book, their certificate that they have 
 examined such account up to and including the last preceding entry 
 (giving its date) and the vouchers therefor and have audited and allowed 
 the same. 
 
 In addition to the cash account of the individual supervisor, a con- 
 tinuous account is to be kept between each district and the supervisor, 
 officially, without break or change when a new incumbent succeeds to 
 the office, as will be explained under No. 51. 
 
 The board of town auditors is required by law to meet annually in 
 each town, at the place of holding the last town meeting, on the last 
 Thursday preceding the annual meeting of the board of supervisors of the 
 county. ( Ckap. 228 of 1844.) It consists, for the purpose of examining 
 the supervisor's account, of the town clerk and justices of the peace, or 
 any two of the justices of the peace. The supervisor, who is ordinarily 
 a member, cannot, of course, act in his own case. The account to be 
 presented to them, is to be accompanied by an affidavit, attached to and 
 to be filed with such account, made by the person presenting or claim- 
 ing the same, that tha items of such account are correct, and that the 
 disbursements charged therein have been in fact made. (Sec. 2, chap, 
 490 of 184'7.; 
 
 No, 51. The said supervisor shall, within fifteen days after 
 the termination of his office, render to his successor in ofBce 
 a just and true account, in writing, of all school moneys by 
 him received before the time of rendering such account, and 
 of the manner in which the same or any part thereof shall 
 have been expended by him; and the account so rendered 
 shall be« delivered by such successor in office to the town 
 clerk, to be filed and recorded in his office ; and the town 
 clerk shall forthwith send a copy of such account to the 
 school commissioner. Each supervisor shall keep a bound 
 blank book, in which all his receipts and disbursements of 
 school moneys shall be entered by him, specifying from 
 whom, and the purpose for which they were received ; and 
 to whom, and the purpose for which they were paid out. 
 
148 
 
 CUSTODY AND DISBURSEMENT 
 
 The cost of such book shall be a charge upon his town ; and 
 said book shall be delivered to his successor in office. ( Sec. 
 22, chap. 179 o/1856.) 
 
 The account to be rendered by the supervisor to his successor in 
 office, includes as well that portion thereof which has been examined 
 by the town auditors as that which relates to his subsequent receipts 
 and disbursements. Inasmuch as it is to be filed and recorded in the 
 office of the town clerk, it must, independent of and in addition to the 
 original cash account, be entered upon the blank book. 
 
 The object of an account book to be kept by the supervisor and to 
 pass to his successors in office, is to enable the latter to ascertain at any 
 future time the state of the accounts of each district with any of their 
 predecessors at any given date. To effect this object it is essential that 
 a separate account should be kept with the trustees of each district and 
 separate neighborhood, regarding them as a perpetual corporation. It 
 is in substance an account between the district and the town, which is 
 not broken or affected by any change in the officers of either. It may 
 bo in the following form : 
 
 Trustees of District No. 2, with the Supervisor of town of . 
 
 Dr. 
 
 1856. 
 
 July 27th. To paid Miss Anna 
 Davis, teacher's wages, 
 on order of Jl D. and 
 G. S., trustees (voucher 
 
 No. 12), ..;. 
 
 Sept. 3d. Paid Noah Parsons 
 on teacher's wages, on 
 order of J. D. and L. M., 
 trustees (voucher Np. 
 
 Sept. 25th. Paid L. M. and 
 P. S., trustees, library 
 money (voucher No. 46), 
 
 Oct. 22d. To copy Code of 
 Public Instruction 
 
 $42 
 
 21 
 
 4 
 1: 
 
 Cb. 
 
 1856. 
 
 June 7th. By cash received 
 from late town super- 
 intendent for teachers' 
 
 wages, 
 
 Do. for library, 
 
 1857. 
 
 April 2d. Cash of county 
 treasurer for teachers' 
 
 wages 
 
 Do. for library, 
 
 May 12th. Cash of county 
 treasurer on supplemen- 
 tal apportionment for 
 
 teachers' wages, 
 
 Do. for library, 
 
 166 
 8 
 
 80 
 18 
 
 60 
 36 
 
 10 
 16 
 
 No. 52. On rendering such account, if any balailce shall 
 be found remaining in the hands of such supervisor, the same 
 shall be immediately paid by him to his successor in office, 
 who shall hold it subject to the order of the trustees of any 
 school districts, parts of district, or to the trustee of any sepa- 
 rate neighborhood, to which the same may have been appor- 
 tioned, arid which shall be eiltitled to receive it. {Sec.' 23, 
 chap. 179 of 1856.) 
 
OF SCHOOL MONEYS. 149 
 
 The orders and other vouchers of the account of the superyisor. going 
 out of oflBce belong to him only in his oflBcial character, and should be 
 delivered to his successor, precisely as if he was vacating an official 
 place of business in which such vouchers were by law required to be filed 
 and kept. On turning them over to his successor, the latter should 
 give to his predecessor a receipt which may be substantially in the 
 following form : 
 
 Eeceived of John Doe, late supervisor of the town of — - — '-, 
 
 dollars and cents for balance of school moneys remaining 
 
 in his hands. 
 
 Also, vouchers from No. to No. , both inclusive, in support 
 
 of his charges for disbursements, bearing the same numbers in his cash 
 
 account, and amounting in the aggregate to the sum of dollars 
 
 and ■ — cents. 
 
 Also, one (or two or more, as the case may be) bound account book, 
 and one copy Hull's Treatise on Town Officers (or whatever other books, 
 papers or other property are in his custody as supervisor). Dated 
 
 R. EoE, Supervisor of . 
 
 The account book should contain an inventory of all books or other 
 property which may from time to time come into the custody of the 
 supervisor in the discharge of his duties as a school officer. 
 
 No. 53. It shall be the duty of the supervisor, by his name 
 of office, to sue for and recover all penalties and forfeitures 
 imposed by any act relating to schools in respect to which 
 no provision is made, or for any default or omission by any 
 town superintendent, or any other town officer or school 
 district officer or officers, now required to be sued for by the 
 town superintendent ; and, after deducting his costs and 
 expenses, shall report the balance in his hands to the com- 
 missioner, who shall apportion the same to the district or 
 districts to which the same may belong. ( Sec. 24, chap. 179 
 0/1856.) 
 
 The commissioner to whom the sums collected for penalties and for- 
 feitures are to be reported, is the school commissioner of the assembly 
 district or section of a county in which the supervisor's town is situated. 
 It will be requisite to state in the report under what section of the law 
 and against what school officer the several penalties were recovered, to 
 enable the commissioner to determine whether they belong to any and 
 what district, or are to be apportioned to several districts. 
 
150 CUSTODY AND DISBURSEMENT. 
 
 Wo. 54. All the powers and duties formerly possessed and 
 exercised by the trustees of the gospel and school lots, and sub- 
 sequently, by section one of chapter one hundred and eighty- 
 six, Laws of one thousand eight hundred and forty six, con- 
 ferred upon town superintendents of common schools, are 
 hereby conferred and imposed upon the supervisors of towns, 
 and shall hereafter be exercised and performed by them. 
 (Sec. 27, chap. 179 of 1856.) 
 
 In accordance with the above sections, whenever the words " town 
 superintendents" occur in the following extracts from the statutes, they 
 have been changed to " supervisors." 
 
 Town School Funds. 
 
 The act passed in ll89 for the sale of lands belonging to the people 
 of this state required the surveyor-general to reserve, in each township, 
 one lot for the support of the gospel, and one lot for the use of schools 
 jn such township. 
 
 The following is a list of the principal reservations of this nature, viz : 
 
 One lot, of 550 acres, in each of the twenty-eight townships in the 
 military tract. 
 
 Forty lots, of 250 acres each, in each of the twenty townships west of 
 the Unadilla river, being ten thousand acres. 
 
 One lot, of 640 acres, in each of the townships of Fayette, Clinton, 
 Greene, Warren, Chenango, Sidney and Hampden, then in the counties 
 of Broome and Chenango. 
 
 Ten lots, of 640 acres each, in the townships along the St. Lawrence. 
 
 In the township of Plattsburgh 400 acres were reserved for the use 
 of a minister -of the gospel, and 460 acres for the use of a public school 
 or schools in the said township. 
 
 In the township of Benson 640 acres were reserved for gospel and 
 schools. 
 
 By an act passed in 1798, in relation to gospel and school lots, it is 
 provided " that the moneys arising from the leasing of the said lots of 
 land as aforesaid, and from the trespasses aforesaid, 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 respectively situated, and for no 
 other purpose ; which said application shall bo made either for schools 
 or gospel, or both, and in such way and manner as the freeholders and 
 inhabitants of the towns, in which the same lands shall lie, shall in legal 
 town meeting from time to time direct, order and appoint." 
 
OF SCHOOL MONEYS. 151 
 
 By an act passed in 1808, the act of 1798 was extended to all the 
 townships where lots of land are reserved for the support of gospel and 
 schools, and the following provision was added : 
 
 "§ 1. Beit enacted, dc, That the moneys arising from the annual 
 rents and profits of the gospel lots in each township shall be equally 
 divided, by the supervisor and commissioners appointed in each town- 
 ship, between the several religious societies legally organized in such 
 township, and that the money arising from the annual rents and profits 
 of the several school lots shall be distributed among the schools kept in 
 each respective township, by teachers to be approved of by the super- 
 visor and commissioners constituted by the act to which this is an 
 amendment, or a majority of them in said township, in proportion to 
 the aggregate number of days which the scholars in each respective 
 school shall have respectively attended such schools in the year imme- 
 diately preceding such division." 
 
 The fourth section of an act concerning the gospel and school lots, 
 passed in 1813, is as follows : 
 
 " Ajid be it further enacted, That the rents, issues and profits of the 
 aforesaid lands, and the annual interest of the moneys arising from the 
 sale thereof, shall be applied by the said trustees [supervisor] for the 
 time being to the support of the gospel and schools in their several 
 towns, in such manner as the freeholders and inhabitants of the towns, 
 respectively, at their annual town meeting, shall order and direct, or as 
 the legislature shall prescribe by law." {Session Laws of 1813, p. 151.) 
 
 In 1819, an act was passed in relation to the gospel and school lots, 
 which contains the following section : 
 
 " § 2. And be it further enacted, That all moneys now due or here- 
 after to become due, and which shall have come into the hands of the 
 aforesaid commissioners of public lots, and have not been applied and 
 paid over to religious societies, shall be apportioned among the several 
 school districts in the several towns of the aforementioned counties 
 [Onondaga, Cayuga and Seneca], anything in the acts heretofore passed 
 to the contrary notwithstanding." 
 
 By § 1 of chap. 186, Laws of 1846, "the oflBce of trustees of the 
 gospel and school lots in the several towns in this state is hereby abo- 
 lished ; and the powers and duties now by law conferred and imposed 
 upon said trustees shall hereafter be exercised by the town superinten- 
 dent of common schools [supervisor]." 
 
 By the provisions of chap. 15, title 4, of part 1 of the Revi^d 
 Statutes, the trustees of the several gospel and school lots [supervisor] 
 were authorized and required : 
 
 " 1 . To take and hold possession of the gospel and school lot of their town. 
 
 " 2. To lease the same for such time, not exceeding twenty-one years, 
 and upon such conditions as they shall deem expedient. 
 
 " 3. To sell the same, with the advice and consent of the inhabitants 
 of the town, in town meeting assembled, for such prices and upon such 
 terms of credit as shall appear to them most advantageous. 
 
152 CUSTODY AND DISBURSEMENT 
 
 "4. To invest the proceeds of such sales in loans secured by bond 
 and mortgage upon unincumbered real property of tbe value of double 
 tbe amount loaned. ... 
 
 " 5. To purchase property so mortgaged upon a foreclosure, and 
 to hold and convey the property so purchased, whenever it shall become 
 necessary. 
 
 " 6. To release the amount of such loans repaid to them upon the 
 like security. 
 
 " 1. To apply the rents and profits of such lots, and the interest of 
 the money arising from the sale thereof, to the support of the gospel 
 and schools, or either, as may be provided by law, in siich manner as 
 shall be thus provided. 
 
 " 8. To render 'a just and true accoupt of the proceeds of the sales, 
 and the interest , on the loans thereof, and of the rents and profits of 
 such gospel and school lots, and of th« expenditure and appropria,tion 
 thereof, on the last Tuesday next preceding the annual town meeting 
 in each year, to the board of auditors of the accounts of other town 
 officers. 
 
 " 9. To deliver over to their successors in office all books, papers and 
 securities relating to the same, at the expiration of their respective 
 offices : and 
 
 " 10. To take therefor a receipt, which shall be filed in the clerk's 
 office of the town. 
 
 " § 4. The board of auditors in each town shall annually report the 
 state of the accounts of the trustees of the gospel and school lots 
 [supervisor] in that town to the inhabitants thereof, at their annual 
 town meeting. 
 
 " § 5. Whenever a town, having lands assigned to it for the support 
 of the gospel or of schools, shall be divided into two or more towns, or 
 shall be altered in its limits by the annexing of a part of its territory to 
 another town or tdwns, such lands shall be sold by the trustees [super- 
 visor] of the town in which such lands w§re included immediately 
 before such division or alteration ; and the proceeds thereof shall be 
 apportioned between the towris interested therein, in the same manner 
 as the other public moneys of towns so divided or altered are appor- 
 tioned. 
 
 "§ 6. The shares of suchmoneys to which the towns shall be respec- 
 tively entitled shall be paid to the trustees of the gospel and school 
 lots [supervisor] of the respective towns, and shall thereafter be subject 
 to the provisions of this title. 
 
 *" § 7. If in either of such towns trustees of gospel and school lots 
 shall not have been chosen, or there be none in office, the share of such 
 town shall be paid to the supervisor." 
 
 No. 55. All the powers and duties imposed upon the com- 
 missioners of common schools, by the act passed April twenty- 
 seventh, one thousand eight hundred and twenty-nine, entitled 
 " An act relative to moneys in the hands of overseers of the 
 
OF SCHOOL MONEYS. 153 
 
 poor," passed April twenty-seventh, one thousand eight hun- 
 dred and twenty-nine, are hereby imposed upon the supervi- 
 sors of towns. {Sec. 29, chap. 179 of 1S56.) 
 
 The act herein referred to is as follows ; the word "supervisor" being 
 substituted in place of " town superintendent" wherever the latter is used : 
 
 An Act relative to moneys in the hands of overseers of the poor. 
 
 Passed April 27, 1829. 
 
 " § 1. It shall be lawful for the inhabitants of any towli, in such 
 counties as have abolished the distinction between county and town 
 paupers, and in such counties as may hereafter abolish such distinction, 
 at any annual or special town meeting, to appropriate all or any part 
 of the moneys and ftinds remaining in Sie hands of the overseers of the 
 poor of such town, after such abolition, to such objects and for such 
 purposes as shall be determined at such meeting. 
 
 " § 2. If any such meeting shall appropriate any such money or ftinds 
 for the benefit of common schools in their town, the money so appro- 
 priated shall be denominated ' the common school fand of such town,' 
 and shall be under the care and superintendence of the [supervisor] of 
 said town. 
 
 " § 3. If any such meeting shall appropriate such money or funds for 
 the benefit of common schools, after such appropriation shall have been 
 made, and after the [supervisor] shall. have taken the oath of office, the 
 overseers of the poor of such towns shall then pay over and deliver to 
 the said [supervisor] such moneys, bonds, mortgages, notes and other 
 securities 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 [supervisor] may 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 this act. 
 
 " § 6. The moneys, bonds, mortgages, notes and other securities 
 aforesaid shall continue and be a permanent 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 annual town meeting, 
 shall make a different disposition of the whole of the principal and 
 interest, or any part thereof, for the benefit of the conamon schools of" 
 such town. 
 
 " § 6. The said [supervisor], whenever the whole or any part of the 
 principal of said ftind shall 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 artificial erections thereon. 
 
 " § 1. The said [supervisor] may 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. 
 
 rCoDE.] 20 
 
154 OF THE ELECTION OF 
 
 " § 8. The said [supervisor] shall retain the interest of said common 
 school fond, which- shall be distributed and applied to the support of 
 common schools of such town, in like manner as the public money for 
 the support of common schools shall be distributed by law. 
 
 "§ 9. The said [supervisor] shall account annually, in such manner 
 and at such times as town officers are required by law to account, and 
 shall deliver to their successors in office, all moneys, books, securities 
 and papers whatsoever relating to said fund, and shall take a receipt 
 therefor, and file the same with the town clerk." 
 
 No. 56. All the powers and duties imposed upon town 
 superintendents, by sections seventy-two, seventy-three, 
 seventy -seven, eighty and one hundred and thirteen of chapter 
 four hundred and eighty. Laws of one thousand eight hundred 
 and forty-seven, are hereby imposed upon the supervisors of 
 the towns. (-Sec. 26, chap. 179 0^1856.) 
 
 Each of the sections above referred to will be found in its proper 
 connections modified in conformity to No. 56. 
 
 OF THE ELECTION OF SCHOOL COMMISSIOlSffiRS. 
 
 No. 57. The boards of supervisors of the several counties 
 in this state, composing each one assembly district, and also 
 the boards of supervisors of each of the counties of Fulton 
 and Hamilton, shall assemble at their usual place of meeting 
 on the 3d day of June next, at noon, and elect for their 
 county an officer to be called school commissioner. Such 
 officer shall be elected by ballot, and shall hold his office from 
 the day of his election until the 1st day of January, 1858. 
 ( Sec. 1, chap. 179, passed April 12, 1856. ) 
 
 No. 58. The boards of supervisors of the several counties 
 in this state having more than one assembly district, except 
 the counties of New- York and Kings, shall meet on the 3d 
 day of June next, at noon, and elect by ballot an officer to be 
 called school commissioner, for each assembly district in their 
 respective counties, who shall hold his office until the Istday 
 of January, 1858. (Sec. 2, chap. 179 of 1856.) 
 
 No. 59. The supervisors of the towns of Flatbush, Flatland, 
 Gravesend, Newlots and New Utrecht, in the county of 
 Kings, shall, on the 3d day of June next, meet at the usual 
 place of meeting of the board of supervisors of said county, 
 
SCHOOL COMMISSIONERS, 155 
 
 and elect by ballot a schoor commissioner for that portion of 
 said county not included within the city of Brooklyn, -who 
 shall hold his office from the day of election until the 1st day 
 of January, 1858, and until a successor shall have been 
 elected by the inhabitants of the said towns in the manner 
 hereinafter provided. ( Sec. 3, chap. 179 of 1856. ) 
 
 No. 60. In the several counties composing each but one 
 assembly district, the respective boards of supervisors shall 
 have power and are hereby authorized, in their discretion, to 
 choose two school commissioners whenever the number of 
 school districts in the county shall exceed 140, counting two 
 parts of districts, joint with other counties, one district. In 
 case two commissioners shall be chosen as aforesaid, then the 
 board of supervisors shall immediately proceed to divide the 
 county into two districts or sections, having reference in such 
 division, as nearly as may be, to equalize the territory and 
 number of schools and pupils under the supervision of each 
 commissioner, and also having reference to the density of 
 population and the facilities for traveling. They shall make a 
 description of the divisions established by them, and assign 
 the charge of one of tbera to each of the commissioners then 
 chosen. But no town shall be divided in the formation of 
 any such district. Such description shall be filed in the office 
 of the county clerk, and a copy thereof sent by him to the 
 Superintendent of Public Instruction. {Sec. 4, chap. 179 
 0/1856.) 
 
 No. 61. In case any two persons shall have an equal num- 
 ber of votes for the office of commissioner, at the election 
 hereinbefore provided for, the clerk of the board may give a 
 casting vote, but, except for that purpose, shall have no vote 
 in the proceedings. ( Sec. 5, chap. 179 of 1856. ) 
 
 No. 62. A certificate of the election of every commissioner 
 shall forthwith be made by the clerk of the board of super- 
 visors and filed in the office of the county clerk, and a dupli- 
 cate thereof be sent by mail to the Superintendent of Public 
 Instruction ; and the county clerk, upon the filing of such 
 certificate, shall forthwith give notice, in writing, to the 
 school commissioners of their election, who shall, within ten 
 days after such notice, take and subscribe the constitutional 
 oath of office, and shall give notice of their acceptance to the 
 Superintendent of Public Instruction, and enter upon their 
 
156 OF THE ELECTION OF 
 
 duties immediately. Tkey shall hold their office uatil the 1st 
 day of January, 1858, and until their successors shall have 
 taken and filed with the county clerk the like oath of office. 
 (Sec. 6, cAop. 179 0/1856.) 
 
 No. 63. At the annual general election held in the year 
 1857, and every three years thereafter, there shall be elected 
 on a separate ballot, to be endorsed " School Commissioner," 
 in the several assembly districts, and in the sections of single 
 assembly districts formed and designated as hereinbefore pro- 
 vided, and in the towns of Kings county not included in the 
 city of Brooklyn, a school commissioner for such district or 
 section. All the provisions of law relating to the mode of 
 voting and of canvassing the votes for county officers shall 
 apply to and govern the election of such commissioners. 
 The persons so elected shall enter into office on the Istday 
 of January, 1858, and shall hold office for three years, and 
 lantil their successors shall have qualified according to law. 
 Each of such commissioners, in counties where more than one 
 is elected, shall take charge of that one of the assembly dis- 
 tricts, or that one of the sections into which any county 
 having but one assembly district may be divided, for which 
 he shall have been elected ; but may, upon the written 
 request of the commissioner in charge of any other section 
 of the same county, perform any duties therein which he might 
 discharge in the section of his own residence. {Sec. 7, chap. 
 179 0/1856.) 
 
 The jurisdiction of tl^ig school commissioner is strictly limited., to tho 
 district for which'he is elected. But the commissioner may at times be 
 necessarily absent, or he may from sickness or injury be unable to per- 
 form his duties, or he may be incapa(piteted by some legal disability. 
 In such cases his written request will call to his aid another commis- 
 sioner of the same county. 
 
 But whenever a commissioner is so called upon to exercise any 
 powers or perform any duties' out of his own jurisdiction, and the acts 
 are of an important and permanent character, such as ought to be 
 recorded or be put in writing, as for instance certificates, or alterations 
 of districts, he should in every written instrument recite the written 
 request, under which he is acting, substantially or in full. It would also 
 be advisable to file such written request in the office of the county clerk. 
 
SCHOOL COMMISSIONEKS. 157 
 
 for safe keeping and future reference, in case any question should arise 
 as to the validity of his acts. 
 
 No. 64. Every commissioner shall have power, and it shall 
 be his duty : 
 
 1. To visit and examine all the schools and school districts 
 coinmitted to his charge, as often in each year as shall be 
 practicable ; to inquire into all matters relating to the man- 
 agement, the course and mode of instruction, the books, 
 studies and discipline of such schools, the condition of the 
 school-houses, out-buijdings and appendages, and of the dis- 
 tricts generally ; to advise and counsel with the trustees and 
 other officers of school districts in relation to their duties, 
 and particularly in relation to the construction, ventilation 
 and warming of school-houses, and the improving and adorn- 
 ing of the school grounds connected therewithj and to recom- 
 mend to such trustees and to the teachers employed by them 
 the proper studies, discipline and management of the schools, 
 the course of instruction to be pursued, and to examine into 
 the condition of the district libraries. No commissioner shall 
 act as agent for any author, publisher or bookseller, or shall 
 directly or indirectly receive any gift, emolument or reward 
 for his influence in recommending the use of any book or 
 school apparatus or furniture of any kind whatever. Any 
 act herein prohibited shall be deemed a violation of his official 
 oath, and any offer or solicitation to such an act shall be con- 
 sidered an attempt to bribe and corrupt a public officer ; 
 
 2. To examine persons oflering themselves as candidates for 
 teachers of public schools, in order to determine and to decide 
 upon their capacity, and to grant them certificates of qualifi- 
 cation, in such forms as shall be prescribed by the Superinten- 
 dent of Public Instruction, which certificates, according to 
 the terms thereof, shall be evidence of the' qualifications of 
 such teachers in the district of the county to which such com- 
 missioner shall be elected, or to which he shall be assigned in 
 accordance with the provisions of this act ; 
 
 3. To annul any certificate granted to any teacher by him 
 or by his predecessor, or by any town or county superinten- 
 dent, whenever such teacher shall be found deficient, and to 
 examine, upon reasonable notice and opportunity of defense 
 to the teacher, into all charges aflTecting the moral character 
 of the teacher, which may be presented as a cause for annul- 
 ling a certificate, by whomsoever such certificate may have 
 
158 DUTIES OF 
 
 been granted, and he shall report every instance of such 
 examination, the evidence vs^hich may be presented in the case, 
 to the Superintendent of Public Instruction, immediately after 
 the conclusion of such examination ; 
 
 4. To organize and conduct at least once in each year, in 
 his own district or in concert vpith the commissioner or com 
 missioners of one or more adjoining districts in the same 
 county, a teachers' institute, and to induce, if possible, all the 
 comnion school teachers in his district to be present and take 
 part in the exercises of such institute ; and to perform the 
 duties imposed by chapter three hundred and sixty-one, Laws 
 of one thousand eight hundred and forty-seven, upon town 
 superintendents, and to give the notice therein required to be 
 given by the county clerk; 
 
 5. And generally by all means in his power to promote 
 sound education, elevate the character and qualifications of 
 teachers, improve the means of instruction, and advance the 
 interests of the schools committed to his charge. ( Sec. 8, 
 chay. 179 o/1856.) 
 
 For greater convenience and a clearer understanding of the subject, 
 the several subdivisions of this section ■will be commented upon sepa- 
 rately : 
 
 1. To visit and examine all the schools and school districts committed 
 to his charge, as often in each year as shall be practicable ; to inquire 
 into all matters relating to the management, the course and mode of 
 instruction, the books, studies and discipline of such schools, the cofidi- 
 tion of the school-houses, out-buildings and appendages, and of the dis- 
 tricts generally ; to advise and counsel with the trustees and other 
 officers of schpqi^(iJstricts in relation to their duties, and particularly in 
 relation to the construction, ventilation and warming of school-houses, 
 and the improving and adorning of the school grounds connected there- 
 with, and to recommend to such trustees and to the teachers employed 
 by them the proper studies, discipline and management of the schools, 
 the course of instruction to be pursued, and to examine into the condi- 
 tion of the district libraries. No commissioner shall act as agent for 
 any author, publisher or bookseller, or shall directly or indirectly receive 
 any gift, emolument or reward for his influence in recommending the 
 use of any book or school apparatus or furniture of any kind whatever. 
 Any act herein prohibited shall be deemed a violation of his official 
 oath, and any offer or solicitation to svich an act shall be considered an 
 attempt to bribe and corrupt a public officer. 
 
 The duties comprised in this subdivision may be stated under two 
 heads : 
 
 I. Visiting and inspecting the schools. 
 
SCHOOL COMMISSIONERS. 159 
 
 II. Advising and counseling with the trustees and other school 
 officers and with teachers. 
 
 I. The number of commissioners in the state, excluding the cities, is 
 one hundred and thirteen. Each commissioner is required to visit all 
 the schools in his district each year, as often as is practicable. Tlie 
 number of districts to be visited by any commissioner will, in a few 
 cases, reach one hundred and fifty ; perhaps, in most cases, will be less, 
 and in some a little more, than one hundred. Allowing half a day to a 
 visit, it will be found practicable to visit each school and school district 
 in the state not less than three times a year. It would be found useful, 
 where practicable, to assemble together two or three schools, and devote 
 a whole day tb their examination. A comparison of schools would 
 excite emulation, and improve both scholars and teachers. 
 
 Having acquired a complete and familiar knowledge of the geography 
 of his district, the commissioner should arrange a plan for visitation, as 
 a judge does the terms of his courts, for a year or two years. It would 
 be well to print his programme, and distribute it in every town and 
 district, so that trustees and pupils and people may be prepared for his 
 visits. The publishers of newspapers would be found ready to insert the 
 programme of visitation in their papers, as an item of news highly 
 important to their subscribers and readers. 
 
 In addition to this general notice, the commissioner should give a 
 particular notice to the trustees and teacher of every school, of the day 
 when he will be present and examine the school. He should invite the 
 trustees to inform the parents of pupils of his visit, and urge them 
 to attend, 
 
 Exarnxnatian, of the School : Preparatory to this, the commissioner 
 should ascertain from the teacher the number of classes, the studies 
 pursued by each, the routine of the school, the successive exercises of 
 each class during each hour of the day, the play spells allowed, &c., 
 and thus obtain a general knowledge of the school, which will be found 
 greatly to facilitate his subsequent duties. Every commissioner is 
 enjoined to call for and examine the list of scholars in the book which 
 the statute requires the teacher to keep, in order that he may see 
 whether the names are correctly and neatly entered. He will also 
 examine the dai/ roll and the weekly roll, which by the preceding regu- 
 lations teachers are directed to preserve, and will ascertain, by the pro- 
 per inquiries, whether they are exact in entering all who are present. 
 
160 DUTIES OF 
 
 The commissioner will then hear each class recite the ordinary les- 
 son of the day. It will then, be examined on the subjects of study. 
 Generally it will be better to allow the teacher to conduct the exercises 
 and examinations, as the .pupils will be less likely to be intimidated, 
 and an opportunity will be given of judging of the qualifications of the 
 instructors. 
 
 To enable him to compare the school with itself at another time; and 
 with other schools, and to comply, with the regulations hereinafter 
 contained respecting the annual reports, the commissioner should 
 keep notes of his observations^ and of the information he obtains on all 
 the subjects on which he is required to report ; and he should particu- 
 larly note any peculiarities which seem to require notice in the mode 
 of instruction, in the government and ■■ discipline of the school, and the 
 appearance of the pupils in respect to their cleanliness of person and 
 neatness of apparel. 
 
 n. Advising and consulting with other officers of the district. 
 
 This duty is especially enjoined by the act upon commissioners. The 
 law, in the broadest terms, requires them to advise and counsel the trus- 
 tees and other school officers in relation to all their duties. 
 
 The performance of this duty will demand great care and circum- 
 specljon. It should be constantly borne in mind that the office of an 
 adviser and counselor is to ascertain facts and learn the true condition 
 of things,'and then to suggest and prbpose' improvements and remedies. 
 Interrogatories, judiciously aimed at abuses, errors, mistakes and omissions, 
 will call attention to them as clearly as if they were condemned outright, 
 and at the same time give no ofifence. ' ' ' 
 
 The advice and counsel needed will generally come under the heads 
 of proper studies ; the discipline and conduct of the school ; the course 
 of instruction ; the elementary books ; the erection of school-houses ; 
 and the ability of the district to maintain a school. 
 
 1. The proper studies: The proper studies vary with the age and 
 advancement of the ^scholars. The great object of the common schools 
 is, miquestionably, to instruct the youth of the state in the ordinary 
 branches of a good English education. To spell, to read and write, 
 should be the first care. As soon as a child can write, spelling and 
 writing should be one exercise. The meaning of the words spelled 
 should also be explained to the scholar, as a great assistance to the 
 memory. Correct spelling and a clear comprehension of the words are 
 essential to good reading. A distinct articulation of every syllable is 
 the most important requisition. A correct, and not too forcible accent, 
 
SCHOOL COMMISSIONERS. 161 
 
 an utterance neither too rapid nor too slow, and a clear understanding 
 of the subject, are also important requirements. 
 
 The commissioner will carefully note tiie capabiUties of the scholars, 
 and their grade of improvement, and advise that no studies be imposed 
 or permitted until the pupil can enter upon them understandingly. The 
 hill of science must be climbed with patient assiduity, step by step. 
 Some may be able to step faster than others ; but whoever attempts to 
 overleap any of its acclivities, will be sure to fall back, and be compelled 
 to start anew. 
 
 2, The discipline and conduct of the school : The commissioners can- 
 not too strongly inculcate the necessity of a punctual and continuous 
 attendance during school hours for the whole term. Teachers should 
 be advised 'to insist upon this. The first hour of a session, in the 
 morning or afternoon, should not be interrupted by the noisy dropping 
 in, everv few minutes, of truant and tardy children. The interruption 
 is not the worst of the evil. The want of punctuality involves the loss 
 of time that should be applied to study ; and the tardy and often absent 
 soon lag behind their associates, become disheartened, relax their efforts, 
 and finally, in many cases, acquire a habit ot irregularity, insubordi- 
 nation and negligence, which marks their character through life. 
 
 Order and system should prevail in the whole conduct of the school. 
 The routine of recitations and other exercises should be regulaf and 
 seldom changed. The pupils should give a ready obedience to the 
 commands of the teacher, and a strict compliance with rules and regu- 
 lations should be exacted. Pupils should be instructed that these com- 
 mands, rules and. regulations are not imposed upon them as a restraint 
 or humiliation, but for their good ; as the best means of expediting the 
 sole business of the school, their acquisition of knowledge. 
 
 The commissioners should also observe whether the teachers possess 
 the respect of their scholars, and whether -their deportment in and out 
 of the school is such as to pres^re it. They should particularly note 
 how the authority of the teacher is maintained ; whether it is the result 
 of a mild and conciliating, but firm and steady go^mment, or whether 
 it is an unwilling submission to the arbitrary rule of a high temper and 
 the fear of the rod. 
 
 3. The course of instruction : The order of studies which long expe- 
 rience has decided to be best, and which is generally followed, is, the 
 alphabet, spelling, reading, arithmetic, geography, history and grammar. 
 To learn the names of things is among the earliest efforts of the infant 
 
 rCoDK.l 21 
 
162 DUTIES OF 
 
 mind. It is the work of several years to master the simplest combi- 
 nations of language. In teaching the elements of knowledge, therefore, 
 great discretion and discrimination are necessary in graduating instruc- 
 tion to the capacity of pupils. Primary books should contain only 
 familiar household words and the commonest forms of speech. When 
 these have been mastered, others of a higher grade should be substi- 
 tuted ; and the pupil should be all the time, insensibly but constantly, 
 climbing an ascending grade. 
 
 The four simple rules of arithmetic are easily taught, not by arbitrary 
 rules and a few examples, but by continual practice and repetition, with 
 blocks or balls, by which the numbers are represented to the eye. 
 The little boy who sells newspapers, or peddles peanuts and apples, 
 will learn in a few weeks all the combinations of simple numbers, less 
 than one hundred, without having ever heard of Colburn or Emerson. 
 Make a purchase of him, and hand him a quarter of a dollar, and he 
 will make his computation and give you the change as promptly as the 
 readiest bank teller. 
 
 Geography, by means of maps, charts and globes, may be taught at a 
 very early age. History requires a more advanced age. The study of 
 history and geography may be combined. In the course of the reading 
 lessons, and during the lesson in history, whenever a place is named the 
 pnpir should be required to point it out on the map. A daily newspaper 
 may be of essential service in teaching geography and current history 
 The use of a map, with a daily paper, will very soon make the pupils 
 acquainted with all the principal commercial ports and political divisions 
 of every part of the world. Geography' and history, thus learned, would 
 be indelibly impressed upon the memory. Biography, however, has a 
 charm for the. very young, and many brief narratives might be made 9 
 part of the school exercises. Grammar, treating of the structure and 
 composition of language, is a difiioult study, and should not be under- 
 taken till the mind of the pupil has attained a maturity and strength 
 capable of comparing, analyzing and combining phrases and sentences. 
 To read, to speak land to write, correctly and elegantly, may all be 
 learned without consulting a grammar. But a knowledge of English 
 grammar is a very important part of a good common education, and its 
 study a very useful exercise of the intellectual powers. 
 
 4. Books of elementary instruction; : Within the last few years a great 
 improvement has been made in elementary books. A great many series 
 of books, elucidating and illustrating every branch of education in our 
 ecmimon schools, have been published. None of them are so defective 
 
SCHOOL COMMISSIONERS. 163 
 
 as to require exclusion from the scLools, and none of them are compara- 
 tively so superior to others as to merit particular recommendation. Trus- 
 tees should be advised not to permit every new teacher to introduce a new 
 set of books. A teacher is very poorly qualified who cannot use one 
 set of text books as well as another. The trustees should exercise their 
 authority, in relation to text books, to prevent any unnecessary change, 
 and to preserve an uniformity. Classes of the same grade should have 
 the same books. 
 
 Whenever the commissioner finds in any school a number of pupils 
 of the same standing using difi'erent books, and classed separately, he 
 should point out the evil, by showing how, if all had the same books, 
 one class and one recitation would suffice for all, and the teacher's cor- 
 rections and observations, repeated to several classes, might be limited 
 to one, and much valuable time of pupils and teacher be saved. 
 
 Where the evil of a variety of text books prevails, it might not be 
 advisable to compel uniformity by an immediate change of books. 
 The trustees could however decide upon the text books to be used, and 
 require every scholar who should afterwards have occasion to purchase a 
 new book to conform to their decision. 
 
 A serious charge against county superintendents was, that they acted 
 as book agents ; how many, if any, were liable to such a charge cannot 
 be determined. The present law relieves them not only from numerous 
 importunities, but from the imputation of recommending text books on 
 account of self-interest. It is very desirable that the books used in the 
 same school should be uniform ; but it is not desirable, among the first 
 and prominent acts of the commissioners, to make a general change 
 of text books. The reforms in the schools depend more upon the teacher 
 than upon the influence of any series of books. 
 
 In ities and large villages, the adoption of uniform text books is a 
 pecuniary advantage to the people, particularly to the transient popula- 
 tion that frequently move from one district to another, and are generally 
 least able to purchase new books. But the positive necessity of 
 uniformity is not so apparent in adjacent rural districts. The inhabi- 
 tants there do not often change their residence. It is not best to be 
 indiflferent as to the merit of text books, but to exercise prudence in 
 recommending them. It is desirable that the people should understand 
 that while the interests of their children command the first attention, 
 the subject of expenses has also a fair consideration. Their confidence 
 and cooperation will thus be secured. 
 
164 DUTIES OF 
 
 5. School-hotises and ffroundt : It is highly important that an earnest 
 appeal be made to the trustees and inhabitants of the several school 
 districts to give attention to the condition and improvement of school- 
 houses and grounds. It is not possible to have schools high-toned and 
 in healthy spirit, where inattention to comfort and beauty exists. If any 
 element of character unfavorable to order and progress is called into 
 morbid activity, it may often be traced to this source. 
 
 Health of body and vigor of mind should be carefully regarded. 
 There should never be too long confinement in school rooms. Pure 
 air is absolutely indispensable. It has been suggested, by distinguished 
 writers on education, that six hours of daily confinement will impair the 
 health of the great majority of pupils ; that with the very best ventila- 
 tion, no school room containing a score or more of children can be as 
 healthy as the open air ; hence, that no pupil should be kept in school 
 for a longer time than is necessary to fix his attention upon his lessons. 
 Growth and development of body are indispensable to the future well- 
 being of the child and to realize the ideal of a well constituted man or 
 woman. To this end the enjoyment of pure, fresh air, unconstrained 
 attitudes of body, ample exercise and exhilarating play, are absolutely 
 necessary ; and the school-house, its location and grounds, should supply 
 these wants. The mind of every child craves, receives and assimilates 
 knowledge. We should so adapt our educational facilities that the 
 desire for intellectual acquirement shall remain through life unimpaired. 
 But very many children are so stupefied by the noxious air which they 
 are compelled to breathe six hours every day, their vital appparatus so 
 wearied, th^t they acquire an abhorrence of school and a disgust for 
 study which are never eradicated. It is in the nature of things that any 
 exertion, connected with physical suflfering or oppressive sense of con- 
 straint, induces repugnance. Hence, in spite of the efforts employed to 
 impress such children with an earnest conviction of the importance of a 
 good education, they regard the school room as a prison, tiie vacations 
 as seasons of delight, and adult age as the era of emancijjation from an 
 arduous bondage. 
 
 It is the vocation of the commissioners to discover and suggest a 
 correction for these evils. "When they visit school-houses, they should 
 notice whether they are properly located. Many are situated on the 
 line of the highway. They should be removed from it sufficiently far 
 to escape the noise, dust and other inconveniences. If they are old, and 
 a few boards and shingles and a little paint will improve their external 
 appearance, and make them internally more safe and comfortablej surely 
 
SCHOOL COMMISSIONERS. 165 
 
 they should be applied. If the doors are broken or the seats and desks 
 marred, they should be repaired and adapted to the physical comfort 
 of the pupils ; if the grounds need grading, it should be done ; if pools 
 of stagnant water are near, they should be drained and filled ; if the 
 proper fencing is required, let the subject receive prompt attention. 
 Trees should be planted, shrubs and flowers should be set. Let free 
 application be made of broom, brush and lime, to renovate the internal 
 economy of the school room. Willing hands enough can be found in 
 every school district to make all the improvements suggested, provided 
 attention is directed to their importance. . Certainly it is the school- 
 house, if any building, which ought to be constructed and preserved 
 with care and surrounded with pleasant scenery. Few parents would 
 reside in a dwelling constructed with as little regard to beauty and 
 comfort as are many of our school-houses. They should care as well for 
 the place where their children congregate for instruction. They should 
 be impressed with the conviction, that there the associations of nature 
 and art should be attractive, to secure on the part of scholars a love for 
 their school ; that associations with order and beauty give birth, in the 
 minds of the young, to pure and holy emotions, whose happy influence 
 will establish them in purity of desire and thought. 
 
 The attention of trustees should be called to this subject ; and, if 
 possible, they should be induced to appoint a suitable day for making 
 necessary improvements and embellishments. Let the matrons and 
 maids assist. Let the children participate in the work; they should 
 share the pleasure and receive the lesson it would teach. 
 
 2. To examine persons ofi"ering themselves as candidates for teachers of 
 public schools, in order to determine and to decide upon their capacity, 
 and to grant them certificates of qualification, in such forms as shall be 
 prescribed by the Superintendent of Public Instruction, which certificates, 
 according to the terms thereof, shall be evidence of the qualifications of 
 such teachers in the district of the county to which such commissioner 
 shall be elected, or to which he shall be assigned in accordance with the 
 provisions of this act. 
 
 The commissioners, being the only persons in their several districts 
 authorized to grant certificates, should be prepared to make examinations, 
 whenever making their round of visitations. To afford every reasonable 
 accommodation to persons who may ofi'er themselves, they should 
 appoint some particular day and place, in each town, where they will 
 be in readiness to examine teachers. It would also be well to give 
 notice in the county papers in the spring and fall, just before the sum- 
 mer and winter terms generally commence, of certain times and places 
 
166 DUTIES OF 
 
 at whicli applications may be made to them for licenses. Such notices 
 would probably bring together several applicants, and thereby lessen 
 the labor and time required for examination. One or more hours of 
 each day might be set apart for this purpose, at the time of holding a 
 teachers' institute. 
 
 The examination should be confined to ascertaining the qualifications 
 of candidates, under three heads, viz : in respect, first, to moral charac- 
 ter ; second, learning ; third, ability. 
 
 First. The testimonials as to moral character should be full and 
 explicit, and should be from persons long and intimately acquainted 
 with the applicant. This is no unimportant matter ; and this department 
 establishes it as a positive regulation, that no certificate is to be granted 
 without entire satisfaction on this point. The training of youth must 
 not be committed to persons of bad manners and questionable morals. 
 Children will necessarily be more or less influenced by the example of 
 their teachers, whose principles, therefore, should be such as to inspire 
 confidence, and whose behavior worthy of imitation. 
 
 The commissioner will be careful not to push his inquiries beyond 
 the field of morals, and extend them into the debatable ground of opinion, 
 religious or political. All he can ask is that the applicant shall hold a fair 
 reputation, free from the reproach of crime, or any taint of immorality. 
 He would be justified in rejecting a noisy zealot, with manners rude, 
 obtrusive and offensive, indicating uncurbed passions and unsound prin- 
 ciples of conduct, liable to render him obnoxious to the inhabitants and 
 unfit for a teacher of youth. The use of intoxicating liquors would be 
 a serious objection to the 'character of a teacher. Temperance and 
 sobriety should be demanded of every applicant. The objection is to 
 the drinking of spirituous liquors, and not to drunkenness only. Per- 
 sons under the influence of intoxicating drinks seldom act calmly and 
 deliberately, but are liable to outbreaks of passion, moments of petulance, 
 seasons of unnatural excitement or depression, entirely unfitting them 
 for the government of a school or the management of young people. 
 
 The man who puts the inebriating cup to the lips of a child is 
 instinctively execrated, and no voice is ever raised to justify the inhuman 
 act. However besotted and degraded a man may be, he would be glad 
 to have his children grow up pure, temperate and respected. In all 
 nations, and all ages the corrupters of youth have been stigmatized as 
 the worst enemies of society and of the state. A rule, therefore, which 
 excludes from the office of teacher the habitual drinker of intoxicating 
 
SCHOOL COMMISSIONERS. 167 
 
 liquors, harmonizes with the better feelings of the inebriate himself as 
 well as with the general sense of mankind. 
 
 Second. As to the learning of applicants. 
 
 The improvement in text books, the use of charts and philosophical 
 apparatus, and the general diffusion of knowledge, has raised the stan 
 dard of qualification for teachers within the last ten years. Notwith- 
 standing the faults and defects of our school system, there is abundant 
 proof that it has produced fruit an hundred fold, and that our common 
 schools, throughout the state, are now the best schools, and have almost 
 entirely superseded private instruction. While, therefore, teachers, must 
 bear an examination on the same subjects as formerly, a much more 
 minute, accurate and extensive knowledge of them is required. 
 
 In spelling, reading and penmanship, they_ are expected to be profi- 
 cients, and they should also be well versed : 
 
 1st. In the definition of words ; 
 
 2d. In arithmetic, mental and written ; 
 
 3d. In geography ; 
 
 4th. In the use of charts, globes and school apparatus. 
 
 Sth. In the principles of English grammar ; and, 
 
 6th. In the history of the United States, England, and of Europe 
 generally, and in universal history ; 
 
 7. In the science of government, at least they should know the char- 
 acter and operation of our own state and national governments. 
 
 In a large majority of the schools, a limited acquaintance with the 
 last three heads is admissible, if the applicant is familiar with the other 
 branches. 
 
 It may be advisable, also, if the power is exercised with due discretion, 
 to grant certificates permitting the holder to teach a particular school, 
 or to occupy the post of an assistant in departmental schools. The 
 same extent and degree of knowledge is not needed to fill a subordinate 
 place, and hear recitations in primary classes, as to take charge of a 
 large school. Many summer schools may also be profitably intrusted 
 to young girls, not qualified by age, education or experience to take 
 charge of large schools. 
 
 In some schools, especially in high and union fi-ee schools, the range 
 of examination might include the higher branches of mathematics, 
 physiology and mental philosophy. 
 
 In all cases a familiarity with the current history of the present time, 
 gathered from newspapers, should be rsquired. 
 
168 DUTIES OF 
 
 Third, Ability to teach. This implies soiliething more than good 
 character and mere learning. A faculty of imparting knowledge 13 
 essential to success as a teacher. The management of a school requires 
 a certain tact in dealing with children ; a patience and good nature not 
 possessed by every one, and by very few in the same degree. The com- 
 missioners, by general inquiries and by pertinent questions to the appli- 
 cant, on personal examination, may form a very fair judgment of his 
 qualifications in these respects. Subsequently, their observations on 
 visiting the schools will enable them to correct their judgment. Certifi- 
 cates, in the first instance, should be granted for a term not exceeding 
 a year. A second one should not be given to a person whose ill nature, 
 or petulance, or want of tact, or incapacity to impart instruction, 
 disqualifies him for the proper government of a school. 
 
 Having satisfied themselves of the qualifications of the applicant, the 
 commissioners will grant certificates, in the following forms : 
 
 Certificate of the First Grade. 
 
 To ALL TO WHOM THESE PRESENTS SHALL COME : Be IT KN0W^, 
 
 that I, , school commissioner for the district, in the 
 
 county of , having examined A. B., and having ascertained 
 
 his qualifications in respect to moral character, learning and ability to 
 instruct a common school, do hereby certify that he is duly qualified, 
 and that his experience in and devotion to the profession entitle him to 
 the rank of a teacher of the first grade, and he is accordingly hereby 
 LICENSED to teach any common school in this district for three years 
 from this date. 
 
 Given under my hand, this day of , in the year one 
 
 thousand eight hundred and 
 
 C. D. 
 
 Certificate of the Second Grade. 
 
 To ALL TO WHOM THESE PRESENTS SHALL COME : Be IT KNOWN, 
 
 that I, , school commissioner for the district, in the 
 
 county of , having examined , and having ascer- 
 
 tained his qualifications in respect to moral character, learning and 
 ability to instruct a common school, do hereby certify that he is 
 qualified and entitled to the rank of a teacher of the second grade, and 
 he is accordingly licensed to teach common schools in any town in 
 this district for the term of one year from this date. 
 
SCHOOL COMMISSIONERS. 169 
 
 Given under my hand, this day of , in the year one 
 
 thousand eight hundred and 
 
 CD. 
 
 Third Grade — lAmited Forms. 
 
 To ALL TO WHOM THESE PRESENTS SHALL COMB : Be IT KNOWN, 
 
 that I, , school commissioner for the ' district, in the 
 
 county of , having examined A. B., and having ascertained 
 
 his qualifications in respect to moral character, learning and ability to 
 instruct a common school, do hereby certify that he is entitled to the 
 rank of a teacher of the third grade, and is qualified to teach the school 
 in District No. , in the town of , in this district, and 
 
 not elsewhere, and he is accordingly hereby licensed to teach the said 
 school for the term of one year from this date. 
 
 Given under my hand, &c. C. D. 
 
 Another. 
 
 To ALL TO WHOM THESE PRESENTS SHALL COME : Be IT KNOWN, 
 
 that I, , school commissioner for the district, in the 
 
 county of , having examined , and having ascertained 
 
 qualifications in respect to moral character, learning and ability 
 to instruct a common school, do hereby certify that he is entitled to 
 the rank of a teacher of the third grade, and is qualified for the place 
 of first (or second) assistant in the school in the district, in the 
 
 town of , and is accordingly hereby licensed to teach in 
 
 said school in that capacity for one year from this date. 
 
 Given under, &c. C. D. 
 
 Another. 
 
 To ALL TO WHOM THESE PRESENTS SHALL COME : Be IT KNOWN, 
 
 that I, , school commissioner for the district, in the 
 
 county of , having examined A. B., and having ascertained 
 
 his qualifications in respect to moral character, learning and ability to 
 instruct a common school, do hereby certify that he is entitled to the 
 rank of a teacher of the third grade, and is qualified to be a teacher in 
 the primary department in the public schools in this district (or city), 
 and he is accordingly hereby licensed to teach in that capacity for one 
 year from this date. 
 
 Given, &c. C. D. 
 
 [Code.] 22 
 
170 DUTIES OF 
 
 Certificates of tlie first grade are intended for those who have had expe- 
 rience in their profession, who are endowed by nature with a peculiar tact 
 or who have acquired a superior skill, in the management of youth and 
 the government of schools, and should be granted to those only who 
 can bear an examination in the whole range of studies taught in com- 
 mon schools. Every qualification heretofore and hereafter indicated as 
 necessary or valuable in a teacher should be possessed by the applicant. 
 
 Candida1;es for the second grade should be familiar with the rules of 
 elocution and pronunciation, and be able to read with ease, intelligence 
 and expression ; they should write a bold, plain hand, and be able to teach 
 some good system of writing ; they should be fuUy versed in mental 
 and commercial arithmetic, and well fitted to teach fractions, and the 
 involution and evolution of roots ; they should be able to teach book- 
 keeping by single entry ; they should know the common rules of 
 orthography, and be able to parse any sentence in prose or poetry 
 submitted to them, and to write grammatically, with correct spelling 
 and punctuation, the substance of any passage which may be read to 
 them ; and be entirely familiar with the elements of physical, civil and 
 political geography, as contained in any common school geography. 
 
 In short, the second grade certificates are intended for those who, with 
 less experience and a more limited acquaintance with some of the higher 
 branches, have, nevertheless, proved themselves able to impart to others 
 what they have themselves acquired, and who have attained the skill 
 necessary to govern a school, but who, on account of their youth or 
 their want of opportunity, are fully prepared to teach only the ordinary 
 studies considered essential in the common schools. 
 
 Candidates for the third grade certificates should be required to spell 
 correctly the words of any ordinary sentence dictated by the commis- 
 sioner ; to read distinctly and intelligently any passage from any 
 ordinary reading book ; to work readily questions in common arithmetic • 
 to understand the elements of English grammar, and to parse any easy 
 sentence in prose ; to have a knowledge of the elements of geography, 
 and the general outlines of the globe ; to write a plain, open hand, and 
 to exhibit good taste in the arrangement of words and paragraphs ; to 
 write letters intelligibly and grammatically, and to fold and superscribe 
 them properly ; and to know so much of morals and discipline as to 
 appreciate the importance of self-government. 
 
 The third grade certificates are intended for temporary licenses, to be 
 granted to novitiates and persons who for lack of experience or 
 
SCHOOL COMMISSIONERS. Ill 
 
 ability have need to acquire the knowledge and skill necessary for 
 higher positions. 
 
 But the best set of rules and regulations respecting the examination of 
 candidates must, after all, be regarded only as a partial help to the 
 commissioner. The wisdom and justice of his conclusions will depend 
 mainly upon his own judgment. Whatever gift, or acquirement, or 
 habit of thought and action may constitute his ideal of the true teacher, 
 the applicants will nearly all come short of it. He can only look hope- 
 fully for an approximation, and grant his certificates to those who 
 approach nearest to his ideal. 
 
 In pursuance of the discretion vested in the State Superintendent of 
 Public Instruction, it is established as a regulation that no certificate 
 shall be granted by any commissioner for a longer period than three years. 
 
 3. To annul any certificate granted to any teacher by him, or by his 
 predecessor, or by any town or county superintendent, whenever such 
 teacher shall be found deficient, and to examine, upon reasonable notice 
 and opportunity of defence to the teacher, into all charges aflfecting the 
 moral character of the teacher which may be presented as a cause for 
 annulling a certificate, by whomsoever such certificate may have been 
 granted, and he shall report every instance of such examination, the 
 evidence which may be presented in the case to the Superintendent of 
 Public Instruction, immediately after the conclusion of such examination. 
 
 By virtue of the 11th section of chap. 382 of 1849, which is unre- 
 pealed, a diploma from the State Normal School entitles its possessor 
 to be deemed a qualified teacher anywhere in the state, and a certificate 
 from a former county superintendent has the same effect within the 
 county where it was granted. 
 
 The grounds for annulling a certificate are two : 1st. Deficiency in 
 learning, and abiUty to teach ; and, 2d. Immoral character. 
 
 1. On the first point the commissioner can satisfy himself by personal 
 examination, or by observations made in school, or by proof of cruel 
 conduct, and exhibitions of bad temper, and ungoverned passions. If 
 the deficiency is within the commissioner's own knowledge, he should 
 immediately reexamine the teacher, if it relates to learning ; and if to 
 bad temper or bad morals, he should institute an examination, giving 
 the teacher proper notice, and unless he satisfactorily explain his 
 conduct, or exculpate his character, his certificate may be annulled ; 
 but if complaint of deficiency be made by others to the com- 
 missioner, he should give the teacher notice of some day and place at 
 which he will examine him, and hear proof on behalf of both com- 
 plainants and teacher. 
 
172 DUTIES OF 
 
 When complaint is made of deficiency in moral character, foil 
 opportunity should be given the teacher for defence. He should be 
 made acquainted with the precise charges affecting his character, and 
 ample time allowed to prepare proofs and bring witnesses to explain or 
 disprove them. 
 
 Tlie refusal of any person to submit to an examination to ascertain 
 his qualifications as to learning and ability, or a failure to appear and 
 answer charges touching his moral character, after due notice of the 
 time and place for a hearing, would be an admission of incompetency 
 or immorality, as the case might be, suflBcient to justify the annulling 
 of his certificate. 
 
 The mode of procedure is not prescribed by the statute in express 
 terms. It will therefore be safer to consider § 37 of chap. 480, Laws of 
 1847, as still in force, and as controlling the manner in which the 
 school commissioner is to exercise this power. 
 
 The section is as follows : 
 
 "§ 37. The town superintendent may annul any such certificate given 
 by him, or his predecessors in office, when he shall think proper, 
 giving at least ten days' previous notice, in writing, to the teacher hold- 
 ing it, and to the trustees of the district in which he may be employed, 
 of .his intention to annul the same." 
 
 In 10th Barbour's Reports, 296, it was held by the supreme court 
 that ten days' notice, and an order at the expiration of that time, were 
 necessary to annul the certificate of a teacher. In that case, the super- 
 intendent examined a teacher on the last day of January, and, as he 
 testified, decided him to be incompetent to teach, on account of his 
 education being in some respects insuflBcient, and annulled his certificate. 
 On the 2d of February he gave notice to the teacher that he 
 intended to annul his certificate, and filed a similar notice with the town 
 clerk, " to take efiect February 12th." The court say that the order 
 annulling the certificate must be in writing, and, commenting on the 
 evidence of the superintendent, remark : " he doubtless formed the 
 mental conclusion that he would annul the certificate, and gave notice 
 to that effect. This was not a compliance with the provisions of the 
 law. A notice of an intention to do an act is not an actual performance. 
 The object of the statute in requiring notice was to fulfil the great 
 requirement of justice, that no man shall be condemned unheard. The 
 parties were entitled to a day before the superintendent, of which they 
 were to have ten days' notice. To the teacher it was a matter of deep 
 concern that he should have an opportunity of resisting a sentence of 
 
SCHOOL COMMISSIONRS. Il3 
 
 degradation, affecting his character and his prospects of usefulness in life. 
 It does not appear that the superintendent made any order at the expi- 
 ration of the ten days mentioned in the notice. The contrary is con- 
 clusively to be inferred from the fact that he left the state on the Tth 
 of February, and did not return until three weeks afterwards. It 
 follows, therefore, that the certificate of the teacher was not legally 
 annulled on the 3d of February, nor indeed on any day in that 
 month." 
 
 It is undoubtedly the right of the commissioner to examine a teacher 
 in respect to his literary qualifications, and to satisfy himself, by 
 inspection of his method of conducting school exercises, as to his 
 intellectual and moral capacity to teach, without previous notice. A very 
 unfavorable impression might often be formed, and that justly, which 
 the teacher could remove by showing facts not apparent upon the 
 
 examination. 
 
 The notice may be in the following form, and should be served per- 
 sonally upon the teacher and upon one or more of the trustees in whose 
 employment he may be. 
 
 Take notice, that it is my intention to annul the certificate of E. S.. 
 a teacher employed in District No. , of the town of 
 
 for want of sufficient literary qualifications (or ability to teach, or what- 
 ever the cause may be), unless cause to the contrary shall be shown on 
 or before the day of 
 
 A. B., 
 
 School Commissioner, 
 
 At the expiration of the notice, if the commissioner determine to 
 annul the certificate, he should make an order, substantially as follows : 
 
 Notice having been given by me in writing, at least ten days pre- 
 vious to the day of , to R. S., a teacher employed in 
 District No. , in the town of , and also to the trustees of 
 such district, of my intention to annul the certificate of such teacher for 
 want of sufiicient literary qualification (or ability to teach, or as the 
 case may be), unless cause to the contrary were shown on or before 
 the day aforesaid, and no cause having been shown (or if the parties 
 have appeared to show cause, after hearing the proofs and allegations of 
 the said R. S. (or the trustees), and mature deliberation being thereupon 
 bad), it is hereby ordered that the certificate of qualification of the said 
 
174 DUTIES OF 
 
 R. S. as a teacher of common schools be, for the cause aforesaid, and 
 the same is hereby annulled. Dated this day of 
 
 ..^ A. B., 
 
 ' School Commissioner for, <S:c. 
 
 2. If charges affecting the moral character of the teacher be pre- 
 sented, the notice should be : 
 
 Take notice that the following charges, affecting the moral character 
 of R. S., a teacher employed in District No. " , of the town of , 
 
 have been presented by James Jackson, of the town of , as a 
 
 cause for annulling the certificate of said teacher, viz : ( Here recite the 
 charges, in which the precise nature, time, place and circumstances of 
 the offences imputed to the teacher should be stated) ; and that I shall 
 proceed to examine into the charges aforesaid, and to hear the defence 
 of the said teacher at o'clock of the day of • , at , in 
 
 the town of 
 
 C. O., 
 
 School Cammissipner for , etc. 
 
 It is believed that a commissioner ought not to subject a teacher to 
 the notoriety of a public accusation, unless some person shall make 
 complaint to him, and sustain it by his own oath or that of witnesses 
 whom he produces. He should ascertain that there is probable cause 
 for proceeding in substantially the same manner as a justice of the 
 peace, to whom application is made for a criminal warrant. He may, 
 for this purpose, administer oaths, examine the complainant and his 
 witnesses orally, and reduce their testimony to writing. 
 
 The charges must be direct and positive of such offences as would 
 justify the annulling of the certificate. They ought to be suflBciently 
 particular to apprise the teacher of what he is accused, and enable him 
 to prepare for defence ; for example, if an immoral habit, as profane 
 swearing, licentiousness, intemperance in the use of spirituous liquors, 
 is charged, one or more instances of it should be specified. 
 
 "When the time for examination arrives, it is for the complainant first 
 to adduce evidence in support of his charges. The accused is not 
 bound to offer any testimony until something is proved against him by 
 witnesses whom he has the opportunity to cross-examine. The pre- 
 liminary complaint is only for the purpose of putting him upon trial ; 
 but is not evidence upon the trial, unless for the purpose of discrediting 
 the witnesses, by showing that they have testified differently as to the 
 same transaction. 
 
SCHOOL COMMISSIONEES. 175 
 
 As the commissioner is required to report the evidence to the State 
 Superintendent, he should take full minutes, as it is given, as nearly as 
 possible in the language of the witnesses. It would be well, also, though 
 not indispensable, that the testimony of each witness should be read over 
 to and subscribed by him as soon as he has concluded. 
 
 The statute contemplates a decision by the commissioner, the testi- 
 mony being reported to the State Superintendent for review, only in 
 case an appeal is brought from the decision. 
 
 The commissioner should draw two copies of his instrument annulling 
 a certificate, one of which he should keep, and the other serve upon the 
 teacher. The trustees, also, should be notified of the fact immediately, 
 in order to save the district from the loss of the public money conse- 
 quent upon the employment of a teacher without a licence. 
 
 The commissioners are instructed to report, once in three months, 
 to this department, the names of all teachers whose certificates have 
 been annulled, with the cause of such proceeding. 
 
 They should also keep a register of the names of all persons to whom 
 they grant certificates of qualification, with the date of each certificate 
 and the term and place for which it was given ; and also the names of 
 all persons whose certificates are annulled by them, with the date, and 
 the general reasons therefor. 
 
 The proceedings of the commissioners, in respect to the granting and 
 annulling of certificates, are subject to appeal to the State Superinten- 
 dent, by any person feeling himself aggrieved. 
 
 4. To organize and conduct at least once in each year, in his own 
 district or in concert with the commissioner or commissioners of one or 
 more adjoining districts in the same county, a teachers' institute, and 
 to induce, if possible, all the common school teachers in his district to 
 be present and take part in the exercises of such institute ; and to 
 perform the duties imposed by chap. 361, Laws of 1847, upon town 
 superintendents, and to give the notice therein required to be given by 
 the county clerk. 
 
 By this provision of law, all the duties imposed chap. 361, Laws 
 of 1847, upon the county clerk and town superintendents, are charged 
 upon the school commissioner. It is made his duty to organize and 
 conduct an institute, at least once in each year, in his own district, or 
 in concert with the other commissioners in the same county. Probably a 
 single institute in each county will answer every desirable purpose. 
 
176 DUTIES OF 
 
 An Act for the establishment of teachem'' institutes. 
 
 Passed November 13th, 1847, "three-fifths being present." 
 
 ITie People of the State of If ew -York, represented in Senate and 
 Assembly, do enact as follows : 
 
 § 1. The treasurer shall pay, on the warrant of the comptroller, to 
 the order of the several county treasurers of this state, the several sums 
 of money hereinafter mentioned, not exceeding sixty dollars annually 
 to any one county, from the income of the United States deposit 
 fund, to be expended for the use and benefit of teachers' institutes, 
 as hereinafter provided. 
 
 § 2. Whenever a majority of town superintendents of common 
 schools in any county in this state unite in a recommendation, and file 
 with the county clerk thereof a certificate, signifying their desire that a 
 teachers' institute should be organized in such county for the instruction 
 and improvement of common school teachers for such county, it shall 
 thereupon be the duty of such clerk forthwith to appoint three town 
 superintendents of the county, and notify them of their appointment, 
 to constitute an advisory committee, to make the necessary arrangements 
 for organizing and managing such institute, and such clerk shall also 
 immediately give such public notice in such manner as he may deem 
 most proper to the teachers of common schools of the county, and to 
 others who may desire to become such, specifying a time and place 
 when and where the teachers may meet and form such institute. 
 
 § 3. Whenever any institute shall have been organized, as herein 
 provided, it shall be the duty of said committee and they shall have 
 power to secure two or more suitable persons to lecture before such 
 institute upon subjects pertaining to common school teaching and disci- 
 pline, and various educational subjects which may be deemed calculated 
 to qualify common school teachers, and to elevate the profession of 
 teaching, and to improve common schools; and said committee shall 
 keep an accurate account, in items, of the necessary expenses of such 
 institute in procuring sjiid lecturers, and otherwise, and shall verify 
 said account by afiidavit, and deliver the same to the county treasurer, 
 to be audited by and filed with him when application shall be made to 
 such treasurer, as hereinafter provided. 
 
 § 4. Whenever any county treasurer shall receive satisfactory evidence 
 that not less than fifty, or in counties of under thirty thousand population, 
 then not less than thirty teachers and individuals intending to become 
 teachers of common schools within one year, shall have been in regular 
 attendance on the instructions and lectures of the institute in the 
 county, during at least ten working days, he shall audit and allow the 
 account which shall be presented to him by the committee, as aforesaid, 
 and shall pay over to said committee the amount so audited and allowed, 
 not exceeding sixty dollars in any one year, to be disbursed by said 
 committee in paying the expenses incurred by the institute, as aforesaid. 
 
SCHOOL COMMISSIONERS. 177 
 
 § 5. Every sucK committee shall annually transmit to the State 
 Superintendent of common schools a catalogue of the names of all 
 persons who shall have attended such institute, with such other statis- 
 tical information and within such time as may be prescribed by said 
 State Superintendent. 
 
 § 6. This act shall take effect immediately. 
 
 The commissioner, or commissioners where two or more unite, will 
 give the requisite notice, and then proceed to organize and conduct an 
 institute, exercising the same powers and performing the same duties 
 as, heretofore, the advisory committee, under the same act. 
 
 The commissioners will keep an accurate account, in items, of all the 
 expenses attending the institute, verify the same by affidavit, and pre- 
 sent it to the county treasurer. 
 
 form of Account and Affidavit. 
 Expenses attending the formation and holding of a teachers' insti- 
 tute, at , in the county of , beginning on the day of 
 ,18 , and ending on the day of , 18 . 
 
 Advertising' notice (see voucher No. 1), $1 50 
 
 Use of room (see voucher No. 2), 3 00 
 
 Fires and attendance (see voucher No. 3), 10 00 
 
 Paid Mr. for lectures and instruction (see voucher No. 4), 50 00 
 
 Stationery (see voucher No. 6), 5 00 
 
 S69 00 
 
 State of New-York, ) 
 County of ,) ' 
 
 John Doe, school commissioner for the district of said connty, 
 being duly sworn, says that the above account is correct, and that the 
 several items therein charged comprise the expenses incurred by him in 
 the formation and holding the teachers' institute in this county, at the 
 time and place named, and that no part of said account has been paid 
 or satisfied. 
 
 JOHN DOE. 
 Sworn before me, this ) 
 
 day of , 18 . y 
 
 EiCHARD Roe, 
 
 ComrrCr of Deeds. 
 
 A list of all the teachers, and individuals intending to become teach- 
 ers, attending the institute, must be kept by the commissioner and 
 [Code.] 23 
 
178 DUTIES OF 
 
 verified by his affidavit. Upon presenting this, and the account afore- 
 said, to the county treasurer, he is bound to audit the account, and pay 
 not exceeding sixty dollars^ provided it appears that not less than fifty, 
 or in counties of under 30,000 population, then not less than thirty 
 persons, above described, have been in regular attendance upon the 
 teachings and lectures of the institute during ten working days. 
 
 In the location of the institute, reference should be had to the con- 
 venience and pecuniary interests of the persons who are to attend it. 
 
 The time of holding its terms should be fixed with a view not to 
 interfere with the common schools, but at such season as will allow 
 common school teachers the most leisure to attend the institute. 
 
 The commissioner or commissioners should, before giving notice of 
 the time and place, secure the services of two or more suitable persons 
 to lecture before the institute, and help to conduct the exercises. The 
 commissioner will have the general direction of the exercises, and may 
 employ as many persons as may be necessary, to lecture, and to take 
 charge of classes to be instructed in subjects pertaining to common 
 schools, teaching and discipline. 
 
 In pursuance of the fifth section of the act, the commissioners aie 
 required to report to this department : 
 
 1st, A catalogue of the names of all the persons who shall have 
 attended such institute, their place of residence and post-office address ; 
 
 2d. The names of the officers of the institute and the lecturers ; 
 
 3d. A statement of the subjects upon which lectures have been deli- 
 vered ; 
 
 4th. A statement of the classes into which the institute was divided, 
 the studies pursued and the text books used ; 
 
 6 th. The time the institute was organized, the length of such term 
 held and the time and place fixed for holding future terms ; 
 
 6th. A copy of the accounts rendered to the ceunty treasurer ; 
 
 "Tth. It is recommended that a committee be appointed to make a 
 report upon the condition of the school and the general state of public 
 instruction in the county, and that a copy of that report be transmitted 
 to the State Superintendent ; 
 
 8th. Any other information that the committee may deem interesting 
 or useful, or calculated to promote the cause of common school educa- 
 tion. 
 
 This report should be transmitted to the State Saperiatende&t on or 
 before the first day of December in each year. 
 
SCHOOL COMMISSIONERS. 179 
 
 The commissioner, in addition to the published notice required by 
 law, should also address a circular to every teacher in his district, urging 
 all to attend the institute. 
 
 If the state, as there is very little reason to doubt, shall continue its 
 annual appropriation, the institute will become a part of the common 
 school system. Teachers cannot fail to derive much benefit from the 
 lectures, the instructions and conversations of the institute, ^y com- 
 paring the various modes of teaching and government ; by discussing all 
 the topics of practical duty ; by a critical examination of different text 
 books, and by aiding and counselling each other, much may be done to 
 promote the success of the schools. Not the least among the advan- 
 tages to be gained by these annual gatherings, are the mutual acquain- 
 tances formed, the good feeling engendered, the encouragement afforded, 
 and the reciprocal instruction imparted, which will serve to unite and 
 to stimulate all to vigorous effort in the common cause. If the fifteen 
 thousand teachers in this state will form themselves into town and county 
 associations, and combine all their energies, and act unitedly and har- 
 moniously, what project for the improvement of comjmon schools, in 
 whose excellence and usefulness are centered the hopes of the present 
 and of future generations, could they not urge upon public attention, 
 ■vyith a concentration of sentiment and a weight of influence which would 
 command the respect and secure the cooperation of all good men. 
 
 6. And generally, by all means in his power, to promote sound edu- 
 cation, elevate the character and qualification of teachers, improve the 
 means of instruction and advance the interests of the schools committed 
 to his charge. 
 
 The commissioners are not expected to limit their labors to a bare 
 performance of the duties prescribed by law. They are, on the con- 
 trary, expected to devote all their time to subjects connected with 
 education. The preparation of lectures, correspondence with teachers 
 and school officers, the getting up and management of institutes, the 
 taking of evidence in appeal cases, the reconcilement of district contro- 
 versies, the procurement of statistical information, the making out of the 
 annual reports, all require diligent study during the intervals of active 
 duty. 
 
 No. 65. All the duties and requirements of law now 
 imposed upon town superintendents, in reference to the for- 
 mation, alteration, dissolution, consolidation and annulling of 
 school districts, the building of school-houses, the selection and 
 change of sites, and in relation to the sale of school district 
 
180 DUTIES OF 
 
 property, and the disposal and apportionment of the moneys 
 arising therefrom, are hereby imposed upon the school 
 commissioner, in respect to tlie several towns within his 
 jurisdiction ; and he shall pay over the said moneys to the 
 supervisors, to be by them paid to the distiicts or parts of 
 districts vs'hich may be entitled to receive the same. ( Sec. 25, 
 chap. 179 0/1856.) 
 
 No. 66. Any commissioner may, at any time, resign his 
 office to the clerk of the county in which he was elected ; 
 and in case of vacancy from such cause, or by death, removal 
 from office or from the county, or refusal to accept, the 
 county clerk shall give immediate notice to the county judge 
 of such county, who shall appoint a successor to fill such 
 vacancy till the next following general election, when a 
 successor shall be chosen bv the electors, as hereinbefore 
 provided. {Sec. 9, cliap. 179 of 1856.) 
 
 It is thought that the person appointed to fill a vacancy can only hold 
 the office until such time as the officer chosen by the people to fill the 
 vacancy shall have taken the oath of office. 
 
 Persons elected at the general elections would be subject to the fol- 
 lowing provision : 
 
 § 3» AH officers elected by the people, unless they shall be elected to 
 supply vacancies then existing, shall enter upon the duties of their 
 respective offices on the first day of January following the election 
 at which they shall be chosen. {li. S., 3d ed., pari 1, chap. 5, art. 1, 
 § 3 ; see also Const., art. 10, § 6.) 
 
 No. 67. The commissioners shall be subject to such rules 
 and regulations as the Superintendent of Public Instruction 
 shall from time to time prescribe, and appeals from their acts 
 and decisions may be made to him in the same manner and 
 with like effect as in cases now provided by law. They shall 
 make reports annually to the Superintendent of Public Instruc- 
 tion, at such times as shall be appointed by him, containing 
 such information as he shall require; and for that purpose 
 the annual reports of the trustees of school districts shall be 
 made to them, and be deposited with the town clerks of the 
 town in which the school-house of each district is situated, 
 from whom the said commissioners shall obtain the same. 
 Henceforth the trustees of joint districts, composed of terri- 
 tory lying in two or more towns in the same county, shall be 
 required to make but one annual report, in such form as the 
 
SCHOOL COMMISSIONERS. 181 
 
 State Superintendent of Public Instruction shall prescribe. 
 The reports of the trustees, after the commissioner shall have 
 made his abstract therefrom, shall be properly arranged, filed, 
 and, together with a copy of his own annual report, shall be 
 deposited in the office of the county clerk, for safe keeping. 
 The county clerks shall not be required to make returns or 
 abstracts of such reports. (Sec. 10, chap. 179 of 1856.) 
 
 The annual reports of the trustees of school districts are required to 
 be made between the 1st and 15th days of January in each year, and 
 filed with the town clerks. The commissioner should call for them 
 promptly ; and if any districts are delinquent, should at once proceed 
 to ascertain the cause. It should be his care, if possible, to cause a 
 report to be made by every district in his jurisdiction, and he should aid 
 trustees who may need his counsel and advice. 
 
 The reports of the commissioners are required to be made at such 
 times and to contain such statistical information as the State Superin- 
 tendent shall prescribe. Blank forms will be annually prepared and 
 distributed to the commissioners, and circulars will be addressed to 
 them, with instructions as to the information required and the time 
 when the reports must be completed, and deposited in the mail or sent 
 by express to this department. 
 
 It must be borne in mind that the State Superintendent is directed 
 to send in his annual report to the legislature, dated December 31st of 
 each year. The reports of commissioners must, therefore, be prepared 
 two or three months previous to this time ; negligence on the part of 
 one, two or three commissioners will necessarily cause serious delay and 
 embarrassment to the department, as the superintendent cannot com- 
 ment upon results until all the details are received. 
 
 Na. 68. Every commissioner shall have power to take 
 affidavits and administer oaths in all matters pertaining to 
 common schools, but without charge or fee ; and, under the 
 direction of the Superintendent of Public Instruction, may 
 hear and report to him testimony in all cases of appeals. 
 {Sec. 11, chap. 179 0/1856.) 
 
 It was not the design of this section to supercede the present mode 
 established by regulation of presenting testimony upon appeals in the 
 form of written affidavits, but to enable the superintendent to obtain 
 additional light, where the written evidence is conflicting, ambiguous or 
 
183 DUTIES OF 
 
 % 
 
 otherwise unsatisfactory, by the oral examination of witnesses before a 
 
 commissioner. Where the superintendent conceives this necessary or 
 
 desirable, an order will be made in the case, referring it to the proper 
 
 commissioner to hear and report all testimony which may be produced 
 
 before him by the respective parties to the appeal, or the testimony of 
 
 particular witnesses named in the order, or testimony in relation to 
 
 particular issues specified. The range of inquiry will be limited by the 
 
 terms of the order. 
 
 Upon receiving the order, the commissioner will give notice to both 
 parties of the time and place at which he will hear the evidence to be 
 produced by them respectively, if the reference is general, or of the 
 witness named, or in relation to particular issues or subjects of inquiry, 
 if the reference is limited in either respect. At the time and place 
 appointed the commissioner will administer an oath to the witnesses in 
 the following form ; 
 
 You swear (or declare and aflSrm) that the evidence you shall give 
 upon this hearing, under the order of the Superintendent of Public 
 Instruction, on the appeal of (reciting the title of the 
 
 proceeding as the same is given in the entitling of the order), shall be 
 the truth, the whole truth, and nothing but the truth, so help you God. 
 
 The evidence of each witness on his direct examination should be 
 reduced to writing, read over to the witness, any additions or corrections 
 he desires to make stated (without erasing anything that has been 
 written), and then subscribed by the witness and certified by the 
 commissioner, before the witness is cross-examined. The cross-examina- 
 tion is to be taken, corrected, subscribed and certified in the same 
 manner. 
 
 At the conclusion of the examination the commissioner should endorse 
 or under-write upon the original order " The execution of this order 
 appears by the depositions hereto annexed. A. B., Commissioner." He 
 should then append to the order and return therewith to the superin- 
 tendent the deppsitions in the following form : 
 
 [Title of the case as in the order.] \ depositions taken on the 
 
 J day of , at , under 
 
 an order of the Superintendent 
 of Public Instruction, dated , 
 before A. B., school commis- 
 Isioner for the Assembly 
 
 District of county. 
 
SCHOOL COMMISSIONERS, 183 
 
 C I)., a witness produced, was duly sworn by said commissioner, and 
 on being orally examined by for the appellant ( or respon- 
 
 dent), deposeth. as follows : I reside in the town of ; I was 
 
 present at a meeting held in District No. , on the 10th day of 
 
 May, 1856, &c., &c. 
 
 On hearing the above read, the witness further deposeth : I want to be 
 understood that I was not present at the meeting (give the witness' 
 additions and corrections to his testimony as reported), 
 
 (signed) C, P. 
 
 Subscribed and sworn to this ■) 
 
 day of , before me, ) 
 
 A, B., Commissioner. 
 
 On being cross-examined by for the respondent, the witness 
 
 above named deposeth : I saw James Jones at the meeting to which I 
 have testified. He was outside of the building when the meeting was 
 organized, &c., &c. 
 
 The commissioner has no power to compel the attendance of witnesses. 
 If any of those named in the ord^r do npt appear, he should take and 
 report the evidence of the parties, showing their refusal or other reason 
 for non-attendance. 
 
 No. 69. The several boards of supervisors, whenever in 
 their opinion the interests of education in their respective 
 counties will be promoted thereby, may increase the salary 
 of any commissioner to such sum as they may deem reason- 
 able and just ; but the supervisors of the wards in any city 
 not included in a school commissioner's district shall not vote 
 upon such questions ; the increase over and above the five 
 hundred dollars, payable to him from the United States deposit 
 fund, to be a charge upon the county or district over which 
 such commissioner may have jurisdiction ; and the same shall 
 be assessed annually upon the towns composing such county 
 or district, ratably, accbrding to the corrected valuations of 
 the real and personal estate of such towns. {Sec. 13, cluip. 
 179 0/1856.) 
 
 No. 70. The boards of supervisors are hereby authorized 
 and required to audit and allow to such commissioners such 
 sums as they may have incurred for necessary expenses by 
 them in the performance of their official duties, to an amount 
 
184 DUTY OF TOWN CLERKS. 
 
 not exceeding one hundred dollars. ( Sec. 14, chap. 179 of 
 1856.) 
 
 No. 71. The several cities in this state which, under special 
 acts, already elect superintendents of common schools, or 
 whose boards of education choose clerks doing the duty of 
 supervision under the direction of the board of education, 
 shall not be included in any commissioner's district created 
 by this act or authorized to be formed by the board of super 
 visors ; and the several boards of supervisors, in counties in 
 which such cities are joined to towns in the formation of an 
 assembly district, may divide the county, exclusive of such 
 cities, into such school commissioners' districts as they may 
 deem advisable, but no town shall be divided in forming such 
 districts. (Sec. 16, chap. 179 of 1856.) 
 
 OF THE DUTY OF TOWN CLERKS. 
 
 No. 72. It shall be the duty of the town clerk of each 
 town : 
 
 1. To receive from the present town superintendents all 
 books, maps and papers appertaining to his office, and to file 
 and keep them in the town clerk's office ; 
 
 2. To receive from the supervisor the certificates of appor- 
 tionments of school moneys for the town, and record them in 
 a book to be kept for that purpose ; 
 
 3. To notify the trustees of the school districts when such 
 estimates and appropriations are filed in his office ; 
 
 4. To see that the trustees of common schools make and 
 file with him their annual reports within the time prescribed 
 by law ; 
 
 5. To distribute to the trustees of school districts all blanks 
 and circulars which shall be delivered or forwarded to him by 
 the commissioner for that purpose ; * 
 
 6. To receive from the supervisor, and record in a book 
 kept for that purpose, the annual account of the receipts and 
 disbursements of school moneys required to be submitted to 
 the town auditors and filed with the said clerk, and to send 
 a copy thereof by mail to the commissioner. ^ Sec. 28, chap. 
 179 of 1856.) 
 
OF SCHOOL DISTRICTS. 185 
 
 The duties of the town clerk, as a member in certain cases of the 
 board for the formation and alteration of districts, are discussed under 
 that head. It may be his duty also to order a special district meeting 
 in the case mentioned in § 66, chap. 480, Laws of 1847. {No 87, post). 
 
 OF THE FORMATION AND ALTERATION OF SCHOOL 
 DISTRICTS. 
 
 No. 73. It shall be the duty of the [school commissioner, 
 in respect to the several towns within his jurisdiction] : 
 
 L To divide the 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 the toVn 
 adjoining to any other state of this Union, where it has been 
 usual or shall be found convenient for such neighborhood to 
 send their children to a school in such adjoining state ; 
 
 3. To describe and number the school districts, and to 
 deliver the description and numbers thereof, in writing, 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. 
 ( Sec. 8, chap. 480 of 1847, school commissioner being substituted 
 for tovm supcrintendtnt, in conformity to No. 65. ) 
 
 This section, so far as it concerns the formation and alteration of dis- 
 tricts, relates only to such districts as are formed of territory lying 
 wholly within the jurisdiction of the school commLssioner acting under 
 it, and the formation or alteration of which, moreover, does not affect 
 any other district which is wholly or partly in the assembly district or 
 section of another school commissioner. If the district to be formed, 
 altered or regulated includes a part of a town under the jurisdiction of 
 another commissioner, or involves the division of a joint district, any 
 part of which lies within such other jurisdiction, it is necessary that all 
 the school commissioners should unite as a board in making the order 
 for such alteration. . ^ 
 
 The case is now exceedingly rare in which a new district can be 
 formed, or any district be altered, without its necessarily involving an 
 
 [Com.] 24 
 
186 OF THE FORMATION AND 
 
 alteration of some other district, and thus rendering it necessary to. pro- 
 cure the assent of trustees, or to suspend the operation of the order, as 
 provided in § 45, chap. 480, Laws of 1847 {N^o. 76, post). 
 
 Where, in consequence of the existence of doubts in respect to the 
 true boundaries of a district, it becomes expedient for the commissioner 
 to make a new description thereof it should be regarded as an alteration, 
 and the written consent of the trustees of all the districts conterminous 
 to the new described boundaries should be subscribed to the order, or 
 notice should be given to them of such order, and that it will take eflFect 
 at the expiration of three months after the service of a copy thereof. 
 This rule was settled in a case where an appeal was taken from an order 
 describing the boundary of a district, and in which the answer set up 
 that the boundary thus established was not a new one, but only the 
 record of a line which had always existed as the true boundary, though 
 the written evidence was wanting. The principle is, that the commis- 
 sioner has no power to adjudicate what is, but only to determine what 
 »hall be the boundary for the future. 
 
 A preliminary notice of the commissioner's intention to make an 
 alteration of a school district should in all cases be given to the trustees 
 of every district to be affected thereby, before proceeding to make any 
 order in the premises. ( See Digest, ante page 91, and the comment under 
 the next section, No. 74.) 
 
 It is of extreme importance that the description of a district should 
 be so complete and definite that a surveyor, at any future day, may be 
 able to run its boundaries without reference to any other document 
 than the order forming, altering or describing it. For this purpose the 
 exterior lines should be defined by reference to natural monuments, 
 marked trees, creeks, &c., or to township lines of historical notoriety, 
 such as the lines of the great original subdivisions into lots, or the 
 course of highways. Where these fail, the courses and distances as 
 ascertained by the compass and chain should be given. The practice 
 of stating the boundary as that of " the farm now in the occupation of 
 C. D.," or by means of similar designations, frequently renders it very 
 difScult to ascertain them, as the occupation of land is continually 
 shifting. In Gray v. Sheldon, 8th Verm. R., 402, a resolution " to set 
 off Isaac Gray, Jr., to school district No. 3," was held void on the 
 grounfi that school distncts should be ofefined by geographical limits, 
 and be made to consist of territory and not of persons. 
 
ALTERATION OF SCHOOL DISTRICTS. 187 
 
 The form of an order may be as follows : 
 
 In the matter of the formation of District No. , in the 
 
 town of , comity of , and the 
 
 consequent alteration of Districts No. . in said 
 
 town, and No. in the town of {or in the 
 
 matter of the description of District No. , as the case 
 
 may be), 
 
 It is hereby ordered, by the undersigned school commissioner for 
 
 Assembly District No. 3, of the county of , that a new 
 
 school district be formed, to consist of part of District No. , in the 
 
 town of M., and part of District No. , in the town of P., which 
 
 new district is hereby numbered [23], and is bounded as follows : 
 
 Beginning on the east bank of Allen's creek, at the point where the 
 
 same is intersected by the north line of the highway leading from 
 
 Brighton to Pittsford; thence northeasterly along said creek to its 
 
 junction with Irondequoit creek ; thence southeasterly along Ironde- 
 
 quoit creek to the west line of the town of Brighton ; thence south 
 
 along the boundary line between the towns of Brighton and Penfield 
 
 to the north line of Pittsford ; thence west on said north line to the 
 
 state road ; thence north along the state road to its intersection with 
 
 the highway first above mentioned ; thence northwesterly along said 
 
 highway to the place of beginning. 
 
 In case the order is made with the consent of the trustees of the 
 districts affected thereby, or of any such districts, the evidence of such 
 consent should be annexed to the order in substantially the following 
 form: 
 
 At a meeting of the trustees of District No. , in the town 
 
 of , county of , called for the purpose of 
 
 considering certain proposed alterations thereof held on the day 
 of , at which were present J. D. and R. S., and in the 
 
 absence of P. T., a trustee, who, having been duly notified of ^uch 
 meeting, failed to attend, it was 
 
 Resolved, That the consent of the trustees of District No. , in 
 
 the town of , be and hereby is given to the alteration of 
 
 said district by an order bearing date , made by , 
 
 school commissioner for the Assembly district (or section) of 
 county (or that said district be so altered as to be hereafter bounded as 
 follows, describing the new boundaries fliUy). 
 
188 OF THE FORMATION AND 
 
 In witness whereof, the undersigned, a majority of the said trustees, 
 have hereunto subscribed our hands this day of 
 
 .1} 
 
 . ^., ^ Xrustees. 
 
 The consent of the trustees must be absolute, not conditional. {See 
 Digest, ante, p. 10.) 
 
 In case a majority of the trustees of any district affected by the 
 order refase their consent, the order should recite that fact, and that it 
 will not take effect until after three months' notice, in writing, to some 
 one or more of such trustees, as follows : 
 
 " The trustees of District No. not having consented to this 
 
 order, the same will not take effect, in respect to such last mentioned 
 district, until after three months' notice, in writing, shall be given to 
 some one or more of such trustees." 
 
 Notice should in that case be immediately served upon one or more 
 of the trustees, selecting for that purpose a trustee who is hostile to the 
 alteration, and no* one who was in favor of consenting. (See ante, 
 pp. 1, 2 and 89.) A written admission of the service of such notice, 
 signed by the trustee or trustees on whom it is made, should be annexed 
 to the original order, and filed with it in the town clerk's office, so that 
 the entire history of the transaction and the date at which the order 
 took effect may be ascertained at any subsequent time, without inquiry 
 elsewhere or the examination of other documents. 
 
 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 alterations do not directly affect persons residing in all the towns 
 in which they are recorded ; " Thus, although no inhabitant of Tyrone 
 was taken fi'om (Joint) District No. 6 to form No. 8, the order, 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 arb 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." [Per. Dix, Supt. Com. 
 Schools Dec, p. 175.) 
 
 No. 74. In the erection or alteration of a school district, 
 the trustees of any district to be aifected thereby may apply 
 to the supervisor and town clerk to be associated with the 
 [school commissioner], and their action shall be final, unless 
 d»ily appealed from ; the compensation of the supervisor and 
 
ALTERATION OF SCHOOL DISTRICTS. 189 
 
 town clerk, when thus associated, shall be the same as that 
 of the town superintendent. ( Sue. 43, chap. 480 of 1847, 7nodi- 
 Jied by substituting school commissioner for town superintmdent, in 
 conformity to No. 65. ) 
 
 This section was originally § 3, chap. 133 of 1843, and was then first 
 enacted upon the substitution of a town superintendent in the place of the 
 former town board of commissioners of common schools. In so impor- 
 tant a matter as the alteration of a school district, the legislature deemed 
 it right that the districts to be affected should have the benefit of the 
 consultation and judgment of a board composed of three persons, when- 
 ever, for any reason, they elected to associate them, in preference to 
 trusting their interests to the sole jurisdiction of the town superinten- 
 dent. As the powers of the school commissioner in these cases are 
 derived only from the transfer to him, by No. 65, of the powers formerly 
 vested in the town superintendents, it is to be inferred that the school 
 commissioner is to exercise his jurisdiction either alone or in conjunc- 
 tion with the supervisor and town clerk, in the same manner as a town 
 superintendent would have done, and that the decisions in respect to 
 the powers and duties of the latter, under this section, are applicable to 
 the former. 
 
 Section 31, chap. 480 of 1847, which established the compensation 
 of town superintendents, and to which the above section refers, for that 
 of the supervisor and town clerk when acting under it, is as follows : 
 
 § 31. The town superintendent shall be entitled to receive one dollar 
 and twenty-five cente per day for every day actually and necessarily 
 devoted by him in his oificial capacity to the service of the town for 
 which he may be chosen, the same to be paid in like manner as other 
 town oflScers are paid. 
 
 The statute has not prescribed the steps to be taken for convening 
 the supervisor, town clerk and school commissioner to deliberate upon 
 the alteration of a district. It has been decided that this board is not 
 an appellate tribunal, to sit in review of a decision made by the school 
 commissioner (see Digest, ante, p. 96j, but is to exercise its jurisdiction 
 upon the proposed alteration as an original question. The school com- 
 missioner cannot call upon the supervisor and clerk to act with him, for 
 the jurisdiction of the latter depends upon an application to them by 
 the trustees of some district to be afi'ected. In order to give them the 
 opportunity to make such application, and that it may be done or the 
 option waived within a rensonable time, the school commissioner, before 
 
190 OF THE FORMATION AND 
 
 makiDg any alteration, should serve upon one or more trustees of each 
 district to be affected thereby a written notice, specifically describing 
 such alteration, in substantially the following form : 
 
 To the trustees of District No. , in the town of : 
 
 Take notice, that I intend on the day of next, at 
 
 (specifying a convenient place, and a time sufficiently remote to enable 
 the trustees to make application to the supervisor and clerk, and for the 
 latter to be prepared for the meeting), to make an order for the altera- 
 tion of District No. , in the town of , so that its boundaries 
 shall thereafter be as follows, viz : ( Here specify the proposed boun- 
 daries of the district, as altered, in the manner recommended under 
 No. 73). 
 
 You are therefore requested to meet without delay and to adopt a 
 resolution consenting to the above proposed alteration, in which case 
 you will please furnish me, at the time and place above mentioned, with 
 a copy thereof, certified under the hands of a majority of you, or to 
 adopt a resolution applying to the supervisor and town clerk of the 
 town (or towns if the district is a joint one) of to be associated 
 
 with me at the time and place above mentioned in determining upon 
 the propriety of such proposed alteration. In the latter case you will 
 please transmit copies of such resolution, certified under the hands of a 
 majority of you, to the supervisor and town clerk without delay, toge- 
 ther with notice of the time and place above stated at which such altera- 
 tion will be made by me in case of their non-attendance. 
 
 The determination of the trustees to associate the supervisor and 
 clerk, like every other official act, should result from the resolution of a 
 majority, adopted at a meeting at which all are present or which the 
 absent one has been duly notified to attend. No jurisdiction is obtained 
 by the supervisor and clerk upon the application of less than a majority. 
 ( See Digest, ante, p. 88.) Their want of jurisdiction vitiates the action 
 of a board in which they may assume to take part Upon this point 
 the language of Vice-Chancellor Sandford (2 Sand. Ch.R., 229) is very 
 instructive. Discussing the effect of certain proceedings of a church 
 council at which a majority of the trustees were present and in which 
 they unanimously concurred, but in which the minister, elders and dea- 
 cons also participated, he says : " the trustees in this case are by the 
 charter the select class or body which is to exercise the corporate functions. 
 In order to exercise them, they must meet as a board, so that they, 
 may hear each others views, deliberate and then decide. Their separate 
 
ALTERATION OF SCHOOL DISTRICTS. 191 
 
 action, individually, without consultation, although a majoritj in num- 
 ber should agree upon a certain act, would not be the act of the con- 
 stituted body of men clothed with the corporate powers. Nor would 
 their action in a meeting of the whole body of corporators, or of another 
 and larger class in which they are but a component part, be a valid 
 corporate act. In thus acting they are not distinguishable from their 
 associates, and their action is united with that of others who have no 
 proper or legal right to join with them in its exercise. All proper 
 responsibility is lost. The result may be the same that it would have 
 been if they had met separately, and it may be different. In the general 
 assemblage, influences may be brought to bear upon the trustees which 
 in their proper board would be unheeded ; and no one can say with 
 certainty that their vote in the latter event would have been the same." 
 
 If the trustees have given the proper notice to the supervisor and 
 clerk, the school commissioner ■ can at the time and place appointed 
 proceed to act in conjunction with either of them, in case the other 
 omits to attend. It is true that the general rule is, when persons are 
 appointed by the law to act as special tribunals of a quasi-judicial char- 
 acter, then both parties are entitled to the presence of all the judges, 
 and to have the benefits of the consultation of each with every other ; 
 all must therefore meet together and consult, but then a majority may 
 decide. In this case, however, though the law authorizes the trustees to 
 apply to the supervisor and clerk, it furnishes no means of compelling 
 their attendance, nor does it even in express terms declare it their duty 
 to attend. It is only that one of them who accepts and acts under the 
 application of the trustees who can be said to be appointed or vested 
 with any power in the premises. Indeed, the doubt is rather whether 
 the sole jurisdiction of the school commissioner is divested unless both 
 the supervisor and clerk associate themselves with him. It is clear that 
 they cannot act except in association with him. (See Digest, ante, p. 74.) 
 
 If neither attend, the commissioner may proceed to act alone ; for he 
 has the general power, and cannot be deprived of it by a fruitless appli- 
 cation to the supervisor and clerk, where the latter decline or omit to be 
 associated with him. 
 
 In the case of joint districts, the supervisors and town clerks of all 
 the towns, parts of which are included in the district affected, have, ' 
 under the practice recognized by the department, been associated with 
 the town superintendents. In this case, the reasoning in favor of 
 proceeding, notwithstanding the absence of some of the supervisors or 
 
192 OF THE FORMATION AND 
 
 clerks, or even of both the supervisor and clerk of some of the towns, 
 is stronger than in the case of a whole district. 
 
 Under the adjudications of the department it has been held that each 
 town in such case had but one vote, so that the vote of a superinten- 
 dent from one town counterbalanced the concurrent vote of the super- 
 intendent, supervisor and clerk from another town. As the school 
 commissioner stands in the plaue of a town superintendent for each town 
 within his jurisdiction, no town can be deemed to be unrepresented in 
 consequence of the absence of its clerk and supervisor. The reasoning, 
 however, which regarded the town officers as representatives of theii 
 respective towns is inapplicable since the substitution of the school 
 commissioner for town superintendents, and each member of the board 
 must be regarded under the existing law as having equal weight in the 
 decision. In other words, it depends upon the majority of voices. 
 
 The practice under the section in question has always been difficult 
 and obscure ; and the recent changes in legislation render it so much 
 more so that no opinion upon it can be expressed without qualifying 
 with a doubt in respect to the ultimate decision. Further legislation is 
 necessary if the section shall be allowed to stand as a part of the law. 
 As an original question, it would admit of much doubt whether this sec- 
 tion was in any case applicable to a joint district. 
 
 No. 75. Whenever it may become necessary or convenient 
 to form a district out of two or more adjoining towns, the 
 [" school commissioner in respect to the several towns within 
 his jurisdiction"] of each of' such adjoining towns, or the 
 major part of them, may form, regulate and alter such 
 district. ( Sec. 44, chap. 480 of 1847, modified in conformity to 
 No. 65, ante.) 
 
 The statute of 1819 made it the duty " of the commissioners afore- 
 said (of common schools), or the major part of them, from each of such 
 adjoining towns, to form such district, and to alter and regulate the 
 same." Under this statute it was very properly decided by Supt. Flagg, 
 (Common School Dec, p. 23) that "no district can be formed or altered 
 without the assent of two at least of the commissioners of the town in 
 "which the district is situated," and that " the law does not authorize the 
 question to be settled by a joint ballot of the commissioners of two or 
 more towns." This decision was followed, after the revision of 1830, 
 apparently in consequence of overlooking the fact that the Revised 
 Statutes changed the language of the section by substituting "the 
 
ALTEEATION OF SCHOOL DISTRICTS. 193 
 
 commissioners of each of the adjoining towns, or the major part of them," 
 which was held by Supt. Spencer, himself one of the revisors, to mean 
 a major part of the board, ir^ptead of " the commissioners or the major 
 part of them from each of such adjoining towns." When town super- 
 intendents were substituted for the town commissioners of common 
 schools, it was held by those who followed the decision of Supt. Flagg 
 that the assent of the superintendent of every town including any part 
 of a joint district was necessary to its alteration. It is believed that 
 the construction adopted by Supt. Spencer was the correct one, and 
 that where the alteration of a joint district requires the action of a 
 board composed of three or more school commissioners, unanimity is 
 not required, but a majority may decide. 
 
 No. 76. 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 [school 
 commissioner] to some one or more of such trustees ; nor 
 shall any alteration, or regulation of an organized school 
 district be made to take effect between the first day of 
 December in any one year, and the first day of May following. 
 {Sec. 45, chap. 480 of 1847, modified in conformity to No. 65.) 
 
 In the case of Williams v. Larhin (3 Denio 114), it was held by the 
 supreme court, where an alteration of school districts made by the 
 proper officers affected three districts, and the trustees of two of the 
 districts consented to the alteration, but the trustees of the other district 
 did not consent, that the alteration took eflFect immediately as to those 
 districts whose trustees consented. In that case a part of District No, 
 14 was annexed to No. 3 with the consent of the trustees of both 
 districts; the residue of No. 14 was annexed to No. 13 without the 
 consent of the trustees of the latter. Judge Bronson, delivering the 
 opinion of the court, says : "Although both alterations were made at 
 the same time, they were not in their nature inseparable acts, and I see 
 no reason why they might not take effect at different periods." It is 
 obvious that alterations may be so connected and dependent upon efich 
 other as to render the principle of this case inapplicable. For example, 
 so much of the order as annulled District No. 14 could not take effect 
 until the expiration of three months, notwithstanding its trustees 
 consented, because it was dependent upon the annexation of so much 
 of said district as remained to No. 13. No. 14 was a district lying 
 wholly within one town. According to the opinion of Supt. Spencer 
 
194 OP THF FORMATION AND 
 
 {Digest, ante, p. 8), an order for the dissolution of a joint district might 
 be valid, although the annexation of its parts to other districts might be 
 void ; and consequently its dissolution might take effect immediately, 
 though the annexation of its parts to other districts might be suspended 
 for three months. 
 
 While the alteration is inchoate it is wholly inoperative upon the 
 rights of any person. Thus, where an order was made to annex terri- 
 tory to an existing district without the consent of the trustees of the latter, 
 it was held that, before the expiration of the three months after notice, 
 the same territory might bo annexed to a third district without the 
 consent of the trustees who had refused the annexation first proposed ; 
 but that the assent of the district from which it was taken by the first 
 order was requisite. {^Common School Dec, p. 65.) So, residents upon 
 the territory to be transferred continue to be legal voters, and are 
 entitled to notice of all district meetings held between the making of 
 the order and the time it takes effect (see Digest, ante, p. 86), and 
 must be assessed on any tax list made out in the mean time. 
 
 No. 11. If the [school commissioner having jurisdiction] 
 in any town shall require, by notice in writing, the attendance 
 of the [school commissioner] of any other town or towns, at 
 a joint ijneeting for the purpose of altering a school district 
 formed from their respective towns, and a major part of the 
 [school commissioners] notified shall refuse or neglect to 
 attend, the [school commissioners] attending, by a majority 
 of votes, may call a special district meeting of such district, 
 for the purpose of decidrag on such proposed alteration ; and 
 the decision of such meeting shall be as valid as if made by 
 the [school commissioners] of all the towns interested, but 
 shall extend no further than to dissolve the district formed 
 from such towns. {Sec. 46, chap. 480 of 1847, modified in 
 conformity to No. 65.) 
 
 This section can become operative only in the rare case where three 
 or more commissioners are requisite for the alteration, as it is only in 
 such case that the major part can neglect to attend. The provision 
 conveys a strong implication that, if a majority do attend, the board is 
 competent to act as if all were present. If but one attends, and two or 
 more absent themselves, it is to be inferred (though not without doubt) 
 that he may call a district meeting. 
 
ALTERATION OF SCHOOL DISTRICTS. 195 
 
 The obscurity arises from the fact that the original section, enacted 
 in 1822, and adopted in the revision of 1830, provided for the meeting 
 of town boards, each composed of three commissioners ; this was changed 
 by simply substituting the words "town superintendents" for commis- 
 sioners. As each superintendent' succeeded to the authority of the 
 board of commissioners of his town, it is fairly to be argued that he 
 possessed, and that a school commissioner now possesses, the power of 
 calling a meeting, notwithstanding the incongruity of the words care- 
 lessly left in the statute, " a majority of votes," with the action of a 
 single person. 
 
 If the district meeting elects to dissolve the district (which is the 
 extent of its power), the several parts revert to the towns in which they 
 are respectively included, and become subject to regulation by the school 
 commissioner having jurisdiction therein. ((See case of Newsiead and 
 
 Clarence, Digest, ante, p. 8.) 
 
 • 
 
 No. 78. When two or more districts shall be consolidated 
 into one, the new district shall succeed to all the rights 
 of property possessed by the districts of which it shall be 
 composed ; and when, a district is annulled and portions 
 thereof are annexed to other districts, the property of the 
 district so annulled shall be sold by the [school commis- 
 sioner] of the town in which the school-house is located, 
 at public auction, to the highest bidder therefor, after at 
 least five days' public notice by notices posted in three or 
 more public places in said town, one of which shall be 
 within the dis-trict so annulled, and the proceeds of such 
 sale shall be first applied, so far as requisite, to the payment 
 of any just debts due from the district so annulled, and the 
 residue thereof shall be apportioned among the taxable in- 
 habitants of the district so annulled, in the ratio of their 
 several assessments upon the last corrected assessment roll of 
 the town or towns within which such district is located. 
 {Sec, b^, chap. 480 of 1847, as amended by % 2, chap. 382 of. 
 1849, and modified in conformity to No. 65. ) 
 
 When two districts are consolidated, the public money which either 
 may have in the hands of the supervisor, unexpended, becomes applica- 
 ble to the payment of teachers' wages and to the library of the consoli- 
 dated district, without any distinction between the inhabitants or pupils 
 of the former districts. If there is any money due to a teacher of either 
 district, it should b« drawn before the eonsolidation takes effect, or so 
 
196 OF THE FORMATION AND 
 
 much of it as is applicable to tlie payment of wages during the term in 
 ■which they were earned. 
 
 A district is annulled only when all its parts are annexed to other 
 districts, so that nothing of the original district remains. If any of it 
 remains as a distinct district, although designated by a new name and 
 number, it is not a case of annulling. 
 
 In respect to the property to be sold : Property is defined in the Code 
 of Procedure as including lands, tenements and hereditaments, money, 
 goods, chattels, things in action and evidences of debt. The only point 
 upon which much question is likely to arise regards the library of the 
 annulled district. A portion of the books may have been purchased 
 with money voted by the district and raised by tax upon the district. 
 So far as these are concerned, they undoubtedly belong to the district 
 and may be sold when it is annulled. In respect to those which have 
 been purchased by the library money apportioned from the income of 
 the United States deposit fund, the case is different. The money of the 
 state was appropriated to the support of common schools by furnishing a 
 library, and there is nothing to imply an intention that it should ever 
 be diverted from its public purpose by becoming private property. 
 The trustees of the district are made trustees of the library, but the 
 property in it, it is declared, " shall be deemed to be vested in such trus- 
 tees, so as to enable them to maintain any action relative to the same" 
 The legislature seem to have designed hereby to confer only a qualified 
 property, for a specific purpose, retaining the general property in the 
 people of the State of New- York, precisely as the property of the 
 library of the court of appeals, the attorney general, &c., is held. 
 
 It is believed, therefore, that the books, so far as they have been pur- 
 chased from the funds of the state, should be distributed precisely as the 
 money itself would be if it came to the hands of the commissioner for 
 distribution on the day of the annulling of the district ; that is, should 
 be assigned to the respective districts to which parts are annexed, in 
 proportion to the number of children between four and twenty-one 
 resident in such parts, according to the last report of the trustees. 
 
 It may happen in the case of a joint district that parts of it are 
 within the jurisdiction of two school commissioners, and a school-house 
 be situated in each of those parts. In such case, to avoid all question, 
 both commissioners should unite in the sale of all the property and in 
 executing the necessary bills of sale and deeds of the real estate. 
 
 The power to sell authorizes a sale only for ready money. The com- 
 missioner therefore should require cash payment, and should make and 
 
ALTERATION OF SCHOOL DISTRICTS. 197 
 
 proclaim it as a condition of the sale that unless full payment be made 
 within a limited number of hours the property may be exposed without 
 further notice, and that any loss upon such second sale shall be borne by 
 the bidder not completing his purchase. This condition should be 
 inserted in the posted notices. 
 
 No. 65, ante, imposes upon the commissioner the disposal and appor- 
 tionment of the moneys arising from the sale, but proceeds : " and he 
 shall pay over the said moneys to the supervisors, to be by them paid to 
 the districts or parts of districts which may be entitled to receive the 
 same." To satisfy the terms of the original section and the provisions 
 above cited from No. 65, it would seem to be requisite that the commis- 
 sioner should ascertain the just debts due from the district annulled, and 
 make the apportionment of the residue of the proceeds of the sale 
 among the taxable inhabitants, leaving the money in the hands of the 
 supervisor for payment to the creditors and inhabitants of the district. 
 
 The debts must be ascertained from the trustees, and the supervisor 
 should only pay them upon the written order of a majority of the trus- 
 tees. If debts are claimed which are not admitted by the trustees, the 
 money should be retained until any legal proceeding instituted for their 
 collection is determined. 
 
 The last corrected assessment roll is that which was delivered by the 
 assessors to the supervisor to be laid before the board of supervisors. 
 If in the equalization by the board of supervisors the valuation of real 
 estate has been changed, the roll as thus varied by them is to be fol- 
 lowed in distributing the money. But the completion of a new roll by 
 the assessors, and its delivery to the supervisor, supercedes the roll of the 
 preceding year, although the latter has been and the former has not 
 been passed upon by the board of super\-isors. (7 Wend., 89; and see 
 Digest, ante, p. lOi.) 
 
 In a joint district, where the proportion of taxes to be assessed upon 
 the parts of such districts lying in different towns have been established 
 by tlie supervisors of such towns, under sec. 72, chap. 480 of 1847, post, • 
 No.- 129, the proceeds of the sale are to be divided between the parts 
 of the districts in the proportion thus established, and the shares of such 
 parts then apportioned to their respective inhabitants on the last cor- 
 rected assessment roll of the town in which each part lies. 
 
 No. 79. When there shall be any moneys in the hands of 
 the officers of a district that is or may be annulled, or belong- 
 ing to such district, the [supervisor] of the town may demand, 
 
198 OF THE FORMATION AND 
 
 sue for and recover the same, in his name of office, and [after 
 deducting his costs and expenses shall report the balance in 
 his hands to the commissioner, who] shall apportion the same 
 equitably between the districts to which the several portions 
 of such annulled district may have been annexed, to be held 
 and enjoyed as district property. (Sec. 52, chap. 480 of 1847, 
 modified in covformity to No. 53.) 
 
 The collector and trustees are the only officers of a district in whose 
 hands there can be legitimately any money ; such money may be the 
 proceeds of a tax collected but not expended. In such case, the equita- 
 ble mode of distribution would be to apportion it to the districts accord- 
 ing to the amount which the taxable inhabitants and property set off to 
 each have contributed thereto ; the same rule would hold in regard to 
 the proceeds of the sale of school-houses or other property acquired by 
 taxation. 
 
 In case, however, the money is applicable to the payment of the 
 current expenses of schools, such as the share of a town fund, the 
 income of a school lot or the districts' proportion of fines for gambling, 
 under chap. 504 of 1851, the equitable rule of apportionment is to 
 assign it to the districts in proportion to the number of pupils resident 
 in the parts annexed to them respectively. 
 
 In case it becomes necessary to bring an action against the officers 
 of a joint district, the supervisors of all the towns of which it forms a 
 part must join as plaintiffs in the suit. 
 
 It may be doubted whether the supervisor is authorized to maintain an 
 action against any other person than an officer of a district for moneys 
 belonging to it; the statute, giving him the power to sue, confining it to 
 penalties and forfeitures, and to defaults and omissions by town and 
 district officers ; the trustees should in such case bring the action before 
 the order annulling their district takes effect. 
 
 No. 80. "Whenever a school district shall be dissolved, by 
 consolidation or otherwise, it shall be the duty of the trustees 
 of such district to make out all the necessary rate bills and 
 tax lists, and issue their warrants according to law for the 
 collection of all such sums of money as shall be necessary to 
 discharge all legal liabilities of such district so dissolved or 
 consolidated, and to call special meetings of the legal voters 
 of such district, if it be necessary to raise money by tax, to 
 discharge such demands ; and the collector to whom any such 
 
POWERS OF DISTRICT MEETINGS, &c. 199 
 
 rate bill or tax list and warrant shall be delivered for collection, 
 shall have power to execute the same in the same manner and 
 with like authority as though such district, had not been 
 dissolved or consolidated. {i>ec. 53, chap. 480 of 1847.) 
 
 Though the statute contains no limitation of the time within which 
 the trustees of a dissolved or consolidated district are required to dis- 
 charge their duties under this section, there can be no valid reason for 
 any longer delay than may be essential to ascertain its outstanding 
 liabilities. The pendency of litigation, in respect to some of them, may 
 put it out of the power of the trustees to act immediately, and their 
 powers doubtless continue so long as any legal liability subsists ; the 
 existence of the district is maintained for this special purpose,, and its 
 last officers hold over until it is accomplished. In case of the removal, 
 death or other inability of the clerk or collector, it is probably within 
 the power of the trustees to fill the vacancy by appointment. The 
 difficulties which may arise in filling such vacancies, and the impossi- 
 bility of supplying a vacancy among the trustees, must admonish the 
 latter of the serious importance to themselves of settling the affairs of 
 the district with the greatest possible dispatch. 
 
 OF THE POWERS OF SCHOOL DISTRICT INHABITANTS, 
 AND OF THE CHOICE, DUTIES AND. POWERS OF SCHOOL 
 DISTRICT OFFICERS. 
 
 No. 81. Whenever any school district shall be formed in 
 any town, it shall be the duty of the [" school commissioner, 
 in respect to the several towns within his jurisdiction,"] 
 within twenty days thereafter, to prepare a notice, in writing, 
 describing such district, and appointing a time and place for 
 the first district meeting, and to deliver such notice to a 
 taxable inhabitant of the district. {Sec. 54, chap. 480 of 1847, 
 modified in conformity to No. 65.) 
 
 Where two or more districts are consolidated, the united territory 
 forms a new district. It is necessary to elect new trustees and other 
 district officers, and the notice provided by this section should, therefore, 
 be given by the commissioner. The meeting for organization cannot 
 be held until the district " shall be formed," that is, not until the order 
 for its formation shall have taken efi'ect by the consent . of trustees, the 
 
200 POWERS OF DISTRICT MEETINGS 
 
 expiration of three months' notice or the decision of an appeal, if one 
 has been brought. 
 
 The notice is to describe the district by metes and bounds, so that 
 the inhabitant to whom it is delivered may know, without recourse i6 
 any other document, over what territory he is to search for inhabitants. 
 It may bo in the following form : 
 
 To , a taxable inhabitant of District No. , in the 
 
 town of : 
 
 WTiereas, By an order of the school commissioner for the 
 assfembly district (or section, where a county forming but one assembly 
 district is divided) of the county of , which order is dated 
 
 the day of , and took effect on that day (or will take 
 
 effect on the day of next, • specifying the day, which 
 
 must precede the day of meeting), a school district is formed, num- 
 bered No. , and bounded and described as follows, viz : Begining 
 (pursuing the description as in the note to No. 73.) 
 
 You are hereby required to notify every male person of fiiU age, 
 residing in the territory above described and entitled to hold lands 
 within this state, who owns or hires real property subject to taxation for 
 school purposes, and every resident of such territory authorized to vote 
 at town meetings of the town of , (in the case of a joint district, 
 
 say, either of the towns of or ) and who has 
 
 paid any rate bill for teachers' wages in such territory within one year 
 preceding the day of (the date of the meeting, not of the 
 
 notice), or who owns any personal property, liable to be taxed for school 
 purposes in such territory, exceedingfifty dollars in value exclusive of such 
 as is exempt from execution, that the first district meeting of said district 
 is hereby appointed to be held at the house of , at six o'clock 
 
 in the afternoon of the day of next, for the purpose of 
 
 electing a district clerk, three trustees, a district collector and a librarian; 
 of designating sites for two or more school-houses, to which I hereby 
 consent; and of voting such taxes to purchase or lease such sites, to hire, 
 build or purchase such school-houses, to keep in repair and furnish the 
 same with necessary fuel and appendages, for the purchase of a book 
 for the purpose of recording the proceedings in the district, and, in their 
 discretion, an additional tax, not exceeding twenty dollars, to purchase 
 maps, globes, black-boards and other school apparatus; to adjourn from 
 time to time as occasion naay require, and at such meeting or any 
 adjourned session thereof to transact such other business as the inhabi- 
 tants iJien assembled shall deem expedient. 
 
AND OF DISTRICT OFFICERS. 201 
 
 You are required by law to read this notice in the hearing of each 
 inhabitant qualified as above described, or, in case of his absence from 
 home, to leave a copy of so much thereof as relates to the time and 
 place of such meeting at the place of his abode, at least six days before 
 the time of the meeting. Dated this day of 
 
 A.B., 
 
 School Commissioner. 
 
 It is not claimed to be absolutely essential that the notice should be 
 as full as the form above recommended. It is essential that the time of 
 day and the place of meeting should be accurately specified. (16 Verm. 
 JB., 444.) It is eminently desirable that the notice should be so broad 
 that no person hearing it should have the slightest ground for profess- 
 ing to be surprised at any business which can by possibility be presented 
 at the meeting. This is a rule that is applicable to all notices for all 
 meetings. At the same time, it is expedient that the earliest occasion 
 should be taken to apprise the inhabitants of the extent of the powers of 
 a district meeting, and how little they are limited by the terms of the 
 notice. A meeting lawfully assembled for one object is competent to 
 act upon others which were not in the contemplation of those who pro- 
 cured it to be called, and may do almost anything except change the 
 site of the school-house. It is true that, though the proceedings of a 
 meeting may be entirely regular and legal, it is within the equitable 
 powers of the State Superintendent, upon an appeal, to set them aside 
 where it can be shown that there was a fraudulent design to frame the 
 notice in such a manner as to conceal the real purpose for which the 
 meeting was convened. But it is not to be forgotten that the object of 
 the notice is merely to assemble the inhabitants as the local legislature, 
 and that when so assembled their powers are defined, not by the notice 
 but by the statute. Indeed it would follow, from the general principles 
 which have been applied by the courts to elections and other corporate 
 acts, that " if all were present, though by accident and without notice, 
 their acts would be good." [King v. Theoderic, 8 Hast., 543; see also 
 11 Wend., 604.) In reference to an annual meeting, the supreme court 
 (6 Hill, 647) say: "for greater caution, and to give greater publicity to 
 the meeting, the statute directs the clerk to post notice of it; but that 
 is not essential to its validity. The time and place for holding it may 
 always be ascertained by examining the clerk's records, and an objection 
 that notice was not duly posted should never be allowed to prevail. 
 The foundation of the meeting is the order of a previous annual meet- 
 
 tOoDK.] 26 
 
202 POWERS OF DISTRICT MEETINGS 
 
 ing, not the posting of a notice by the clerk. The' former is indispensi- 
 ble, but not the latter." (See pp. 63, avd 74, ante.) 
 
 t 
 No. 82. It shall be the duty of such inhabitant to notify 
 every other inhabitant of the district, qualified to vote at dis- 
 trict meetings, by reading the notice in the hearing of such 
 inhabitant, or, in case of his absence from home, by leaving a 
 copy thereof, or of so much thereof as relates to the time and 
 place of such meeting, at the place of his abode, at least six 
 days before the time of the meeting. ( Sec. 55, chap. 480 of 
 1847.) 
 
 In computing statute time, the first day, or the day on which the time 
 begins to run, is to be excluded. (10 Barb., 111.) The notice under 
 this section, must be six full days, exclusive of the day of .service, and 
 must therefore be given as early as the seventh day before the meeting. 
 
 It is always important that the persons on whom and the manner in 
 which the notice has been served should be verified by proper evidence, 
 which can be preserved. In reference to a similar notice under the 
 school law of Massachusetts, the supreme court of that state says : "When 
 the selectmen direct a warrant for calling a school district meeting to a 
 proper person, he is made a returning officer for that occasion. All 
 returning ofScers are ministerial, and are bound to set forth in their 
 returns all the acts done by them, that the proper tribunal may judge 
 of their sufficiency. They are not competent to judge of the legality 
 of a notice or service ; and a return that a precept had been legally 
 served, or that the duty enjoined by a warrant had been duly performed, 
 would most clearly be insufficient." To obviate this objection the 
 inhabitant who gives notice of the meeting should frame his return in 
 substantially the following manner : 
 
 Pursuant to the within notice, I have notified the inhabitants quali- 
 fied and residing as therein described, at least six days before the time 
 of the meeting, in the following manner, viz : By reading the notice m 
 their hearing — John Doe, Charles Davis, &c. (naming them in full) ; by 
 leaving a copy of so much of the within as relates to the time and place 
 of meeting at their respectiv.e places of abode, they being absent from 
 home — Robert Kidd, Henry Hunter, &c., (fee. This return, endorsed 
 upon the notice and signed by the inhabitant making it, should be pro- 
 duced at the meeting and filed with the records of the district. It 
 constitutes the appropriate evidence of the service of notice ; but it is 
 not to be inferred that in its absence secondary evidence may not be 
 
AND OF DISTEICT OFFICERS. 203 
 
 received to support the proceedings of the meeting, whose jurisdiction 
 depends upon facts and not upon mere evidence. 
 
 It is proper to remark that the notice should be given to every 
 inhabitant having any pretension to a right to vote, although the person 
 giving it may deem his qualifications insuflBcient. The giving him 
 notice determines nothing as to the right; the omission of it may 
 invalidate the proceedings and subject the voters to the inconvenience 
 of a second meeting. 
 
 No. 83. In case such notice shall not be given, or the Inhabi- 
 tants of a district shall refuse or neglect to assemble or form 
 a district meeting, when so notified ; or in case any such dis- 
 trict, having been formed and organized in pursuance of such 
 notice, shall afterwards be dissolved, so that no competent 
 autnority'shall exist therein to call a special district meeting 
 in the manner hereinafter provided ; such notice shall be 
 renewed by the [school commissioner] and served in the man- 
 ner above prescribed. {Stc. 56, cha'p. 480 of 1847, modified, in 
 conformity to No. 65.) 
 
 No comment is necessary upon so much of this section as relates to 
 the repetition of the notice of the first meeting for the organization 
 of a district. The power of the commissioner to call a meeting in a 
 district after it has been organized by the election of ofiicers is restricted, 
 so far as this section goes, to the case of no competent authority exist- 
 ing therein in consequence of its having been disssolved. It is intended 
 to provide only for the case of a joint or consolidated district being 
 severed. A subsequent section confers the power of calling meetings 
 upon the commissioner in the cases therein mentioned. 
 
 No. 84. Every taxable ishabitant, to whom a notice of 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 every such offence for- 
 feit the sum of five dollars. {Sec. 57, cha;p. 480 of 1847.) 
 
 It will be observed that this section imposes a penalty for every 
 refusal to serve a notice for any district meeting properly delivered to 
 an inhabitant. It is coextensive with the preceding section. A doubt 
 whether the commissioner is legally entitled to his office will not excuse 
 a refusal, if he be an officer de facto, holding under color of election 
 and exercising the duties of the office. It is not for a ministerial- officer 
 
204 POWERS OF DISTRICT MEETINGS 
 
 to judge of the valiility of the election of an ofEcer de facto; for 
 example, a district clerk should serve a notice signed by persons recog- 
 nized and acting as trustees, though he deems them to have no title to the 
 office and regards the notice as invalid. {See 1 John., 552 ; Digest, 
 ante, pp. 55 and 61.) 
 
 No. 85. Every notice of a district meeting called in pursu- 
 ance of this act shall state the purpose for which such meet- 
 ing is called. {Sec. 64, chap. 480 of 1847.) 
 
 It is of great importance to the peace and harmony of districts that 
 no inhabitant should have the slightest foundation for alleging himself 
 to have been misled as to the object for ■which a district meeting is 
 called. The statute therefore enjoins a distinct declaration of the pur- 
 poses of those who procure the call of a meeting in the notice for it. 
 It is a violation of official duty on the part of the trustees to omit the 
 mention of any subject which it is intended to submit to the considera- 
 tion of the inhabitants. For their own protection, and for the purpose 
 of rendering the proceedings safe against objection, they should seek to 
 err by unnecessary fullness and particularity in the enumeration of 
 the purposes of a meeting rather than by an omission which they 
 may deem of no importance. It is true, indeed, that every inhabitant 
 who absents himself from any meeting, voluntarily assumes the risk that 
 those who assemble may act upon various subjects not mentioned in the 
 notices, and bind the absentees by their determination, but this furnishes 
 no excuse for the officers whose duty it is to give him the amplest 
 warning in their power. 
 
 No. 86. In each school district an annual meeting shall be 
 held at the time and place previously 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. 
 {Sec. 65, cluip. 480 of 1847.) 
 
 It has been recommended by the State Superintendent that the first 
 Tuesday of October should be fixed by law as a general time for hold- 
 ing the annual meetings. The fiscal year of the state closes with the 
 30th of September, and it is very desirable that the annual accounts of 
 the districts should be brought up to the same time. Many districts 
 have voluntarily conformed to this suggestion, and it is in the power of 
 all to. do so by adjourning their annual meeting to that day. {See 
 Digeit, ante, p. 3.) It is necessary, however, as the law sow stands, that 
 
AND OF DISTRICT OFFICERS. 205 
 
 tie resolution fixing the time and place for the next, should be repeated 
 at each, annual meeting. 
 
 No. 87. Whenever the time for holding annual meetings in 
 a district for the election of district officers shall pass without 
 such election being held, a special meeting shall be notified by 
 the clerk of such district to choose such officers ; and if no 
 such notice be given by him or the trustees last elected or 
 appointed within twenty days after such time shall have passed, 
 the [^town superintendent^ or town clerk may order any inhabi- 
 tant of such district, qualified to vote at district meetings, to 
 notify such meeting in the manner provided by law in case 
 of the formation of a new district ; and the officers chosen at 
 any such special meeting shall hold their office until the time 
 for holding the next annual meeting. ( Sec, 66, chap. 480 of 
 1847.) 
 
 The statute has not substituted the school commissioner or supervisor 
 in place of the town superintendent for the purposes of this section. It 
 is intended to provide for the case where an annual meeting has fallen 
 through (at least so far as the election of oiBcers is concerned), the time 
 of which was regularly fixed by the preceding annual meeting, or in 
 default of that by the trustees. In that case the clerk and other ofli- 
 ccrs hold over until superseded by a new election, and cannot be super- 
 seded by an appointment. It is the duty of the trustees in the first 
 instance to order a meeting for that purpose, and for the clerk to give 
 the notice. If the trustees fail to order a meeting, the clerk should 
 himself appoint a time and give the notice, and this he should do 
 notwithstanding the expiration of twenty days (the statute in regard to 
 the time being merely directory), unless the town clerk shall have 
 acted in the premises. The town clerk should promptly make the 
 order, upon the application of any inhabitant, at the expiration of 
 twenty days, without waiting for the action of the trustees or district 
 clerk. 
 
 No. 88. When the clerk and all the trustees of a school 
 district shall have removed or otherwise vacated their office, 
 and where the records of a district shall have been destroyed 
 or lost, or where trustees neglect or refuse to call meetings to 
 choose trustees, the superintendent shall have authority to 
 order such meetings, and the same shall be notified in the 
 
206 POWERS OF DISTRICT MEETINGS 
 
 manner provided by law in the case of the formation of new 
 districts. (Sec. 67, chap. 480 of 1847.) 
 
 This section is substantially a transcript of § 4, chap. 330 of 1839, 
 and the superintendent meant by it is the State Superintendent. 
 
 An inhabitant who neglects to serve a notice under either of the two 
 preceding sections is liable to a penalty of five dollars under Jfo. 84, 
 ante. 
 
 No. 89. When in consequence of the loss of the records of 
 a school district, or the omission to designate the day for its 
 annual meeting, there shall be none fixed, or it cannot be 
 ascertained, the trustees of such district may appoint a day 
 for holding the annual meeting of such district. {Sec. 68, 
 chap. 480 of 1847.) 
 
 The direction of the trustees to the clerk to give notice of an annual 
 meeting for a particular day is an appointment of that day. [Digest, 
 ante, p. 103.) It ought to be in writing, subscribed by a majority of the 
 trustees, and should recite the fact that no day was designated at the 
 last annual meeting, or that the same cannot be ascertained. In case 
 the records state that a day was designated, but the fact is disputed, the 
 trustees should obviate the objection by formally appointing the day 
 mentioned in the records, sufficient time in advance to enable the clerk 
 to post a notice of at least five days. 
 
 No. 90. A special meeting shall be held in each district 
 whenever called by the trustees ; and the 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 that the omission to give such notice 
 was willful and fraudulent. {Sec. 69, chap. 480 of 1847.) 
 
 The provision to cure the defect of notice relates to the mode and 
 extent of service, and not to the insufficiency of the matter contained 
 in the notice itself. 
 
 It was intended for cases where through accident or mistake the 
 proper legal notice has not been given to all who are entitled to it ; but 
 it cannot be construed to extend to cases in which no attempt is made 
 to give the notice required by law to any of the inhabitants. Where 
 the clerk of a district undertakes to give a notice in the manner provi- 
 ded by the statute, and has failed, unintentionally, to serve such notice 
 
AND OF DISTRICT OFFICERS. 207 
 
 on all tlie persons entitled to receive it, or where such notice is imperfectly 
 served, the proceedings of the meeting will not be void on that account. 
 They may, however, be set aside on appeal, on showing sufficient cause. 
 [Com. School Dec, 186, 223; and also Digest, ante, p. 86.) 
 
 No. 91. Whenever any district meeting shall be called in 
 the manner prescribed in the preceding sections of this article, 
 it shall be the duty of the inhabitants of the district, qualified 
 to vote at district meetings, to assemble together at the time and 
 place mentioned in the notice. (Sec. 58, chap. 480 of 1847.) 
 
 The question of residence is one frequently agitated, not only with 
 respect to the right of voting and of holding district offices, hut in 
 regard to the enumeration of pupils. The principles which govern its 
 determination have been largely discussed by the courts in construing 
 the -vioTds residence, domicil and inhabitancy, which, though not in all 
 respects and for all purposes convertible terms, mean generally the same 
 thing. 
 
 Inhabitancy and residence, says Chancellor Walworth (8 Wend., 140), 
 " mean a fixed and permanent abode or dwelling place for the time 
 being, as distinguished from a,mere temporary locality of existence." To 
 acquire a domicil two things are necessary, the fact of residence in a 
 place, and the intent to make it a home. To retain a domicil once 
 acquired, actual residence however is not indispensable, but it is retained 
 by the mere intention not to change it or adopt another, or rather by 
 the absence of any present intention of removing therefrom. Nor is the 
 domicil affected by the forming of an intention to remove, unless such 
 intention is carried into efi'ect. This results from the rule that a domicil 
 once acquired remains 'until a new one is acquired. In legal contem- 
 plation, every person must have a domicil somewhere, and he can only 
 have one domicil at one and the same time. 
 
 In determining the locality of a man's existence, where he divides his 
 hours between different buildings, the place of his dwelling-house is 
 firi-t regarded in contradistinction to any place of business, trade or 
 occupation. If he has more than one dwelling-house, that in which he 
 sleeps or passes his nights, if it can be distinguished, will govern. If 
 the dwelling-house is partly in one town and partly in another, the 
 occupant must be deemed to dwell in that town in which he habitually 
 sleeps, if it can be ascertained (23 Pick., 178.) 
 
 The constitution establishes the rule, by § 3, art., 2, that " For the 
 purpose of voting, no person shall be deemed to have gained or lost a 
 
208 POWERS OF DISTRICT MEETINGS 
 
 residence by reason of his presence or absence while employed in the 
 service of the United States ; nor while engaged in the navigation of 
 the waters of this state, or of the United States, or of the high seas ; 
 nor while a student of any seminary of learning ; nor while kept at any 
 •alms-house or other asylum at public expense ; nor while confined in 
 any public prison." 
 
 The intention of remaining, requisite to constitute a resident, must 
 be independent of any temporary purpose of business, health or plea- 
 sure, though it does not necessarily exclude the idea of removing after 
 an indefinite time, or a change of circumstances. Once established in 
 any place, the presumption of residence continues unless rebutted, and 
 the burthen of proof is upon a party alleging a change. 
 
 The following is a condensed statement of the rules given by Judge 
 Story ( Conflict of Lawn, chap. 3 ) ; most of them are stated and illus- 
 trated by our supreme court (4 Barb., 518) : 
 
 1. The place of birth of a person is considered as his domicil, if it 
 be at the the time the domicil of his parents. This is called the domi- 
 cil of nativity. But if his parents are on a visit or on a journey, the 
 home of the parents will be deemed his domicil. An illegitimate child 
 follows the domicil of his mother ; 
 
 2. The domicil of birth continues until he has acquired a new domi- 
 cil; 
 
 3. A minor is generally deemed incapable of changing his domicil, 
 but if the parent changes his domicil that of the minor follows it. If 
 the father dies his last domicil continues that of his minor children. 
 This rule is subject to qualification if the minor has been emancipated 
 from parental control or adopted into a new family ; 
 
 4. A married woman follows the domicil of her husband ; 
 
 5. A widow retains the domicil of her deceased husband until she 
 acquires another; 
 
 6. Prima facie, the place where a person lives is deemed his domicil ; 
 
 7. Every person of full age having a right to change his domicil, if 
 he removes to another place with an intention of making it his perma- 
 nent residence, that immediately becomes his domicil ; 
 
 8. If a person removes to another place with an intention of remain- 
 ing there for an indefinite time, and as a place of present domicil, it 
 becomes his domicil notwithstanding ho may entertain a floating inten- 
 tion to return at some future period ; 
 
 9. The place where a married man's family resides is generally 
 deemed his domicil, but not if it be a merely temporary establishment ; 
 
 10. If a married man has his family in one place and his business in 
 another, the former is deemed his domicil ; 
 
 11. If a married man has two places of residence at different times 
 of the year, "that will be esteemed his domicil which he himself selects 
 
AND OF DISTRICT OFFICERS. 209 
 
 or deems his home, or which appears to be the centre of his affairs, or 
 where he votes or exercises the rights and duties of a citizen ; 
 
 12. If a man is unmarried, that is generally deemed his domicil 
 where he transacts his business, exercises his profession or assumes the 
 privileges or duties of a citizen. But this rule is subject to qualifica- 
 tion ; 
 
 13. Residence, to produce a change of domicil, must be voluntary, 
 not by imprisonment, &c. ; 
 
 14. Mere intention to remove, without the fact of removal, will not 
 change the domicil; nor will the fact of removal without intention. 
 They must go together ; 
 
 15. A domicil, once acquired, remains until a new one is acquired. 
 
 No. 92. Every male person of full age, residing in any 
 school district and entitled to hold lands in this state, who 
 owns or hires real property in such district subject to taxation 
 for school purposes, and every resident of such district autho- 
 rized to vote at town meetings of the town in which such 
 district or part of district is situated, and who has paid any 
 rate bill for teachers' wages in such district within one year 
 preceding, or who owns any personal property liable to be 
 taxed for school purposes in such districts exceeding $50 
 in value, exclusive of such as is exempt from execution, 
 and no others, shall be entitled to vote at any school district 
 meeting held in such district. ( Sec. 59, cfiap. 480 of 1847.) 
 
 Cases elucidating the qualifications of voters will be found at pages 67, 
 81 and 90, ante. They must in all cases be males, twenty-one years of 
 age, and residents of the district. Possessing these qualifications, a man 
 to be entitled to vote must possess also one of the following qualifications, 
 and either one is suflBcient : 
 
 1. He must be entitled to hold lands,, and therefore, if an alien, must 
 have complied with the condition stated at page 81, and must also own 
 or hire real property in the district subject to taxation ; it matters not 
 how small is the real property or how brief the term for which it is 
 hired ; tenancy from week to week of a shanty or a room is sufficient. 
 The real property must be subject to- taxation, and it matters not that 
 the person claiming to vote as the owner or hirer of it is not actually 
 taxed for it himself, or that the property is not taxed to the owner or 
 any other person. A man of color may, therefore, be a voter at a district 
 meeting, who hires real property of less than $250 in value, because it 
 is subject to taxation as the property of ithe otoner ; although the man 
 of color cannot vote as the owner of real property of less than $250 in 
 
 fCoDB.] 27 
 
210 POWERS OF DISTRICT MEETINGS 
 
 value, because the constitution (§ 1, art. 2) exempts him from taxation 
 unless he possesses a freehold estate of that value. Quere, however, 
 whether a man of color who owns real property, worth say $200, which 
 he rents to a white man, so that the latter is taxable as occupant, is 
 not entitled to vote at a district meeting. 
 
 2. Or must own personal property liable to taxation exceeding $50 in 
 value, exclusive of such as is exempt, and must be authorized to vote at 
 town meetings of the town in which the district, or the part thereof 
 where he resides, is situated. 
 
 In Crawford v. Wilson, 4 JliU, 504, the supreme court held in 
 effect that in estimating the amount of a voter's personal property a 
 debt due to him from a school district for teachers' wages, and from his 
 father for services, might be taken into account. No unnaturalized alien, 
 Indian or man of color can entitle himself to vote in virtue of his 
 possession of taxable personal property. His claim must be tested 
 by the possession of the right to vote at town meeting, which requires 
 citizenship (which excludes aliens and Indians) for ten days, residence of 
 the state for one year next preceding, and of the county for the last 
 four months, and, in regard to the man of color who is a citizen, the 
 real property qualification also. 
 
 3. Or he must b». entitled to vote at town meetings, and must have 
 paid a rate bill for teachers' wages within one year preceding. In 4 
 Hill, 516, above cited, it was held that the payment by the voter of part 
 of a rate bill for teichers' wages, although included in the sum assessed 
 against his father, comes within the terms of the act. 
 
 This qualification, like the preceding, is inapplicable to unnaturalized 
 aliens, Indians and men of color. 
 
 The personal property exempt from execution is defined by law as 
 follows : " When owned by any person being a householder ; and such 
 articles thereof as are movable shall continue so exempt while the 
 family of such person or any of them may be removing from one place 
 of residence to another. 
 
 " 1. AU spinning wheels, weaving looms, and stoves put up or kept 
 for use in any dwelling-house ; 
 
 " 2. The family bible, family pictures, and school books used by or in 
 the family of such person; and books not exceeding in value fifty 
 dollars, which are kept and used as part of the family library ; 
 
 " 3. A seat or pew occupied by such person or his family in any house 
 or place of public worship ; 
 
 " 4. All sheep to the number of ten, with their fleeces, and the yam 
 or cloth manufactured from the same (though not the owner of the sheep 
 
AND OF DISTRICT OFFICERS. 211 
 
 on •which grew the fleeces from which they are made, 21 Wend., 69), 
 one cow, two swine, the necessary food for them (but not for a team, 
 5 I>enio, 119), all necessary pork, beef, fish, flour and vegetables actually 
 provided for family use (although such vegetables may be in the ground, 
 undug or not fully grown, 25 Wend., S^Oj, and necessary fiiel for the 
 use of the family for sixty days ; 
 
 " 5. All necessary wearing apparel, beds, bedsteads and bedding for 
 such person and his family, arms and accoutrements required by law 
 to be kept by such person, necessary cooking utensils, one table, six 
 chairs, six knives and forks, six plates, six teacups and saucers, one sugar 
 dish, one milk pot, one tea pot and six spoons, one crane and its appen- 
 dages, one pairiof and-irons and a shovel and tongs ; 
 
 " 6. The toals and implements of any mechanic necessary to the 
 carrying on of his trade, not exceeding twenty-five dollars in value." 
 (Sec. 22, chap. 6, art. 2, tit. 5, part 3, Eev. Stat.) 
 
 It is also provided, by chap. 157 of 1842, that in addition to the articles 
 before enumerated, there shall be exempted from levy and sale under 
 execution " necessary household furniture, and working tools, and team 
 owned by any person being a householder or having a family for which 
 he provides, to the value of not exceeding $150; provided that such 
 exemption shall not extend to any execution issued on a demand for 
 the purchase money of such furniture, or tools, or team or articles now 
 enumerated by law." * 
 
 • "m 
 
 - 1 . y ' ' ■ ■ 
 
 * " No replevin'i^s^I lie for anyproperty taken by virtue of any warrant for 
 the collection of anY tax, assessment or fine in pursuance of any statute of this 
 stale." (2 R. S.,p.^22, j, 4.) 
 
 This provision must, however, be subject to the action of congress on a subject 
 which by the constitution is within its jurisdiction. The constitution in express 
 terms gives to congress the power " to provide for organizing, arming and disci- 
 plining the militia." 
 
 By the act of congress of May 8, 1792 [vol. 2, Laws of the United States, 293), 
 every citizen enrolled in the militia is required to provide himself with the fol- 
 lowing accoutrements, viz : "A good musket or firelock, a sufficient bayonet and 
 belt, two spare flints and a knapsack, a pouch with a box therein, to contain not 
 less than twenty-four cartridges suited to the bore of his musket or firelock, 
 each cartridge to contain a proper quantity of powder and ball ; or with a good 
 rifle, knapsack, shot pouch and powder horn, twenty balls suited to the bore of 
 his rifle, and a quarter of a pound of powder ; " and the commissioned officers 
 are required to be armed with a sword, or hanger, or espontoon ; and it is 
 declared that every citizen so enrolled and providing himself with arms, ammuni- 
 tion and accourtrements, required as aforesaid, shall hold the same exempted from 
 all suits, distresses, executions or sales for debts, or for the payment of taxes. 
 
 By the laws of this state (cAop. &,pa/rtZ, title h, % 22, vol. 2, R. S.), the " arms 
 and accoutrements required by law to be kept by any person," as well as a variety 
 of other articles therein specified,, are exempt from execution, but not from 
 distress from taxes. The only exemption, therefore, from the operation of a col- 
 lector's warrant on a tax list, arises under the act of congress before quoted, and 
 this can only be extendsd to the arms, ammunition and accoutrements therein 
 specified. 
 
212 POWERS OF DISTRICT MEETINGS 
 
 ^0. 93. If any person offering to vote at any school district 
 meeting shall be challenged as unqualified, by any legal voter 
 in such district, the chairman presiding at such meeting shall 
 require the person so offering to make the following declara- 
 tion : "I do declare and affirm that I am an actual resident 
 of this school district, and that I am qualified to vote at this 
 meeting." And every person making such declaration shall 
 be permitted to vote on all questions proposed at such meet- 
 ing, but if any person shall refuse to make such declaration 
 his vote shall be rejected. {Sec. 60, chap. 480 of 1847.) 
 
 [See Digest, p. 61, ante.) A party knowing a person to be unquali- 
 fied and permitting him to vote without challenge will not be allowed 
 to object to the proceedings of the meeting because such unqualified 
 person participated in them. It has been the practice of some of the 
 State Superintendents upon appeal to disregard the objection that 
 unqualified persons voted, unless they were challenged, although it did 
 not appear that the fact of their disqualification was known at the time 
 of the meeting. The rule is well settled, that proceedings will not be 
 vitiated by illegal votes unless a diflferent result would have been pro- 
 duced by excluding such votes. ( See Digest, ante, p. 99.) It lies upon 
 the party objecting to show that fact, even, according to the judgment 
 of the supreme court, in 1 Cowen, 153, if the nature of the proceeding 
 is such as to deprive him of the power, as in the case of a vote by ballot 
 In the case cited the court say : " For aught that appears, the spurious 
 ballots were for the ticket which was in the minority. To warrant 
 setting aside the election, it must appear aflSrmatively that the successfiil 
 ticket received a number of improper votes, which, if rejected, would 
 have brought it down to a minority." It is also incumbent upon the 
 appellant to state the facts showing the lack of qualification in such 
 terms as to necessarily exclude every presumption that the voter could 
 be qualified under either of the three heads stated in the note to the 
 previous section. [See Digest, ante, p. 90.) 
 
 A challenge should be interposed at the very first instance in which 
 an unqualified person may offer to vote ; for it would be very unjust to 
 permit a party to avail himself of a vote so long as it should be cast in 
 accordance with his views, and then to object when a difference mani- 
 fested itself between himself and the voter. 
 
 If a challenge is interposed upon the vote for chairman, the person 
 who made the nomination ordinarily takes the question upon it, and 
 should regard himself as temporary chairman, and require the declaration 
 
AND OF DISTRICT OFFICERS. 213 
 
 prescribed by the statute from the challenged party, which should be 
 given in the very words of the law. 
 
 No. 94. Every person who shall willfully make a false 
 declaration of his right to vote at a district meeting, upon 
 being challenged as hereinbefore provided, shall be deemed 
 guilty of a misdemeanor, and punished by imprisonment in 
 the county jail for a term not exceeding one year nor less 
 than six months, at the discretion of the court ; and any per- 
 son voting at any school district meeting without being quali- 
 fied, shall, on conviction, be subject to a fine often dollars, to 
 be sued for and recovered by the trustees of the district for 
 its use, and with costs of suit, before any justice of the peace. 
 {Sec. 61, chap. 480 of 1847.) 
 
 No. 95. The inhabitants so entitled to vote, when so assem- 
 bled in such district meeting, or when lawfully assembled at 
 any other district meeting, shall have power, by a majority 
 of the votes of those present : 
 
 1. To appoint a chairman for the time being ; 
 
 2. To adjourn from time to time, as occasion may require ; 
 
 3. To choose a district clerk, three trustees, a district col- 
 lector and a librarian at their first meeting, and as often as 
 such offices or either of them become vacated; 
 
 4. To designate a site for a district school-house ; 
 
 5. To lay such tax on the taxable inhabitants of the dis- 
 trict as the meeting shall deem sufficient to purchase or lease 
 a suitable site for a school-house, and to build, hire or pur- 
 chase such school-house, and to keep in repair and furnish the 
 same with the necessary fuel and appendages ; 
 
 6. To alter, repeal and modify their proceedings from time 
 to time, as occasion may require ; 
 
 7. To vote a tax for the purchase of a book for the purpose 
 of recording the proceedings in their respective districts ; 
 
 8. With the consent of the [school commissioner] of the 
 town, to designate sites for two or more school-houses for such 
 district, and lay a tax on the taxable property in such district 
 to purchase or lease such sites, and to hire, build or purchase 
 such school-houses, and to keep in repair and furnish the same 
 with necessary fuel and appendages, and may also in their 
 discretion lay a tax, not exceeding twenty dollars in any one 
 year, to purchase maps, globes, black-boards and other school 
 apparatus. {Sec. 62, chaji. 480 of 1847.) 
 
^U POWERS OP DISTRICT MEETINGS. 
 
 In the exposition of this very important section, each of the powers 
 conferred by it will be separately treated. It is to be observed, that the 
 section grants these powers to the inhabitants entitled to vote, when 
 lawfully assembled at their first district meeting, or at any other district 
 meeting. It is impossible in the face of these explicit words to confine 
 the exercise of these powers to an annual meeting, or to limit them to 
 the objects expressed in the notice under which the meeting is called. 
 {See Digest, ante, pp. 15, 98, 104.) This does not conflict with the 
 doctrine that it is the duty of trustees, when giving notice of every 
 meeting, to state the purpose for which it is called. They are bound to 
 inform the inhabitants what business they, or those at whose instance 
 they give the notice, propose to lay before the meeting. But their 
 neglect in this particular cannot deprive the inhabitants of any power 
 which the statute confers upon them. The inhabitants are the legisla- 
 tive power, and, when lawfully assembled, are entitled to consider and 
 act upon propositions afifecting the interests of the district, by whomso- 
 ever offered and with however little premeditation, unless where speci- 
 ally restrained, as they are in respect to a change of site. 
 
 The resolutions of the meeting are determined by a majority of the 
 votes of those present and voting, and do not require the votes of a majority 
 of all present and not voting. Even if the words of the statute were 
 less explicit this would be the rule at common law, which, as stated by 
 Lord Mansfield (2 Burr., 1021), is: "Whenever electors are present 
 and do not vote at all, they virtually acquiesce in the election made by 
 those who do." In that case twenty-one electors were present, nine of 
 whom voted for S. as town clerk, eleven protested against him without 
 voting for any one else, and one other said "he suspended doing 
 anything." The action of the twelve was held to be the same as if they 
 had been silent ; and being present, but silent, exactly as if they had 
 been absent. They must be taken to assent to what the others agree to 
 in carrying out the purpose of the meeting. 
 
 The same doctrine is applied in a recent case (7 AdolpJi. S Ellis, 
 454) to other resolutions than those for an election. The court say : 
 " The principle, indeed, may be best illustrated by the analogy drawn 
 from electoral meetings ; but it is, in truth, of a very general nature, 
 and inseparable from the proceedings of any assembly convened for 
 doing some act necessary to be done at that meeting. The majority 
 must do it ; otherwise, however necessary, it will be left undone. But 
 what majority ? The majority of those who choose to take a part in 
 the proceedings of the assembly. At almost every meeting of commis- 
 
POWERS OF DISTRICT MEETINGS. 215 
 
 sioners for executing public works and imposing rates for that purpose, 
 it is probable that the resolution is formed by a small number of those 
 who attend, on whom the larger number are content to rely. If it were 
 found as a fact that five had passed the resolution in a room containing 
 twenty, of whose proceedings the other fifteen were ignorant, this would 
 be the undoubted act of the whole meeting, if the proceedings had 
 been conducted regularly and no fraud were practiced to occasion the 
 ignorance of the fifteen. But suppose the twenty were convened to do 
 an act which the law required them to do at that time, and the only 
 open question was as to the mode of doing it ; a mode lawfiil in itself 
 is regularly submitted, whereupon fifteen declare that though the law 
 has imposed the duty on them they entertain so strong an objection, on 
 grounds of conscience, to the law, that they refuse entirely to concur in 
 obeying it. What must be the consequence ? Must the law be set at 
 nought and its requirements be disregarded, or must not those who 
 stand aloof be considered as refusing to assist in the execution of their 
 duty and leaving it to be done by the minority, which is desirous of 
 doing what is right ?" 
 
 We proceed to consider the several powers of a district meeting in 
 the order of the statute. 
 
 1. To appoint a chairman for the time being : As the statute directs 
 the appointment of a chairman, he should be so entitled, and not moder- 
 ator or president. The acceptance of the position does not deprive the 
 chairman of the right to vote upon any question submitted to the 
 meeting. {^See Digest, ante, p. 68.) He may either give a casting vote 
 upon a tie, or, when there is a majority of one in favor of any resolution, 
 may vote with the minority, and thus make a tie vote, which defeats the 
 resolution ; or without waiting for this result may, upon the call of yeas 
 and nays by the clerk, vote when his name is reached. He can, 
 however, cast but one vote upon the question. 
 
 It is the chairman's duty to put every question to vote which is made 
 and seconded. (Ante, p. ^1^ If he deems the motion out of order, he 
 should so declare ; if the party making the motion deems his decision 
 upon the point of order erroneous, it his right to appeal to the meeting 
 from such decision, and, if the appeal is seconded, it is the duty of the 
 chairman to put the question : " Shall the decision of the chair be 
 sustained ? " If upon such appeal the meeting vote against the decision 
 of the chair, it is the chairman's duty to put the original question ; a 
 refiisal to do so is disorderly, and it is in such case in the power of the 
 meeting to select a new chairman who will conform to its decision. The 
 
216 POWEES OF DISTEICT MEETINGS. 
 
 motion for this purpose may, from the necessity of the case, be put by the 
 clerk. There being no code of rules to regulate the proceedings of district 
 meetings, that must be held to be in order to which a majority consents. 
 The office of the chairman is to facilitate the ascertaining of the wishes of 
 the majority. If their determination be illegal, the remedy is by appeal. 
 
 2. To adjourn from time to time, as occasion may require : A motion 
 for adjournment takes precedence of all others, for otherwise the meeting 
 might be kept in session against its will, and for an indefinite period. A 
 majority who were desirous of adjourning could not withdraw without 
 leaving all the powers of the meeting in the possession of the minority. 
 (See Digest, ante, p. 20.) And if any other motion were permitted to 
 take precedence, it might be in the power of a factious minority, by 
 renewing such motions, to wear out the physical endurance of the 
 majority. This motion, however, cannot be received after another 
 question is actually put, and while the meeting is engaged in voting 
 upon it ; but in such case the vote must be concluded and the result 
 announced by the chairman. If a question be put for adjournment, it 
 is no adjournment until the chairman pronounces it. 
 
 An adjournment is either without day or to a specified time. In the 
 former case all propositions upon which the question has not been taken 
 are discontinued, and are not taken up at another meeting except upon a 
 fresh proposition. In the latter case it is but a continuance of the session; 
 all matters depending remain in the same situation in which they were 
 left, and when the meeting again- convenes are resumed at the precise 
 point at which they were left. The statute, however, regards an adjourn- 
 ment for more than one month as constituting a new meeting, so far as 
 to require the posting of written notices of the time and place thereof 
 in four at least of the most public places of the district, at least five 
 days before the time appointed. If a special meeting be properly 
 called, or the annual meeting occur in the mean time, its powers in 
 reference to any subject are not impaired by the fact that a previous 
 meeting, having such subject under consideration, stands adjourned to 
 a subsequent day. {See Digest, ante, pp. 83, 98, and 6 Metcalf, Mass. 
 Rep., 509.) 
 
 3. To choose a district clerk, three trustees, a district collector, and 
 a librarian, at their first meeting, and as often as such offices or either 
 of them become vacated : The office of clerk, collector or librarian is 
 incompatible with that of trustee. {See Digest, ante, p. 7.) The statute 
 {sec. 6, chap. 480 of 184'/) provides that "no town superintendent of a 
 town shall hold the office of trustee of a school district, nor shall a per- 
 
POWERS OF DISTRICT MEETINGS, 2lY 
 
 son chosen a trustee told the office of district clerk, and no town 
 superintendent shall hold the office of either supervisor or town clerk." 
 
 As all the duties which rendered the office of town superintendent 
 inconsistent with that of trustee are now devolved upon the school 
 commissioner, the latter, under the policy of the law, is inelegible to 
 the office of trustee. In reference to votes cast for disqualified candi- 
 dates, the law is thus stated in 1 Adolph d Ellis 437 : "The result of 
 the decisions appears to be this : Where the majority of electora vote 
 for a disqualified person in ignorance of the fact of disqualification, the 
 election may be void, or voidable, or in the latter case may be capable 
 of being made good, according to the nature of the disqualification. 
 The objection may require ulterior proceedings to be taken before some 
 competent tribunal in order to be made available, or it may be such as 
 to place the elected candidate on the same footing as if he had never 
 existed and the votes for him were a nullity ; but in no case are the 
 electors who vote for him deprived of their votes. If the fact becomes 
 known and is declared while the election is still incomplete, they may 
 instantly proceed to another nomination and vote for another candidate. 
 If it be disclosed afterwards, the party elected may be ousted, and the 
 election declared void (by a competent tribunal) ; but the candidate in 
 the minority will not be deemed ipso facto elected. But where an 
 elector before voting receives due notice that a particular candidate is 
 disqualified, and yet will do nothing but tender his vote for him, he 
 must be taken voluntarily to abstain from exercising his franchise ; and 
 therefore, however strongly he may in fact dissent, and in however strong 
 terms he may disclose his dissent, he must be taken in law to assent to 
 the election of the opposing and qualified candidate, for he will not 
 take the only course by which it can be resisted, that is, help to elect 
 some other person. * * * If he dissents from the choice of A., who is 
 qualified, he must say so by voting for some other, also qualified ; he has no 
 right to employ his franchise merely in preventing an election, and so 
 defeating the object for which he is empowered and bound to attend. 
 * * * Where the disqualification depends upon a fact which may 
 be unknown to the elector, he is entitled to notice, for without that the 
 inference of assent could not fairly be drawn, nor could the consequences 
 as to the vote be just ; but if the disqualification be of a sort whereof 
 notice is to be presumed, none need expressly be given. No One can 
 doubt that if an elector would nominate and vote only for a woman, his 
 vote would be thrown away. The fact would then be notorious, and 
 every man would be presumed to know the law upon that fact." 
 
 fCoDE.1 28 
 
218 POWERS OF DISTRICT MEETINGS. 
 
 A person wto is present at the meeting, when elected to any oflSce, will 
 be deemed to accept the same unless he declares his refusal, so that if 
 the meeting chooses to excuse him a new election may be had. Any 
 votes given for him for an incompatible office subsequent to such 
 acceptance must be deemed void. It is in his power, however, to elect 
 which of two such offices he will hold, and, if present, he should declare 
 which he vacates, that the meeting may at once proceed to fill it. If 
 absent, his acceptance of the office of trustee, in preference to any other 
 district office, is to be presumed. 
 
 While the session continues, the meeting has power, under a reso- 
 lution to reconsider its proceedings, to make a new election, although 
 a person has been then elected with his assent (see Digest, ante, p. 19), 
 because the right to the office is not complete until the inhabitants by 
 separating have left it incumbent upon the person elected to enter upon 
 his duties. If, however, they separate, an adjourned session- has no 
 power to oust an officer elected (see Digest, ante, p. 16), though they 
 may fill a vacancy, existing by his refusal to accept. (Digest, ante, p. 100.) 
 
 The inhabitants have the power and it is their duty to fill every 
 vacancy existing in a district office at any meeting, notwithstanding it 
 has existed more than one month. (Digest, ante, p. 105.) If the 
 vacancy has been created by any other cause than the expiration of the 
 incumbent's term, it is advisable that a resolution should be passed 
 declaring such vacancy to exist, and expressly stating the ground on 
 which the meeting adjudges the office vacant. Cases are reported 
 (Digest, ante, pp. 51, 53) where removal from a district, though not such 
 as to forfeit the rights of the party as an inhabitant, and where an actual 
 incapacity to serve, though not declared by law, have been held suffi- 
 cient to justify treating them as creating a vacancy. In such cases, 
 the officer removing, or becoming incapable, foranyreason, of discharging 
 his duties, ought to furnish written evidence thereof by a tender of his 
 resignation. If he omits to do so, it is for the appointing power to judge 
 in the first instance whether a vacancy exists ; and although it may err 
 in so declaring, the officer appointed will be deemed an officer de facto, 
 and his acts in relation to the public and third persons deemed valid, 
 until his election is pronounced void. 
 
 4. To designate a site for a district school house : This should be 
 done by a resolution describing the metes and bounds in such a manner 
 that a surveyor can lay it out without recourse to any other document, 
 or to oral instructions. (See Digest, ante, p. 33.) The power of desig- 
 nating a site cannot be delegated to the ti^istees. (17 Wend., 431.) 
 
POWERS OF DISTRICT MEETINGS. 219 
 
 They or any other committee may be charged by the inhabitants with 
 making the necessary examinations as to location, title, price, <fec., but it is 
 not until the meeting have acted upon their report that a site is desig- 
 nated. Nor is the site then established, so as to require a special meeting 
 to change it, untU a title has been acquired or legal obligations incurred 
 by the trustees in behalf of the district by a valid contract for the 
 purchase {see Digest, ante, p. 16), which, to be binding under the statute 
 of frauds, must be in writing, under seal and subscribed by the parties to 
 be bound thereby. 
 
 The question frequently arises whether the district has atitle to a site, 
 so as to render a new designation equivalent to an additional site requir- 
 ing the consent of the school commissioner under the 8th subdivision- of 
 this section, or a change of site requiring a meeting called by special 
 notice for that purpose. It is ordinarily started in consequence of 
 doubts, as to the title of a site actually occupied or claimed by the 
 district, growing out of the want of a deed, or the loss of a deed without 
 its having been recorded, where one was originally executed. 
 
 A right in real estate may be acquired either by grant, by deed duly 
 executed and delivered, or by an adverse possession of twenty years 
 under claim of title, in which case the law presumes a grant, or by a 
 valid contract for the conveyance, where a court of equity will enforce 
 a specific performance, or in the case of the public by dedication. 
 
 In reference to the first mode : In the case of occupation under a 
 grant, it is not material that the deed has been lost, for the paper itself 
 is but evidence of the fact, and upon showing its loss, the existence and 
 contents of the deed may be proved by other testimony ; nor is the 
 fact of its not having been recorded material, for the recording act is 
 only for the benefit of purchasers in good faith and without notice, and 
 the possession of real estate is held by the courts to be sufficient notice 
 to put a purchaser upon inquiry as to the rights of the party in posses- 
 sion, and to charge him with notice of all facts to which such inquiry 
 might have led. (See Digest, ante, p. 1.) 
 
 As to the second mode, or adverse possession : A naked possession, 
 not accompanied with any claim of right, will never constitute any bar 
 but will enure to the advantage of the real owner. The Code of Pro- 
 cedure provides that the occupation " shall be deemed to have been under 
 and in subordination to the legal title, unless it appear that such 
 premises have been held and possessed adversely to such legal title for 
 twenty years," and it defines what kind of possession shall be deemed 
 adverse, as follows : " Whenever it shall appear that the occupant or 
 
220 POWERS OF DISTRICT MEETINGS. 
 
 tliose under whom he claims entered into the possession of premises 
 under claim of title, exclusive of any other right, founding such claim 
 upon a -written instrument as being a conveyance of the premises in 
 question, or upon the decree or judgment of a competent court, and 
 that there has been a continued occupation and possession of the premises 
 included in such instrument, decree or judgment,, or of some part of 
 such premises, under such claim for twenty years." " Where it shall 
 appear that there has been an actual continued occupation under claim 
 of title, exclusive of any other right, but not founded upon a written 
 instrument or decree, the premises so actually occupied, and no other, 
 shall be deemed to have been held adversely." It provides in the latter 
 case that " land shall be deemed to have been possessed and occupied 
 in the following cases only : 
 
 " 1. When it has been protected by a substantial inclosure ; 
 
 "2. When it has been usually cultivated and improved." {^See Code of 
 Procedure, in appendix to Session Laws of 1851,^. 33.) 
 
 Where there has been an actual occupation of premises in either of the 
 modes above described, an oral claim of exclusive right is sufficient, 
 without the pretension that such claim is founded upon a written instru- 
 ment, and a claim of title even nnder a paper altogether void and 
 inoperative as a deed, will yet characterize a possession as adverse. (24 
 Wend., 604.) The possession is evidence only of such title as the party 
 has asserted. If, therefore, the claim has been only to hold at suffer- 
 ance, or conditionally, or for a term of years, it can never ripen into a 
 better title. 
 
 As to the third mode : An equitable title is acquired where a party has 
 entered into possession under a contract for a conveyance, and has 
 performed or tendered performance of the conditions upon which by 
 the contract the legal title was to be transferred. A court of equity 
 will enforce such a contract, where there has been a partial execution of 
 it by the transfer of possession on the one side and by payments on the 
 other, notwithstanding the contract was by parol, and void under the 
 statute of frauds. Every case of this character will require the careful 
 examination of counsel into all the facts, and no discussion of the 
 principles applicable thereto would be profitable in this place. 
 
 Fourthly, land may be dedicated to pious and charitable purposes 
 (and such is the establishment of a school), with or without writing, 
 by express declaration of the party thus devoting it, or by unequivocal 
 acts on his part, such as marking a lot in the plot of a tract divided by 
 him into town lots as the " school lot," and referring to such plot in his 
 
POWERS OF DISTRICT MEETINGS. 221 
 
 deeds of conveyance, as was the case in 11 Pa. State Rep., 444. All 
 that is required is the assent of the owner of the land, clearly mani- 
 festing his purpose to make a permanent appropriation, and the fact of 
 its being used for the public purpose intended by the appropriation. [See 
 6 Hill, 412.) 
 
 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 repair and furnish the same with the necessary fuel and appen- 
 dages : It is not necessary to designate a site before laying a tax to 
 build a school-house. (17 Wend., 437; 3 Benio, 116.) The same rule 
 will apply to a tax for the purchase of a site. The inhabitants may 
 vote such tax as they " deem sufBcient," and if, upon the selection of a 
 site and the negotiation for its purchase, the tax is found to be, in fact, 
 insufficient, may vote a further tax. If it be found unnecessarily large, 
 they may vote to refund the excess to the tax payers or appropriate it to 
 any purpose for which they have power to lay a tax. [Com. School Dec, 
 315.) There is no limitation to the amount which may be voted for the 
 purcliase of a site (Digest, ante, p. 41), and the expense of investigating 
 the title and recording the deed may legitimately be included. [Digest, 
 ante, p. 15.) The purchase of additional ground to enlarge the site is not 
 a change of site, and does not require the vote of a meeting called by 
 special notice, nor the consent of the school commissioner. [Digest, ante, 
 p. 34.) Though the statute authorizes the leasing of a site, it does not 
 permit the contracting of a permanent debt for the future rent. [Digest, 
 ante, p. 32.) It is not uncommon for districts to hold land under lease 
 granting it tor a consideration, paid in advance, so long as the same shall 
 be used for the site of a school-house or the purpose of a district schooL 
 It is greatly to be preferred that the district should obtain an indefeasible 
 estate in fee simple, and, whenever possible, it should be procured ; but, 
 inasmuch as there is no compulsory process provided by the laws of this 
 state by which the title to land for school purposes can be transferred, 
 where the owner is unwilling, a district is sometimes under the necessity 
 of accepting an inferior estate. In such cases a question often arises as 
 to the right of the district to the school-house at the expiration of the 
 term for which the land is held. The law is thus stated by Judge Har- 
 ris (7 Barb., 266) : " Any one who has a temporary interest in land, and 
 who makes additions to it or improvements upon it for the purpose of 
 the better use or enjoyment of it, while such temporary interest con- 
 tinues, may, at any time before his right of enjoyment ceases, rightftillv 
 
222 POWERS OF DISTRICT MEETINGS. 
 
 remove such additions and improvements. If lie omit to sever the 
 addition or improvement until his right of enjoyment ceases, such omis- 
 sion is to he deemed an abandonment of his right, and thereafter the 
 addition or improvement he has made becomes, to all intents, a part of 
 the inheritance, and the tenant, as well as any other person who severs 
 it, becomes a trespasser. I think this may now be stated to be the 
 general rule in respect to fixtures which a tenant attaches to the fi'ee- 
 hold. To this extent has the original rule of the common law yielded 
 to the changed condition of society. There may be exceptions to the 
 general rule I have stated, but I think they will be found lunited to 
 cases where the removal of the additions or improvements made by the 
 tenant would operate to the prejudice of the inheritance, by leaving it 
 in a worse condition than when the tenant took possession." 
 
 A tax voted for the purchase of a site cannot be voted by instalments. 
 ( Digest, ante, p. '79.) 
 
 While it is no objection to a tax that a title has not been acquired, it 
 is the duty of the trustees not to part with the money without receiving 
 a conveyance {Digest, ante, p. 54), and in respect to this duty, a ques- 
 tion frequently arises about incumbrances by way of mortgage. The 
 vote appropriating money for the purchase of a site is to be construed 
 as limiting the amount the district can at any time be called upon to 
 pay for it, and therefore implies (unless the contrary expressly appears) 
 a title free from any incumbrance. Where a portion of a tract subject 
 to mortgage is purchased, the rule of law is that upon a foreclosure the 
 land remaining the property of the mortgagor shall be first sold, and 
 if that prove insufiicient to satisfy the mortgage, then that which he 
 has conveyed is to be sold in the inverse order of alienation ; that is to 
 say, that which he conveyed latest is to be sold first. It may frequently 
 happen that the district will have ample security, in the land retained 
 by the person from whom it derives title to a site, for its indemnity 
 against a mortgage, and that the existence of a mortgage, covering land 
 greatly exceeding in value the amount secured thereby, will be but a 
 nominal incumbrance and no serious objection to the title. If this be 
 clear, however, there will ordinarily be little diflSculty in procuring from 
 the holder of the mortgage a release of the site from its lien. If the 
 trustees fail in obtaining it, they will be justified in requiring an express 
 vote of the district, after laying the facts before a meeting, before pay- 
 ing for the site or making any expenditure or contract for building 
 upon it. 
 
POWERS OF DISTRICT MEETINGS. 223 
 
 In regard to tlie power to vote a tax for a school-liOTise, the question 
 sometimes arises how far it is permissible that the house should he con- 
 nected with other erections made for different purposes, and subject to 
 other control than that of the district. It' is held that there can be no 
 partnership in the erection of a school-house which will prevent the 
 district from controlling it entirely for the purpose of a district school, 
 and that a tax cannot be voted for a building for joint use, as a church 
 and school-house or an academy and school-house. ( Com. School Dec, 
 201, 290.) It is not essential, however, to constitute a house, that it 
 should include the whole of the building in which it is contained. 
 Apartments, with an outer door to each, and having no communication 
 with each other, are considered as distinct houses, though they origi- 
 nally made but one. (6 Mod. B., 214.) In 6 Mete, 510, the supreme 
 court of Massachusetts held that " if, under color of this corporate power 
 of a district, the district should vote to erect an expensive and ornamen- 
 tal building, with a view to improve the neighborhood, to enhance the 
 value of real estate, to accommodate societies, lecturers, dramatic exhibi- 
 tions, or even to have a convenient place for religious meetings or public 
 worship, or for any other use than that of a district school, it would not 
 be within the legitimate authority of a school district, and any vote to 
 levy a tax on the inhabitants for such purpose would be void." In that 
 very case, however, the court sustained a tax of $1700, voted with 
 liberty to certain persons " to build a hall over the school-house, with 
 the privilege of an entrance and stair-way in the front entry of said 
 house, in consideration that the district may have the use of said hall, 
 free of charge, for all school district meetings, for all examinations of its 
 schools, and for the delivery of lectures on the subject of education, no 
 public meeting being held in said hall during the usual school hours 
 unless by consent of the prudential committee of the district, and the 
 proprietors of said hall insuring the whole building." In 1 Mete, 541, 
 it was held that- tenements are as essentially distinct when one is under 
 the other, as where one is by the side of the other ; and in 4 Mass. R., 
 576, the court say that " in legal contemplation, each of the parties has 
 a distinct dwelling-house, adjoining together, the one being situated over 
 the other. The lower room and the cellar are the dwelling-house of the 
 defendant; the chamber, roof and other parts of the edifice are the 
 plaintiff's dwelling-house." {See also 10 Conn. B., 318.) 
 
 While it is very desirable that every district should own an ample 
 and commodious school-house, entirely separate from every other build- 
 ing, it sometimes happens in feeble districts that the scantiness of its 
 
224 POWERS OF DISTRICT MEETINGS. 
 
 means renders it necessary to consult economy by uniting vith a reli- 
 gious society or other association in erecting two houses under the same 
 roof; the upper story, for example, being a church or town hall, while 
 the lower is a school-house. No legal objection is conceived to exist to 
 such an arrangement, provided the district secures by proper covenants : 
 First, The undivided control at all times of the school-rooms and of 
 the doors and passages affording access thereto. Second, That the 
 other rooms shall not be used at any time during school hours for an 
 assemblage or purpose which can distract the attention of pupils, or 
 interfere, by noise or otherwise, with their instruction. Third, That 
 the parties using the other rooms shall pay the whole, or a definite pro- 
 portion, of the expense of such repairs upon those rooms, or the roof or 
 other parts of the building, as the district shall from time to time deem 
 necessary for maintaining the school-house in good condition and pro- 
 tecting it from injury by leakage or otherwise. Fourth, That those 
 parties shall pay the expense of any insurance (not in a mutual com- 
 pany, as the district has no power to enter into such a contract as their 
 policies create) necessary to protect the district from the increased risfe 
 of fire, caused by any use to which the other parts of the building may ■ 
 bo put. The best mode to secure the performance of these covenants is 
 for the district to insert them as a condition, in a lease of the rooms, to 
 be executed by the trustees — the district retaining the general title to 
 the site and everything upon it — and the lease to terminate upon a 
 breach of any of the conditions, besides authorizing, in express terms, 
 the trustees to recover any damages the district may sustain by a failure 
 to perform any of the conditions. It should also contain an express 
 provision that whenever a district meeting shall determine that the 
 residue of the building is needed for school purposes, the same shall 
 become its property upon payment of the then appraised value of the 
 labor and materials used in its construction. 
 
 A fence, separate privies for the two sexes, wood-house, stoves, stove- 
 pipe and bell have been held to be necessary appendages to a school- 
 house, or rather that it is within the discretion of a district meeting to 
 adjudge them such and vote a tax therefor. 
 
 Money cannot be raised by a tax in a school district for contingent 
 purposes {^Com. School Dec, 233, and Digest, ante, p. 3), nor can a tax 
 be voted for arrearages generally, or to reimburse trustees or other ofiS- 
 cers of the district for moneys expended 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 raised, (/d.,. 316.) 
 
POWERS OF DISTRICT MEETINGS. 225 
 
 Where a tax is voted by the inhabitants for any purpose, the specific 
 amount of the tax and the particular purpose for which it is designed 
 should be fully and clearly stated. {Digest, ante, p. 94.) And where 
 several objects of expenditure are to be provided for, the amount to be 
 raised for each should be expressed in the resolution, in order that the 
 district and the trustees may tnow the precise extent of their liability 
 and the mode of its application. There may be cases, however, where 
 the necessary amount to be raised cannot be ascertained with any 
 approach to accuracy, and in such cases the district may direct the per- 
 formance of specific acts by the trustees, or authorize them to incur 
 such expenses as may be Necessary to the accomplishment of a particu- 
 Jar object to be specified, and the trustees are then authorized by § 109, 
 chap. 480 of 1847, No. 117, to raise such amount by tax upon the dis- 
 trict, in the same manner as if the definite sum to be raised had been 
 voted. This provision was held in 4 Denio, 248, to cover a case where 
 the trustees were directed to build a house of specified dimensions and 
 to let the job of building to the lowest bidder, which had the effect of 
 restricting the expense to a less sum than four hundred dollars; and the 
 court say that " if the district had left the whole to the discretion of 
 the trustees, and they had kept within the four hundred dollars, the act 
 would have authorized the raising of the money. {See also 5 Hill, 44, 
 and Digest, ante, p. 50.) It was held by Supt. Young that the inhabi- 
 tants of a district may legally vote a tax to enlarge their school-house, 
 notwithstanding it may already have cost $400, without a certificate 
 from the town superintendent. This general delegation of authority 
 should, however, be resorted to only in cases of necessity. 
 
 It was held (24 Wend., 266) that the direction in the vote of a tax 
 for repairs, that the collection was to be postponed until the repairs were 
 done, did not invalidate the resolution or the tax, the tax list being 
 made out thirty days after the vote. 
 
 6. To alter, repeal and modify their proceedings from time to time, as 
 occasion may require : The power to repeal proceedings must be exerted 
 before they have been carried into effect, so that other parties have 
 acquired rights or incurred responsibilities under them. Thus, where- a 
 tax list and warrant had been made out but not delivered to the collector, 
 the inhabitants were held to have the power to rescind the vote imposing 
 the tax (4 Hill, 109), but not where the greater {feirt hard been collected. 
 (4 Barb., 25.) Where trustees have made a contract under the authority 
 of the district, it is in effect the contract of the district, and it is beyond 
 its power to rescind the contract by repealing the resolution in pursuance 
 
 [Code.] 29 
 
256 POWERS OF DISTRICT MEETINGS. 
 
 of ■which it was made. A fiill release of damages from all persons 
 having acquired any right of action, or the restoration of things to the 
 same condition as they were in when a resolution was passed, might giv^ 
 the district the right to repeal or modify it. 
 
 Any resolution directly or necessarily repugnant to a previous one 
 repeals it; and the rule in itelation to statutes is laid down ( 3 How^ 
 TJ. S. B., 636), that if a suhsequent statute be not repugnant in all its 
 provisions to a prior one, yet if the latter statute was clearly intended 
 to prescribe the only rule that should govern in the case provided for, 
 it repeals the prior one. As repeals by implication are not favored by 
 the courts, it is advisable that a resolution shPild be repealed in express 
 terms, where such is the intention. When this is proposed at the same 
 meeting (including adjourned sessions thereof) at which the resolution 
 was passed, it is usually by a motion for reconsideration. The general 
 parliamentary rule is, that the motion to reconsider can only be made.by 
 a person who voted with the successful side upon ;the question to be 
 reconsidered. The reason of the rule is, that but for it the members in 
 the minority might exhaust the time of the meeting. fruitlessly; for it is 
 to be presumed that the vote will be the same, unless the contrary is 
 shown by some person who voted with the majority indicating a change 
 of mind. It was held (Digest, ante, p. 90) that this rule does not 
 prevail in a district meeting unless the meeting adopts it. In that case 
 the majority of the meeting chose to disregard it. Nevertheless it is a 
 very proper rule of order to be applied by the chairman, subject to 
 a reversal on an appeal to the meeting from his decision ; when, if a 
 majority wish to reconsider, they can indicate it by overruling him. If 
 a motion to reconsider is carried, the resolution to which it relates is 
 open to amendment, and, if not again passed in its original or an amended 
 form,, is rejected. If, without taking the question on the original reso- 
 lution a second time, the meeting separates for an adjourned session, it 
 may then be called up and adopted or rejected. 
 
 The unqualified repeal of a repealing statute revives the original 
 enactment. This rule was applied, in 2 Denio, 233, to a vote on the 5th 
 December, repealing a vote of Nov. 25th, which latter repealed the 
 vote for a tax, passed Oct. 7th, and it was held that the vote for a tax 
 was renewed on the 5th December, though a tax list made out under 
 the original vote fell^o the ground, and a new one was required to be 
 made after December 5th. 
 
 It is obvious that the meeting cannot do, under the form of recon- 
 sidering or modifying a former proceeding, what it could not do directly ; 
 
POWERS OF DISTRICT MEETINGS. 227 
 
 and therefore, though it may rescind a resolution designating or 
 changing a site [Digest, ante, p. 64), it cannot adopt a new one, unless it 
 was called, or be an adjourned meeting which was called, by a special 
 notice for that purpose. 
 
 1. To vote a tax for the purchase of a book for the purpose of 
 recording the proceedings of their respective districts : The importance 
 of full and exact records of district proceedings cannot well be exagge- 
 rated. They ought to be so kept as to show upon their face every-fact 
 of which it might be necessary to give evidence in a suit at law, in order 
 to establish the validity ot^every resolution adopt'id. For example, the 
 Order of the trustees for"calling a meeting, the return of the clerk 
 showing upon whom and in what manner he had served notice, the 
 consent of the school commissioner or supervisor when required tO' 
 authorize a proceeding, might much better be engrossed in the book of 
 records, in the first instance, than left to rest upon the uncertain custody 
 of loose pieces of paper. It may be necessary to prove the facts at a 
 remote period of time ; and the way to avoid controversy in respect tO' 
 them is always to act upon the presumption that controversy will arise,, 
 and to prepare the evidence, in advance, to meet it. The habit'of doing; 
 this will of itself do much to preclude all opportunity for cavil: 
 
 It is always desirable that the records should show who was present 
 and took part in the proceedings of each meeting. For tiiis purpose 
 the orderly method of proceeding would be for the clerk (or person 
 officiating as such), immediately after the organization of the meeting,. to 
 read the order under which it was called, and the list from his return 
 of the persons on whom he served notice, requesting each one presenttto 
 answer as his name is read; noting, upon the minutes : " On reading tiie 
 clerks' return of the inhabitants on whom he had served notice, &.e 
 following were found to be present, viz : Abraham Jackson, Abraham. 
 Jackson, Jr., &c., &c." At an annual meeting, for which no personal 
 service of notice is necessary, the clerk could call the roll from a list 
 of the inhabitants alphabetically arranged. In either case he should 
 note on the minutes the presence of every voter,, although no notice had 
 been served upon him. 
 
 If any person offering to vote is challenged, the fact should be noted 
 in the minutes, and also whether he made or declined making the 
 declaration required by law. This is important,, because no person will 
 be permitted to question the proceedings of a meeting on the ground of 
 the illegality of a vote, if he stood by and saw it offered without 
 objection, unless he shows himself to have been ignorant of the facts which 
 
228 POWERS OF DISTRICT MEETINGS. 
 
 would have required him to object. Nor will the illegality of the vote 
 be regarded unless it aflfected the result^ and, therefore, it is highly 
 desirable that the minutes should show how each person voted on each 
 proposition submitted to the meeting. The christian names of the 
 voters should be given, and not merely their initials. 
 
 It is proper, but not legally necessary, that the minutes should be read 
 over to the meeting, for its approval or correction, if need be, before the 
 adjournment. In order to enable the clerk to do this, all resolutions 
 should be reduced to writing before the question upon them is taken. 
 
 As the cost of a little paper is of the m^t trifling consequence in 
 comparison with the advantages of having a neat and accurate history of 
 district proceedings in a shape for convenient consultation, it would be 
 well for each district to provide a book of records, of at least foolscap 
 size, firmly bound, and containing a sufficient number of pages to contain 
 ample records for a series of years. 
 
 8. With the consent of the [school commissioner] of the town, to 
 designate sites for two or more school-houses for such district, and lay a 
 tax on the taxable property in such district to purchase or lease such 
 sites, and to hire, build or purchase such school-houses, and to keep in 
 repair and furnish the same with necessary fuel and appendages, and 
 may also in their discretion lay a tax, not exceeding twenty dollars in 
 any one year, to purchase maps, globes, black-boards and other school 
 apparatus : The provision for more than one site and school-house is 
 intended to obviate the inducements to a division of districts. There 
 are great advantages in large and populous districts ; and it has always 
 been the policy of the department to discourage their division, unless it 
 becomes necessary on account of the great distance which children are 
 compelled to travel in going to school. It may often be convenient to 
 have a -school-house for very young children separate from that attended 
 by those more advanced. In cases of dissatisfaction with a teacher, 
 there is "the opportunity for parents to exercise a choice, without the 
 serious injury to the course of instruction which results from with- 
 drawing their children entirely from the public schools. It may 
 frequently be profitable to hire temporarily a building or rooms for 
 an additional school-house, where there is not such an absolute necessity 
 for it as would prompt the trustees to exercise that power under § 120, 
 chap. 480 of 18i1,post, No. 148, without the vote of the district. 
 
 It is to be remembered that, however many school-houses or teachers 
 there may be in the district, the attendants in all constitute but one 
 school. {Seep. 126, ante]) 
 
POWERS OF DISTRICT MEETINGS. 229 
 
 The principal facts in geography are learned better by the eye than 
 in any other manner, and there ought to be in every school room a map 
 of the world, of the United States, of this state and of the county. 
 Globes, also, are desirable, but not so important as maps. Large black- 
 boards, in frames or plaster, are indispensable to a well conducted school. 
 The operations in arithmetic, performed on them, enable the teacher to 
 ascertain the degree of the pupils' acquirements better than any result 
 exhibited on slates. He sees the various steps taken by the scholar, and 
 can require him to give the reason for each. It is in fact an exercise 
 for the entire class ; and the whole school, by this public process, insen- 
 sibly acquires a knowledge of the rules and operations in this branch 
 of study. 
 
 Cards, containing the letters of the alphabet or words, may be usefully 
 hung up in the room. Indeed, the whole apparatus provided by Mr. 
 Holbrook and others is eminently calculated to facilitate the acquisi- 
 tion of knowledge and to render it agreeable. 
 
 There is some difficulty in limiting definitively the meaning of the 
 words school apparatus. Few would hesitate to admit that a copy of 
 Webster's Dictionary, or an atlas for reference by teacher and pupils, 
 came fairly within the intent of the statute. If the inhabitants should 
 deem it proper to furnish, by tax, text books to be used by the pupils in 
 school, after it had provided the articles specifically named in the 
 statute, it would not appear an unreasonable exercise of their discretion. 
 
 No. 96, No tax to be voted by a district meeting, for build- 
 ing, hiring or purchasing a school-house, shall exceed the sum 
 of four hundred dollars, unless the [school commissioner]; of 
 the town in which the school-house is to be situated shall 
 certify in writing his 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 ; and in districts 
 composed of parts of several towns, the certificate of a major 
 part of the [school commissioners'] of said towns shall be 
 necessary for such purpose. {Sec. 70, chap. 480 of 1847, modi- 
 Jied in conformity to No. 65.) 
 
 « 
 
 It is the tax that is limited to $400, not the expense of building the 
 house, which may include, in addition, the avails of the sale of the 
 former house and site. So much of the decision on page 31 Digest, ante, 
 as seems to conflict with this has been expressly overruled. If, after the 
 expenditure of $400 in building the house, the tax is found insufficient 
 
230 POWEKS OF DISTRICT MEETINGS. 
 
 to finish it, the commissioner may certify that the further sum necessary, 
 specifying it, ought to be raised, and the inhabitants may vote a tax for 
 the amount so certified. {Com. School JDec, 258.) If this additional 
 amount prove insufiicient, the commissioner may again certify and the 
 inhabitants vote a further tax. (Id., 340.) 
 
 The commissioner whose certificate is to be obtained is the one hav- 
 ing jurisdiction of the town in which the school-house is to be erected. 
 The law forbids the division of a town in forming an assembly district 
 or in dividing a county into school commissioners' sections. Section 40, 
 chap. 480 of 1847, also provides that "no school-house shall be erected 
 so as to stand on the division lines of any two or more towns." This pro- 
 vision remains in full force, though the residue of that section has become 
 ol)solete. The statute is nevertheless peremptory in requiring th^ cer- 
 tificate of a major part of the commissioners having jurisdiction in the 
 several towns of which a joint district includes any part. In such a 
 case it is necessary to the validity of a tax, exceeding 1400, not only 
 that a majority of the commissioners should certify, but that the com- 
 missioner having jurisdiction of the town in which the school-house is 
 to be situated should be one of that majority. 
 
 The limitation of this section applies only to the school-house. The 
 amount of tax which may be voted for purchase or lease of site, and for 
 repairs, furniture, fuel and appendages, is left wholly to the discretion of 
 the district. [See Digest, ant'., p. 41.) 
 
 No. 97. Whenever a majority of all the taxable inhabitants 
 of any school district, to be ascertained by taking and record- 
 ing the ayes and noes of such inhabitants attending at any 
 annual, special or adjourned school district meeting legally 
 called or held, shall determine that the sum proposed and 
 provided for in the next preceding section shall be raised by 
 instalments, it shall be the duty of the trastees of such dis- 
 trict, and they are hereby authorized, to cause the same to be 
 levied, raised and collected in equal annual instalments, in 
 the same manner and with the like authority that other school 
 district taxes are raised, levied and collected, and to make out 
 their tax list and warrant for tlfe collection of such instal 
 ments, as they become payable, according to the vote of the 
 said inhabitants, but the payment or collection of the last 
 instalment shall not be extended beyond five years from the 
 time such vote was taken ; and no vote to levy any such tax 
 shall be reconsidered except at an adjourned, general or special 
 meeting, to be held within thirty clays thereafter, and the 
 
POWERS OF DISTRICT MEETINGS. 231 
 
 same majority shall be required for reconsideration as is 
 required to levy such tax. {Sec. 71, chap. 480 of 1847.) 
 
 No other tax can be raised by instalments under this section than one 
 for building, hiring or purchasing -a school-house, and in that case only 
 when it exceeds $400. {Digest, ante, pp. 79 and 99.) The instalments 
 must be equal and annual, and cannot be distributed in unequal amounts, 
 or with any other interval between successive ones than a year. {See 
 Digest, ante, pp. 67, 68, for an exposition of the vote required to direct 
 the levy of a tax by instalments.) A majority of the voters present may 
 (with the certificate of the commissioner) lay the tax to be collected 
 immediately, but it is required that they should also constitute a 
 majority of the taxable inhabitants attending for the purpose of direct- 
 ing the manner of its collection by instalments. 
 
 The general practice has been, and it is believed to accord best with 
 the intent of the statute, for the trustees to make out their tax list for 
 the first instalment upon the taxable property as it then exists, and for 
 their successors to make separate tax lists each year thereafter upon the 
 taxable property as it exists at the time the instalments respectively 
 become payable. Persons may thus become subject to the tax who had 
 no means of resisting its imposition ; but the erection of a school is to 
 be regarded as a permanent benefit to the district, and they voluntarily 
 assume the burden of paying for it by becoming inhabitants. It would 
 seem necessary that the warrant for the collection of the last instalment 
 should be returnable within five years from the time of taking the vote, 
 and therefore that the tax list for it should be made out at least thirty 
 days before that time. 
 
 The sum of $100, with interest at seven per cent, may be paid by 
 two annual instalments of $55.30.9 each; by three of $38.10.5 ; by four 
 of $29.52.3 ; by five of $24.38.9. In order to provide for the payment 
 of any sum, with the interest on it at seven per cent, in equal annual 
 instalments, the sum must be multiplied by the decimal fraction 
 .55309179 for two years, .38105168 for three, .29522812 for four, or 
 .24389069 for five, the first instalment being in each case payable at 
 the expiration of a year from the time to which the computation relates. 
 
 No. 98. 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 removed, as long 
 as the district shall remain unaltered, unless by the consent, 
 in writing, of the [supervisor] of the town or towns within 
 
232 POWERS OF DISTRICT MEETINGS. 
 
 which such district shall be situated, stating that in their 
 opinion such removal is necessary ; nor then, unless a majority 
 of all the taxable ii.habitauts of said district, to be ascertained 
 by taking and recording the ayes and noes at a special meeting 
 called for that purpose, shall be in favor of such new site. 
 {Sec. 73, chap. 480 of 1847, modified in conformity to No. 56, 
 ante.) 
 
 Any alteration of the territory of the district, however trifling, made 
 subsequent to the building or purchase of a school-house, dispenses with 
 the necessity of the consent of the supervisor to authorize a district 
 meeting to change the site of that school-house {Digest, ante, p. 98), 
 but no change of the inhabitants constitutes an alteration unless accom- 
 panied by a change of boundaries. 
 
 The site may be changed, so far as the prohibition of this section 
 affects the question, at any time before a school-house standing thereon 
 shall have been built or purchased. {Com. School Dec, 182.) But after 
 the site has been purchased, or the trustees have made themselves 
 legally responsible by a valid contract to purchase it, in pursuance of a 
 resolution of the district, it becomes an established site, so that the 
 resolution cannot be rescinded, under the general principle that a resolu- 
 tion which has been executed cannot be revoked to the prejudice of 
 those who have acquired rights undevit. {See Digest, ante, p. 76, and 
 comments under sixth clause of No.' 89.) In such case, therefore (unlesj? 
 an intermediate alteration of the district has taken effect), the assent of 
 the supervisor is requisite to change the site, or that of the commis- 
 sioner to procure an additional one. 
 
 If the title to a site fails, the designation of a new one is not to be 
 regarded as a change of site. {Digest, ante, p. 62.) The resolution in 
 such case should recite the fact that the district is destitute of a site, in 
 consequence of its title to one formerly occupied having failed by the 
 termination of a lease, judgment in an action of ejectment, or whatever 
 other circumstance may have brought it to an end. 
 
 The majority requisite to a change of site is a majority of those pre- 
 sent and voting, as ascertained by taking and recording the ayes and 
 noes at a special meeting called for that purpose. { Digest, ante, p. 65 ; 
 4 Gfrattan, 530.) 
 
 The certificate of the supervisor is to state that in his opinion a removal 
 or change of site is necessary and that he consents to such removal. The 
 intent of the statute is to render his certificate necessary to give the 
 meeting jurisdiction of the subject of a change of site, but not to give 
 
POWERS OF DISTRICT MEETINGS. 233 
 
 him a negative upon the selection which it may make of a new site. It 
 is not for him to assent or dissent to a removal to any particular loca- 
 tion, hut only to guard the district from heing put to trouhle by frivo- 
 lous agitation of the subject, where, in his judgment, there is no such 
 inconvenience in the existing location as to justify a change. 
 
 In a joint district, composed of parts of two towns, both the supervi- 
 sors must unite in the certificate ; if composed of three or more, the 
 case comes under the provision of § 21, title 17, chap. 8, part 3, of the 
 Revised Statutes : " Whenever any power, authority or duty is confided 
 by law to three or more persons, and whenever three or more persons 
 are authorized or required by law to perform any act, such act may be 
 done, and such power, authority or duty may be exercised and performed 
 by a majority of such persons or oflBcers, upon a meeting of all the per- 
 sons or oflBcers so entrusted or empowered, unless special provision is 
 otherwise made." 
 
 The act in this case being of a judicial character, all must meet and 
 confer, but a majority may decide. The certificate should state that all 
 met. , 
 
 No. 99. Whenever the site of a school-house shall have 
 been changed, as herein provided, the inhabitants of the dis- 
 trict entitled to vote, lav^fully 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 deed duly executed by 
 the trustees of such district, or a majority of them, in pursu- 
 ance 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 conveyed thereby, to the grantee named in 
 such deed ; and when a credit shall be directed to be given 
 upon such sale for the consideration money, or any part thereof, 
 the trustees are hereby authorized to take, in their corporate 
 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 account therefor, to their suc- 
 cessors in office and to the district, in the manner they are 
 now required by law to account 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 pre- 
 
 [CODK.] 30 
 
234 POWERS OF DISTRICT MEETINGS. 
 
 decessors in office, with interest and cost. {Sec. 74, chap. 480 
 of 1847.) 
 
 Neither the trustees nor the inhal?itaiits have any power to sell land 
 belonging to the district, unless it be the site of a school-house, for 
 which a new one has been substituted. 
 
 If any credit is to be given upon the sale, the inhabitants in district 
 meetings should, by resolution, specify the exact terms thereof, and 
 should also fix the lowest price to be accepted. When a bond and 
 mortgage are executed, they should run, to " A. B., C. D. and E. F., 
 trustees of school district No. , in the town of , and their 
 
 successors in office or assigns." 
 
 The trustees become personally responsible to the district for the 
 amount bid at the sale as for so much cash received, unless they take a 
 bond and mortgage or some other security. This implies some pledge 
 or obligation collateral and in addition to the personal responsibility of 
 the purchaser, such as the signature of a solvent indorser or surety to 
 a promissory note, in accepting which they are responsible for the same 
 care which a prudent person would exercise in taking security for a debt 
 due to himself. 
 
 No. 100. All moneys arising from any sale made in pursu- 
 ance of the last preceding section shall be appropriated to 
 the payment of the expenses incurred in procuring a new site 
 and in removing or erecting a school-house, or either of them, 
 so far as such application thereof shall be deemed necessary. 
 {Sec. 75, chap. 480 of 1847.) 
 
 If the money is not necessary to pay for a new site or removing or 
 erecting a school-house, it may be appropriated by the district to any 
 purpose for which it would be authorized to levy a tax ; and in the 
 absence of any vote by the district the trustees may appropriate it to 
 any purpose, such as the purchase of fuel, the exemption of indigent 
 inhabitants from rate bills, or the rent of temporary school rooms, for 
 which they are authorized to levy a tax without a vote of the district. 
 
 No. 101. Where, by reason of the inability to collect any 
 tax or rate bill, there shall be a deficiency in the amount 
 raised, the inhabitants of the district in district meeting shall 
 direct the raising of a sufficient sum to supply such deficiency 
 by tax, or the same shall be collected by rate bill, as the case 
 may require. {Sec. 84, chap. 480 of 1847.) 
 
POWERS OF DISTRICT MEETINGS. 235 
 
 The inability to collect a tax or rate bill is to be ascei-tained from the 
 return of the collector, under oath, containing an account of the sums 
 remaining unpaid, and testifying that after diligent effoils he has been 
 unable to collect the same. The inhabitants have the right, and should 
 in general exact such evidence, but it is in their power to -waive it. 
 {Digest, ante, p. 19.) Tlie taxes authorized by this section are not to 
 be confounded with that for the amount of exemptions in a rate bill, 
 which it is the duty of the trustees to collect by tax without the action 
 of a district meeting, and which must be certified before the issuing of 
 their warrant, and consequently before any effort to collect. 
 
 The last clause, "or the same shall be collected by rate bill," must be 
 construed as relating to the duty of trustees. It would seem to be very 
 clear that where there is an inability to collect a rate bill, by reason of 
 the poverty of the individual against whom it has been made, it is a case 
 which requires a tax. 
 
 No. 102. The taxable inhabitants of eacb school district in 
 bhe state shall have power, when lawfully assembled at any 
 district meeting, to lay a tax on the district, not exceeding 
 ten dollars in any one year, for the purchase of a district 
 library consisting of such books as they shall in their district 
 meeting direct, and such further 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 of such meeting. {Sec. 133, chaf. 480 of 1847.) 
 
 Section 135 of the act of 1847, following chap. 80 of 1835, from 
 which it was taken, directs that " the taxes authorized by the foregoing 
 section shall be assessed and collected in the same manner as a tax for 
 building a school-house." 
 
 The books to be purchased by tax under this section are such as the 
 district meeting shall direct, while those purchased by the library money 
 apportioned to the district are selected by the trustees. The meeting 
 may adopt such regulations as it deems proper for the management of 
 so much of the library as is purchased by a district tax, while tlie gene- 
 ral regulations in respect to those bought by money received from the 
 state are prescribed by the State Superintendent. 
 
 A special notice of the intention to propose a tax for such purpose 
 is necessary to give the meeting power to lay one for the purchase of 
 a library or book case. 
 
236 POWERS OF DISTRICT MEETINGS. 
 
 No, 103. * * * * Whenever the number of volumes in the 
 district library of any district, numbering over fifty children 
 between the ages of five and sixteen years, shall exceed one 
 hundred and tv?enty-five, or of any district numbering fifty 
 children or less, betweea the said ages, shall exceed one hun- 
 dred volumes, the inhab.tants of the district qualified to vote 
 therein may, at a special or annual meeting duly notified for 
 that purpose, by a majority of votes appropriate the whole 
 or any part of the library money belonging to the district for 
 the current year to the purchase of maps, globes, black-boards 
 or other scientific apparatus for the use of the school ; and 
 in every district having the required number of volumes in 
 the district library, and the maps, globes, black-boards and 
 other apparatus aforesaid, the said moneys, with the approba- 
 tion of the State Superintendent, may be applied to the pay- 
 ment of teachers' wages. {Sec. 136, cha-p. 480 of .1847.) 
 
 The act of 1851, which prescribed the ages of four and twenty-one 
 years as those within which children are to be enumerated as pupils, did 
 not amend the preceding section. In order, therefore, to authorize a 
 district to apply its library money to the purchase of scientific apparatus, 
 or, with the approbation of the State Superintendent, to paying teaohere' 
 wages, it must number over fifty children between the ages of five and 
 sixteen, and actually have in its library over one hundred and twenty- 
 five volumes, or over one lumdred volumes if the number of children 
 between those ages be less than fifty. The mere fact that the district 
 has at some previous time possessed the requisite number of volumes is 
 not sufficient. 
 
 On making an application to the State Superintendent, the facts must 
 he proved by an affidavit, stating the number of children, the number 
 of volumes actually in the library, and enumerating what maps, globes 
 and other scientific apparatus have been procured and are actually in 
 use in the school. 
 
 The vote of a district and the permission of the State Superintendent 
 relate only to the application of library money for the current year, and 
 must be annually renewed to justify any diversion of it from the purchase 
 of bboks. 
 
 No. 104. The trustees chosen at the first legal meeting of 
 any school district shall be divided by lot into three classed, 
 to be numbered one, two and three ; the term of office of the 
 first class shall be one year, of the second two, of the third 
 
POWERS OF DISTRICT MEETINGS. 237 
 
 three; and one trustee only shall thereafter annually be 
 elected, who shall hold his office for three years and until a 
 successor shall be duly elected or appointed. In case of a 
 vacancy in the office of either of the trustees, during the period 
 for which he or they shall have been respectively elected, the 
 person or persons chosen or appointed to such vacancy shall 
 hold the office only for the unexpired term. ( Sec. 63, chap. 
 480 0/1847.) 
 
 Prior to 1843, all the trustees were chosen annually, and held their 
 office for but one year. By sec. 12, chap. 133 of that year, the mode 
 of election and tenure of office were changed to the mode and tenure 
 above prescribed. The intent of the statute is, that one trustee shall 
 go out of office by regular expiration of his term, and a successor be 
 chosen in his place at each annual meeting. As another vacancy may 
 exist at the same time, caused by death, removal or other cause than 
 expiration of term — which vacancy may have been temporarily filled 
 by appointment — the statute prescribes that the person elected to fill 
 such vacancy shall hold only for the unexpired term, so that the power 
 of filling the office for three full years shall return to the inhabitants at 
 the same time, as if no vacancy had occurred otherwise than by the 
 expiration of a full ^.ei-m. 
 
 No. 105. The clerk, trustees, collector and librarian of each 
 school district shall hold their respective offices until the 
 annual meeting of such district next following the time of 
 their appointment. {Sec. 76, chap. 480 o/'1847, as amended by 
 sec. 3, chap. 382 o/1849.) 
 
 It is a familiar rule of interpretation, that one part of a statute must 
 be so construed by another that the whole may, if possible, stand. To 
 apply this rule, the word appointment, in the preceding section, must be 
 construed as used in contradistinction to election by the inhabitants. 
 Otherwise the section would be entirely inconsistent with the preceding, 
 as making the term of trustees but one year instead of three. It is to 
 be understood, then, as meaning that in case of appointment of a trustee 
 by the supervisor, or a clerk, collector or librarian by the trustees, the 
 person so appointed holds to the next annual meeting, when, in the case 
 of a trustee, the residue of the unexpired term, temporarily filled by the 
 appointment, is to be filled by election. 
 
238 POWERS OF DISTKICT MEETINGS. 
 
 No. 106. In case the office of trustee shall be vacated by 
 the death, refusal to serve, removal out of the district, or 
 incapacity of any such officer, and the vacancy shall not be 
 supplied by a district meeting within one month thereafter, 
 the [supervisor] of the town may appoint any person residing 
 in such district to supply such vacancy. ( Sec. 77, chap. 480 
 of 1847, modiUcd in conformity to No. 56, ante. ) 
 
 The power of the supervisor under this section, and of trustees under 
 the next, to fill vacancies, is confined strictly to vacancies resulting from 
 the causes above specified. They are not to assume to set aside an 
 election on the ground of a legal incapacity existing at the time, and 
 v?hich the voters disregarded. {Digest, ante, p. 45.) They must, 
 from the necessity of the case, adjudicate upon the question of fact 
 ■whether a vacancy exists, and, in the written order making an appoint- 
 ment, should expressly state the facts which have caused a vacancy. 
 See Digest (ante, pp. 51, 53), for cases of disability in fact to discharge 
 the duties of an ofSce constituting good cause for declaring it vacant. 
 
 A refusal to serve is not the defective performance or omission of a 
 particular act, but a general non-performance of the duties of the ofiice. 
 (6 Cowen, 419.) 
 
 No. 107. In case of a vacancy in the office of school district 
 clerk, collector or librarian, for any of the causes mentioned 
 in the next preceding section, such vacancy may be supplied 
 by appointment, under the hands of the trustees of the district 
 or a majority of them, and the persons so appointed shall 
 hold their respective offices until the next annual meeting of 
 the district, and until others are elected in their places. 
 ( Sec. 78, chap. 480 of 1847.) 
 
 It is the design of the statute that ofBcers shall hold over after the 
 expiration of their term, so that the public interests shall not suffer for 
 the want of a person competent and responsible for the discharge of 
 every official duty. The office becomes vacant for the purpose of 
 giving the inhabitants the power to elect ; but, until they have done so, 
 is not vacant, as to the power to discharge its duties. 
 
 The trustees should not reappoint a person who has refused to accept 
 or to serve, or whose resignation has been accepted. The statute regards 
 the penalty under the next section as an equivalent for the service. (11 
 John., 432 ; Digest, ante, p. 2.) 
 
POWERS OF DISTEICT MEETINGS. 239 
 
 No. 108. £very person duly chosen or appointed 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 not having refused to accept, who 
 shall neglect to perform the duties of his office, shall forfeit 
 the sum often dollars. {Sec. 79, chap. 480 o/1847.) 
 
 These penalties are (by No. 53, ante) to be sued for by the super- 
 visor, and their collection reported to the commissioner. They belong 
 to the district for refusing to serve which they were incurred. What 
 is sufficient cause for a refusal to serve is a question that must be deter- 
 mined by the tribunal in which the action is brought. The law regards 
 every person as under an obligation to bear his part in the burden of 
 personal service to the public, or to indemnify it by a fine. Mere 
 unwillingness to abstract the necessary time from the labors of his ordi- 
 nary calling is not a sufficient cause ; it is for him to determine whether 
 the payment of the fine, or the injury to his business, or love of ease, 
 will be the greater damage, and to meet the one or the other according 
 to his election.. The presumption is that, if sufficient cause existed, the 
 supervisor would have accepted the resignation of the officer who is 
 sued ; and it lies upon him to show the cause, not upon the plaintiff to 
 disprove the existence of any. 
 
 No. 109. Any person chosen or appointed to any such 
 office may resign the same, by presenting his, resignation tq 
 the [supervisor] of the town wher^ such officer shall reside, 
 who is authorized, for sufficient cause shown to him, to accept 
 the same ; and the acceptance of such resignation shall be a 
 bar to the recovery of either of the penalties mentioned in the 
 preceding section. The [supervisor] accepting the resig- 
 nation shall give notice thereof to the clerk or to one of the 
 trustees of the school district to which the officer resigning 
 shall belong. ( Sec. 80, chap. 480 of 1847, modified in conformity 
 to No. 56.) 
 
 In a joint district, a resignation can be accepted only by the super- 
 visor of the town in which the officer resides ; though the courts will 
 probably hold that the supervisors of all the towns, any part of which 
 is included in the district, should unite in an action for the penalty 
 under the preceding section. In such a case each of the supervisors 
 should report the recovery of a judgment to the commissioner, men- 
 tioning to whom it has been paid, who should be the supervisor of the 
 town in which the school-house is situated. 
 
240 DUTIES OF DISTRICT CLERK. 
 
 DUTIES OF DISTRICT CLERK. 
 
 No. 110. It shall be the duty of the clerk of 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 enter therein 
 true copies of all reports made by the trustees of his district 
 to the [school commissioner] ; 
 
 2. To give notice of the time and place for special district 
 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 meeting shall be held, in 
 the manner prescribed in the fifty-fifth section of this act 
 {No. 82, ante); 
 
 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 least five days 
 before the time appointed for such adjourned 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 succes- 
 sor in office ; and in case of his neglect or refusal so to do, he 
 shall be subject to a fine of not exceeding fifty dollars. ( Sec. 
 81, chap. 480 of 1847, modified in conformity to No. 67. ) 
 
 The importance of full and accurate records has been sufficiently 
 enforced in the comment upon the seventh clause of No. 89. A clerk 
 who discharges his duty in this respect with neatness and fidelity will 
 have an honorable memorial of himself to endure as long as the district 
 exists. The entering of copies of the reports, annually made by the 
 trustees to the school commissioner, is of consequence to preserve the 
 history of the district affairs, and to afford the means of comparison 
 with the annual accounts presented by the trustees to the district 
 meeting. 
 
 Too great care cannot be exercised in giving ample notice of every 
 special meetifig. The clerk is authorized to give such notices npon a 
 verbal direction of the trustees {Bigest, ante, p, 43); but there can 
 be no excuse for the omission to put those directions in writing, upon 
 the records, either in the form <of an order or of minutes of the proceed- 
 ings of a meeting of the trustees. In iihe personal service of notice, the 
 clerk cannot act by deputy; but no objection is perceived to his 
 
DUTY OF TRUSTEES. 241 
 
 employing an agent to leave written notices at the houses of those 
 whom he may find absent from home. The proper course, however, 
 would be for the clerk to provide himself with a suiBcient number of 
 written notices before starting upon his rounds. In this way he would 
 secure the giving of notice at the earliest practicable time, and would 
 avoid the trouble of obtaining any other evidence of service than his 
 own oflacial return. The clerk is not at liberty to post notices of annual 
 or adjourned meetings at any less number of public places than four. 
 It would be well for him to have at least four places designated by a 
 resolution of the inhabitants as the most public and proper for posting 
 notices. In case of an adjourned meeting, it would be prudent to repeat 
 in the notices posted the enumeration of the objects for which it was 
 originally called, and to include any new proposition which may have 
 been presented at the meeting. 
 
 OF THE DUTY OF TRUSTEES OF SCHOOL DISTRICTS. 
 
 'No. 111. It shall be the duty of the trustees of every school 
 district, and they shall have pov^er : 
 
 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 absent or incapable 
 of acting; 
 
 3. To make out a tax list of every district tax voted by any 
 such meeting, containing the names of all the taxable inhabi- 
 tants 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 ; 
 
 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; 
 fOoDS.] 81 
 
242 DUTY OF TRUSTEES. 
 
 8. To pay the wages of such teachers, when qualified, by 
 giving them orders on the [supervisors] for the public money 
 belonging to their districts, so far as such moneys shall be 
 sufficient for that purpose, and to collect the residue of such 
 wages from all persons liable therefor ; 
 
 9. To divide the public moneys received by them, whenever 
 authorized by a vote of their district, into not exceeding two 
 portions for each year ; to assign and apply one of such por- 
 tions to each term during which a school shall be kept in 
 such district, for the payment of the teacher's wages during 
 such term ; and to collect the residue of such wages, not paid 
 by the proportion of public money allotted for that purpose, 
 from the person liable therefor, as above provided ; 
 
 10. To exempt from the payment of the wages of teachers, 
 either in part or wholly, such indigent persons within the 
 district as they shall think, proper, in any one quarter or 
 term, and the same shall be a charge upon such district ; 
 
 11. To certify such exemptions and deliver the certificate 
 thereof to the clerk of the district, to be kept on file in his 
 office ! 
 
 12. 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 iilstruction, 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 liable, and 
 to annex thereto a warrant for the collection thereof; 
 
 14. To deliver such rate bill, with the warrant annexed, 
 after the same shall have been made out and signed by 
 them, to the collector of the district, who shall execute the 
 same in like manner with other warrants directed by such 
 trustees to such collector for the collection of district taxes. 
 And the collector to whom any such rate bill and warrant 
 shall be delivered for collection shall possess the same power, 
 be entitled to the same fees, and subject to the same restrictions 
 and liabilities, with their bail and sureties, as by this title is 
 provided in proceedings to collect school district taxes. {Sec. 
 82,c/ui.p. 480 of 1847, as amended by §§ 6 and 12, chap. 382 
 of 1849.) 
 
 Before entering upon the detailed examination of this very important 
 section, by its several clauses, the general rule must be reiterated that 
 every power committed to the trustees must be exercised by the whole 
 board meeting and conferring at the same time and place, and not by 
 
DUTY OP TRUSTEES. 243 
 
 one or two fonning a determination and procuring the assent of the 
 absent. The decision of the majority, undtr stick circumstances, is the 
 decision of the trustees. The general rule is that the decision of a 
 majority, or even of all three under other circumstances, is not the 
 decision of the tnistees, any more than- the concurrent opinion of all 
 the members of the legislature, arrived at by taking their separate votes 
 at their respective places of residence, is an act of the legislature. In 
 the assessment of a tax, and in general in regard to every other duty 
 judicial in its character, this rule is inflexible. 
 
 In other cases a majority may decide, provided all have been notified 
 of the intention to meet and confer upon the subject at a definite time 
 and place. This rule was applied in 16 Maine E., 185, and the dismis- 
 sal of a teacher by two, a majority of the board, held illegal, because 
 the third was not notified, although he was out of town. The court say : 
 " That does not allow the majority to dispense with the rule requiring 
 notice. They are not in such cases constituted the judges whether the 
 notice would be effectual to secure his attendance. Nor would it be 
 entirely safe to entrust them with such a power, as it would afford an 
 opportunity to select an occasion when they might judge that a notice 
 would be ineffectual, and thus, by neglecting to give it, free themselves 
 from the presence of a dissenting minority. It may often happen that 
 those will be able to attend who were believed to be so situated that 
 their attendance could not be expected. Nor is there any difficulty in 
 giving the requisite notice in such cases, as one left at the usual place 
 of residence would be sufficient." 
 
 The law goes upon the supposition that a majority may be convinced 
 by a minority and change its determinations, and therefore will not 
 suffer the majority to act without giving the minority a notice to partici- 
 pate. The legal presumption is that oflBcers have thus acted, but this 
 presumption may be repelled by evidence to the contrary. (iSee Digest, 
 pp. 82, 93, 95.) 
 
 The case last cited admits that a merely ministerial duty, the execu- 
 tion of a determination of the board, may be performed by a single 
 trustee. {See also p. 88.) 
 
 In case of a vacancy in the office of trustee, those in office, whether 
 two or one, possess all the powers of a full board {Digest, p. 16) ; the 
 very first act, however, ought to be the call of a meeting to fill the 
 (facancy. 
 
 We may proceed now to examine the powers of trustees as declared 
 b the several clauses of the preceding section. 
 
244 DUTY OF TRUSTEES. 
 
 1. To call special meetings of the inhabitants of such districts liable 
 to pay taxes, whenever they shall deem it necessary and proper : This 
 powers should be liberally exercised for the benefit of the district ; and 
 the trustees should call special meetings whenever requested for any legal 
 object by a respectable number of the inhabitants, notwithstanding the 
 trustees may themselves be opposed to the object. The cases on pages 
 8, 20 and 17 Digest, ante, will be found to speak very strongly on this 
 point. If the inhabitants have repeatedly acted upon a subject in such 
 a manner as to show that their determination has been definitively 
 formed, and is not likely to be altered, it is not the duty of the trustees 
 to be made the instruments of a factious minority, by harassing them 
 with calls for special meetings to reconsider the matter. But except in 
 such case, or when the purpose is clearly illegal, it is very much a matter 
 of course that a meeting should be ordered by the trustees, or, in case 
 of their refusal, by the State Superintendent. Application to him for 
 this purpose must be upon notice to the trustees, in the manner and 
 form of an appeal from their refdsal. 
 
 It is no objection to the call of a special meeting that a meeting 
 having the same subject under consideration stands adjourned. (Digest, 
 ■pp. 83. 98 ; see also 1 Metcalfe 509.) 
 
 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 absent or incapable of acting : This is a ministe- 
 rial duty, which may be performed by one of the trustees, under a 
 resolution of the board, or they may divide the district into sections, 
 assigning the duty of giving the notice in each to one of their number. 
 This power should be exercised by them in the case of a refusal of the 
 clerk to give a notice. It is believed they may in such case delegate 
 the ministerial duty to any inhabitant, furnishing him with a written 
 authority, under their hands, which can be exhibited to the inhabitants 
 whom he personally notifies, and with written notices, signed hy the 
 trustees, to be left at the houses of those whom he may find absent from 
 
 ' home. 
 
 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 : In 4 Denio, 125, 
 the supreme court held a warrant void where one of the trustees made 
 out a tax list, and took the list and warrant to a second, who signed, 
 but the other trustee was not consulted. In 3 Denio, 698, the court 
 
DUTY OF TRUSTEES, 245 
 
 held an assessment void which was made and signed by two assessors, 
 the third being present in the room where it was made, but not being 
 consulted or taking any part in the business. This fact was permitted 
 to be shown by the evidence of one of the assessors who acted, to repel 
 the legal presumption that all bad been consulted. The decision was 
 affirmed by the court of appeals, (1 Comst,, 19; see Digest, ante, p. 95.) 
 The trustees should meet for the purpose of making out a tax list 
 within ten days atter the meeting at which the tax is voted, so that if it 
 be necessary to resort to any other evidence than the last town assess- 
 ment roll for the valuation of property, or if a reduction shall be claimed, 
 they may give twenty days' notice, and complete the tax list at the 
 expiration of thirty days after the district meeting. It would be well 
 for them to give notice at the district meeting of the time and place at 
 which they will meet to make a tax list, so that any inhabitant conceiving 
 himself entitled to a reduction may appear and be examined on oath in 
 regard to it. The mode of proceeding in arriving at valuation and 
 making the roll will be treated more at large in the comments upon a 
 succeeding section , It is proper to remark here that the heading of 
 every tax list should specify for what purposes and under what 
 authority every sum included therein is levied. Whenever any contro- 
 versy is anticipated in regard to any tax, it should be made on a separate 
 list from others voted at the same meeting, so as not to embarrass or 
 delay the collection of that which is undisputed. 
 
 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 : The form 
 of a warrant will be given in another place. The supreme court (18 
 Barb., 331) have stated it as "remarkable that the school laws, as they 
 now stand, contain no provision limiting or directing the time within 
 which the warrant shall direct the collector to collect or return the war- 
 rant." It is, however, clearly contemplated by the statute that the 
 warrant shall mention a time within which it is to be executed, and the 
 practice has been to fix it at thirty days, which was the period fixed by 
 § 100, chap. 480 of 1847, prior to the amendment made by § 5, chap. 
 382 of 1849. It is better to conform to that practice than to fix any 
 other period, unless in a case where it is palpable that an immediate 
 collection is unnecessary, and the convenience of the tax payers is to be 
 greatly promoted by a brief extension. 
 
 5. To purchase or lease a site for the district school-house, as desig- 
 nated by a meeting of the district, and to build, hire or purchase, keep 
 in repair and furnish such school-house with necessary fuel and appen- 
 
246 DUTY OF TRUSTEES. 
 
 dages, out of the funds collected and paid to them for such purpose : 
 This power is necessarily exclusive. A practice has grown up in some 
 quarters of appointing a building committee by the district meeting to 
 superintend the erection of a school-house. So far as a building com- 
 mittee act in aid of the trustees, by their advice and personal service in 
 carrying into execution the wishes of the inhabitants, under tha direc- 
 tion of the trustees, there is no objection. But the trustees alone have 
 the power to bind the district by a contract, written or verbal, and the 
 district cannot supersede them by a building committee or any other 
 agents. {See Bigest, pp. 17, 29 and 30, ante.) It is in the power of the 
 Inhabitants, through the agency of a committee or otherwise, to pro- 
 cure plans and specifications, to the minutest detail, for a school-house or 
 other mechanical structure in contemplation. They may in district meet- 
 ing select among those thus procured, and may, by the resolution autho- 
 rizmg the building, limit the power to making a contract according to 
 the plan and specifications adopted. This is the only method of con- 
 trolling the discretion of the trustees in the matter. It rests with the 
 trustees to accept or reject the work, unless the inhabitants, in the vote 
 authorizing the building, have appointed or provided for the appoint- 
 ing of other arbiters. This they may do by directing it to be inserted 
 in the contract with the builder, that the suflaciency of the materials 
 and workmanship under the contract shall be determined by persons 
 named in the resolution, with the power to determine what sum shall 
 be deducted as damages from the contract price, or to reject it wholly ; 
 or by nominating in the resolution an arbitrator on the part of the dis- 
 trict, and requiring the builder to nominate another, with power to the 
 two to choose an umpire in case of disagreement, such arbitrators to assess 
 damages or reject the work entirely, and securing to the trustees in the 
 latter case the right to remove the building from the site at the expense 
 of the builder, unless he removes it himself upon notice to do so. 
 
 A stringent contract, which should in all cases be in writing, with 
 such provisions for the summary adjustment of any questions which may 
 arise under it, will relieve the trustees from much personal responsibility 
 and trouble, as well as protect the district from quarrels and litigation, 
 which in any event are disastrous. 
 
 6. To have the custody and safe keeping of the district school-house : 
 The trustees are charged with the custody of the school-house for the 
 purpose of public instruction; and it is their duty to exercise such a 
 general supervision over its care and management as that the instruc- 
 tion of the pupils in the school shall not be embarrassed by any use of 
 
DrXY OF TRUSTEES. 2i1 
 
 tlie house other than for school purposes, and that the property of the 
 district, and the furniture, books and papers belonging to the school or 
 the pupils, shall not be destroyed or injured. Any use of the house in 
 subordination to these restrictions, and not inconsistent with the main 
 purposes for which it was designed, may be allowed by the trustees, 
 with the general consent. (See Digest, ante, p. 71.) In such cases, 
 however, it would seem to be the duty of the trustees to require such a 
 remuneration for the use as may be sufficient to clean the rooms, and to 
 indemnify the district against casual damage and wear. There is no 
 good reason why the expenses of the district should not be lightened 
 by the trifling revenue derivable from the occasional use of its house, 
 when not wanted for school purposes, and in a manner not to interfere 
 with them. The trustees, however, cannot make any permanent con- 
 tract for the occupation of the schoolrhouse. They can simply give a 
 license, revocable at their own discretion, which they cannot by con- 
 tract foreclose themselves from exercising as the public good piay require " 
 at any moment. Strictly speaking, they can grant no right to use the 
 district property for any other than educational purposes ; they can only 
 by their acquiescefice estop themselves from bringing an action for the 
 act of entering the school-house, which would otherwise be a trespass. 
 Nothing should be tolerated which may give occasion to a controversy 
 among the inhabitants. 
 
 As the custod}"^ of the building is vested in all the trustees, all have 
 the right of visiting and inspecting it at all times, and a majority of the 
 trustees cannot exclude the third. 
 
 7. To contract with and employ all teachers in the districts : The 
 power to contract for the district is a power to contract with such 
 teachers only as the law authorizes the inhabitants to expect, teachers 
 to the payment of whose wages public money may be applied in reduc- 
 tion of their rate bills, that is, teachers possessing, at the time of making 
 the contract, a regular and valid certificate of qualification. The 
 inhabitants have no power to engage nor to discharge a teacher. {Digest, 
 p. 38.) No one of them can demand from the teacher as a matter of 
 right that the latter should exhibit his certificate. He has no means of 
 knowing, when sending his children to school, whether he subjects 
 himself to a rate bill for the whole cost of tuition, or whether it is to be 
 defrayed in part by public money, except in the fact that the trustees 
 are his agents for the purpose of employing qualified teachers and none 
 others. It is a fraud upon the inhabitants to engage a teacher not then 
 possessing a certificate, without express notice to them that until he 
 
248 DUTY OF TRUSTEES. 
 
 shall obtain one the school is to be in eifect a private school. It is 
 difficult to find any principle upon which the trustees can be authorized, 
 by levying a rate bill, or any other official action, to provide for the 
 payment of such a teacher. A public officer, to justify the execution 
 of a statutory power, like that of issuing a warrant to levy upon the 
 property of a citizen, is bound to prove that he has strictly pursued all 
 the steps preliminary to the vesting of the power. The ministerial 
 officer who executes the warrant is indeed protected by another rule, 
 for if it is regular on its face he is not to inquire whether it may not 
 be impeached by extrinsic facts. The question has not been passed upon 
 by the courts, and it may be premature to say what influence the tolera- 
 tion hitherto of the collection of rate bills for the wages of unqualified 
 teachers may have upon their decision when it shall be presented. In 
 the mean time the ■only mode for trustees to secure themselves against a 
 dangerous personal responsibility is to meet as a board {Digest, p. 93) 
 " and insist upon the actual production of a certificate before contracting 
 with a teacher. 
 
 A practice has prevailed to a very considerable extent of trustees 
 engaging with a teacher that he shall board with the parents of the 
 children alternately. There is no authority for such a contract, and it 
 cannot be enforced on the inhabitants. This compulsory boarding gives 
 occasion to constant altercation and complaint, which often terminates 
 in breaking up the school. The best arrangement is to give the teacher 
 a specific sum and let him board himself. But there are some districts 
 so destitute that it may affijrd the inhabitants considerable relief to be 
 permitted to board the teacher. In such cases the object can be obtained 
 in another way. Let the trustees contract with the teacher at a specific 
 sum per week or month, and they may then agree with him that if he 
 shall be afibrded satisfactory board at the house of any of the inhabi- 
 tants, he will allow whatever sum may be agreed on per week for such 
 board, to be applied to his wages, and will give an order on the trustees 
 for the amount to the person with whom he boards ; and the trustees 
 may then accept such order from the inhabitants, as payment to that 
 extent upon his tuition bill, and deduct it from the amount to be paid 
 the teacher, after having paid him the whole of the public money. 
 
 The amount of the compensation to be paid to teachers is within the 
 discretion of the trustees exclusively, The inhabitants have no power 
 to control them in this respect, or in the selection of the individuals to 
 be employed, though the trustees would act most unwisely in disregard- 
 ing their preferences and wishes, when reasonable and just. There is 
 
DUTY OF TRUSTEES. 249 
 
 little danger that they will abuse their discretion in making the com- 
 pensation too high. The wages of teachers are generally quite inade- 
 quate, those of females scandalously so. It is a reproach to our civiliza- 
 tion that a woman should earn less as a teacher than she might in a 
 cotton mill or as a dressmaker, especially as the qualities of her sex 
 admirably adapt her for the instruction of the young. Trustees may 
 be very certain that in purchasing the services of a teacher, as in every 
 other business transaction, the way to get a good article is to offer a fair 
 price, and that the most wretched economy in the world is to employ 
 a poor teacher. They would grudge no price to secure a skillful phy- 
 sician to restore the bodily health and vigor of their own children. 
 They would never commit a watch to a bungler, because he offered to 
 tinker at it for slender pay ; what right have they to deal more stingily 
 in selecting and paying the person who is to deal with an organization 
 so much more delicate and intricate than a watch, as the minds and 
 souls of the children of an entire community, and through whose igno- 
 rance or error they may imbibe poison instead of nutriment or medicine ? 
 
 The following is suggested as a proper form for a contract to be drawn 
 up in duplicate, one copy to be filed with the district clerk, the other 
 retained by the teacher, viz : 
 
 A. B., having produced to the trustees of District No. , in the 
 
 town of , a certificate (or diploma of Normal School) found 
 
 in due form to license him to teach a common school in said district 
 (as first assistant or in the primary department, as the case may be, if 
 the certificate is limited), is hereby engaged for the term of weeks, 
 provided his certificate shall so long continue in force, to instruct the 
 school of said district hours in each day, exclusive of Sundays and 
 
 customary holidays, and except that on Saturdays he is to teach but 
 hours, for the wages of dollars per week, ( whereof per week 
 
 is to be paid by the boarding of said teacher in the families of such 
 inhabitants as shall be. from time to time designated by the trustees and 
 shall be satisfactory to said teacher. ) 
 
 The said A. B. faithfully performing his duties as such teacher, the 
 trustees engage to exercise their legal powers in providing for the pay- 
 ment of his wages aforesaid, by giving him orders on the supervisor 
 (monthly, or as may be agreed) to the amount of , (so much of 
 
 the public money appropriated to the term as may be apportioned to 
 the teacher upon a fair division thereof among all the teachers employed 
 at the same time) for his whole term of service, and in proportion for a 
 less time, and at the expiration of the term, upon being furnished by 
 
 [Code.] 32 
 
250 DUTY OF TKUSTEES. 
 
 said teacher with entries of the number of days which the scholars 
 attending school shall have respectively attended, verified by his oath, to 
 make out the necessary rate bills and tax lists for the collection of the 
 residue of his wages. 
 
 Where a teacher was employed by one of the trustees only, after 
 consulting the others separately, and all three of the trustees sent 
 children to the school, as did the district generally, it was held by the 
 supreme court (15 Barb., 323) that having performed the agreement on 
 her part she was entitled to recover the compensation, on the ground 
 the action being brought on an executed contract, " that where a person is 
 employed for a corporation by one assuming to act in its behalf, and 
 goes on and renders the services according to the agreement, with the 
 knowledge of its officers and without notice that the contract is not 
 recognized as valid and binding, such corporation will be held to have 
 sanctioned and ratified the contract. * * Where the contract is still 
 executory, and nothing has been done under it, and the action is to 
 recover damages merely for non-performance, it is for the plaintiff to 
 show a legal contract, binding upon the corporation. But this is not 
 that case." 
 
 This is sufficient for the teacher while the consent lasts', but the diflS- 
 culty in respect to the trustees is, that those who have given their 
 consent in this irregular manner may revoke it and leave the one who 
 made the contract personally liable to damages, without any claim to 
 be indemnified by the district. (Digest, pp. 80, 82, 93 ante) 
 
 A teacher once employed cannot be dismissed, without some violation 
 of the contract on his part, during the time for which it was to continue. 
 {Bigest, pp. IQ, 15, ZQ, ante) A teacher who is so unfortunate as to 
 fail to give satisfaction to the inhabitants is still entitled to retain his 
 place, unless it is forfeited by positive misconduct such as amounts to a 
 breach of the contract, or would justify the annulling of his certificate. ' 
 As to the remedy where the inhabitants withdraw their children from 
 school without reasonable cause, see Digest, ante, p. 47. It must be a 
 very clear case to authorize the application of so large a portion of the 
 public money as in that instance to a single term. Difficulties of this 
 kind very seldom arise, except in consequence of a want of harmony 
 among the trustees, or a wanton disregard by them of the wishes of their 
 constituents. 
 
 As to the employment of a trustee as teacher, see Digest, p. 99. The 
 objections there stated have considerable force in reference to the 
 employment of any near relative of a trustee. 
 
DUTY OF TRTJSTEES. 251 
 
 8. To pay the wages of such teachers, when qualified, by giving them 
 orders on the [supervisor] for the public money belonging to their dis- 
 trict, so far as such moneys shall be sufficient for that purpose ; and to 
 collect the residue of such wages from aU persons liable therefor : It 
 will be observed that this power is confined in express terms to the pay- 
 ment of qualified teachers. To pay public money to any other is a 
 misapplication of it, which renders the trustees personally liable to repay 
 the amount. [Com. School Dec., 213.) The public money apportioned 
 for the year is to be exhausted in paying the teachers for services ren- 
 dered during that year. (Digest, p. 48.) The year ends with the 31st 
 of December, which is ordinarily in the middle of a term, and the 
 whole of the public money of the year should be earned, and orders 
 for it drawn, on or before that day. If it be exhausted previous to the 
 commencement of the winter term, then an amount equal to the wages 
 for so much of that term as precedes the first of January must be pro- 
 vided by rate bill or other resources than the public money. The rate 
 bill, however, is to be predicated upon the attendance during the whole 
 term, and not merely upon that previous to January 1st. [Com. School 
 Dec, 232.) 
 
 The public money apportioned for teachers' wages can be applied to 
 no other purpose whatever, and therefore an order drawn upon the 
 supervisor should show upon its face that it is in compliance with the 
 statute. The form may be as follows : 
 
 To J. D., supervisor of the town of : 
 
 Pay to A. B., or order, dollars cents, on account 
 
 of wages earned by him when duly qualified as a teacher in District 
 
 No. , in said town, between the day of September and the 
 
 25th December, 1856. Dated Dec. 27, 1856. 
 
 E. F., ) ^ 
 
 p -p. f Trustees, 
 
 Q 2 ' ^Dist. No. 
 
 The wages of a teacher include the whole compensation allowed him 
 for board, lodging or any other object. In drawing an order or a rate 
 bill, any sum allowed for board, &c., should be denominated wages. 
 The order can be drawn only in favor of the teacher. If he desires to 
 apply the proceeds to the payment of a private debt for board or other 
 consideration, he can endorse it to his creditor, but it is for him and not 
 for the trustees to distribute his wages. (Digest, ante, p. 3.) 
 
252 DUTY OF TRUSTEES. 
 
 A teacher should be paid promptly. It is often a considerable hard- 
 ship for him to wait for the collection of a rate bill, and when he has 
 furnished a properly attested attendance list there can be no risk in the 
 trustees advancing the money due him. (Digest, p. 105.) 
 
 9. To divide the public moneys received by therJJ, whenever authorized 
 l>v a vote of their difstrict, into not exceeding two portions for each 
 year ; to assign and apply one of such portions to each term during 
 which a school shall be kept in such district, for the payment of teach- 
 ers' wages during such term, and to collect the residue of such wages 
 not paid by the proportion of public money allotted for that purpose 
 from the persons liable therefor, as above provided : Where the inhabi- 
 tants have not made a division of the public money by resolution, the 
 trustees have the power to make such division as they deem just and 
 expedient. [Digest, ante, pp. 11, 48, 85.) There is a manifest propriety 
 in determining what proportion of the public money shall be applied to 
 a term, before the term begins, so that each inhabitant sending pupils 
 to the school may know the extent of the liability to which he subjects 
 himself to be assessed upon a rate bill. 
 
 There are some diflBculties inseparable from the fact that the statute 
 recognizes but two terms in a year, while in practice there is one sum- 
 mer term and parts of two winter terms. The increase of the public 
 money to be distributed under the act of 1856 will render them more 
 embarrassing. Perhaps the best method of obviating these will be to 
 procure a vote of the inhabitants in district meeting, assigning a portion 
 of the public money to each term; for example, one-third to the winter 
 and one-third to the summer term, and leaving the residue to be applied 
 by the trustees in their discretion. 
 
 Strictly spealdng, the only public moneys received by the trustees 
 are those derived from the income of local funds, the tuition bills of 
 non-residents, and other sources than the state treasury. All such 
 moneys applicable to the payment of teachers' wages for the term are, 
 by § 6, chap. 151 of 1851, required to be first applied before the balance 
 to be raised by rate bill is ascertained. 
 
 10. To exempt from the payment of the wages of teachers, either in 
 part or wholly, such indigent persons within the district as they shall 
 think proper, in any one quarter or term, and the same shall be a charge 
 upon such district : The power of exemption under this clause is con- 
 fined to indigent inhabitants of the district. It is to be exercised at 
 the time of making out the rate bill for the term, and is operative only 
 for that term. The trustees must, before issuing their warrant, deter- 
 
DUTY OF TRUSTEES. 253 
 
 mine who are proper persons to be exempted. They have not the right 
 to suspend the determination until the indigence of the party has been 
 demonstrated by an unavailing eflFort to collect a rate bill by distraining 
 his property. For such cases the law has made a different provision. 
 
 In the exercise of this power the utmost liberality compatible with 
 justice to the district should be indulged. [Digest, ante, p. 31.) It is 
 the right of ev^ry child to attend the district school, and no parent 
 should be permitted to withhold him, either from doubt of his ability to 
 meet a rate bill without inconvenience or from that pardonable pride 
 of feeling which makes it humiliating 'to ask an exemption. The 
 exemption is provided, not in the interest of the parent, but because the 
 interest of the state requires that his children should be educated. It is 
 for the trustees to seek them out and solicit their attendance. Whenever 
 they have reason to suspect that parents will refrain from sending them, 
 from apprehension of a rate bill, they would better promote the objects 
 of their appointment by removing this apprehension, and that in such a 
 manner as not to wound the sensibilities of the parent by treating him 
 as an object of charity, than by permitting the places of the children 
 in the school to remain vacant. It is not to be forgotten that the poor, 
 in giving up the time and personal services of their children, and pro- 
 viding them with food and clothing while receiving instruction, make 
 a contribution which is often larger, in proportion to their means, than 
 the heaviest rate bill to a man in easy circumstances. Besides, suppose 
 the parent is actuated by criminal penuriousness, the child deserves none 
 the less to be protected from suffering on this account, and the state 
 is not the less injured by his growing up an ignorant and therefore an 
 unprofitable member of society. 
 
 11. To certify such exemptions and deliver the certificate thereof to 
 the clerk of the district to be kept on file in his office : Not merely the 
 fact, but the amount of the exemption in each case should be stated in 
 the certificate, as the amount of such exemptions becomes a charg > upon 
 the district, and the certificate is the evidence of the trustees' autho- 
 rity to make out a tax list for the aggregate of such amounts. The 
 following is a proper form : 
 
 The undersigned, trustees of District No. , in the town of , 
 
 hereby certify that at a meeting for that purpose, at which all were pre- 
 sent (or at which A. B., having been duly notified, failed to attend), the 
 following persons were exempted from the paynient of teachers' wages, 
 
254 DUTY OF TRUSTEES. 
 
 for the term ending on the day of , to the amounts set 
 
 opposite to their respective names, viz : 
 
 Names. Amount of exemptions. 
 
 Peter Barney, $0 50 
 
 Thomas Jones, 2 60 
 
 John Radcliff, 1 84 
 
 Dated this day of , 1857. ^ 
 
 A. B., ^ 
 
 C. D., > Trustees. 
 
 E. F., ) 
 
 12. To ascertain, by examination of the school list 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 : The assessment to be made under this clause is for the purpose 
 of making out a rate bill, and therefore relates only to inhabitants of 
 the district. {Digest, ante, p. 101.) The school lists may include other 
 persons, who have contributed or are bound to contribute to the funds 
 of the district by the payment of tuition bills. The amount of such 
 contributions may or may not be graduated by the number of days' 
 attendance, according to the contract made by the trustees for admit- 
 ting them to the school. But as the rate bill is to be made out only 
 for the balance required to pay teachers' wages, after applying the pub- 
 lic moneys belonging to the district, and must be made out in propor- 
 tion to the number of days and of children sent, and as non-residents 
 have no interest in those public moneys, their dues for tuition are to be 
 ascertained and collected otherwise than by rate bill. 
 
 The method of making the assessment is first to add together the 
 number of days and half days' attendance (reckoning two half days as 
 one day) by each child belonging to the family of an inhabitant, or for 
 whoo tuition an inhabitant of the district has made himself responsible. 
 Thus, if one inhabitant has sent four children for 104 days, he will be 
 charged for 416 days, and so on. Suppose, upon adding up the whole 
 number of days thus ascertained, the total is found to be 4,000 for the 
 average attendance of 40 scholars for the whole term, and that the 
 amount due to the teachers, after applying the proportion of public 
 money allotted to the term, local funds and tuition bills of non- 
 residents applicable to teachers' wages, is $40 ; the proportion of $40 
 due for one scholar for each day would be one cent ; and this multi- 
 plied by the number of days each scholar attended would give his pro- 
 
DUTY OF TRUSTEES. 255 
 
 portion ; and by adding the proportions of each belonging to the same 
 family, the amount due from each person sending to school is ascer- 
 tained. Some of these may be exempted under the previous clauses, 
 and the aggregate of the amounts for which they are exempted is to be 
 raised by tax on the property of the district. Those remaining, with 
 the amounts found due from them respectively, are to be inserted in the 
 rate bill. 
 
 All the children of inhabitants attending the district school during 
 the same term must be charged at the same rate per day for tuition, with- 
 out regard to the studies they may pursue, or to the department, room 
 or school-house in which they may attend, or to the fact that the teachers 
 employed in their instruction may receive very diiferent rates of com- 
 pensation, or that one teacher may have been employed for one portion 
 of the term and one or more others for the remainder. There is to be 
 no discrimination in the rate bill except that resulting from the number 
 of days and of children sent. {Com. School Dec, p. 208.) This rule 
 does not apply to non-residents, who may be charged in proportion to 
 the cost of the instruction furnished them, as they would be at a private 
 school. 
 
 Nor does it apply where, after the close of the term, the same teacher 
 continues without any intermission, in consequence of a prolongation of 
 the period for which he was originally engaged. [See Digest, ante,p. 52.) 
 The limits of a terra should be fixed in advance, so that the inhabitant* 
 may know the extent of their responsibility. 
 
 Difficulties sometimes arise in respect to the liability of inhabitants 
 for the tuition of persons in their employment or under their protection. 
 The general rule is, that every head of a household must be supposed 
 to direct the conduct of its members, and that he voluntarily assumes the 
 legal responsibility growing out of their attendance upon a school. This 
 presumption, however, does not always apply. Thus, where a person had 
 from charitable motives taken a poor family to reside with him in his 
 house, the children of which attended the district school, it was held 
 that he was not liable for the tuition of such indigent children, unless 
 they were sent to school by him under an express or implied contract 
 to be responsible for such tuition ; and that if sent by their parents, or 
 if they attended school of their own accord, the trustees should exempt 
 the parents from payment of the tuition bill. {Per Spencer, Supt., 1840.) 
 
 A grandfather is not prima facie liable for the board or schooling of a 
 grandchild. He may, however, become liable, in the same manner and 
 to the same extent as any individual who has a youth residing with him 
 
256 DUTY OF TRUSTEES. 
 
 whom he supports, and suffers to go to school without giving any particu- 
 lar directions on the subject. An implication would arise that it was by 
 his assent. But the father or mother is prima facie liable ; and some 
 positive acts on the part of the grandfather must be shown, amounting 
 to an assumption of liability on his part, before he can be held responsible 
 for the payment of tuition under such circumstances. {Per Spencer, Supt., 
 1841 ; see also Digest, p. 45.) 
 
 In ascertaining the amount payable by each person, the question is 
 often mooted whether the tuition bills of the children for whom he is 
 charged are to be reduced by the application of public money. The 
 statute in this particular is to be liberally construed. It secures the 
 freedom of the schools, so far as the public money will make them free, 
 to all persons over five and under twenty-one years of age residing in 
 the district, and to all children included in the reports of the trustees. 
 It directs them to enumerate in their reports all children who shall " at 
 the date of such report actually be in the district, composing a part of 
 the family of their parents, guardians or employers." It recognizes, 
 therefore, a temporary residence for the sake of employment, such as 
 would not constitute the child an inhabitant in the ordinary legal sense 
 of the term, as entitling him or her to the full benefits of free education. 
 The question ordinarily turns upon the point whether the residence is 
 in good faith, or whether it is merely colorable with a view to resort to 
 a school in another district than that in which he would have otherwise 
 remained a resident. {See Digest, p. 91.) 
 
 13. To make out a rate bill containing the name of each person so 
 liable, and the amount for which he is liable ; and to annex thereto a 
 warrant for the collection thereof : 
 
DUTY OF TRUSTEES. 
 
 257 
 
 Form of rate hill and warrant. 
 Rate bill, containing the name of each inhabitant not exempted and liable 
 for the paj'ment of teachers' wages in District No. , in the 
 
 town of Trenton, county of Oneida, for the term ending on the 
 day of , 185 , and the amount for which he is liable. 
 
 NAMES OF INHABITANTS 
 SENDING TO SCHOOL. 
 
 Whole number 
 of days sent. 
 
 Amount for which 
 he is liable. 
 
 
 John Jackson, 
 
 104 
 416 
 312 
 54 
 416 
 104 
 104 
 520 
 520 
 520 
 520 
 360 
 
 $1 04 
 4 10 
 
 3 12 
 
 54 
 
 4 16 
 
 1 04 
 04 
 
 2 60 
 
 2 60 
 
 5 20 
 5 20 
 
 3 60 
 
 
 James Johnson, 
 
 Timothy Warner, 
 
 Solomon Kinney, 
 
 William Jones, 
 
 John Dve 
 
 
 William Johnson 
 
 Thomas Jones, 
 
 John RadclifF, 
 
 paid $1 to teacher. 
 
 James Tunicliff, 
 
 John Simon, .......... 
 
 
 Joseph Williams, 
 
 
 
 3,950 
 
 $33 30 
 
 
 To the collector of School District No. , in the town of Trenton, 
 
 in the county of Oneida : 
 You are hereby commanded to collect, from each of the persons in 
 the annexed rate bill named, the several sums mentioned in the last 
 column thereof, with one per cent on all such sums as may be 
 voluntarily paid to you within two weeks after the receipt of thi4 
 warrant, and with five per cent on all sums collected by you after the 
 expiration of that time, for your fees, and within thirty days after 
 receiving this warrant to pay the amount so collected by you into the 
 hands of the trustees of said district, or one of them ; and in case any 
 person therein named shall neglect or reftise to pay the amount set 
 opposite his name as aforesaid, you are to levy the same by distress and 
 sale of the goods and chattels of such person, except such as are exempt 
 by section twenty-two, article two, title five, chapter six, part three of 
 the Revised Statutes from levy and sale under execution. 
 
 [0008."] 
 
 33 
 
258 DUTY OP TRUSTEES. 
 
 Given under our hands, this day of , in the year of 
 
 OUT Lord, one thousand eight hundred and 
 
 A.B.., 
 
 Trustees, 
 
 A. B., •^ 
 
 C. D., } : 
 
 E. F, ) 
 
 The statute does not require the insertion in the rate hill of the num- 
 ber of days for which the inhabitants are charged, and the first column 
 might therefore be omitted without vitiating the warrant. The second 
 column should contain the sum for which each inhabitant remains 
 liable at the time the warrant is issued, after deducting any payment 
 which he may have made to the trustees or teacher. In case of such 
 a partial payment having been made it may be explained in the margin. 
 For statement of the property exempt from levy under the warrant to 
 collect a rate bill, see p. 211, ante. 
 
 14. To deliver such rate bill, with the warrant annexed, after the same 
 shall have been made out and signed by them, to the collector of the 
 district, who shall execute the same in like manner with other warrants 
 directed by such trustees to such collector for the collection of district 
 taxes ; and the collector to whom any such rate bill and warrant shall be 
 delivered for collection shall possess the same power, be entitled to the 
 same fees, and subject to the same restrictions and liabilities, with their 
 bail and sureties, as by this title is provided in proceedings to collect 
 school district taxes : The collector is under no legal obligation to give 
 notice that the rate bill is in his hands, for the purpose of receiving 
 voluntary payments; a provision to that effect, formerly contained in the 
 statute of 1847, having been omitted in the subsequent amendments. 
 It would, however, be commendable in him to post a notice as soon as 
 lie receives the warrant. 
 
 It will be seen by JVo. 113, post, that the warrant for the collection 
 . of a rate bill is to be executed in a different manner than that for a tax 
 in this respect, viz : That certain property is exempt from levy for a rate 
 bill which is not exempt from levy and sale for a tax. The language 
 of the above clause has, however, been left unchanged in the text, with 
 this explanation. 
 
 Previous to 1847 the statute contained an express provision requiring 
 the collector to execute a bond for the faithful execution of the duties 
 of his oflSce, and making his office vacant upon his omission to execute 
 such bond for ten days after being required by the trustees to do so 
 This provision was dropped in the revision of 1847, and the trustees 
 
DUTY OF TRUSTEES, 259 
 
 ha'v-a no power to demand a bond from the collector. In case of his 
 embezzlement of moneys collected, he may be removed from oflBce by the 
 State Superintendent ; and the inhabitants, by the election of a faithless 
 oflBoer, render themselves liable to a new assessment to pay a second 
 time taxes and rate bills which have been once collected. A bond 
 voluntarily executed by the collector and his sureties would doubtless 
 be valid. 
 
 No. 112. Any balance required to be raised in any school 
 district for the payment of teachers' wages beyond the amount 
 apportioned to such district by the previous provisions of this 
 act, and other public moneys belonging to the district appli- 
 cable to the payment of teachers' wages, shall be raised by 
 rate bill, to be made out by the trustees against those sending 
 to school in proportion to the number of days and of children 
 sent, to be ascertained by the teacher's list ; and in making 
 out such rate bill, it shall be the duty of the trustees to 
 exempt, either wholly or in part, as they may deem expedient, 
 such indigent inhabitants as may, in their judgment, be 
 entitled to such exemption, and the amount of such exemption 
 shall be added to the first tax list thereafter to be made out 
 by the trustees for district purposes, or shall be separately 
 levied by them, as they shall deem most expedient. {Sec. 6, 
 chap. 151 0/ 1851.) 
 
 No. 113. The same property which is exempt, by section 
 twenty-two of article two, title five, chapter six, part three 
 of the Revised Statutes, from levy and sale under execution, 
 shall be exempt from levy and sale under any warrant to 
 collect any rate bill for wages of teachers of common schools. 
 (-Sec. 7, chap. 151 of 1851.) 
 
 The articles exempted under this section will be found enumerated 
 on page 211, ante. 
 
 No. 114. The trustees of any school district may expend 
 in the repair of the school-house a sum not exceeding ten 
 dollars in any one year, and the same may be levied and col-, 
 lected by a separate tax, or added to any tax authorized to be 
 levied and collected. {Sec. 9, chap. 382 of 1849.) 
 
 The power to make repairs to the extent of ten dollars in each year, 
 ind to collect the amouDt by tax, is independent of any vote of the 
 
260 DUTY OF TRUSTEES. 
 
 district. There are very few scliool-liouses ■wMcli do not animally 
 require repairs costing at least ten dollars, to maintain tliem in such a 
 condition as the comfort and health of the pupils demand. The trustees 
 should never permit any necessary repairs to remain undone a day 
 longer than they can be executed without dismissing the school, nor 
 should they hesitate to dismiss the school for a day or two when the 
 repairs cannot be postponed without exposing the inmates to discomfort. 
 It is not necessary that the whole of the ten dollars should be collected 
 at- one time or by one tax. When any sum for repairs is added to 
 another tax, the fact should be distinctly stated in the heading of the 
 tax list, and the amount specified. 
 
 No. 115. When the necessary fuel for the school of any 
 district shall not be provided, by means of a tax on the inhabi- 
 tants of the district or otherwise, it shall be the duty of the 
 trustees of the district to provide the necessary fuel, and levy 
 a tax upon the inhabitants of the district to pay for the same. 
 {Sec. 7, chap. 382 of 1849.) 
 
 This section was substituted by the legislature in the place of the pro- 
 visions of the act of 1847, which authorized the trustees to require the 
 inhabitants to furnish fuel in proportion to the number of children sent 
 by each. They have no longer any authority to require inhabitants to 
 furnish fuel, nor can it be given to them by a vote of the district. The 
 only authority given to the district meeting upon the subject is to levy a 
 tax upon the property of the taxable inhabitants, not a rate bill upon 
 those sending to school to furnish the house with fuel. It is only by a 
 voluntary arrangement that fuel can be otherwise provided. 
 
 If wood be furnished by the inhabitants, or some of them, under 
 such an arrangement, they may be credited upon the tax list with its 
 price, as agreed upon between the party furnishing it and the trustees. 
 If the fael be not supplied in this inanner, or if thfe quantity pro- 
 vided by a tax voted by the district meeting be insufficient, it is the 
 duty of the trustees to purchase . what is necessary. ' The word " fuel " 
 imports wood or other material in a state fit for use. It is not the duty 
 of the teacher or of the pupils to cut or split or in any way to prepare 
 the materials for use. The truste.es, therefore, should require the wood 
 to be adapted to the fire-place or stove, and should make the tax large 
 enough to furnish a supply of fuel, sawed or cut into suitable lengths, 
 split and pUed in the wood-house. 
 
DUTY OF TRUSTEES. 261 
 
 No. 116. It shall be the duty of the trustees of school 
 districts to procure, for the use of their district, two bound 
 blank books, from time to time, as shall be necessary, in one 
 ■ of which the accounts of all moneys received and paid by the 
 trustees, and a statement of all movable property belonging 
 to the district, shall be entered at large, and signed by such 
 trustees, at or before each annual meeting in such district ; 
 in the other of the said books the teachers shall enter the 
 names of the scholars attending school, and the number of 
 days they shall have respectively attended, and also the days 
 on whicli such school shall have been inspected by the [school 
 commissioner] ; which entries shall be verified by the oath or 
 affirmation of the teachers. The said books shall be preserved 
 by the trustees as the property of the district, and shall be 
 delivered to their successors. [Sec. 104, chap. 480 of 184.7.] 
 
 The account to be entered by the trustees should specify every sum 
 of money received by them, or any one of them, in his official capacity, 
 from the supervisor, or on tax lists or rate bills, giving the date when 
 and the source whence received. On the opposite page they should 
 credit themselves with every expenditure and payment, specifying par- 
 ticularly when, and to whom paid, and for what purpose, and referring 
 to a proper voucher, which should be filed and delivered to their 
 successors. 
 
 On another page they should make an accurate inventory of all the 
 movable property -belonging to the district, such as the library of the 
 district, stating the number of volumes and their condition, and giving 
 a catalogue of the books, wherever a general reference cannot properly 
 be made, as to the 1st, 2d, 3d, &c., series of the Harper Library, or Nos. 
 1, 2, 3, &c., of the Harper Library or Family Library, &c., &c., and the 
 furniture, appendages and apparatus of the school room, specifying each 
 article. The whole to be followed by a certificate in the following form : 
 
 We, the subscribers, trustees of District No. , in the town of 
 Trenton, do hereby certify that the preceding, from page to page , 
 inclusive, contains a true and accurate account of all the moneys received 
 by us for the use of said district, and of the expenditures thereof, and a 
 correct statement and inventory of all the movable property belonging 
 to said district. 
 
 Dated this day of , 18 . 
 
 A. B., ) 
 C. D., } : 
 
 Trustees. 
 E. F., > 
 
262 DUTY OP TRUSTEES. 
 
 The teacher's list, to be kept in the second book named, is the basis 
 upon which rate bills are made out, and by which the sums to be paid 
 by parents are to be ascertained. Among the first duties of the trustees 
 will be that of placing the book in the hands of the teacher, and 
 directing him to keep the list daily, and accurately. 
 
 The teacher will write the name of each scholar on the list, the first 
 day he enters school, and note his attendance every day during the 
 term. The trustees should inform him that unless the roll is correctly 
 »nd faithfiilly kept, and handed to them duly verified at the close of the 
 ochool, he will not be entitled to call on them for his wages ; for his list, 
 so verified, is the oniy legal authority upon which to issue their warrant. 
 
 The roll may be in the following form : 
 
DUTY OF TRUSTEES. 
 
 263 
 
 o 
 
 o 
 o 
 
 n 
 
 
 H 
 O 
 
 
 **» w*» tm 
 la lO '^ 
 
 ■jtspjnjgg 
 
 -*i -*. -*i 
 
 •iSsp|Ji[ 
 
 r. ^ iH 
 
 •ispsinqx 
 
 »H tH 
 
 •XspssopaAi. 
 
 r^ T-r iH 
 
 •X^peani 
 
 iH tH t-4 
 
 ■iSBpnoiv 
 
 « ^ « 
 
 
 •4(N P4M -M 
 to lO lO 
 
 •iupjnjBg 
 
 .«l >«( -«l 
 
 •^spiJJ 
 
 tH t-« r^ 
 
 •jCspeinqi 
 
 1H 1-1 tH 
 
 •iapsaupaAV 
 
 iH rH 1-t 
 
 •iBp99nx 
 
 ^ tH »H 
 
 ■XnpuoH 
 
 r^ »H »H 
 
 S^ 
 
 a- s- « 
 
 •XspmiBg 
 
 HC1 •401 Hn 
 
 •XspiJi 
 
 ^ ^ rH 
 
 •Xspejnqi 
 
 ^ iH rH 
 
 •inpBsnpaji. 
 
 IH rt TH 
 
 ■ispeanx 
 
 iH rH tH 
 
 •X^pnoH 
 
 r, ^- 
 
 
 
 ^ g- 
 
 
 ■XBpjniiis 
 
 j H5« 
 
 
 •inpujc 
 
 rH ^ 
 
 
 ■Xspsjnqx 
 
 rH rH 
 
 
 •j(BpB3ap9j)i 
 
 t-i fi 
 
 
 •Xspaanx 
 
 tH *H 
 
 
 •^spaoK 
 
 • ^ 
 
 
 «;* 
 
 " » 
 
 IQ • 
 
 
 ■ispjniBg 
 
 • 
 
 
 ■•i«P!ii 
 
 '- : 
 
 
 •itspainqx 
 
 rH '* 
 
 
 •iiipBaupa^ 
 
 Hn • 
 
 
 •inpsonx 
 
 rH I 
 
 
 •Xflpnoj^ 
 
 tH • 
 
 
 1 
 1 
 
 1 • ^ 
 
 11 i 
 
 •? a t» 
 
 
 Bate, 
 
 
 
2G4 
 
 DUTY OF TRUSTEES. 
 
 Ruled and kept in this manner, each page will serve for a month, or 
 whole term. "When the teacher is furnished with a blank book not 
 ruled, he should rule it with care, and he may find it convenient to 
 extend the ruling so that each page will contain blanks for as many 
 days and weeks as there shall be in the term for which he is employed. 
 
 At the close of the term, a list should be made out by the teacher, 
 containing the names of all the pupils, with the date of their entrance, 
 and the number of days' attendance in full, as follows, viz : 
 
 A list of the scholars who attended the district school of District 
 No. , in the town of , during the quarter or term commencing 
 the day of , 185 , and ending the day of , 
 
 and the number of days they respectively attended the same. 
 
 Time of Entrance. 
 
 Nnmes of Scholars. 
 
 No. of Days* Attendance. 
 
 Nov. 1, 1856. 
 " 8, " 
 " 16, " 
 
 John Thompson, . . . 
 
 Mary Jones, 
 
 V. M. Rice, Jr., 
 
 Twenty-five and half (25^) days. 
 Twenty-two (22 ) days. 
 Fourteen and half (14^) days. 
 
 This list should be made by inserting the name of the pupil the first 
 day of his entrance ; and the whole nimiber of days' attendance may be 
 inserted, at the close of the term, from the daily and weekly roll. 
 
 At the end of this list, the following oath or affirmation should be 
 written : 
 
 A. B., being duly sworn (or affirmed), deposes that the foregoing is a 
 true and accurate list of the names of the scholars who attended the 
 district school of District No. , in the town of , during the 
 
 quarter (or term) commencing the day of , and ending 
 
DUTY OF TRUSTEES. 265 
 
 the day of , and the number of days they respectively 
 
 attended. 
 
 A. B. 
 Sworn before me, this day ") 
 
 , 185 . 5 
 
 C. D., Justice of the Peace. 
 
 This affidavit, or affirmatioYi, may be certified by a justice of the 
 peace, or commissioner of deeds, judge of any court of record, county 
 clerk or school commissioner to have been taken before him. 
 
 An abstract of the list must also be made by the teacher for the use 
 of the trustees, at the end of each term, showing the results exhibited 
 under the following heads, in the following form : 
 
 Abstract of the attendance of scholars at the district school of District 
 No. , in the town of , during the term commencing the 
 
 day of , 185 , and ending the dgy of 
 
 Of scholars who attended one month and less than two months, 
 " " " " two months and less than four " 
 
 " " " " four months and less than six " 
 
 " " " " six months and less than eight " 
 
 " " " " eight months and less than ten " 
 
 " " " " ten months and less than twelve " 
 
 " " " " twelve months, 
 
 The teacher should sign this abstract and deliver it to the trustees. 
 
 As few terms of any common school wiU be longer than six months, 
 the above form extends beyond what most teachers will require. At 
 the close of the year, the trustees will add together and condense these 
 term abstracts into one, for the whole year ; and then the form beyond 
 six months, and up to twelve, may be used. In adding up the term 
 abstracts, if John Thompson's name appears on two or more terms, his 
 whole time must be stated in the yearly abstract of the trustees. That 
 is, if John Thompson attend, during the first term, two months, during 
 the second term, three months, during the third term, four months, he 
 must be computed among the scholars enumerated on the line '' eight 
 months and less than ten." Care should be taken not to enumerate 
 the same scholar more than once in the abstract for the year. 
 
 It should be borne in mind that the teacher cannot be required to 
 buy the lists, and the book for his daily and weekly roll and for the 
 final summary roll for the term. It is the duty of the trustees to furnish 
 
 rCoDE.l 34 
 
?66 DUTY OF TRUSTEES. 
 
 ohem. If tHey do not, then the trustees cannot demand the list from 
 the teacher, and will be personally responsible to him for his wages. 
 
 Hence the trustees have a direct personal interest in providing the 
 lists and the book, and the teacher in keeping them. 
 
 No. 117. When the trustees of any school district are 
 required or authorized by law, or .by a vote of their district, 
 to incur any expense for such district, and when any expenses 
 incurred by them are made by express provision of law a 
 charge upon such district, they may raise the amount thereof 
 by tax in the same manner as if the definite sum to be raised 
 had been voted by a district meeting, and the same shall be 
 collected and paid over in the same manner. ( Sec. 109, chap. 
 480 0/1847.) 
 
 This provision first came into force as section 14, chap. 260 of 1841. 
 The supreme court, commenting upon it, in 4 Denio, 298, says : " It is 
 said that the statute ought to be so construed as to confine its opera- 
 tions to small incidental expenses incurred by the trustees. But the 
 language is general, and there is nothing which, upon any just principle 
 of interpretation, will warrant us in restricting the provisions to any 
 particular class of expenses.'' That case was one in which the district 
 had voted to build a school-house, and the materials and dimensions 
 specified were such as to have the effect of bringing the cost within 
 $400, and it was held that " if the district had left the whole within the 
 discretion of the trustees, and they had kept within the four hundred 
 dollars, the act of 1841 would have authorized them to levy the tax." 
 The object of this section, however, is simply to dispense with the neces- 
 sity of fixing a definite amount to authorize the levying of a tax, and it 
 has not the effect of permitting the trustees to levy a tax, under the 
 vote of a district for expenses incurred for any purpose for which the law 
 has not conferred the power upon the inhabitants of voting a definite 
 tax. If the inhabitants cannot lay u .e tax directly, they cannot effect 
 the same object by directing the trustees to expend money or to do acts 
 involving the expenditure of money. 
 
 Among the expenses made by express provision of law a charge upon 
 the district, and which the trustees are authorized to incur without any 
 vote of their district, is that of hiring temporarily any room or rooms 
 for the keeping of schools therein, whenever it shall be necessary for the 
 accommodation of the children. (See No. 148, post.) 
 
DISTRICT TAXES. 267 
 
 It is believed that a tax list, for any expense incurred under this sec- 
 tion, may be separate, or the amount may be included in any other tax 
 list necessary to be made out at the time when the amount of such 
 expenses shall have been ascertained. It is, however, the duty of the 
 trustees, when practicable, to ascertain the definite amount, and to make 
 out the tax list therefor within thirty days after the meeting at which 
 the expenditure may have been authorized. When any tax under this 
 section is included in the same tax list with others, the heading should 
 distinctly specify the amount, the object and the authority; as by say- 
 ing, for example : " Also, twelve dollars for the expense of temporarily 
 hiring rooms for the keeping of schools therein, necessary for the 
 accommodation of the children in said district, from the 1st day of May 
 to the 1st day of August, 1857; also, eight dollars and ninety-three 
 cents for the expenses incurred in grading and draining the site of the 
 school-house, under the resolution of a district -meeting held April 
 12, 1857." 
 
 OF THE ASSESSMENT AND COLLECTION OF DISTRICT 
 
 TAXES. 
 
 No. 118. In making out a tax list, the trustees of school 
 districts shall apportion the same on all taxable inhabitants 
 of the district, or corporations Tiolding property therein, 
 according to the valuation of the taxable property which shall 
 be owned or possessed by them at the time of making out 
 such list within such district, or partly within such district 
 and partly in an adjoining district, and upon all real estate 
 lying within the boundaries of such district, the owners of 
 which shall be non-residents, and which shall be liable to 
 taxation for town or county purposes, and shall be situated 
 within three miles of the site of the school-house in such dis- 
 trict. But when it shall be ascertained that the proportion 
 of any tax upon any lot, tract or parcel not occupied by any 
 inhabitant would not amount to fifty cents, the trustees, in 
 their discretion, may omit such lot, tract or parcel from the 
 tax list. {Sec. 85, chap. 480 o/1847.) 
 
 The statute requires the trustees to ascertain and determine who are 
 taxable inhabitants at the time of making out the tax list, and to appor- 
 tion the tax on the persons and corporations then holding property in 
 the district, without regard to the time when the same was voted, and 
 
268 DISTRICT TAXES. 
 
 without discrimination on account of tlie purpose for whicli it was voted, 
 except that in favor of any inhabitants under No. 132, post. [See Digest, 
 ante, p. 39.) 
 
 The personal property of all persons actually residing in the district 
 is taxable therein, wherever such personal property may be situated. 
 It is also provided, by chap. 37 of 1855, that " all persons and associa- 
 tions doing business in the State of New- York, as merchants, bankers or 
 otherwise, either as principals or partners, whether special or otherwise, 
 and not residents of this state, shall be assessed and taxed on all sums 
 invested in any manner in said business, the same as if they were resi- 
 dents of this state, and said taxes shall be collected from the property 
 of the firms, persons or associations to which they severally belong." 
 
 Non-residents, taxable under the above cited statute, are to be deemed 
 taxable inhabitants of the district in which they may be doing business. 
 If the owners or their agents become temporary sojourners in the state, 
 for the purpose of managing such business, their residence for the pur- 
 pose of such taxation is defined in the following statute : 
 
 " § 6. Every person shall be assessed in the town or ward where he 
 resides when the assessment is made, for all personal estate owned by 
 him, including all personal estate in his possession or under his control 
 as agent, trustee, guardian, executor or administrator, and in no case 
 shall property, so held under either of these trusts, be assessed against 
 any other person, and in case any person, possessed of such per- 
 sonal estate, shall reside during any year in which taxes may be levied, 
 in two or more counties, towns or wards, his residence for the purposes 
 and within the meaning of this section, shall be deemed and held to be 
 in the county, town or ward in which his principal business shall have 
 been transacted, but the products of any state of the United States, 
 consigned to agents in any town or ward of this state, for sale on com- 
 mission, for the benefit of the owner thereof, shall , not be assessed to 
 such agent, nor shall such agents or moneyed corporations or capitalists 
 be liable to taxation under this section, for any moneys in their posses- 
 sion or under their control- transmitted to them for the purposes of 
 investment or otherwise." [Sec. 5, title 2, chap. 13, part 1st Revised 
 Statutes, as amended hy sec. 2, chap. 176 of 1861.) 
 
 The Revised Statutes " of the assessment and collection of taxes," in 
 title 1 of the same chapter from which the preceding quotation is taken, 
 contain the following provisions : 
 
 " § 2. The term ' land,' as used in this chapter, shall be construed 
 to include the land itself, all buildings and other articles erected upon 
 or affixed to the same, all trees and underwood growing thereon, and all 
 mines, minerals, quarries and fossils, in and under the same, except 
 mines belonging to the state ; and the terms ' real estate' and ' real 
 
DISTRICT TAXES. 269 
 
 property,' whenever they occur in this chapter, shall be construed as 
 having the same meaning as the term 'land' thus defined. 
 
 "§ 3. The terms 'personal estate' and 'personal property,' when- 
 ever they occur in this chapter, shall he construed to include all house- 
 hold furniture, moneys, goods, chattels, debts due from solvent debtors, 
 whether on account, contract, note, bond or mortgage, public stocks 
 and stocks in moneyed corporations. They shall also be construed to 
 include such portion of the capital of incorporated companies, liable to 
 taxation on their capital, as shall not be invested in real estate. 
 
 " § 4. The following property shall be exempt from taxation : 
 
 " 1. All property, real or personal, exempted from taxation by the con- 
 stitution of this state or under the constitution of the United States ; 
 
 " 2. All lands belonging to this state or the United States ; 
 
 "3. Every building erected for the use of a college, incorporated 
 academy or other seminary of learning ; every building for public wor- 
 ship, every school-house, court-house and jail ; and the several lots 
 whereon such buildings are situated, and the furniture belonging to each 
 of them ; 
 
 "4. Every poor-house, alms-house, house of industry, and every house 
 belonging to a company incorporated for the reformation of offenders, 
 and the real and personal property belonging to or connected with the 
 same; 
 
 " 5. The real and personal property of every public library ; 
 
 "6. All stocks owned by the state or by literary or charitable institu- 
 tions ; 
 
 " 7. The personal estate of every incorporated company not made 
 liable to taxation on its capital in the fourth title of this chapter ; 
 
 " 8. The personal property of every minister of the gospel, or priest, 
 of any denomination ; and the real estate of such minister, or priest, 
 when occupied by him, provided such real and personal estate do not 
 exceed in value one thousand five hundred dollars ; and 
 
 "9. All property exempted by law from execution. 
 
 "§ 5. If the real and personal estate, or either of them, of any 
 minister or priest exceed the value of one thousand five hundred dol- 
 lars, that sum shall be deducted from the valuation of his property, and 
 the residue shall be liable to taxation. 
 
 " § 6. Lands sold by the state, though not granted or conveyed, shall 
 be assessed in the same manner as if actually conveyed. 
 
 " § 7. The owner or holder of stock in any incorporated company, 
 liable to taxation on its capital shall not be taxed as an individual for 
 such stock." 
 
 It is also provided by § 5, chap. 546 of 1855, that "toll-houses and 
 other fixtures, and all property belonging to any plank or turnpike road 
 company, shall be exempt from assessment and taxation for any purpose 
 whatever, until the surplus annual receipts of tolls on their respective 
 roads, over necessary repairs, and a suitable reserve fand for repairs and 
 relaying of plank, shall exceed seven per cent per annum on the first 
 
270 DISTKICT TAXES. 
 
 cost of sucli road. In case of any disagreement between tlie assessors 
 of any town, village or city and any such, company concerning such 
 exemption claimed, said company may appeal to the county judge 
 of the county in which such assessment is proposed to be made, who 
 shall, after due notice to the appealing party of such appeal, examine 
 the books and vouchers of such company, and take such further proofs 
 as he shall deem proper, and shall decide whether such company is 
 liable to taxation under the section, and his decision shall be finaL" 
 ( Session Laws of 1855, p. 1044.) 
 
 Subsequent statutes have added to the enumeration of personal 
 property above given, the rents reserved on certain leases and certain 
 debts due to non-residents of the United States, as follows : 
 
 " § 1. It shall be the duty of the assessors of each town and ward, 
 while engaged in ascertaining the taxable property therein, by diligent 
 inquiry to ascertain the amount of rents reserved in any leases in fee, 
 or for one or more lives, or for a term of years exceeding twenty-one 
 years, and chargeable upon lands within such town or ward, which rents 
 shall be assessed, to the person or persons entitled to receive the same, 
 as personal estate, which it is hereby declared to be for the purpose of 
 taxation under this act, at a principal sum, the interest of which at the 
 legal rate per annum shall produce a sum equal to such annual rents ; 
 and in case stich rents are payable in any other thing except money, 
 the value of such annual rents in money shall be ascertained by the 
 assessors, and the same shall be assessed in manner aforesaid. ( Laws of 
 1846, chap. 327, § 1, p. 466.) 
 
 " § 2. The board of supervisors in each county shall assess the taxes, 
 to be raised f8r town, county and state purposes, upon the person or 
 persons entitled to receive such rents, within the town or ward where 
 the lands upon which such rents are reserved and situated, in the same 
 manner and to the same extent as any persbnal estate of the inhabitants 
 of such town." (Same chap., § 2, p. 467.) 
 
 Under this. statute it has been decided (4 Barb., 12) that "The tax 
 is to be assessed in the town where the lands lie. In this respect it is 
 like a tax on real estate, and not like that on personal estate, which 
 follows the residence of the person whose property is assessed." In that 
 case it was held that the valuation of the assessors might be corrected 
 by the affidavit of the person assessed, and, as was also held in 7 Barb., 
 251, that all leases are included within the act which originally had more 
 than twenty-one years to run, notwithstanding the term remaining 
 unexpired at the time the assessment is made may be less than twenty- 
 one years; in other words, the rents reserved under such a lease 
 continue to be taxable till the expiration of the term. It was held, in 
 8 Barb., 23, that the tenant was not liable to pay to the landlord taxes 
 
DISTRICT TAXES. 271 
 
 assessed upon such rents under a lease in perpetuity, though the lease 
 contained a covenant binding the tenant to pay any taxes assessed upon 
 the premises or upon the landlord, his heirs, <fcc., for and in respect to 
 the premises. 
 
 " § 1. All debts, owing by inhabitants of this state to persons not 
 residing within the United States, for the purchase of any real estate 
 shall be • deemed personal property, within the town or county where 
 the debtor resides, and as such shall be liable to taxation in the same 
 manner and to the same extent as the personal estate of citizens of this 
 state." {Laws of 1851, chap. 3ll,p. 721.) 
 
 The debt taxable under this section must be for the purchase of real 
 estate, and is to be taxed in the district where the debtor resides, irre- 
 spective of the fact that the real estate may lie elsewhere. 
 
 In regard to real estate, they are taxable inhabitants who, living in 
 the district, oton or possess any land therein, that is to say, all persons 
 who have the general property in the soil ; and all persons who occupy 
 it as tenants having a temporary right to its possession under a landlord. 
 The latter, although only tenants at will, may be assessed for the land 
 in their occupation, as appears from No. 119, ^o»t. The distinction is 
 between a tenant, for however brief a period, who occupies the land for 
 his own profit and is entitled to a notice to quit before he can be 
 divested, and a mere agent or servant, managing the land or employed 
 upon it for the profit of another, under wages and without any title to 
 the possession of the land or to its products. In respect to land within 
 the district occupied by such agents, the employer, whether holding 
 the fee or a leasehold estate, and though residing outside of the district, 
 is declared by No. 120, post, to be a taxable inhabitant in respect to 
 the liability of such property to taxation, in the same manner as if he 
 actually resided within its bounds. 
 
 After completing the enumeration of taxable inhabitants as defined by 
 the various provisions above cited, and which may include sundry persons 
 not residing in the district, the trustees are to inquire whether there are 
 any lands lying within the boundaries of such district which are liable 
 to taxation for town or county purposes, and are situated within three 
 miles of the site of the school-house, the owners of which are non- 
 residents, and which lands are not occupied by a tenant (who would 
 himself be taxable) or improved by an agent or servant, whose occupation 
 would render the owner not a nonresident, in the sense of the law for 
 the purpose of taxation, although in fact residing in some other district. 
 The following directions to the assessors in reference to the mode of 
 designating the lands of non-residents, in tit. 2, chap. 13, 1st part of the 
 
2>j2 DISTRICT TAXES. 
 
 Revised Statutes (and which are of course to be followed by trustees 
 when they find it necessary to make an original assessment) show that 
 it is only unoccupied land which is to be so regarded : 
 
 "§ 11. The lands of non-residents shall be designated in the same 
 assessment roll, hut in a part thereof separate from the other assess- 
 ments, and in the manner prescribed in the two following sections : 
 
 " § 12. If the land to be assessed be a tract which is subdivide^ into 
 lots, or be part of a tract which is so subdivided, the assessors shall 
 proceed as follows : 
 
 " 1. They shall designate it by its name, if known by one, or if it be 
 not distinguished by a name, or the name be unknown, they shall state 
 by what other lands it is bounded ; 
 
 " 2. If they can obtain correct information of the subdivisions, they 
 shall put down in their assessment rolls, and in a first column, all 
 the unoccupied lots in their town or ward, owned by non-residents, by 
 their numbers alone and without the name of their owners, beginniilg 
 at the lowest number and proceeding in numerical order to the highest ; 
 
 " 3. In the second column, and opposite to the number of each lot, 
 they shall set down the quantity of land therein liable to taxation ; 
 
 " 4. In a third column, and opposite to the quantity, they shall set 
 down the valuation of such quantity ; 
 
 " 5. If such quantity be a full lot, it shall be designated by the number 
 alone ; if it be a part of a lot, the part must be designated by bounda- 
 ries, or in some other way by which it may be known. 
 
 " § 13. If the land so to be assessed be a tract which is not subdivided, 
 or if its subdivisions cannot be ascertained by the assessors, they shall 
 proceed as follows : 
 
 " 1. They shall enter in their roll the name or boundaries thereof, as 
 above directed, and certify in the roll that such tract is not subdivided, 
 or that they cannot obtain correct information of the subdivisions, as 
 the case may be ; 
 
 " 2. They shall set down in the proper column the quantity and valua- 
 tion, as above directed ; 
 
 " 3. If the quantity to be assessed be the whole tract, such description 
 by its name or boundaries will be sufiBcient; but if a part only is 
 liable to taxation, that part, or the part not liable, must be particularly 
 described ; 
 
 " 4. If any part of such tract be settled and occupied by a resident of 
 the town or ward, the assessors shall except such part from their assess- 
 ment of the whole tract, and shall assess it as other occupied lands are 
 
 The residue of the section relates to the making of a map, which is 
 supposed not to be applicable to trustees of school districts ; if a map is 
 already on file, the trustees may refer to it in aid of their descriptions. 
 
 Without amending the sections above quoted, the legislature, by § 1, 
 chap. 1'76 of 1851, declared that "Land occupied by a person other 
 than the owner may be assessed to the owner or occupant, or as non- 
 
DISTRICT TAXES. 273 
 
 resident land." It is not easy to reconcile the apparent conflict; and 
 as the statute last mentioned is merely permissive, it will be safest for 
 trustees to treat as non-resident lands only those which are unoccupied, 
 or, at most, so occupied that there is no prospect of collecting the tax 
 otherwise than by the sale of the land. 
 
 It is the general rule that, if " assessors should assume to assess land 
 lying in another town or ward, their act would unquestionably be void 
 for want of jurisdiction." (1 Barb., 129.) The same general rule 
 applies to trustees in making an original assessment, or in selecting 
 from the town assessment roll the lands to be included in a district tax 
 list. {^ See Digest, ante, pp. ^Z, 100.) To make an assessment legal, 
 they must have jurisdiction of the particular case. If they transcend 
 the limits of their authority, and undertake to assess property exempt 
 by statute, they cease to be judges, and are responsible for all the con- 
 sequences. A public oflScer is not responsible, in a civil suit, for a judicial 
 determination in a matter over which he had jurisdiction, however 
 erroneous it may be, but no oflBcer can acquire jurisdiction by deciding 
 that he has it. (5 Barh., 611; and see 19 Barb., 22.) The statute 
 gives them jurisdiction, as to land lying outside of the territorial limits 
 of their district, only by directing them to apportion the tax " accord- 
 ing to the valuation of the taxable property which shall be owned or 
 possessed by them (taxable inhabitants) at the time of making out such 
 list within such a district, or partly vnthin such district and partly 
 within an adjoining district" The statute evidently contemplates a 
 single pal eel of land, in the possession of a single occupant, which is 
 intersected by the boundary line of two districts. If the possession is 
 severed, as if the land is owned by the same person, but the part within 
 the district is 'occupied by the owner and that which lies outside the 
 district by a tenant, or vice versa, or if the respective parts are occupied 
 by different tenants of the same owner, or if one of them only is occu- 
 pied and the other is vacant and unimproved, then the respective par- 
 cels are to be taxed, each in the district within whose boundaries it is 
 actually contained. So, if one of the parcels is occupied by a person as 
 owner, and the other is also occupied by him as tenant of a third person, 
 the parts must be taxed in the districts containing them respectively, 
 for the trustees of the district containing the portion under lease have 
 the right to assess it to the owner, disregarding the occupant The 
 statute, moreover, requires something more than the imaginary contatt 
 of the two parcels in a mathematical point, as where they have only an 
 angle in common. They should be so connected as to have at least a 
 
 [Code.] 35 
 
274 DISTRICT TAXES. 
 
 line of contact, and not a mere point. Where, however, two parcels in 
 the possession of the same owner are separated only by a public high- 
 way, the fee of which he owns, subject to the right of passage in the 
 public, this is not to be regarded as preventing their contact. 
 
 There are serious difficulties growing out of the fact that the statute, 
 under the most restricted interpretation that can be put upon it, some- 
 times permits the resources of a district to be weakened by the purchase 
 of a part of its territory by the inhabitants of an adjoining district. 
 Though the district boundaries are not thereby altered, yet, for the 
 eminently practical object of taxation, the result is the same as if they 
 were. Whenever this can be prevented by a voluntary arrangement 
 between the seller, purchaser and trustees of the respective districts, by 
 which the land shall be granted subject to taxation in the district in 
 which it lies, by express reservation in the deed, it may prevent a ques- 
 tion which is much more troublesome if postponed until the levjring 
 of an extraordinary tax, such as that for building a school-house. 
 
 In respect to property exempt from fcixation, it has been decided that 
 a minister of the gospel, or priest, to bring himself within the exemp- 
 tion, must show that the value of both his real and personal property 
 did not exceed $1500, and it seems that only that sum is to be deducted 
 from the valuation of both, and not $1500 from the valuation of each, 
 if each exceeded that amount. (5 Barb., 609.) The latter point, 
 however, was not necessarily involved in the decision. 
 
 The land owned by a minister of the gospel, if rented, can be taxed 
 to the tenant. It is exempt from taxation to a certain extent, only 
 when occupied by such minister. If, however, the occupant is the affent 
 merely of the minister, so as to render it necessary to make out the 
 assessment against the latter as owner, the property is then exempt. 
 
 Land occupied by a minister of the gospel, as tenant, has been held 
 exempt to the amount of $1500, under the provision above quoted. 
 ( Com. School Dec, 61.) The exemption is personal to the minister, 
 and does not avail the owner. ' 
 
 The court of appeals held, in 3 Kerwm, 220, that the school-houses 
 referred to in the statute, exempting property from taxation, are those 
 used for the public common schools, and that buildings erected and 
 used for private unincorporated seminaries of learning, or for boarding 
 schools, are not exempt — overruling a dictum in 1 Seld., 376. 
 
 No. 119. Any person working land, under a contract for a 
 share of the produce of such land, shall be deemed the pos- 
 
DISTRICT TAXES. 275 
 
 sessor, so far as to render him liable to taxation therefor in 
 the district where such land is situate. ( Sec. 86, chap. 480 
 of 1847.) 
 
 The meaning of this section is believed to be, that a tenant, working 
 land and paying a share of the produce as rent, is taxable, and not that 
 a servant or agent is taxable who agrees to tate a share of the produce 
 as his wac/ts for working the land. It may sometimes be a little diffi- 
 cult to ascertain whether the relation is that of landlord and tenant, or 
 that of master and servant. (15 Barb., 597.) It being the policy of 
 the law (as will be apparent from No. 121) that a landlord leasing for 
 a short term should pay the school taxes for permanent objects, unless 
 there is an express agreement to the contrary, it will be safest in cases 
 of doubt to avoid the question by assessing the owner. 
 
 No. 120. Every person owning or holding any real property 
 within any school district, who shall improve and occupy the 
 same by his agent or servant, shall, in respect to the liability 
 of such property to taxation, be considered a taxable inhabi- 
 tant of such district, in the same manner as if he actually 
 resided therein. {Sec. 87, chap. 480 of 1847.) 
 
 It is not necessary that the agent or servant should reside on the 
 land, in order to render the owner a taxable inhabitant. The section 
 was intended to prevent the necessity of resorting to a sale of the land, 
 and to authorize the collector to levy, under his warrant, upon the per- 
 sonal property of an owner of land not residing in the district, but 
 managing the land himself, or by agents or workmen, instead of renting 
 it. If the land be occupied by tenants or sub-tenants, they and not the 
 non-resident owner are to be taxed for the parts occupied by them 
 respectively. They are for the time being owners (8 Wend., 518), and, 
 although they too should not reside on the land, are made .taxable 
 inhabitants, if they improve it. • It is very plain that, where land which 
 comes within the description of the preceding section is situated partly 
 in one district and partly in an adjoining one, the owner^ although a 
 resident of neither, is a taxable inhabitant of both, in respect to the 
 liability of the several parcels to taxation in the district in which each 
 is actually contained. Each district must tax such owner only for the 
 part actually within its boundaries. It is difficult to see why it should 
 be otherwise, if he happens to be a resident of either district, inasmuch 
 as No. 118, ante, makes his liability to taxation depend not upon resi- 
 
276 DISTRICT TAXES. 
 
 dence, but upon his being a " taxable inhabitant," within the definition 
 
 of the statute. 
 
 No. 121. Where any district tax, for the purpose of pur- 
 chasing a site for a school-house, or for purchasing or build- 
 ing, 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. {Sec. 88, chap. 480 of 1847.) 
 
 The tenant can charge his landlord only with such taxes as he may 
 have paid for the specific purposes mentioned. If taxed for the 
 exemption of indigent inhabitants from rate bill, for the hire of tempo- 
 rary school-house or rooms, for the purchase of maps, globes, school 
 apparatus, books for library, for district minutes, and for teacher's 
 register of attendants, or any other object than those enumerated in the 
 preceding section, he cannot set it oflF against his rent or make the 
 landlord repay him. 
 
 No. 122. When any real estate within a district, so liable 
 to taxation, shall not be occupied and improved by the owner, 
 his servant or agent, and shall not be possessed by any tenant, 
 the trustees of any district, at the time of making out any tax 
 list by which any tax shall be imposed thereon, shall make 
 and insert in such tax list a statement and description of 
 every such lot, piece or parcel of land so owned by non- 
 residents therein, in the same manner as required by law from 
 town assessors in making out the assessment roll of their 
 towns ; and if any such lot is known to belong to an incor- 
 porated company, liable to taxation in such district, the name 
 of such company shall be specified, and the value of such lot 
 or piece of land shall be set down opposite to such descrip- 
 tion, which value shall be the same that was affixed to such 
 lot or piece of land in the last assessment roll of the town ; 
 and if the same was not separately valued in such roll, then 
 it shall be valued in proportion to the valuation which was 
 tffixed in the said assessment roll to the whole tract of which 
 such lot or piece shall be a part. ( Sec. 89, chap. 480 of 1847.) 
 
DISTRICT TAXES. Ill 
 
 The directions of the statute for the description of non-resident lands 
 have been given at page 272, ante. The preceding section requires, 
 in addition, that the name of each incorporated company known to be 
 the owner of -unoccupied land shall be specified. The non-resident 
 lands are to be described in a part of the tax list separate from the other 
 assessments, and the greatest care is requisite to secure a minute com- 
 pliance with the demands of the law. The description must be such 
 that, the state comptroller can perceive that it will enable a purchaser 
 at the tax sale to locate the land with certainty, and also enable the 
 non-resident owner to know, from such description alone, that it is his 
 land which has been sold, so that he may redeem it. 
 
 It is only real estate within the district that is to be described as non- 
 resident property ; and if it be part of a tract extending into other 
 districts, the description in the town assessment roll may not show how 
 much is in one district and how much in another. The trustees must 
 supply this defect, in making out their tax list, by giving an accurate 
 description of the boundary line of their district which intersects any 
 unoccupied lot or subdivision of a tract. The description of each 
 parcel separately taxed must be such that if that description, copied 
 literally from the tax list, were inserted in a deed by the comptroller, 
 without adding any other words, it would suflSce to identify the lot 
 and determine its boundaries. 
 
 No. 123. If any tax on the real estate of a non-resident 
 mentioned in the tax list delivered to the collector shall he 
 unpaid at the time he is required by law to return his war- 
 rant, he shall deliver to the trustees of such district an account 
 of the taxes so remaining due, containing a description of the 
 lots and pieces of land upon which any taxes were imposed, 
 as the same were stated in his tax list, together with the 
 amount of the tax assessed on each ; and upon making oath 
 before any justice of the peace or judge of any court of record 
 that the taxes mentioned in such account remain unpaid, and 
 that after diligent eiforts he has been unable to collect the 
 same, he shall be credited by said trustees with the amount 
 thereof, {Sec. 90, chxij). 480 ^1847.) 
 
 The description in the collector's return must be the same as that in 
 the tax list. The account should be in substantially the following form : 
 
278 
 
 DISTRICT TAXES. 
 
 Account of unpaid taxes assessed upon tte lands of non-residents in 
 School District No. , in the town of , county of , 
 
 in a tax list made out by the trustees of said district, for 
 and delivered to the collector on the day of •, 185 
 
 NO. AND DESCRIPTION OF LOTS AND 
 PARTS OF LOTS. 
 
 Quant'y of land 
 
 therein liable to 
 
 taxation. 
 
 Valuation of 
 such quantity. 
 
 Amount of 
 tax. 
 
 
 10 acre's, 
 2i '• 
 
 (25 00 
 
 600 
 
 • 
 
 to 75 
 
 That part of the southwest quarter of lot No. 28, 
 Bhort tract, which lies east of a line running 
 north 48° west from the southeast corner of 
 lot No. 12, in the same tract, being the dis- 
 
 IS 
 
 
 
 ':!- 
 
 CouNxr, 
 Town of 
 
 John Doe, being duly sworn, deposes and says that he is collector 
 of taxes in and for School District No. , of the town of , 
 
 aforesaid ; that the foregoing is a true account of the taxes remaining 
 due upon the real estate of non-residents in said district ; that the taxes 
 mentioned in such account remain unpaid, and that after diligent efforts 
 he has been unable to collect the same. 
 
 JOHN 150E. 
 Sworn and subscribed before me, 
 this day of ,185 
 
 E. R, Justice of the Peace, 
 
 1 
 
 No. 124. Whenever the trustees of any school district shall 
 receive such an account of unpaid taxes from any collector, 
 they shall compare the same with the original tax list, and if 
 found to be a true transcript, they shall add to such account 
 a certificate to the effect that they have compared the same 
 with the original tax list and found it to be correct, and shall 
 immediately transmit such account, with the affidavit of the 
 
DISTRICT TAXES. 279 
 
 collector and their certificate, to the treasurer of the county. 
 (Sec. 91, chap. 480 of 1847.) 
 
 The certificate of the trustees should be attached to the affidavit of 
 the collector, upon the original account. It may be as follows : 
 
 " The undersigned, trustees of School District No. , in the town 
 
 of , county of , hereby certify that the preceding is an 
 
 account of unpaid taxes assessed on the real estate of non-residents in 
 said district, delivered to the trustees thereof by John Doe, collector of 
 taxes therein, and that we have examined and compared the same with 
 the original tax list for and found it to be 
 
 correct. Dated this day of ,185 ." 
 
 This should be signed by a majority, at least, of the trustees. The 
 purpose for which the tax list was made out ought to be stated, so that 
 it may appear to have been for objects for which taxes may be legally 
 imposed by a district meeting or by the trustees. 
 
 No. 125. Out of any moneys in the county treasury, raised 
 for contingent expenses, the county treasurer shall pay to the 
 trustees of the school district in which such taxes were 
 imposed the amount thereof so returned as unpaid. ( Sec. 92, 
 cAop. 480 0/1847.) 
 
 It is imperative upon the county treasurer to pay at once the amount 
 of taxes of non-residents returned unpaid, if there be any money raised 
 for contingent expenses in the treasury and the certificate of the 
 trustees is regular upon its face. If there be no such money in the 
 county treasury, it is still his duty to lay the account before the board 
 of supervisors, as prescribed in the next section, that they may raise it. 
 The remedy of the trustees, in case of a refusal of the county treasurer 
 to pay, is by application to the supreme court for a writ of mandamus. 
 
 No. 126. Such account, affidavit and certificate shall.be 
 laid by the county treasurer bfefore the board of supervisors 
 of the county, who shall cause the amount of such unpaid 
 taxes, with seven per cent of the amount in addition thereto, 
 to be levied upon the lands of non-residents on which the 
 same were imposed, and if imposed upon the lands of any 
 incorporated company, then upon such company, in the same 
 manner that the contingent charges of the county are directed 
 to be levied and collected; and when collected, the same 
 
280 DISTRICT TAXES. 
 
 shall be returned to the county treasury, to reimburse the 
 amount so advanced, with the expense of collection. ( Sec. 93, 
 chap. 480 0/1847.) 
 
 This section seems to contemplate that the supervisors shall impose 
 any tax returned, with the addition of seven per cent, upon the very 
 same lands on which they were charged by the • trustees, and therefore 
 not to contemplate any correction of the description by them. This is 
 a reason for great care on the part of the trustees in preparing the 
 original description in the tax list. 
 
 No. 127. Any person whose lands are included in any such 
 account may pay the tax assessed thereon to the county 
 treasurer, at any time before the board of supervisors shall 
 have directed the same to be levied. (Sec. 94, chap. 480 of 
 1847.) 
 
 No. 128. The same proceedings in all respects shall be had 
 for the collection of the amount so directed to be raised by 
 the board of supervisors as are provided by law in relation to 
 county taxes ; and upon a similar account, as in the case of 
 county taxes of the arrears thereof uncollected, being trans- 
 mitted by the coilnty treasurer to the comptroller, the same 
 shall be paid on his warrant to the treasurer of the county 
 advancing the same ; and the amount so assumed by the §tate 
 shall be collected for its benefit, in the manner prescribed by 
 law in respect to the arrears of county taxes upon land of 
 non-residents ; or if any part of the amount so assumed con- 
 sisted of a tax upon any incorporated company, the same 
 proceedings may also be had for the collection thereof as 
 provided by law in respect to the county taxes assessed upon 
 such company. (Sec. 95, chap. 480 of 184:7.) 
 
 No. 129. In every case where a district embraces a part of 
 more than one town, the [supervisors] of the towns so in part 
 embraced, upon application of the trustees of such districts, 
 or of those persons liable to* pay taxes upon real property 
 therein, shall proceed to inquire and determine whether the 
 valuation of real property upon the several assessment rolls of 
 said towns are substantially just, as compared with each 
 other, so far as such district is concerned, and if determined 
 not to be so, they shall determine the relative proportion of 
 taxes that ought to be assessed upon the real property of the 
 parts of such districts so lying in different towns, and the 
 
DISTRICT TAXES. . 281 
 
 trustees of such district shall thereupon assess the proportion 
 of any tax thereafter to be raised, according to the determi- 
 nation of said [supervisors], until the same shall be altered 
 by said [supervisors] upon like application, using the assess- 
 ment rolls of the several towns to distribute the said propor- 
 tion among the persons liable to be assessed for the same. 
 In cases where two [supervisors] shall be unable to agree, 
 they shall summon a [supervisor] from some adjoining town, 
 who shall unite in such inquiry and determination. {Sec. 72, 
 chap. 480 of 1847, modified in conformity to No. 56.) 
 
 The supervisors of the towns, parts of which are included in any joint 
 district, may act under this section, upon the written application of its 
 trustees or taxable inhabitants. The power would be practically nuga- 
 tory, if its exercise depended upon the application of a majority of the 
 inhabitants. In determining the proportion of taxes to be levied upon 
 the respective parts of a joint district, the simplest form will be to state 
 how many cents in the dollar, of each tax, shall be levied upon the real 
 property of one part, and how many upon the other. A record of this 
 determination should be made in duplicate or triplicate, according to 
 the number of towns ; each should be signed by the supervisors, and 
 one copy filed in the clerk's oflSce of each town. It may be in the fol- 
 lowing form, and should have annexed to it the original application 
 upon which it was made, evidence of which is necessary to uphold the 
 order. {21 Barb., 210.) 
 
 In the matter of the equalization of assessments for school purposes, in 
 Joint District No. , of the towns of , in county, 
 
 and , in county. 
 
 Application having been made to the supervisors of the towns 
 of and , by persons liable to pay taxes in Joint School 
 
 District No. of said towns (or by the trustees), to inquire whether 
 
 the valuations of real property upon the several assessment rolls of said 
 towns are substantially just, as compared with each other, so far as such 
 district is concerned, and the said supervisors being unable to agree, 
 having summoned J. D., Esq., supervisor of the adjoining town of , 
 
 to unite in such inquiry, and a meeting of said supervisors having been 
 held for that purpose, at which were present A. B. and C. D. (and E. F. 
 having been duly notified, failed to attend), and it having been deter- 
 mined tiat such valuations are not substantially just, as compared with 
 each other, it was then and is hereby determined that the relative pro- 
 
 [CODE.] 36 
 
282 DISTRICT TAXES. 
 
 portion of taxes that ought to be assessed upon the real property of 
 parts of such districts lying in difiFerent towns is as follows, viz : thirty- 
 one cents in each dollar to be assessed upon the real property of said 
 district, should be assessed upon the part lying in the town of , 
 
 and sixty-nine cents in the dollar upon the part lying in the town of 
 Dated this day of , 185 . 
 
 A. B., Supervisor of 
 C. D., Supervisor of 
 
 This determination does not aflFect the assessment of personal pro- 
 perty. The trustees must, therefore, proceed as follows : Taking the 
 aggregate of the valuations of real and personal estate in the district, as 
 ascertained from the town assessment rolls (after making any additions 
 of personal property found proper by the trustees), they are to deter- 
 mine how much of the tax is to be assessed upon the persona.1 and how 
 much upon the real estate. It may thus, for example, be found that of a 
 tax of $400, |73 will be chargeable on the personal estate. The residue, 
 $327, is then to be assessed, thirty-one per cent of it, or $101.37, on 
 the real property in one town, and sixty-nine per cent, or $225.63, on 
 that in the other, using the assessment roll of each town to determine 
 the proportion which each person resident therein is to be assessed for 
 real or personal property. (See Digest, ante, p. 101.) 
 
 No. 130. The valuations of taxable property shall be ascer- 
 tained, so far as possible, from the last assessment roll of the 
 town ; and no person shall be entitled 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. ( Sec. 96, 
 chap. 480 of 18A7.) 
 
 The first duty of trustees is to determine who are the taxable inhabi- 
 tants of the district. In doing this they may find some persons not, 
 named in the town assessment roll. Some of them may be taxable, as 
 the possessors of property which has been valued in that roll, and which 
 belonged to other persons at the time it was made out. In the valuation 
 of such property, the trustees are to be governed by the assessment roll. 
 They are not to reduce it, unless the new owner shall give notice of his 
 claim to such reduction before the tax list shall be made out, and they 
 are not to reduce it without giving the notice provided by the next 
 section. To reduce the valuation of one, is precisely equivalent to 
 
DISTKICT TAXES. :83 
 
 raising that of every other taxable inhabitant, for it increases his quota 
 of the tax. He cannot be subjected to such increase of taxation, beyond 
 what his share would be according to the last town assessment roll, 
 without being put upon his guard by the posting of a notice. {Digest, 
 antejp.ii; I Denio, 21 i.) 
 
 Other persons may be found to be taxable on account of their posses- 
 sion of property, real or personal, for which no. person was assessed on 
 the town assessment roll. Such property may be real estate casually 
 overlooked by the assessors, or purposely omitted because it was then 
 exempt by being occupied by a minister of the gospel, or for any other 
 reason ; or it may consist in accessions to real estate — to put an uncom- 
 mon case : land formed by the gradual washing up of sand on the shore 
 of the sea or of our great lakes, which belongs to the owner of the adja- 
 cent bank, or an island formed in the bed of a river not navigable, 
 which is to be divided according to the original thread of the river 
 between the proprietors on the opposite banks, or to him on whose side 
 of the original thread it lies (17 Pick., 41) — or in improvements, such as 
 the building of a house or barn, not completed when the town assess- 
 ment was made. Or the property may be personal, arising from the 
 sale of real estate within the district, or the acquisition of personal estate 
 by devise or otherwise to an inhabitant of the district, such property 
 not being in the district, but following the person of its owner for the 
 purpose of taxation. In all these cases, an original valuation by the 
 trustees is to be made, and a notice is necessary. Additions to the last 
 assessment roll, in consequence of buildings subsequently erected, should 
 not be made by the trustees until they are so far completed that their 
 value is not contingent and uncertain. {Com. School Dec, 194.) 
 
 Trustees cannot assess an individual for personal property, if he has 
 been taxed fcir none on the last assessment roll of the town, on the mere 
 supposition that he may have more than his debts amount to. The 
 assessment roll of the town settles the matter, and the trustees cannot 
 vary the amount but from some knowledge of an alteration aft(5r that roll 
 was made out, or to correct some known and acknowledged error. 
 {Id., 342.) 
 
 The vendor of a farm remaining in possession is liable for taxes 
 assessed on it. {Id., 83. but see p. 54, Digest, ante.) 
 
 If a taxable inhabitant sells his farm and remains in the district, he is 
 liable to be taxed on the amount of the purchase money paid, or secured 
 to be paid, as personal property ( unless he shows that, notwithstanding 
 the increase of bis personal property, its value is still exceeded by his 
 
284 DISTRICT TAXES. 
 
 debts), and the purchaser is taxable for the farm according to its 
 assessed value on the last assessment roll of the town. {Id^ 285, 342.) 
 
 Where land, owned by the same person, is situated in different dis- 
 tricts in the same town, but all included under one assessment by the 
 town assessors, if all the land is of the same description, and was 
 actually valued at the same rate per acre, without any variation on 
 account of improvemeijts or otherwise, or if it appears on the roll at 
 what rates the separate parts were valued, then the valuation of the 
 portion situate in any particular district may be ascertained by the 
 trustees from such last assessment roll. But if the valuation by the 
 town assessor was general, and if the land was of different degrees of 
 quality or value, or if a dwelling-house or other improvements are 
 situated in one district and none in another, a new ilbd original assess- 
 ment must in such case be made, by the trustees, giving the notices, 
 &c., and proceeding in the mode required by law. (Per Spencer, Supt, 
 Jan^ 1841 ; and see Digest, p. 17.) 
 
 As to what assessment roll the trustees are to be governed by, see 
 p. 104, ante. 
 
 Where a person, assessed for a greater number of acres than his farm 
 contains, omits to claim a reduction when the tax is assessed by the 
 trustees, he will not be relieved subsequently on appeal. ( Com. School 
 Dec., 341.) 
 
 No. 131. In every case where such, reduction shall be duly 
 claimed, and in every case where the valuation of taxable 
 property cannot be ascertained from the last assessment roll 
 of the town, the trustees shall ascertain the true value of the 
 property to be taxed from the best evidence in their power, 
 giving notice to the persons interested, and proceeding in the 
 same manner as the town assessors are required- by law to 
 proceed in the valuations of taxable property. {Sec. 97, chap. 
 480 oflBAl.) 
 
 The trustees, proceeding in the same manner as town assessors, should 
 first ascertain the true value of the property to be taxed, according to 
 their judgment. The rule prescribed by the Revised Statutes, as 
 amended by § 3, chap. 176 of 1851, is : 
 
 " All real and personal estate liable to taxation shall be estimated 
 and assessed by the assessors at its full and true value, as they would 
 appraise the same in payment of a just debt due from a solvent debtor." 
 [Session Laws of 1851, p. 333.) 
 
DISTRICT TAXES. 285 
 
 After having completed a tax list, by taking the valuations from the 
 town assessment roll, where it furnishes them, and having added thereto 
 such original assessments as in their judgment are required, the statute 
 directs that the assessors (and consequently, by the above sections, the 
 trustees) " shall make out one fair copy thereof to be left with one of 
 theis number. They shall also forthwith cause notices thereof to be put 
 up at three or more public places in the district." 
 
 " 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, 
 at a place to be specified therein, where the same may be seen and 
 examined by any person interested, until the third Tuesday of August ; 
 and that on that day the assessors will meet, at a time and place also to 
 be specified in such notice, to review their assessments. On the applica- 
 tion of any person conceiving himself aggrieved, it shall be the duty of the 
 said assessors on such day to meet, at the time and place specified, and 
 hear and examine all complaints in relation to such assessments that 
 may be brought before them ; and they are hereby empowered and it 
 shall be their duty to adjourn from time to time, as may be necessary, to 
 hear and determine such complaints." {Session Laws of 1851,^. 333.) 
 
 The notice to be given by trustees necessarily varies somewhat from 
 that of assessors, and may be in the, following form : 
 
 Notice is hereby given, that the trustees of School District No. , 
 
 in the town of , have completed their tax list to raise the sum of 
 
 $10 for repairs of school-house, $8 to furnish the same with the neces- 
 sary fuel (enumerating the several taxes included in the list), and that a 
 copy thereof is left with the undersigned, A. B., at his office (mill, 
 dwelling-house, or as the case may be), where the same may be seen 
 and examined by any person interested, during twenty days from the 
 date of this notice ; and that said trustees will meet at the house 
 of , in said district, on the day of next, 
 
 (specifying a day subsequent at least twenty-one days, to the posting) 
 at o'clock, in the noon, to review the said tax list, on the 
 
 application of any person conceiving himself aggrieved. 
 Dated this day of 
 
 A.B, 
 
 C. D., ^ Trustees of District No. 
 
 E. 
 
 ID., \ 
 5.F., ) 
 
 " § 5. If the assessors shall wilfully neglect to hold the meeting 
 specified in the last preceding section, each assessor so neglecting shall 
 
283 DISTRICT TAXES. 
 
 be liable to a penalty of twenty dollars, to be sued for and recovered 
 before any court having jurisdiction thereof by the supervisor of the 
 town, for the use of the poor of the same town ; and in case of such 
 neglect to meet for review, any person aggrieved by the assessment of 
 the assessors may appeal to the board of supervisors at their next 
 annual meeting, who shall have power to review and correct such assess- 
 ment." (^Session Laws of 1851, p. 333.) , 
 
 Quere, whether the provision for an appeal to the board of super- 
 visors is applicable to a* school district tax. Even if it is, there is no 
 provision for suspending the proceedings for collection upon such an 
 appeal. 
 
 The trustee with whom the tax list is left is required by law to 
 " submit the same, during tbe twenty days specified in such notice, to 
 the inspection of all persons who «hall apply for that purpose." 
 
 The provisions of the Revised Statutes, in regard to the proceedings 
 to be had where application is made for a reduction of the valuation, 
 have been materially varied by the following sections of chap. 176 of 
 1851: 
 
 " § 6. Whenever any person, on his own behalf or on behalf of those 
 whom he may represent, shall apply to the assessors of any town or 
 ward to reduce the value of his real and personal estate, as set down 
 in their assessment roll, it shall be the duty of such assessors to 
 examine such person under oath touching the value o{ his or their said 
 real or personal estate, and after such examination they shall fix the 
 value thereof at such amount as they may deem just ; but if such person 
 shall refuse to answer any question to the value of his real or personal 
 estate, or the amount thereof, the said assessors shall not reduce the 
 value of such real or personal estate. The examination so taken shall 
 be written, and shall be subscribed by the person examined, and shall 
 be filed in the ofiice of the town clerk of the town or city in which such 
 assessment shall be made; and any person who shall wilfully swear 
 falsely, on such examination before the assessors, shall be deemed guilty 
 of wilful and corrupt pejjury. 
 
 " § 7. The assessors of the several towns and wards of this state shall 
 have power to administer oaths to any person applying to them, under 
 the provisions of the sixth section of this act." 
 
 Formerly, upon the niaking of an affidavit, by a person asking a 
 reduction, that the value of his personal estate did not exceed a given 
 sum, the assessors and trustees were bound to reduce his assessment to 
 the amount fixed by him. Under the preceding sections they are 
 required, instead of taking a mere affidavit, to examine him orall}', 
 under oath to make true answers to such questions as shall be put to 
 him touching the value of his real and personal estate. They are at 
 liberty to put any question, the answer to which may assist them in 
 
DISTRICT TAXES. 28T 
 
 arriving at a correct conclusion on the subject, and are not at liberty to 
 reduce his valuation, if he refuses to answer. An affidavit without the 
 examination, or without the examination being reduced to writing, is of 
 no avail as evidence to reduce the valuation. (12 How. Prac. B., 237.) 
 After the examination,, the assessors are to fix the valuation, and are 
 not limited to that fixed by the person examined. 
 
 , The provision of § 6, chap. 176 of 1851, above cited, relate as well 
 to those persons who apply for a reduction of assessments against them 
 in a representative character, as executors, (fee, as to those who ask it 
 in their own behalf. They are entitled to a deduction for debts due 
 fi'om them in their representative character, and are to be examined as to 
 the valuation of the property under their control, as such representatives 
 in the same manner as if it belonged to them in their private capacity. 
 
 No. 132. Every taxable inhabitant of a district, who 
 shall have been within four years set off from any other 
 district without his consent, and shall within that period 
 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. ( Sec. 98, chap. 480 of 1847. ) 
 
 This exemption relates only to a tax for building a school-house, and 
 does not extend to one for repairs, fuel or any other current expense. 
 A voluntary contribution for building a house in another district is not 
 ground for an exemption, nor is the fact that a person has been taxed, 
 if he has not actually paid the tax by the sale of his property or other- 
 wise ; nor is he exempt if he has been set off upon his own petition or 
 consent. {^Digest, ante, p. 4S).) 
 
 No. 133. Every district tax shall be assessed, and the tax 
 list therefor be made out by the trustees, and a proper war- 
 rant attached thereto, within thirty days after the district 
 meeting in which the tax shall have been voted. {Sec. 99, 
 c/iap. 480 0/1847, as amended by ^ 4, chap. 382 of 1849.) 
 
 Tlie supreme court said of this section, in 2 Denio, 161 : " There are 
 no negative words in the statute, such as would necessarily make u 
 imperative ; and in such a case, for the benefit of the public, the act 
 may be done after the time has elapeed ; the statute, as to time, being 
 regarded as directory only." The court remark, however : " Had it 
 
288 DISTRICT TAXES. 
 
 appeared, in this case, that there was such a change in the taxable 
 persons or property in the district, between the expiration of the month 
 and the time the tax list was made out, a diflFerent question would have 
 been presented. But it does not appear that there was any such change, 
 or that the plaintiflF was in any way injured by the delay." The policy 
 of the statute is, that the tax shall affect only the persons and property 
 subject to the authority of the meeting which imposes it, and such 
 persons as shall voluntarily expose themselves to liability while the tax" 
 list is being made out. Land purchased after- a tax is voted, but before 
 the tax list is made out, must be assessed to the purchaser, if he has 
 taken possession ; and the seller may be taxed for the purchase money 
 secured by mortgage, as personal property, although he has reserved 
 the possession to a tenant until a period which will not arrive until after 
 the tax list is made out. {Digest, p. 39.) Persons about to remove 
 from the district tnust be included in the tax list, if inhabitants when 
 it is completed ; and, as against them, it is not to be regarded as com- 
 pleted until the expiration of thirty days — if it can be, which is at least 
 doubtful — until the actual delivery thereof to the collector with a 
 warrant attached. 
 
 It is the clear duty of trustees to proceed in the making out of every 
 tax list with such dispatch that it may be completed within thirty days, 
 whenever practicable. {^Digest, p. 22.) It should not be postponed 
 because circumstances may render it Expedient to delay the collection. 
 
 If the copy of an appeal be served before the trustees have completed 
 their assessment, the time during which the appeal is pending is to be 
 deducted in counting the thirty days. 
 
 In regard to the^w of a tax list, the following directions, prescribed 
 by title 2, chap. 13, 1st part of the Revised Statutes, for the government 
 of assessors, are appropriate, and it would conduce to accuracy for 
 trustees to conform to them, whether it be strictly necessary or not : 
 
 " § 9. They shall prepare an assessment roll, in which they shall set 
 down in four separate columns, and according to the best information in 
 their power : 
 
 "1. In the first column, the names of all the taxable inhabitants in 
 the town or ward, as the case may be ; 
 
 " 2. In the second column, the quantity of land to be taxed to each 
 person ; 
 
 " 3. In the third column, the full value of such land, according to the 
 definition of the term land, as given in the first title of this chapter ; 
 
 ^"4. In the fourth column, the full value of all the taxable personal 
 property owned by such person, after deducting the just debts owing 
 by him. 
 
DISTRICT TAXES. 
 
 289 
 
 "§ 10. Where a person is assesseel::as trustee, gaardian; executor or 
 administrator, he shall hCjji^essed as such, with the addition. to his 
 name of his representative character, and such assessment shall, l)e car- 
 ried out in a separate line from his individual assessment ; and he shall 
 be assessed for the value of tjje real estate held by him in such repre- 
 sentative "character, , at the ' full value therebf, and for the pfersonal 
 property held by him in such representative character, deducting from 
 such personal pij^perty the just debts due from him in. such repre- 
 sentative character." 
 
 The following are suitable forms of tax list and warrant : 
 
 List of taxe^ apportioned hy.the trustees of District No. , in the 
 
 town of Tijenton, county of Oneida, on the taxable inhabitants of said 
 district, and corporations holding property therein, and upon real 
 estate lying within the boundaries of such district, the owners of 
 which arC: non-residents thereof, for the purpose of raising the sum 
 of $481.80, laid and charged on the said district according to law, 
 viz : $50 f^r the purchase of an additional site and $400 for buUding 
 thereon, voted by district meeting on the day of , 185 , $10 
 
 for repairs of the school-house, $8.20 for fuel, and $13.60 for amount 
 of exemptions of indigent inhabitants from rate bill, for term ending 
 the day of , 185 . ' 
 
 NAMES Of'TAXABLE 'iNHAfeir- 
 TANllS AM?, OW^QEATIOUa- 
 
 Quantity ot 
 land tax^ 
 
 Value of 
 such land. 
 
 Value of 
 
 taxable person' 
 
 al property. 
 
 Total 
 
 amount of 
 
 taxes. 
 
 
 80 acres. 
 
 $400 
 
 
 $6 81 
 IT 45 
 
 Jjamcs Thomas, executor of estate of 
 tto!in 'Thomas, -deceased '. 
 
 $1,025 
 25,000 ' 
 
 Clark Cotton MpnufacWring Company, . . 
 
 
 
 B " 
 i " 
 
 3,250 
 625 
 
 446 91 
 10 64 
 
 
 
 [CODK.I 
 
 37 
 
290 
 
 DISTRICT TAXES. 
 
 Statement and description of unoccupied and unimproved lands of 
 non-residents of said district on whicli a tax has been imposed as 
 above stated: 
 
 NO. AND DE8CEIPTI0N Or L0T3 AND 
 PAET8 Of LOTS. 
 
 Quant'7 of land 
 
 therein liable to 
 
 taxation. 
 
 Valuation of 
 aach quantity. 
 
 Amount of 
 tax. 
 
 No. 17, sbort tract 
 
 That part of the southwest quarter of lot No. 23, 
 sbort tract, which lies east of a line running 
 north 43*^ west from the soutbeaat corner of 
 lot No. 12, in the same tract, being the dis- 
 trict boundary line, 
 
 > 00 
 
 to 76 
 
 la 
 
 To the collector of School District No. , , in the town of Trenton, in 
 
 the coimty of Oneida : 
 
 You are hereby commanded to receive from each of the taxable inhabi- 
 tants and corporations named in the foregoing list, and of the owners of 
 the real estate described therein, the several sums mentioned in the last 
 column of the said list, opposite to the persons and corporations so 
 named and to the several tracts of land so described, - or so ihuch 
 thereof as may be voluntarily paid to you for two successive weeks after 
 the delivery to you of this warrant, together with one cent on each 
 dollar thereof for your, fees ; and after the expiration of the time above 
 mentioned to proceed forthwith to collect the residue of the sums not so 
 paid in as aforesaid, with five cents on each dollar thereof for your fees ; 
 and in case any person upon whom such tax is imposed, shall neglect 
 or refuse to pay the same, you are to levy the same by distress and sale 
 of the goods and chattels of the person or corporation so taxed, in the 
 same manner as on warrants issued by the board of supervisors to the 
 collectors of taxes in towns ; and yon are to make a return of ^this war- 
 rant within thirty days after the delivery thereof to you ; and within 
 th^t time to pay over all moneys collected by virtue hereof to the 
 trustees of the said-district, or some one of them ; and if any tax on the 
 real estate of a non-resident mentioned in the said list shall be unpaid 
 
DISTRICT TAXES. 291 
 
 at the time when you are required to return this warrant, you are to 
 deliver to the trustees of the said district an account thereof, according 
 to law. 
 
 Given under our hands this day of , in the year one 
 
 thousand eight hundred and fifty- 
 
 A. B., 
 
 C. D., y Trustees, 
 E. 
 
 5l. B., ) 
 1 D., } 
 
 E. R, ) 
 
 When the tax has been levied and assessed hy all the trustees, their 
 judicial duties are at an end, and it is unimportant whether all are 
 present at the signing of the warrant, which is but a ministerial act. 
 (19 Barh., 167.) It is because the issuing of the warrant is a minis- 
 terial act, and the statute prescribes the legal effect of the process, that 
 the trustees will be trespassers if they adopt a form which departs from 
 it and directs the collector to act otherwise than the law directs. (16 
 Wmd., 607.) The collector acts for two weeks after the delivery of 
 the warrant as mere receiver of taxes ; if he undertakes to levy upon 
 property, within that time, he becomes a trespasser, (17 Barh., 147.) 
 
 The statute no longer prescribes thirty days, or any other period 
 within which the warrant shall be made returnable (18 Barh., 331); 
 but the trustees must prescribe a time in the warrant, and should not 
 depart from the former usage, except for strong reasons. 
 
 No. 134. The warrant issued and annexed to any tax list 
 or rate bill shall be under the hands of the trustees of the 
 district, or a majority of them , and it shall not be necessary 
 for the said trustees to affix their seals to any such warrant. 
 (-Sec. 110, chap. Am of 18i7.) 
 
 COLLECTIOlir OF DISTRICT TAXES. 
 
 No. 135. It shall be the duty of the said trustees, after the 
 expiration of the said thirty days, to deliver the said tax list 
 and warrant to the collector of the district, and such collector 
 is hereby authorized and directed, upon receiving his warrant, 
 for two successive weeks to receive such taxes as may be 
 voluntarily paid to him; and in case the whole amount shall 
 not be so paid in, the collector shall proceed forthwith to col- 
 lect the same. He shall receive for his services, on all sums 
 paid in as aforesaid, one per cent, and upon all sums col- 
 
292 DISTRICT TAXES. 
 
 lected by him, after the'eixpiration of the time mentioned, five 
 per cent; and in case a levy and sale shall be necessarily' 
 made by such collector, he shall be entitled to traveling fees 
 at the rate of six- cents per mile, ■- to be computed frqm the 
 school-house in such district. ( Sep. ^,00, cha/p. 480 of .1^47, as 
 amended by % b, chfup. 382 o/"1849.) 
 
 The warrant should not be delivered to the collector until the expi- 
 ration of thirty days after the tax is voted. This is necessary, in order to 
 secure to the inhabitants the opportunity of paying their taxe^ with^but 
 one per cent addition, for collector's fees, during. two weeks. He is not 
 bound to give them notic^' that it ,is in hia han<Js, stiid they are entitled 
 to presume that it is not until thirty days have expired after, the meeting 
 at lyhich the tax was voted. His fees are not to be included in the tax 
 (11 Wend., 92), and he is entitled tp retain, no fees upon sums which 
 he is unable to collect, , i , , , i , i 
 
 A further reason for not issuing the , warrant till the expiration of 
 thirty days from the day the tax was voted, is because that, time is 
 allowed for the bringing of an . appeal, Ks^hich operates as a suspension 
 of the proceedings, under the. vot^e agfiingt which the a,ppeal is brought, 
 from the time a copy is duly seryed an4."the original forwarded to the 
 Department of Public Instruction, until a decision is. made. 1, 
 
 The trustees ought to take awritteA receipt from, the cqllecto/,, for, 
 the tax list and warrants, specifying the return day and the amount t6 
 be' i collected, thait Ihtiy may be prepared with the proper eVidence, in 
 case it should be necessary to bring ah action against him. ' 
 
 The representatives of a, deceased 'person ar^ hot entitled t6 any delay 
 in the payment of a rate bill or tax list, but are bound to psty on 
 demand; and on refusal or neglect, the collector may proceed ' to s^U 
 any property found on the premises. By § 27, sub. 2, 2 R. S., 28, 
 taxes of all kinds have preference to any othpr demand. {Per Spencer, 
 SupL, 1840.) ' ' ' ' '" ''' 
 
 Where trustees receive payrnents on tax lists Or rate bills, they are 
 regarded as receiving the same as them^enis of the co??«c<o»:; and, the 
 latter is entitled to his per cehtagei on the' amount so received^ and may 
 legally collect it by virtue of his warrant.- The collector is also 'entitled 
 to his 'pi\ centage' on the amount paid' hy tbe trustees," notwithstanding 
 no actuar Exchange of funds is made between the latter and the former 
 {PirT6ung,Supt.,'^UZ.)' ' " ' ' •' " 
 
DISTRICT TAXES. 29S 
 
 iVb. 136.' If by the neglect of any collector any school 
 m&neys shall be lost to any school district, which mighthave 
 been collected •vpithin the time limited in the warrant deliv- 
 ered to him for their collection, he shall forfeit to such district 
 the full amount of the moneys thus lost, and shall account for 
 and pay over the same to the trustees of such district, in the 
 same manner as if they had been collected. ( Sec. 101, chap. 
 48Q 0/1:847.) 
 
 Tlje collector's power t9 sell property ceases with the expiration pf 
 thatime limited in, the warrant for its return, even under a levy made, 
 before the return day ; and unless the warrant is renewed, b,y the trus- 
 tees, his liability for not collecting becomes fixed. (18 Barb., 330.) It 
 behot^s him, therefore, not to intermit his efforts to collect a tax upon 
 any verbal directions of the trustees. Having commanded him by a 
 warrant, he is bound to complete its execution, unless the time is 
 extended by the ■ equally solenin act of renewal. Nor is he bound to 
 delay, against his own wishes, because the trustees desire it. They may 
 sometimes' desire to suspend pVoeeedings, where he is indifferent, because 
 a warrant, regular on its face, is sufficient for his protection, while they 
 may be responsible from a defect of authority not apparent on its face. 
 In such a case, he should require a formal certificate from the trustees, 
 that they have' withdrawn the iwarranti and discharged him from the 
 further execntibn thereof, and should make a return thereon to this 
 effect: 
 
 ?* Under the within warrant, I have received and collected of the fol-i 
 lowing persons named in the taxilist thereto attached the sum of money 
 set opposite to their respective names, viz: James Thomas, $6.81; 
 James Thomas, executor of John Thomas, deceased, $17.45, &c.j&c., 
 and have this day ceased from the ftirther execution thereof, by the 
 written direction of .0, D. and E. F., a majority of the trustees. 
 
 Dated thi^i , day of , 185 . 
 
 , . STEPHEN GRINNEK, 
 
 Collector." 
 
 Transactions of this nature should never be left to rest upon loose 
 conversations, nor should any officer of a district permit his responsi- 
 bilitytb the inhalataiits to be , confounded with that of other .officers, 
 who may have distinct; accounts to rendeir for their conduct in the 
 affair. 
 
294 DISTRICT TAXES. 
 
 Where a warrant runs out in the collector's hands, he is answerable 
 for any loss arising from his neglect, notwithstanding such warrant may 
 have been afterwards renewed and delivered to his successor. ( Com, 
 School Dec, 308-.) 
 
 No. 137. For the recovery of all forfeitures, and of balances 
 in the hands of a collector, which he shall have neglected to 
 pay over, the trustees of the district may sue in their name 
 of office, and shall be entitled 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. {Sec. 
 102, cha;p. 480 o/1847.) 
 
 The forfeiture referred to in this section is the amount of money 
 whifth a collector might have collected by the exercise of proper diligence. 
 The legal presumption is, when the return day of a warrant arrives, 
 that the collector has all the money in his hands. It is sufficient for 
 the trustees to prove that they delivered to him a tax list and warrant 
 for the collection of a certain amount, and that the time therein speci- 
 fied for its return has expired. They, may then rest their case, and it 
 lies upon the collector to produce in his defence the , receipts of the 
 trustees for such moneys as he may have paid, his account of non-resi- 
 dent taxes, with his affidavit of his inability after diligent efforts to col- 
 lect the same, and then to show as to taxable inhabitants named m the 
 tax list, that they had no personal property within the district, upon 
 which he could levy. The trustees may then prove in reply that such 
 taxable inhabitants had personal property, outside of the district but 
 within the county (or, if the district includes parts of more than one 
 county, in either county), and they ought probably to show, in addition, 
 that the collector had express notice of the fact, or that he knew it, or 
 that it was so far known in the district that the collector, by reasonable 
 diligence in making inquiries, would have ascertained such facts as to 
 make it his duty to look for property outside of the district. The ques- 
 tion is, would an ordinary man — not a particularly keen or covetous 
 man — armed with the power to appropriate any chattels of his debtor 
 to the payment of a debt due himself, have failed to discover that such 
 property was within his reach? 
 
 No. 138. Any collector, to whom any such tax list and war- 
 rant may be delivered for collection, may execute the same 
 in any other district or to\vn in the same county, or in any other 
 
DISTRICT TAXES. 295 
 
 county where the district is a joint district, and composed of 
 territory from adjoining counties, in the same manner and with 
 the like authority as in the district in which the trustees issuing 
 the said warrant may reside, and for the benefit of which said 
 tax is intended to be collected ; and the bail or sureties of 
 any collector, given for the faithful performance of his official 
 duties, are hereby declared and made liable for any moneys 
 received or collected on any such tax list and warrant, and 
 may be prosecuted for the recovery thereof. ( Sec. 103, chap. 
 480 0/1847.) 
 
 This section is a legislative recognition of the validity of a bail bond, 
 executed by a collector and his sureties, though the power to enforce 
 the execution of such a bond, by vacating the collector's oflSce in case 
 of his refusal, has been withdrawn. 
 
 The following form may be adopted for a bond, which should be 
 obtained whenever practicable : 
 
 Know all men by these presents that we, A. B., C. D., and R. S, 
 (the collector and his sureties), are held and firmly bound to E. F. 
 G. H., <fec., trustees of School District No. , in the town of 
 (or Joint District No. , in the towns of and 
 
 in the sum of (here insert a sum double 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 successors ; to the which pay- 
 ment, 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 , &c. 
 
 Whereas, the above bounden A. B. has been chosen (or appointed, as 
 the case may be) collector of the above mentioned School District 
 No. , in the town of , in conformity to the statutes relating 
 
 to common schools ; now, therefore, the condition of this obligation is 
 such, that if the said A. B. shall well and truly collect and pay over all 
 moneys received by him as such collector, and shall in all respects duly 
 and faithfully execute all the duties of his office as collector of such dis- 
 trict, then this obligation shall be void, otherwise to be in full force and 
 virtue. 
 
 Signed, sealed and delivered in the presence of 
 
 .A. B., [l. s.] 
 C. D., [l. s.] 
 R. S., [l. s.] 
 
296 -DISTEICT TAXES. 
 
 Where a i collector .levies iipbn ipiropeirty ! oint ef • Ai»J diitnct, /he isbould 
 put up notices of the sale of such property, as -well in the district where 
 the sale is to take place as inthat' of his residence. (Per Young, Siipt^ 
 1842.) ' ■ ,, . • 
 
 Noi 139. The warrants issued by th« trustees of school dis- 
 tricts, for the. collection of any district tax authorized to be 
 levied, raised and collected by this title, or for the collection 
 of any district school rate billj shall have the like force' and 
 effect as warrants issued by boards of supervisors of counties 
 to collectors of taxes in towns ; and the coUei.tor to whom 
 any such warrant may be delivered (for colleetion is hereby 
 authorized and required to collect,iifiiom every. person in such 
 tax list, 01. rate bill named, the ,sum .therein, set opposite to -his 
 name, or the amount due from any pei;spn, or persons specified 
 therein, in thp same manner that cqlleptors,are authorized to 
 collect town and county charges. {Sec. Ill, chap. A80 of 
 1847.) • 
 
 It has been .before stated that a subsequent statute, (§7, cJiap. 151 of 
 1851, ante, No. lls) has' created a distinction between the force of a 
 warrant under a rate bill and that under a tax, in this, viz., that all pro- 
 perty exempt from executions in civil actions is exempt from levy for a 
 rate billj while the only property exempt from levy for a tax is tihe inili- • 
 tary equipment specified in the note to p. 211. ' 
 
 The collector may levy upon any goods and chattels lawfully in the 
 possession of the person liable to pay the tax, that is to say, the person 
 named in the tax list, althoiigh such person be not the owner of such 
 goods and chattels. (13 Wend., 629.) 'The individual property of an 
 executor, administrator or trustee may be taken for a tax imposed on 
 him in his representative character, when no property of the testator, 
 intestate! or cestui que trust can be found. (4 Werid., 223.) But 'the 
 warrant does not Jprotect the collector, if he levies upon properl;y in the 
 possession of persons not named in the roll, or whose names, it is appa- 
 rent from the roll itself, the assessors ought not to have set down, for 
 example, persons whose lands are described in the part of the tax list 
 containing the list of lands tajfed as non-resident. (16 jBcirJ., 651.)'' 
 
 The manner in which town collectors are authorized, tp collect town 
 and county charges is' |)ointed obt by the following sections of title 3, 
 chap.iS, part 1st of the Kevised Statutes: 
 
 "§'1. EN'ery collector, upon receiving the tax list and warrant, shall 
 proceed to collect the taxes therein mentioned, and for that purpose 
 
DISTRICT TAXES. 297 
 
 shall call at least once. on the person taxed, or at therplace of his usual 
 residence, if in the town or ward for. which such cojleptorhas been 
 chosen, and shall demand payment of the taxes charged to him on his 
 property. 
 
 "§ 2. In case any persoH shall refase 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, wheresoever the same may 
 be found ' within the district of the collector; 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 Mid place of 
 sale, and of the property to be sold, at least six days previous to the 
 sale, by adyprtisenjent?, to be posted lip in at least three public i places in 
 the town where siich'sale 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 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 surplus moneys shall be paid over by the collector to the 
 supervisor of the town, who shall retain the same until the rights of the 
 parties shall be determined by due course of law." 
 
 It is provided- by the Revised Statutes {vol. 2, 1st ed., p. 522) that 
 " No replevin shall lie for any property, taken by virtue of any warrant 
 for the coUebtion of any tax, assessment or finej in pursuance of any 
 statute of'this state." 
 
 ' Ai collector, like other ministerial officers bound to execute -pTocesa, is 
 protected, if the process is regular on its face, and comes from a court 
 or bodyi having jurisdiction of' the subject, matter, if nothing appears in 
 such process to apprise him that there was a defect of jurisdiction as 
 to the particular person or ■ property to be affected by 'such process. 
 The warrant and tax list constitute a process in the nature of an execu- 
 tion,' and must be c'onstrued together '(8 Seld., 517), so that' if a defect 
 of jurisdiction appear on either, the collector is not protected^ But he 
 is not' bound to inquire whether the trustees have not erred in the 
 exercise of their jurisdiction. Thus te was held to be protected, in 
 7 Wend., -91, where the trustees had taken the valuations from the 
 assessment roll,' which "was incomplete and subsequently varied, though 
 the trustee^ were held liable as trespassers. But the collector was held 
 
 liable, ill 16 Wendt, 607, where the warrant was irregular on its' face, 
 rCoDE.l 38 
 
29S DISTRICT TAXES. 
 
 in Gommanding him to proceed, " as on execution issued by justices of 
 the peace," and in 18 Barb., 327, where it commanded him to collect 
 five per cent on all sums mentioned in the tax list, without excepting 
 those which should be voluntarily paid him in two weeks. 
 
 The rule for the protection of ministerial officers acting under process, 
 regular and legal on its &ce, is held to prevail, even though he has 
 knowledge of fa<!ts rendering it void for want of jurisdiction. (.'5 Hill, 
 440.) " He must be governed, and is protected," say the court " by the 
 process, and cannot be afifected by anything which he has heard or 
 learned out of it." 
 
 No. 140. If the sum or sums of money, payable by any 
 
 E arson named in such tax list or rate bill, shall not be paid 
 y him or collected by such wjtrrant within the time therein 
 limited, it shall and may be lawful for the trustees to renew 
 such warrant in respect 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 expiration of such warrant, and no goods or chattels 
 can be found therein wheron to levy the same, the trustees 
 may sue for and recover the same in their name of office. 
 {Sec. 112, chaf. 480 o/1847.) 
 
 Chief Justice Nelson, delivering the opinion of the supreme court, in 
 24 Wend., 269, where a warrant had been made out but not delivered 
 to the collector, and the return day having passed, while it remained in 
 the hands of the trustees, it was renewed and then delivered to the col- 
 lector, says : " The renewal is, in fact but a reissuing of the process, and I 
 can perceive no reason against regarding it as an original issuing. Nor 
 can the difference be material whether it lies in the hands of the trus- 
 tees for a time and is then revived by a renewal, or in the hands of the 
 collector unexecuted, which confessedly would justify it." In 3 Hill, 
 495, where the, objection was that the original warrant was not under 
 seal (which, as the law then stood, rendered it void), but the renewal 
 was signed by the trustees with their seals affixed, the court say: " The 
 renewal of the warrant made it new process for all the purposes of col- 
 lecting the taxes, then unpaid; it is the same thing, substantially, as 
 though the original warrant had been recited in the renewal ; and thus 
 we have a warrant under the hands and seals of the trustees." Jn 4 
 Barb., 444, it was held that the issuing of a new warrant was a good 
 execution of the power to renew. In IV Barb., 145, that a warrant not 
 
DISTRICT TAXES. 299 
 
 issued until after its renewal, becomes, by delivery to the collector with 
 a renewal endorsed, valid and effectual process, as of that date ; and that 
 the rights of tax payers and duties of the collector are the same as they 
 would have been had the warrant been made out and dated as an 
 original process on the day of its -delivery to the collector. In 20 Barb., 
 165, where three trustees signed the original warrant, but one of them 
 refiised to sign the renewal ; that the latter was not liable for any act 
 done under the renewal and after the original return day. 
 
 The renewal is to be under the hands of the trustees, or a majority 
 of them, who are in office at the time of such renewal. For the purpose 
 of preserving an authentic history of the process, it is better to append 
 a renewal to the original warrant than to issue a new one, except in 
 cases where the original may be discovered to have been defective in its 
 form. It ought to specify the duration of the time for which it is 
 renewed, and to be endorsed upon or written under the original warrant, 
 in substantially the following form : 
 
 We hereby renew the within (or above written) warrant in respect 
 to delinquents for the period of thirty days. Dated this day 
 
 of , 185 . 
 
 A. B., ) Trustees of District 
 C. D., \ No. , in the 
 
 E. F., ) town of 
 
 A second or subsequent "renewal requires the consent of the super- 
 visor, under the next section. In that case, the words " With the 
 approbation of the supervisor of the town of (in which the 
 
 school-house is located," if the district be a joint one), should precede 
 the above form. 
 
 Where a warrant is renewed by the trustees, the collector in office at 
 the time of such renewal "must execute it. 
 
 It being a palpable absurdity to talk of those as delinquents who have 
 never been called upon to pay, this language of the statute is an admo- 
 nition to the trustees not to suffer a warrant to run out in their hands 
 without issuing it. 
 
 The latter clause of the above section, giving the trustees the right to 
 sue persons named in a tax list or rate bill, is confined to such as did 
 not reside within the district at the time of making out the list or bill, 
 or who shall have ceased to reside therein at the expiration of the war- 
 rant. It cannot be regarded as having expired until a renewal may have 
 run out ; and in rfespect to both classes of persons, the inability to find 
 
300 DISTRICT TAXES. 
 
 goods^ad chattels wherppn to levy tie, taxi or. rate billshouldiJae, proved 
 by the, s.wom return of the cp^lector. brfore a suit is brought.. Such 
 persons named in a rate bill must have been inhabitants of .the district 
 at the time they sent their qhildren to, school, which, they may have 
 been without heipg. 3;esic(ent$ in the. legal sense ; in, a ta?cjist, they may 
 have been., taxable inhabitants, under some of the definitions of those 
 words contained in the statutes regardijig taxatjipn, without ever having, 
 been residents or, having in fact set foot, in the.disti;ict at alL . , , 
 
 No. 141. Whenever the trustees of any school districib ishall 
 discover aiiy errpi- in a tax list or rate Ijill rpade out by them, 
 they'flday, tvith the approbation ^hd consfent'bf the State 
 Superintendent, "after refunding atoy'ftmouht that may ha~\^e 
 been 'improj^erly doMectted on' such tax list or rate bill, if 'the 
 same 'shiaH be required, amend and correct' such tax list or 
 rate billi,; in conformity to. law ; and whenever hiore than' one 
 renewal of a warrant for the collection of any tax list or rate 
 bill may become necessary in any district, the trustees may 
 make such further renewal, with the written approbation of 
 the [supervisor] of the tbwniti vi^hich the school-house of said 
 district shall be located, to be endorsed upon .such warrant. 
 ( Sec. 113,. chapi 430, of 1847, modified in conformity to No. 5f). ] 
 
 The ajjplipation to.sthe State Superintendent, for his consent to correct 
 an error, should he uhder'the hands of a majority of the trustees, and 
 should stE^te specifically wheriein the error is supposed to consist, and 
 in what manner th«y pj'opose tp,apieBd and correct thci tax list or rate 
 bill, lit will ordinarily be the bettei; mode to revoke the imperfect tax 
 list or rajtebill and to make out a new one, stating ;in the heading 
 thereof that it is " Amended and corrected with the approbation, and 
 consent ,ojf; the State Superintendent lof, Public Instruction, by his order 
 bearing date the day of , 185 . The order should, of 
 
 course, he c^efiilly filed as evidence of the authority to collect under it. 
 
 The approval of the;-suj)er.visor may be given, iby his endorsing on the 
 warrant, under the . form given in the preceding- section, the. words 
 " Approved this day of , 185 . H. T., Supervisor of ■ ." 
 
 If I. there be more than one school-house in the district, and they be 
 located in i different towns, the approval thouldi as a matter of prudence, 
 be signed by the^supesvSgorsof all- such towns. ' It is a maitter of discre- 
 tion) with the stipervisor, in the- first instance,;tO grant or' withhold his 
 approbation. If hei impropferly trefuses it, the remedy is by appeal 
 won regular notice to him. 
 
DUTY AND REPORTS OF TRUSTEES. 301 
 
 ,„, , .„ , . DUTY OF TRUSTEES. 
 
 No. 142, If the moneys apportioned to a district by the 
 town [supervisor] shall not have been paid,, it shall be the 
 duty of the trustees thereof to bring a suit for the recovery 
 of the same, with interest, against the town [supervisor] in 
 whose harids thfe' same shall be, or to pursue such other 
 remedy fof the recovery thereof as is or shall be given by 
 law. {Sec, 114, chap. 4S0 of 1847, modified in conformity to 
 No. 50.) 
 
 yjie .above section vas taien substa,ntially from- \he Revised, StEttutes. 
 When originally ep^ifited, all, the money appo)D;tiO|0.ed to a ' district: was 
 to be paid tothe tnisteea. . The mode of payment now, so fex as it relates 
 to the money apportioned.for, teachers' wages, is .copfiijftd to paying to 
 tegiChers the amount ^f orders drawn in their .favor, by the trustees. 
 This, section would seem to authorize the trustees io bring an action 
 against the , superyisjor, who, having money in his hands applicable to 
 the payjjjent of an order, ha# refused to accept and pay it. Inasmuch 
 as tfȣ) drawing of, a valid order is an assignment,to the- teacher of so 
 much .of thefundiinj th? hands of the supervisor which, the law renders 
 it hia. duty to . tfaiusfer, the money may be regarded as. held, after the 
 drawing the order, for the use of the teacher, so as to enable him also 
 to maintain an action. There is nothing to regret in the supervisor's 
 being ciitpdsed, uniJeP such circumstances, t^two' suits for the' same 
 moneyi ' His ' riemiedy 'is to pay the teachier, with intertest, and then he 
 may discharge himself of the action of the trustees by the payment of 
 their costs. 
 
 OF THE ANNUAL REPORTS OF TRUSTEES. 
 
 No. 143. The trustees of each school district shall, between 
 the first and fifteenth days of January, in every year,i make 
 and transmit areport, in writing, to the [school commissioner, 
 to be deposited with the town clerk of the town in which 
 each district is situated], dated on the first day of January, 
 in the year in which it shall be transmitted. (iSec. 115, chap. 
 480 qf. 1847, modified in conformity to No. 67, ante, ) 
 
 The 'annual report of the trustees is to be addressed to the school 
 ciJmmissioner having jurisdiction of the town m which the school-house 
 
302 REPORTS OF TRUSTEES. 
 
 of the district is located, and the trustees must deposit it before the 
 fifteenth day of January in the clerk's ofiSce of that town. In the case 
 of a joint district, having two or more school-houses situated in different 
 towns in the same county, thd original site should control, if preserved ; 
 otherwise, that of the oldest or principal school-house. If the district 
 embraces parts of two or more counties, as many reports will be neces- 
 sary ; one of which must be deposited with the town clerk of eacli town. 
 It is of the highest importance to the district that the annual report 
 should be promptly completed and deposited ^ith the proper town clerk. 
 If the report exhibits any failure to comply with the requirements of 
 law, it is all the more important to have it promptly in the hands of the 
 commissioner, as no relief can be obtained by the trustees until they 
 shall have shown that it has'been sent by them to the town clerk. A 
 single trustee should iriake the report, if his colleagues neglect or refuse 
 to complete it, or to sign that made by him ; and in such case he should, 
 in the report itself, state the reason why it bears a single signature. So, 
 in respect to each item of information, he should give the facts so far as 
 his own knowledge extends; explaining at the conclusion that the 
 report is imperfect by reason of the other trustees neglecting to supply 
 him with the necessary statistics. The trustee who makes this report 
 will thereby exempt himself from the penalty of ten dollars, and the 
 further forfeiture to' which his colleagues are subject, under a subsequent 
 section, for wilfully neglecting to make it. 
 
 No. 144. Every si^h report, signed and certified by a 
 majority of the trusfflls making it, shall be delivered to the 
 [tov(^n clerk of the towrn in v?hich the schoolrhouse of each 
 district is situated, from whom the said commissioners shall 
 obtain the same], and shall specify: 
 
 1. 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 portion of the time such 
 school has been kept by qualified teachers ; 
 
 2. The amount of moneys received from the town superin- 
 tendent [and supervisor] during such year, and the manner 
 ia which such moneys have been expended ; 
 
 3. The number of children taught in the district during 
 such year ; .. 
 
 4. The number of children, residing in the district on the 
 last day of December previous to the making of such report, 
 between the ages of four and twenty-one, and the names of 
 the parents or other persons with whom such children shall 
 
REPOKTS OF TRUSTEES. 303 
 
 respectively reside, and the number of children residing with 
 each; 
 
 5. The amount of money paid for teachers' wages, in addi- 
 tion to the public money paid therefor, the amount of taxes 
 levied in said district for purchasing school-house sites, for 
 building, hiring, purchasing, repairing and insuring school- 
 houses, for fuel, for supplying deficiencies in rate bills, for 
 district libraries, or for any other purpose allowed by law, 
 and such other information in relation to the schools and the 
 districts as the superintendent of common schools may from 
 time to time require. ( Sec. 116, chap. 480 of 1847, modified in 
 conformity to § 8, chap. 382 of 1849, §§ 12 and 13, chap. 151 
 of 1851, and Nos. 12 and 67, ante.) 
 
 Blank forms for the reports of trustees are annually prepared at the 
 Department of Public Instruction, with printed instructions in regard 
 to the mode of filling them up, and will be transmitted through the 
 school commissioners to the town clerks, for the use of the districts. 
 They will, from time to time, require other information than that par- 
 ticularly specified in the above section, as may be necessary to enable 
 the stiperintendent to lay before the legislature a report of the actual 
 work accomplished in educating the children of the state, and in diffus- 
 ing the means of progressive education among the adults by the district 
 libraries. The remarks here to be made relate only to those permanent 
 items of statistics required by the statute itself. 
 
 1. In order to give effect to the provisions of JVos. 30 and 31, ante, 
 it will be necessary that minute accuracy be required in stating the 
 whole time any school — that is, any public district school under the 
 charge of the trustees — has been kept in the district during the year 
 beginning on- the first day of January and ending with the thirty-first 
 day of December preceding the report. The proper mode of stating the 
 facts, so as to preclude any error, would be for the trustees to specify 
 the names of the teachers, and the period of actual instruction by each, 
 giving the number of weeks and days, and date of the beginning and 
 ending of the period of actual instruction by eacii, and stating, in 
 respect to each, whether he or she was qualified, and if (which ought 
 never to be the case) the teacher's certificate bears date subsequent to 
 the commencement of his term of instruction, giving the date of such 
 certificate. The manner may be best illustrated by a specimen form : 
 
304 KEPOETS OF TRUSTEES. 
 
 "To the school commissioner for the first' assembly district; of itihe: 
 county of Oneida. - ; ' ■ ■ - 
 
 The undersigned trustees of School District No,' , the school- 
 house of which is situated in the town of , in the county of. 
 Oneida, certify and report that during the. year ending on the 31st day 
 of December, 1857, school has been kept in their "district, and the 
 periods of instruction have been ; as, follows, viz : by James Mead, a 
 qualified teacher, between the 2d day of January,, 185,7,, and the 10th 
 day of March, 1857, nine weeks and three days; by Ellen Craft, a 
 qualified teacher, during the sametiine; nine weeks and three days, and 
 by her between the 10th day of March and the 1st day of May, seven 
 weeks ; by Peter Slow, a teacher who taught three weeks while unquali- 
 fied, but was qualified on the 1st day of April, 1857, four weeks, while 
 qualified, his period of actual instruction beginning on theilOth day of 
 March aiid ending on the ■ 1st day of May, 1857; by Ellen Craft, a 
 qualified teacher, between the 15th day of Miy,; 1867, and the 22d 
 Sept., 1S57, eighteen weeks and four days; and by Mary Green, a 
 qualified teacherj at the same time, between the ISthidayof May, 1857, 
 and the 22d Sept., 1857, eighteen weeks and four days, making in the 
 aggregate a period of actual instructioHj by two qualified teachers at 
 the same time, of thiHy-two weeks, or seven months and two weeks, 
 and. by one unqualified teacher, in addition) for. three weeks." . 
 
 A statement of the facts, as they actually occurred,, it is always easy 
 to make, and, this alone will give, the commissioner the proper materials 
 to determine whiether the district is entitled to one or two district 
 quotas. ,, ! 
 
 2. The amount of moneys received from the town , superintendent 
 [and supervisor] during such year, and the manner in. which such 
 moneys have been expended. . , 
 
 The amount of money received by the district includes as well that 
 paid for ,its use ;tip teachers upon the orders pf trustee^ as that received 
 directly by the trjistees, for, library purposes, from the apportionment of 
 state moneys, , and the income of school lots, fines under the act to sup- 
 press gambling [chap. 504 of 1851), or the revenue of local funds 
 which may come through the hands, of the supervisor. The amount to 
 be stated, must include all moneys received, by any, of . the. trustees" 
 during the year, whether they be in office at the time of making the 
 report or not. In statitig the manner in which they have been 
 expended, the amount applied upon the order of the trustees to the 
 
REPORTS OF TRUSTEES. 305 
 
 compensation of teachers duly licensed must be. specified, the amount 
 applied to the purchase of books for the library, the amount applied 
 to the purchase of maps, globes, black-boards and school apparatus, speci- 
 fying particularly the articles purchased, and the dates of the resolution 
 of the district meeting, and of the permission of the State Superintendent 
 under the authority of which the expenditure was made. If any 
 moneys remain unexpended, the amount, and the reason why it has not 
 been expended, should be stated ; as, for example, that it is in the hands 
 of a trustee who is a defaulter, naming him. 
 
 It will be necessary to discriminate between the moneys received 
 from the apportionment made by the State Superintendent and the school 
 commissioners. Upon this point, instructions will be found upon the 
 printed blanks, and the form of the report itself transmitted to the town 
 clerks. 
 
 3. The number of children taught in the district during such year. 
 Under this head, the whole number of children who have received 
 
 instruction in the district school since the first day of January preceding 
 is to be stated, without regard to the fact whether their attendance has 
 been long or short, or whether they or their parents were residents or 
 non-residents. The fact must be ascertained from an examination of 
 the sworn list of attendants at school, kept by the teachers. 
 
 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 four 
 years and under twenty-one years of age, and the names of the parents 
 or other persons with whom such children shall respectively reside, and 
 the number of children residing with each. 
 
 In order to carry into effect the provisions of No. 12, ante, the trus- 
 tees should specify how many of the children enumerated by them are 
 Indians, and should separate them in their list of parents and guardians 
 from other children. The public money to which they are ratably 
 entitled is to be devoted exclusively to their education. There may be 
 districts containing but few Indian children, and these may resort to 
 the district school for instruction, instead of attending a separate Indian 
 school. In such cases, the money apportioned on their account may, 
 under a special order by the State Superintendent, to be obtained upon 
 a verified representation of all the facts in the case, be allotted to the 
 district in which they reside or attend school ; but the fiind is to be kept 
 separate, and the district has no right to it except that which may be 
 derived under such an order. 
 
 fCoDE.] 39 
 
306 EEPOKTS OF TRUSTEES. 
 
 Comment in regard to the character of the residence of children, 
 their parents, guardians or employers, in order to entitle the trustees to 
 include them in the enumeration, will be found under No. liQ,post. 
 
 5. The amount of money paid for teachers' -wages, in addition to the 
 public money paid, therefor, the arnpvmt of taxes levied in said district 
 for purchasing school-house sites, for building, hiring, purchasing and 
 insuring school-houses, for fuel, i for supplying deficiencies in rate bills, 
 for district libraries, or for any other purpose allowed by law, and 
 such other information in relation to the schools and the districts as the 
 superintendent of common schools, may from time to time require : The 
 total amount of money paid for teachers' wages, in addition to that 
 derived from the apportionment of the state funds, is to be given in full, 
 without regard to the source whence received, rate bills, local funds, 
 tuition bills of non-residents, fines or donations. 
 
 The above provision recognizes the. right to levy a tax for insuring 
 school-houses, though it is not mentioned in the enumeration of the 
 powers of district meetings in No. 95, -ante, except as it may be deemed 
 to be included in that of voting a tax " to keep in repair" the school- 
 house and its appendages. 
 
 In stating the amount of the tax levied during the year for the various 
 purposes mentioned, those only should be included for the collection of 
 which a warrant has, actually been delivered to the collector between 
 January 1st and December 31st. Unless this rule is carefully observed, 
 the same tax may be reported in two successive years ; the one in which 
 it was voted and the warrant issued, and the other in which it was 
 actually collected and paid to the trustees. 
 
 No^ 145,. It shall not, be lawful for the trustees of any 
 school district to include in their annual returns the names of 
 any children who are supported at a county poor-house or 
 orphan asylum. {Sec. 117, chap. 480 of 184:7.) 
 
 This provision was intended to be a reenactment of § 6, chap. 277 
 of 1831, by which the duty of educating pauper children was imposed 
 upon the towns and counties responsible for their support. The word 
 not was omitted, by mistake, in the printed volume of Laws of 1847. 
 Upon examination, it is found in the manuscript volume of original 
 laws, in the ofiice of the secretary of state. By chap. 261 of 1850 it 
 was enacted : 
 
 " § 1. The schools of the several incorporated orphan asylum societies 
 within this state, other than those in the city of New- York, shall paiti- 
 
EEPOETS OF TRUSTEES. 307 
 
 cipate in the distribution of the school moneys, in the same manner and 
 to the same extent, in proportion to the number of children educated 
 therein, as the common schools in their respective cities or districts. 
 
 " § 2. The schools of said societies shall be subject to the rules and 
 regulations of the common schools in such cities or districts, but shall 
 remain under the immediate management and direction of the said 
 societies, as heretofore." 
 
 It is obvious that it is inconsistent with the provisions of the act of 
 1850 to consider so much of No. 145 as prohibited the enumeration of 
 children in an incorporated orphan asylum within the district as any 
 longer remaining in force. Deprived of their natural guardians, they 
 are to be deemed the wards of the societies which furnish them an 
 asylum, and as having their residence in it. 
 
 In regard to children in poor-houses, it will be seen from the general 
 principles stated in the comment on No. 91, ante, that they do not 
 acquire a residence in the district where the poor-house is situated by 
 reason of their being within its walls. Nor ought they to be enumerated 
 in the district from which they removed to the poor-house, for reasons 
 stated in the comment to the next section. 
 
 No. 146. The annual reports of trustees of school districts, 
 of children residing in their district, shall include all over four 
 and under twenty-one years of age who shall, at the date of 
 such report, actually be in the district, composing a part of 
 the family of their parents or guardians or employers if such 
 parents, guardians or employers reside at the time in such 
 district, although such residence be temporary ; but such report 
 shall not include children belonging to the family of any 
 person who shall be an inhabitant of any other district in this 
 state in which such children may by law be included in the 
 reports of its trustees. ( Sec. 118, chap. 480 of 1847; ) 
 
 It was the object of this section to relax the strictness of the rule 
 which, as might be inferred from the terms of the 4th clause of No. 144, 
 ante, would restrict the enumeration to those children who had a fixed 
 and permanent legal residence in the district at the date of the trustees' 
 report. It now admits to the schools upon the same terms as residents, 
 and directs the trustees to enumerate, all children over 4 and under 21 
 who, at the date of the report, are actually in the district, composing 
 part of the family of their employers, &c., residing at the time in the 
 district, although such residence, that is, of the employers, parents, &c., 
 be temporary. It regards domestics as composing a part of the family 
 
308 REPORTS OF TRUSTEES. 
 
 of their employers. There is some obscurity in the section, from the 
 fact that the word family is used in two distinct senses. These, as given 
 by Webster, are : " 1. The collective body of persons who live in one 
 house and under one head or manager ; a household, including parents, 
 children and servants, and, as the case may be, lodgers or hoarders. 
 2. Those who descend from a common progenitor ; a tribe or race ; 
 kindred, lineage." The statute excludes mere boarders or lodgers; 
 while in the first part of the section it obviously includes those who are 
 in good faith employid in the family. There are, however, sometimes 
 persons who pay for their board and lodging by devoting a part of their 
 day to work, in the service of the household, while the rest is spent in 
 attendance at school. If such persons belong to the family — in the 
 second sense of that word, as above quoted — of an inhabitant of any other 
 district of this state, then they are not to be enumerated ; unless their 
 abode in the family of their employer was primarily takpn with a view 
 to earn their subsistence by service, and not as a mere cover for their 
 attending school in one district in preference to another where they 
 might have attended. The enumeration is made with a view to the 
 apportionment of money for the succeeding year ; and it is to detennine 
 what amount of money will be needed for the education of those children 
 who are accidentally in it, either because their parents or other permanent 
 guardians reside there, or because their circumstances require them to 
 earn a livelihood in a family, not that of their parentage. The district 
 which is bound to furnish them with instruction, should receive an 
 apportionment on their account ; but they cannot, arbitrarily, select the 
 districts in which they shall be enumerated or attend school. The 
 cases on pages 16, 23; 38, 49 and 91, Digest, ante, taken together, will 
 be found to support this construction. ( See ai Foster's N. H. R., 610.) 
 
 As to a person who is not an inhabitant of some other district in this 
 state, all the children belonging to his family are to be reported, and so 
 are children residing in the district whose parents or guardians do not 
 reside therein, if such parents or guardians reside elsewhere than in a 
 district of this state ; provided the residence of such children is in a 
 family, and not in a mere boarding school or other establishment for 
 the purpose of edacation. 
 
 All persons more than four and under twenty-one years of age are to 
 be enumerated, although themselves the masters or mistresses of families. 
 
 No. 147. The trustees of school districts shall not enume- 
 rate and include in their annual reports any Indian children 
 
REPORTS OF TRUSTEES. 309 
 
 residing on Indian reservations where schools are taught. 
 ( Sec. 119, chap. 480 o/1847.) 
 
 This section is retained as a part of the history of legislation. School 
 districts rarely include any portion of an Indian reservation. In those 
 that do, the Indian children within the bounds of the district are to be 
 enumerated separately and apart from other children, for the reasons 
 given in the comment on the fourth clause of No. 144, ante, until the 
 superintendent, in the exercise of the power given by No. 12, shall other- 
 wise direct. 
 
 No. 148. All children included in the reports of the trustees 
 of any school district shall be entitled to attend the schools 
 of such district ; and whenever it shall be necessary for the 
 accommodation of the children in any district, the trustees 
 thereof may hire, itemporarilyj any room or rooms for the 
 keeping of schools therein, and the expense thereof shall be a 
 charge upon such district. ( Sec. 120, chap. 480 of 1847. ) 
 
 Children over four and under five years of age are to be included in 
 the reports of the trustees, but their right to attend school must be 
 regarded as taken away by the new definition of the class of persons 
 thus entitled, contained in the next section, which restricts it to those 
 over five years old. Children of so tender an age, as five or even six, 
 can scarcely receive any benefit from the literary instruction given at 
 a school, which is not more than outweighed by the injury to their 
 health resulting from coiifinement, and the distaste for future study 
 which they imbibe. Such simple elements of knowledge as they can 
 learn are best imparted to them at home, in the intervals of healthful 
 play and the freedom of domestic intercourse. 
 
 The right to attend schools in a district is the right to attend some 
 one school or department which, in the judgment of the trustees, and of 
 the teacher, under their general supervision, is best adapted to the 
 education of the individual scholar, consistently with the progress of the 
 other pupils of the district. It is not the right of the parent or pupil 
 arbitrarily to select the school or department which the latter shall 
 attend. The law has vested the power in the trustees to regulate the 
 system of distribution and classification, and when this power is reason- 
 ably exercised, without being abused or perverted by colorable pre- 
 tences, their decision must be deemed conclusive. (5 Cush. Mass. 
 Hep., 208.) The remedy for an error on their part is to be found in an 
 
310 KEPOKTS OF TRUSTEES. 
 
 appeal; For a malicious abuse of their power, an action might be sus- 
 tained in the name and for the benefit of the child. (I i Barb., 222.) 
 The cases in which they may exclude children will be considered under 
 the nejft section. 
 
 It is for the trustees to judge when it is necessary, for the accommo- 
 dation of the children, to hire rooms temporarily for the keeping of 
 schools, for the expense of which they have the right to levy a tax,' 
 without any vote of the district. They are bound to mate reasonable 
 provision for the accommodation of all who desire to attend school ; and 
 if the school-house is too small for them, or is out of repair, or is prac- 
 tically inaccessible to any considerable number, from severe snows in 
 winter, or other fortuitous circumstances, they should not hesitate to 
 exercise the power. They are not put in oflBce for the purpi)se of 
 saving money to the tax payers, but to see to it, that. all the children 
 obtain instruction, or owe their failure to do so to the wilful neglect of 
 themselves or their parents. 
 
 No. 149. Common schools in the several school districts in 
 this state shall be free to all persons residing in the district, 
 over five and under twenty-one years of age, as hereinafter 
 provided. Persons not resident ot a district may be admitted 
 into the schools kept therein, with the approbation in writing 
 of the trustees thereof, or a majority of them. ( Sec. 1, chap. 
 1510/1851.) 
 
 The power to admit non-resident children to the schools of a district 
 is vested exclusively in its trustees. {Diffesi.,, pp. 95, 100.) The latter 
 case contains the necessary instruction as to the manner in which they 
 should exercise it. Pupils are not to be encouraged to withdraw from 
 the schools of their own districts. By doing so, they enfefeble its pecu- 
 niary resources, aggravate the rate bills of their neighbors, and diminish 
 the inducements of their parents and friends to exert their influence to 
 maintain a good school in their own district. A teacher, moreover, 
 ought not to have the additional labor thrown upon him of instructing 
 non-residents, without his compensation being increased, unless he 
 entered into his contract with full knowledge of the number he was to 
 instruct. 
 
 The right to enjoy the benefit of common schools, established for all 
 the inhabitants, is, as is well put in 8 Cush. Mass. R., 164, " a common, 
 not an excltisive personal right ; then, like other common rights, that of 
 way for instance, it must be exercised under such limitations and 
 
REPORTS OF TRUSTEES. 311 
 
 restrictions, that it shall not interfere with the equal and coextensive 
 rights of others. Take the case of contagious disease : can it be 
 doubted that the presence of a pupil infected could be lawfully prohibited, 
 not for any fault or crime or wrong conduct, but simply because his 
 attempt to insist on his right to attend, under such circumstances, would 
 be dangerous and noxious, and so an interruption of the equal and com- 
 mon right?" In that case, the court held that the trustees have the 
 right to exclude a child for open, gross immorality, manifested by licen- 
 tious propensities, language, manners and habits, though not manifested 
 by acts of licentiousness or immorality within the school, deeming it 
 " as necessary, in the unreserved intercourse of pupils of the same school, 
 as well without as within its precincts, to preserve the pure minded, 
 ingenuous and unsuspecting children of both sexes from the contamina- 
 ting influence of those of depraved sentiments and vicious propensities 
 and habitSj as from those infected with contagious diseases." 
 
 The analogy suggests the rule. Children may be excluded, not for 
 punishment merely, but for the protection of others from such injurious 
 example and influence as would entirely defeat the purposes for which 
 schools are instituted. It is to be remembered that among the objects 
 of instruction is not only to deter from vice, but to reclaim those who 
 are capable of reformation, and to correct bad habits which may result 
 from parental neglect, or, what is more deplorable, from parental exam- 
 ple. To deal gently with the erring, and especially with erring child- 
 hood, is the dictate of humanity, policy and duty. To abandon them 
 to their evil courses is a step involving the most serious responsibility, 
 never to be taken until remonstrance and persuasion have been 
 exhausted. 
 
 Such violent insubordination against reasonable and proper regulations 
 of the school as to render it impossible to maintain necessary discipline 
 and order, will justify the trustees in the expulsion of a pupil; but it is 
 their duty to see, before resorting to the final extremity, whether there 
 may not be fault on the side of the teacher as well as the scholar, and 
 to endeavor, in such case, to reconcile the diflFerence, without impairing 
 the self-respect of either party. Children have rights as well as their 
 elders ; they are as keenly sensible of oppression, and naturally revolt 
 against power, wantonly exercised for the sake of exhibiting itself. 
 Being the weaker party, they suffer in their school days a great deal of 
 injustice and often of outrage. The best of teachers have human infir- 
 mities, and it is an incident of their trying calling to aggravate theto. It 
 
312 REPORTS OF TRUSTEES. 
 
 is for the trustees to temper power with benignity, and administer justice 
 in the spirit of tolerance and mercy. 
 
 No. I6U. Where a school district is formed out of two or 
 more adjoining towns {not in the same county), it shall be the 
 duty of the trustees of such district to make and transmit a 
 report to the [school commissioner] for each of the towns 
 out of which such district shall be formed, within the same 
 time and in the same manner as is required by sections one 
 hundred and fifteen and one hundred and sixteen of this act ; 
 distinguishing the number of children over the age of four and 
 under twenty-one 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 from each part of the district. {Sec. 121, 
 chap. iSO of 184:7.) 
 
 The words in italics, within the parenthesis, do not belong to the text 
 of the statute. They are inserted to make it conform to No. 67, ante. 
 The sections referred to in the text, are Nos. 143 and 144. 
 
 No. 15i. Where any neighborhood shall be set off by itself, 
 the inhabitants of such separate neighborhood shall annually 
 meet together and choose one trustee ; whose duty it shall 
 be, every year, within the time limited for making district 
 reports, to make and transmit a report in writing, bearing 
 date on the first day of January, in the year in which it shall 
 be transmitted, to the [town clerk] of the town from which 
 such neighborhood shall be set off, specifying the number of 
 children, over the age of four and under twenty-one years, 
 residing in such neighborhood, the amount of moneys received 
 from the town superintendent [and supervisor] since the date 
 of last report, and the manner in which the same has been 
 expended. {Sec. 122, chap. 480 of 1847, modified in conformity 
 to No. 67.) . : 
 
 A separate neighborhood constitutes a part of a district in some 
 adjoining state, within which its school-house is situated, and whose 
 affairs in general are managed by oflacers under a foreign jurisdiction. 
 The trustee mentioned in the statute is to be elected by the inhabitants 
 of this state within such district, and must himself be an inhabitant of 
 that portion thereof within the boundaries of New-York, so that he may 
 be amenable to its laws. The commissioner cannot receive a report 
 
DUTY OF TRUSTEES. 313 
 
 from a citizen of another state, and if on« is tendered, should give notice 
 to the inhabitants to elect another person as trustee. 
 
 No. 152. Every trustee of a school district or separate 
 neighborhood, who shall wilfully sign a false report to the 
 [school commissioner] of his town, with the intent of causing - 
 such [ school commissioner] to apportion 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 misdemeanor. ( Sec. 123, cfiap. 480 of 1847. ) 
 
 All the trustees who jointly commit the oflFence may be jointly silSff 
 (1 Denio, 540.) As to an omission, the rule is otherwise. In order to 
 put the trustees clearly in the wrong, and disprove any pretence of 
 inadvertance or misapprehension on their part, the commissioner should 
 notify them of any error which he finds in their report and request them 
 to correct it, before reporting them to the supervisor for prosecution. 
 In order to present for decision any question involving reasonable doubt, 
 the simplest way would be for him to inform them in writing at the 
 same time, and that as early as possible, that he declines making any 
 apportionment to their district on account of certain persons, naming them, 
 included in their enumeration of pupils, and that his decision thereupon 
 will become conclusive in thirty days, unless within that time they forward 
 an appeal, to the State Superintendent, duly verified, and serve a copy 
 upon him, or unite with him in a written statement of the facts to be 
 submitted. It would be well for him to proceed to state the facts as he 
 understands them, and request them to signify their concurrence therein 
 by signing the same. If an apportionment ought to be made before a 
 final decision is obtained, he should make it contingent in respect to the 
 pupils in dispute. 
 
 No. 153. 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. ( Sec. 124, chap. 480 
 0/1847.) 
 
 The original provision of the act of 1819, § 29, chap. 161, from 
 which the above is taken, was enacted for the purpose of vesting in the 
 trustees property which had been dedicated or granted for school objects 
 before its passage. The principal incidents of a corporation are, to have 
 
 [Code.] 34 
 
314 DUTY OF TEUSTEES. 
 
 perpetual succession and existence by its corporate narde, where no 
 period is limited by its charter, and the capacity to hold real and 
 personal estate for its corporate purposes, as an artificial body, wholly 
 distinct from the individuals who from time to time may cOmpos6 it. 
 
 No. 154. The trustees of each school district shall, once in 
 each year, render to the district, at its annual distriict ilieeting, 
 a just and true account, in writing, of all moneys received by 
 them respectively for the use of their district, and of the 
 manner in which the same shall have been expended,! which 
 account shall be delivered to the district clerk, and be filed 
 and recorded by him. {Sec. 125, chap. 480 of, 1847.) 
 
 Each trustee is bound to render an account, in writing, of the money 
 which he has received and expended. They may, and indeed should, 
 unite and present one account, stating the receipts and disbursements 
 of all ; but as each of them is severally liable to a penalty for omitting to 
 do so, the way for him to escape it is to be prepared with an account 
 of his own financial operations during the year, and submit it to the 
 annual meeting. He is not entitled to charge in the account, or to retain, 
 any sum to remunerate him for his personal services as trustee. {Digest, 
 p. 84.) The meeting has no duty to perform in examining the account 
 and passing upon the question of its correctness. When an account has 
 been rendered, the supervisor may bring an action for the penalty,' if it 
 is false, and the trustee who made it remains in office; but. the trustee 
 will not be removed until its falsehood shall have been established in 
 such a suit. {Digest, p. 102.) The district meeting have no; power to 
 prevent him, or the successors of the defaulting trustee, from bringing 
 axi.M,i\on. {Digest, p. ^5.) 
 
 No. 155. 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 of&ce, {Sec, 126, chap. 480 of 18i7.) 
 
 When this section was originally enacted, all the trustees went out 
 of ofiSce at each annual meeting, and were, of course, bound immediately 
 to pay over any money in their hands to their successors. But one 
 trustee in ofiice has the same right to the custody of public money as 
 another; unless the trustees by a resolution have constituted one of 
 their number treasurer, or have appointed a bank or other trustworthy 
 
DUTY OF TRUSTEES. 315 
 
 depositaiy to receive it. Among the general powers conferred ty tlie 
 Revised Statutes upon every corporation, as such — and the trustees are 
 a corporation in respect to the property of the district — one is: "To 
 make by-laws, not inconsistent with any existing law, for the manage- 
 ment of its property." It would often be a judicious exercise of this 
 power to constitute one of their number treasurer, requiring him to give 
 adequate security to the trustees, in their corporate capacity and name 
 of office, and directing the collector to pay all taxes and rate bills to 
 him. If a third person were appointed to act as the treasurer, where 
 a convenient one can be found who is willing to give adequate security, 
 it would have the further advantage, that no disbursement could be 
 made by him, except upon the written order of two of the trustees.* In 
 such a case, all of the trustees would be responsible, if they took insuffi- 
 cient security from the person entrusted with the money. 
 
 In regard to the liability of one trustee for the act of another, the 
 general rule is, that it is the duty of each one to do all in his power to 
 protect the trust property from loss by the acts of his colleagues. He 
 ought not, therefore, to join in doing any act or in carrying into effect 
 any arrangement by which the trust property is unnecessarily, taken out 
 of the joint protection and control of all the trustees, and is placed 
 within the sole power and at the mercy of one or more of their number, 
 without expecting to be held responsible for the consequences. It is 
 laid down in Hill on Trustees, p. 310, that as a general rule the trustee 
 so acting will be held liable in case of a loss by the default of his col- 
 league* There are exceptions, as in the ease where money is committed 
 to one for the purpose of making an immediate payment ; but money 
 ought not to be suffered to remain in the hands of one trustee, for any 
 considerable time, without security. Their safety lies in considering 
 themselves as presumptively liable for all money which comes into the 
 hands of any one of them, and conducting with the vigilant care to its 
 speedy disbursement or ample security which such a belief is calculated 
 to inspire. 
 
 No. 156. Every trustee who shall refuse or neglect to ren- 
 der such account, or to pay over any balance so found in his 
 hands, shall for each offence forfeit the sum of twenty-five 
 dollars, ( -Sec. 127, chap. 480 o/l847.) 
 
 It has been held, under this section (1 Denio, 230), that "it plainly 
 contemplates a several penalty upon each and every trustee who shall 
 
316 DUTY OF TRUSTEES. 
 
 so neglect or refuse to perform his duty, and not a penalty upon all, 
 jointly, who may be in default. If more than one is in default, each 
 must be sued." 
 
 No. 157. It shall be the duty of his successors 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. {Sec. 128, chap. 480 o/1847.). 
 
 This section takes effect only when the trustee in default has gone 
 out of ofiBoe. He can have no successors until that event ; but when it 
 has happened, the trustees in office are his , successors, although they 
 may have been his colleagues, and no person has been appointed or 
 elected to fill the vacancy. Provision is made in a subsequent section 
 for prosecuting a defaulting trustee, still in office, by the supervisor. 
 
 No. 158. 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 town 
 [supervisor] against a former town superintendent 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. {Sec. 129, chap. 480 of 
 1847, modified in conformity to No. 53. ) 
 
 No. 159. Every trustee of a school district who shall, while 
 in office, neglect or refuse annually to render an account of 
 the moneys received by him as such trustee, shall, for each 
 oifence, forfeit the sum of twenty-five dollars ; and it shall be 
 the duty of the [supervisor] of the town in which such trustee 
 may reside to prosecute without delay, in his name of 
 office, for the recovery of such forfeiture ; and the moneys 
 recovered shall be applied by such [supervisor] to the use 
 and benefit of the district school of the district to which such 
 defaulting trustee shall belong. {Sec. 130, chap. 480 of 1847, 
 modified in conformity to No. 53. ) 
 
 The action is to be brought by the supervisor of the town in which 
 the trustee resides, so that, if two or more trustees are in default, resid- 
 ing in different towns, actions must be brought by as many different 
 supervisors. 
 
APPEALS. 317 
 
 No, 160. Such [supervisor] shall also have the same reme- 
 dies for the recovery of any unpaid balance of moneys, in the 
 hands of such delinquent trustee in office, as are given to the 
 [supervisor] in office against a former town superintendent ; 
 and the moneys recovered shall be applied by such town 
 superintendent to the use of the district to which the same 
 may belong, and be paid over to the trustee or trustees of 
 such district who are not in default. ( Sec. 131, chap. 480 of 
 1847, modided in conformity to No. 53. ) 
 
 The action, like that under the preceding section, is to be brought by 
 the supervisor of the town in which the defaulter resides. In order to 
 justify such action against a trustee in oflBce, it must appear that he has 
 refused to apply the money in his hands to the service of the district, 
 in payment of a valid demand against it, or in execution of some duty 
 imposed upon the trustees by vote of the district, or by law in cases 
 where they are authorized to make expenditures without the vote of 
 the district, or that he has refused or omitted, after a demand, to deposit 
 such balance, in compliance with a resolution of the trustees. 
 
 APPEALS. 
 
 No. 161. Any person conceiving himself aggrieved, in con- 
 sequence of any decision made, 
 
 1. By any school district meeting ; 
 
 2. By the [school commissioner] in the forming or altering, 
 or in refusing to form or alter any school district, or in refus- 
 ing to pay any school moneys to any such district ; 
 
 3. By the trustees of any district in paying any teacher, 
 or in 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, who is hereby authorized 
 and required to examine and decide the same, and the decision 
 of the State Superintendent shall be final and conclusive. 
 ( Sec. 132, chap. 48 of 1847.) 
 
 This section was included, as it is understood, by a clerical error in 
 the engrossment of § 16, chap. 382 of 1849, among those thereby 
 repealed. The repealing section was amended by chap. 18 of 1853, so 
 as to omit § 132 from the list of sections repealed in chap. 480 of 1847, 
 and thereby to restore and reSnact it. It may be worth while to state 
 
318 APPEALS. 
 
 that, yfhile the repealing clause of the statute of 1849 yas in force, the 
 jurisdiction, of the State Superintendent to hear and decide , appeals 
 might have been, upheld by virtue of other statutes. By § 7, chap. 133 
 of 1843, all appeals then authorized by law (and the law then in force 
 was identical with No. 161 ) were required to be first presented to the 
 coMre^y superintendents. Upon the abolition of the office of county 
 superintendents, in 1847^ it was enacted by chap. 388 of that yeaj; as 
 follows: 
 
 "§ 1. All appeals, now authorized by law to be brought to a county 
 superintendent of common schools, may, after tihe third day of Depember, 
 one thousand eight hundred and forty rseven, be brought directly to the 
 superintendent of common Schools, who is hereby authorized and 
 required to examine anddecide the same, ■ and whx)se decision in the 
 premises shall be final and conclusive." : 
 
 This. statute of 1847 has never been repealed, and is an independent 
 authority for the jurisdiction of the State Superintendent. 
 
 The supreme court, in 3 Dpnio, 177, declare that "this provision 
 (No. 161) was intended as a cheap and expeditious mode of settling 
 most if not all of the difiiculties and disputes arising in the course of 
 the execution of the law organizing and regulating common schools. 
 The legislature has virtually declared that where a party will forego 
 that convenient method of adjusting such a controversy as the present, 
 and resort to the ordinary courts, it shall be at. his own expense as 
 regards costs." In 11 Wend., 91, the court made substantially the 
 same remarks, when refusing to give relief by an action of trespass 
 against trustees for their proceedings in selling the plaintiflf's property 
 under a tax list and warrant which were in more . than one respect 
 erroneous. A, further reason for preferring the remedy by appeal to a 
 common law action is, that the superintendent can dispose of all the 
 questions connected with the case in a single decision ; where a proceed- 
 ing is wrong, he can not only reverse it, but direct the appropriate 
 remedy, so as to redress all persons who have been injuriously affected ; 
 while an action at law enures only to the benefit of the person who 
 brings it, and only gives pecuniary damages, without substituting a cor- 
 rect proceeding in the place of an erroneous one. For the extent of the 
 Superintendent's powers upon appeal, see Digest, pp. 12, 13 and 14. 
 
 No. 162. Any person conceiving himself aggrieved by any 
 act or. decision of any trustees of school districts, concerning 
 district libraries, or the books therein, .or the use of such 
 books, or of any librarian, or of any district meeting in rela- 
 
APPEALS. 319 
 
 tion to their school library, may appeal to the State Superin- 
 tendent in the same manner as provided by law. ( Sec. 140, 
 cA«j7. 480 0/1847.) 
 
 Under this and the preceding section, appeals may be made by any 
 person conceiving himself aggrieyed in consequence of: 
 
 1. Any decision made by any school district meeting; this may be 
 either by its passing or by its rejecting any resolution offered for its 
 consideration. A resolution passed by the meeting presents the point 
 upon its own face. "Where an inhabitant wishes to raise a question 
 upon its refusal to take such action as he desires, his proper course is to 
 present a written resolution, embodymg the proposition he desires 
 adopted, and get a vote upon it ; 
 
 2. Any decision made by the school commissioner alone, or by him 
 with the supervisor and town clerk, in forming or altering, or in refusing 
 to form or alter any school districts, or in any erroneous apportionment 
 of the public money, in refusing to include a district in the apportion- 
 ment for teachers' wages or for library when entitled to be included, or 
 in apportioning to it upon the basis of a smaller number of pupils than 
 it has reported, or in apportioning to it a larger sum than that to which 
 it is entitled, to the injury of other districts ; and in fact any ofiicial 
 decision, act or proceeding, in discharging or refusing to discharge any 
 duty imposed by law, or by the regulations of the superintendent, made 
 in pursuance of law, or incident to the duties of his oflBce ; 
 
 3. Any decision made by the trustees in paying a teacher or refusing 
 to pay, or refusing to admit any scholar gratuitously into any school ; in 
 making out any tax list or rate bill, or in any act or proceeding what- 
 ever which they undertake to perform officially, or which,, being bound 
 by law or lawful regulations of the superintendent, or as incident to the 
 duties of their, office, they refuse or neglect to perform. In order to fix 
 them with a responsibility for neglect to discharge a duty, and as pre- 
 liminary to an appeal, it would be well for the persons conceiving 
 themselves aggrieved to unite in a written request to the trustees to 
 perform the act desired, or to give written notice that they have decided 
 not to perform it. They may properly designate, in such request, a 
 reasonable time for the performance of the duty, and therein state that 
 the neglect of the trustees to discharge the duty within the time so 
 specified will be regarded as equivalent to a refusal, and as justifying an 
 appeal, or, if the case requires it, an application for the removal of the 
 trustees from office ; 
 
320 APPEALS. 
 
 4. Any act or decision by the trustees, or of the librarian, or of a dis- 
 trict meeting, concerning the library or the books therein, or the use of 
 such books ; 
 
 5. Under the general clause " concerning any other matter under 
 the present title," which includes the whole of this Code, any decision 
 by any school officer, affecting the interests of a district or its inhabitants 
 in regard to the school laws, may form the subject of an appeal. There 
 may be cases where the powers of the superintendent are inadequate to 
 give redress, as there may be cases in which the discretion of the local 
 officer ought to control, but whether a particular case is such an one, 
 must be determined as the question arises. 
 
 By whom appeals are to be made. No person can sustain an appeal 
 unless he is aggrieved, that is, injured in his rights by the act or decision 
 of which he complains. Generally, every inhabitant of a district is 
 aggrieved by the wrongful act or omission of a trustee or school com- 
 missioner, by which njoney or property is disposed of, or not secured 
 for the benefit of the district. But no one is aggrieved by another 
 being included in a tax list or rate bill, although other inhabitants are 
 by the omission of one who should be taxed ; and appeals may be 
 made by trustees in behalf of their district whenever they are aggrieved. 
 
 Before giving the rules which have been made to regulate the 
 practice upon appeals, it is proper to call attention to some general 
 principles in relation to the mode of drawing them up. In the first 
 place, the department wants facts, and not arguments, far less injurious 
 imputations upon the motives of parties. The facts should be distinctly 
 averred, so that an indictment for perjury would lie if they are wilfully 
 misstated. • Therefore, they should not be stated by way of recital under 
 a " whereas," or in any similar indirect way. Every material fact should 
 be stated with all practicable particularity as to time, quantities, numbers, 
 &c. "Where a statement is ambiguous or doubtfiil in meaning, that 
 construction is adopted which is most unfavorable to the party making it. 
 The appellant should make out his own case ; so that if no answer is 
 put in, the superintendent will have, in the appeal itself, all the f^cts to 
 inform him what order ought to be made. No decision can be based 
 upon any facts except those which are stated in the appeal, and which 
 the opposite party has had the opportunity to controvert, although such 
 facts may have been brought to the knowledge of the superintendent in 
 some other way. The record itself must contain enough to support the 
 decision. 
 
LETTERS OF INQUIRY. 321 
 
 It will conduce much to the speedy disposition of a case that the 
 papers be fairly and legibly written, upon foolscap paper when practi- 
 cable, in the fashion of legal pleadings ; that is, the leaves written on 
 both sides are attached at the top, and not at the side, so that the 
 bottom of the first page is the top of the second. They should be 
 endorsed with the title of the case, in such a form as to indicate, briefly, 
 what is the act or decision complained of, and the district, town and 
 county which it afi"ects. The papers on each side should also be 
 endorsed with the name of the post office at which the party sending it 
 desires to be addressed. 
 
 LETTERS OF INQUIRY AND EX PARTE APPLICATIONS. 
 
 Perhaps the most onerous duty of the Superintendent of Public In- 
 struction is one which is not mentioned in the statutes. It is that of 
 replying to applications for advice respecting the construction of the 
 school laws, and the legality of proceedings of district meetings, of 
 trustees, and other school officers. The eflfort has been made to give in 
 this volume a full exposition, under the appropriate section, of the ques- 
 tions which have been found, by the experience of the department, to 
 embarrass officers in the discharge of their duties. If, however, after 
 examination of the instructions herein contained, it is conceived neces- 
 sary to apply to the department for further information, it must be 
 borne in mind : 
 
 1. That no decision can be made, on any subject affecting in any 
 manner the rights or interests of other parties, without both sides having 
 been heard or having been invited to present their statements. This 
 occurs only when an appeal is regularly brought in the mode prescribed 
 by the regulations, or where all parties have signed, and united in trans- 
 mitting, a statement of facts to which they agree ; 
 
 2. That an opinion, given under any other circumstances, must be 
 regarded as valid only so far as the statement on which it is founded 
 represents fairly and fully all the facts pertinent to the case. It fre- 
 quently happens that two parties, applying for advice upon the same 
 question, state the facts so differently that they receive very dissiinilar 
 replies, and are thus, confirmed in their difference of opinion, instead of 
 being reconciled. No opinion should be asked upon an abstract 
 question or a hypothetical case ; but the actual facts out of which the 
 question arises should be clearly and briefly stated, with all practicable 
 certainty as to dates and number, and in such a manner as to indicate 
 
 rCoDE.l 41 
 
322 UTILES EESPECTING APPEALS, 
 
 the object of the inquiry. The last is advisable, because a proceeding 
 may be legally good and sufficient for some purposes, and as against some 
 persons, while it is invalid for other purposes and against other parties. 
 The facts should be stated in contradistinction to mere evidence, on the 
 one hand, and to the writer's inferences as to the effect of those facts, on 
 the other. 
 
 To facilitate the business of the department, and the prompt and cor- 
 rect transmission of answers to its correspondents, it is desirable that all 
 letters should be written on foolscap paper, with a cfear margin of one 
 inch on the inside edge of the page. They should always specify the 
 number of the school district, together with the name of the town or 
 towns of which it constitutes a part, and the county in which the latter 
 are situated. The writer should, in all cases, no matter how frequently 
 he may write, state at what post-office he desires to be addressed. 
 
 Whenever reference may be necessary to any previous letter from the 
 department, its number should he given. This enables the department 
 to ascertain at once its contents and those of the paper to which' it was 
 a reply. 
 
 Every application for the exercise of any legal power of the depart- 
 ment, as for special permission to be included in the apportionment 
 of public money, &c., must be supported by an affidavit stating the facts 
 on which it is based. Wlien any person is interested in opposing it, 
 the application must be accompanied with proof of service of a copy 
 thereof on such party, in the same manner as required upon appeals. 
 
 RULES EESPECTING APPEALS. 
 
 1. An appeal must be in writing, addressed " To the Superintendent 
 of Public Instruction,'' and signed by the appellant. When made by 
 the trustees of a district, it must be signed by all the trustees, or a 
 reason must be given for the omission of any, verified by the oath of 
 the appellant, or of some person acquainted with such reason. 
 
 2. A copy of the appeal, and of all the statements, maps and papers 
 mtended to be presented in support of it, with the affidavit in verification 
 of the same, must be served on the officers whose act or decision is com- 
 plained of, or some of them ; or if it be from the decision or proceeding of 
 a district meeting, upon the district clerk or one of the trustees, whose 
 duty it is to cause information of such appeal to be given to the inhabi- 
 tants who voted for the decision or proceeding appealed from. Immedi- 
 ately after the service of such copy, the original, together with an affidant 
 
KULES EESPECTING APPEALS. 323 
 
 proving the service of a copy thereof, and stating the time and manner of 
 the service and the name and official character of the person upon whom 
 such service was made, must be transmitted to the Department of Public 
 Instruction, at Albany. If an answer is received to an appeal which 
 has not been transmitted to the department, such appeal will be 
 dismissed. 
 
 3. Such service must be made and the original sent to the depart- 
 ment within thirty days after the making of the decision or the 
 performance of the act complained of, or within that time after the 
 knowledge of the cause of complaint came to the appellant, or some 
 satisfactory excuse must be rendered, in the «ppeal, for the delay. 
 
 4. The party on whom the appeal was served must, within ten daya 
 from the time of such service, answer the same, either by concurring in 
 a statement of facts with the appellant, or by a separate answer. Such 
 statement and answer must be signed by all the trustees or other 
 officers whose act, omission or decision is appealed from, or a good 
 reason on oath must be given for the omission of the signature of any 
 of them. Such answer must be verified by oath, and a copy served on 
 the appellants or some one of them. 
 
 5. So far as the parties concur in a statement, no oath will be 
 required to it. But all facts, maps or papers^ not agreed upon by them 
 and evidenced by their signatures on both sides, must be verified by 
 oath. 
 
 6. All oaths required by these regulations must be taken before a 
 judge of a court of record, a commissioner of deeds, a justice of the 
 peace or a school commissioner. 
 
 1. A copy of the answer, and of all the statements, maps and papers 
 intended to be presented in support of it, must be served upon the 
 appellants, or some one of them, within ten days after service of a copy of 
 the appeal, unless further time be given by the State Superintendent, on 
 application, in special cases ; but no replication or rejoinder shall be 
 allowed, except by permission of the State Superintendent, and in refer- 
 ence exclusively to matters arising upon the answer, and which may bo 
 deemed by such State Superintendent pertinent to the issue ; in which 
 case such replication and rejoinder shall be duly verified by oath, and 
 copies thereof served on the opposite party. 
 
 8. Proof of the service of copies of the appeal, answer and all other 
 papers intended to be used on the hearing of such appeal, must, in all 
 cases, accompany the same. 
 
324 EULES RESPECTING APPEALS. 
 
 9. "When any proceeding of a district meeting is appealed from, and 
 •when the inhabitants of a district generally are interested in the matter 
 of the appeal, and in all cases where an inhabitant might be an appel- 
 lant had the decision or proceeding been the opposite of that which 
 was made or had, any one or more of such inhabitants may answer the 
 appeal, with or without the trustees. 
 
 10. Where the appeal has relation to the alteration or formation of a 
 school district, it must be accompanied by a map, exhibiting the site of 
 the school-house, the roads, the old^ and new lines of districts, the 
 diflferent lots, the particular location and distance from the school- 
 houses of the persons aggrieved, and their relative distance, if there 
 are two or more school houses in question. Also, a list of all the 
 taxable inhabitants in the district or territory to be aflfected by the 
 question, showing in separate columns the valuation of their property, 
 taken from the last assessment roll, and the number of children between 
 four arjd twenty-6ne belonging to each person, distinguishing the 
 districts to which they respectively belong. 
 
 H. When the copy of the appeal is served, all proceedings upon or 
 in continuation of the act complained of, or consequent in any way 
 upon such act, must be suspended until the case is decided. So, where 
 any decision concerning the distribution of public money to one or 
 more districts is appealed from, the supervisor must retain the money 
 which is in dispute until the appeal is decided. And where trustees 
 have money in their hands claimed to belong to any person, or any 
 other district, after the copy of an appeal is served on them in relation 
 .to such claim, they must retain such moneys to abide the result, and 
 must not expend them so as to defeat the object of the appeal. 
 
 12. Whenever a decision is made by the superintendent and com- 
 municated to the school commissioner respecting the formation, division 
 or alteration of districts, he must cause the decision to be recorded in 
 the office of the town clerk. All other decisions communicated to him, 
 or to the trustees of districts, are to be kept among the official papers 
 of the clerk of the town or district, and handed over to his successors' 
 and the district clerks are required to record all such as come to their 
 hands, in the district book kept by them. 
 
DISTRICT LIBRAEIES. 325 
 
 OF SCHOOL DISTRICT LIBRARIES. 
 
 No. 163. The sum of fifty-five thousand dollars, directed to 
 be distributed to the several school districts of 'this state by 
 the fourth section of chapter two hundred and thirty-seven 
 of the Lav?s of eighteen hundred and thirty-eight, shall con- 
 tinue to be applied to the purchase of books for a district 
 library, until otherwise directed. (Part of^ 136, chap 480 of 
 1847, modified in conformity to ^ 9, chap. 151 of 1851, and ^ 2, 
 chap. 425 0/1851.) ^ 
 
 The remainder of the above section is printed as No. 103, ante. The 
 selection of books for the district library is devolved by law upon the 
 trustees ; and when the importance of this most beneficent and enlight- 
 ened provision for the intellectual and moral improvement of theinhabi- 
 tants of the several districts, of both sexes and all conditions, is duly 
 estimated, the trust here confided is one of no ordinary responsibility. 
 In reference to such selections, but two prominent sources of embarrass- 
 ment have been experienced. The one has arisen from the necessity 
 of excluding from the libraries all works having directly or remotely a 
 sectarian tendency, and the other from that of recommending the exclu- 
 sion of novels, romances and other fictitious creations of the imagination, 
 including a large proportion of the lighter literature of the day. The 
 propriety of a peremptory and uncompromising exclusion of those catch- 
 penny, but revolting publications which cultivate the taste for the mar- 
 vellous, the tragic, the horrible and the supernatural — the lives and 
 exploits of pirates, banditti and desperadoes of every description^ — is 
 too obvious to every reflecting mind to require the slightest argument. 
 
 If any case of improper selection of books should come before the 
 superintendent, by appeal from any inhabitant, such selection would be 
 set aside ; and if it appears from the reports, which, according to regu- 
 lation, must be made, that such books have been purchased, the school 
 commissioner will be bound to withhold the next year's library money 
 from such district until they are replaced by works of equal cost and 
 better character. 
 
 In regard to works of a sectarian character, which there is consider- 
 able disposition to smuggle into district libraries, the following general 
 rules, promulgated by Supt. Randall several years ago, may be regarded 
 as expressing the settled principles of the department : 
 
326 DISTRICT LIBRARIES. 
 
 " 1. No works written professedly to uphold or attack any sect or 
 creed in our country, claiming to be a religious one, shall be tolerated 
 in the school libraries. 
 
 " 2. Standard works on other topics shall not be excluded because 
 they incidentally and indirectly betray the religious opinions of their 
 authors. 
 
 " 3. Works avowedly on other topics, which abound in direct and 
 nnreserved attacks on, or defence of, the character of any religious sect, 
 or those which hold up any religious body to contempt or execration, 
 by singling out or bringing together only the darker parts of its history 
 or character, shall be excluded from the sckool libraries." 
 
 In the selection of books for a district library, information, and not 
 mere amusement, is to be regarded as the primary object. Suitable 
 provision should, however, be made for the intellectual wants of the 
 young, by furnishing them with books which, without being merely 
 juvenile in their character, may be level to their comprehension, and 
 sufficiently entertaining to excite and gratify a taste for reading. It is 
 useless to buy books which are not read. The indiflFerence which is 
 manifested in respect to many of the district libraries shows that in 
 point of fact their volumes are little sought for. This could hardly be 
 the case, if the annual additions were of a kind to interest the young. 
 If we can succeed in making eager readers of the youthful generation, 
 they will take care of the libraries in the future. 
 
 No. 164. The trustees of every school district shall be 
 trustees of the library of such district ; and the property of 
 all books therein, and of the case and other appurtenances 
 thereof, shall be deemed to be vested in such trustees, so as 
 to enable them to maintain any action in relation to the 
 same. It shall be their duty to preserve such books and 
 keep them in repair ; and the expenses incurred for that pur- 
 pose may be included in any tax list to be made out by them, 
 as trustees of a district, and added to any tax voted by a dis- 
 trict meeting, and shall be collected and paid over in the 
 same manner. The librarian of any district library shall be 
 subject to the directiens of the trustees thereof, in all matters 
 relating to the preservation of the books and appurtenances 
 of the library, and may be removed from office by them for 
 vsrilful disobedience of such directions or for any wilful 
 neglect of duty. {Sec. 137, chap. 48 of 1847.) 
 
DISTRICT LIBEaEIES. 327 
 
 It IS the duty of the trustees to provide a plain and suflScient case for 
 the library, with a good lock, if the district shall have neglected to do 
 so. They are also to cause the books and case to be repaired as soon 
 as may be, when injured ; and to provide suflScient wrapping paper to 
 cover their books, and the necessary writing paper to enable the libra- 
 rian to keep minutes of the delivery and return of books. These are 
 proper expenses for the preservation and repair of the books, and are to 
 be defrayed by a tax on the district, which is to be added by the trus- 
 tees to any tax voted by a district meeting. It is not necessary that 
 the tax to defray these expenses should be voted by the inhabitants of 
 the district ; it is to be assessed and collected in the same manner as a 
 tax for building or repairing a school-house, or to furnish it with neces- 
 sary fuel and appendages. 
 
 The trustees of each school district are required, at the time of making 
 their annual reports, to deliver to the school commissioner a catalogue 
 containing the titles of all the books in the district library not previously 
 reported, with the number of volumes of each set or series, and the con- 
 dition y)f such books, whether sound, or injured or defaced. This cata- 
 logue must be signed by them and by the librarian. 
 
 No. 165. Trustees of school districts shall be liable to their 
 successors for any neglect or omission in relation to the care 
 and superintendence of district libraries, by which any books 
 therein are lost or injured, to the full amouiit of such loss or 
 injury, in an action on the case, to be brought by such suc- 
 cessors in their name of ofSce. ( Sec. 138, chap. 480 of 1847. ) 
 
 There is great reason to fear that the duties of trustees, in respect to 
 the preservation of the libraries in good condition, are often criminally 
 neglected. They ought to investigate its condition as soon as they 
 come into office, ascertain who has the custody or is responsible for 
 every book upon its catalogue, and see that it is returned in due time 
 to the librarian, or that the proper fine for its detention is imposed and 
 collected. If their predecessors cannot produce or account for the 
 books, they should be prosecuted for the value of such as may be 
 missing. 
 
 No, 166. A set of general regulations, respecting the pre- 
 servation of school district libraries, the delivery of them by 
 librarians and trustees to their successors in office, the use of 
 them by the inhabitants of the district, the number of volumes 
 
328 DISTRICT LIBRARIES. 
 
 to be taken by any one person at any one time or during any 
 term, the periods of their return, the fines and penalties that 
 may be imposed by the trustees of such libraries for not 
 returning, for losing or destroying any of the books therein, 
 or for soiling, defacing or injuring them, and the conditions 
 upon which any school district may apply the library money 
 to the payment of^ teachers' wages, may be framed by the 
 State Superintendent, and printed copies thereof shall be fur- 
 nished to each school district of the state ; which regulations 
 shall be obligatory upon all persons and oflBcers having charge 
 of such libraries, or using or possessing any of the books 
 thereof. Such fines may be recovered in an action of debt, in 
 the name of the trustees of any such library, of the pei'son on 
 whom they are imposed, except such person be a minor ; in 
 which case they may be recovered of the parent or guardian 
 of such minor, unless notice in writing shall have been given 
 by such parent or guardian to the trustees of such library, 
 that they will not be responsible for any books delivered such 
 minor. And persons with whom such minors reside shall be 
 liable, in the same manner and to the same extent, in cases 
 where the parent of such minor does not reside in the district. 
 ( Sec. 139, chap. 480 of 1847.) 
 
 REGULATIONS OF THE SUPERINTENDENT MADE IN PURSUANCE OF THE 
 » ABOVE PROVISION. 
 
 1. The librarian is required, whenever any library is purchased and 
 taken charge of by him, to make out a full and complete catalogue of 
 all the books contained therein. At the foot of each catalogue he is to 
 sign a receipt in the following form : 
 
 I, A. B., do hereby acknowledge that the books specified in the pre- 
 ceding catalogue have been delivered to me by the trustees of School 
 District No. , in the town of , to be safely kept by me as 
 
 librarian of the said district for the use of the inhabitants thereof, 
 according to the regulations prescribed by the Superintendent of Public 
 Instruction, and to be accounted for by me, according to the said regu- 
 lations, to the trustees of the said district, and to be delivered to my 
 successor in ofiice. Dated, &c. 
 
 A correct copy of the catalogue and receipt is then to be made, to 
 which the trustees are to add a certificate in the following form : 
 
DISTRICT LIBRARIES. 329 
 
 "We, the subscribers, trustees of School District No. , in the town 
 of , do certify that the preceding is a full and complete cata- 
 
 logue of books in the library pf the said district, now in possession of 
 A. B., the librarian thereof, and of his receipt thereon. Given under 
 our hands, this day of ,18 
 
 The catalogue having the librarian's receipt is to be delivered to 
 the trustees, and a copy j^aving the certificate of the trustees is to be 
 delivered to the librarian for his indemnity. 
 
 2. Whenever boots are added to the library, a catalogue, with a 
 similar receipt by the librarian, is to be delivered to the trustees, and a 
 copy, with a certificate of the trustees that it is a copy of the catalogue 
 delivered them by the librarian, is to be furnished to him. Every cata- 
 logue received by trustees is to be kept by them carefully among the 
 papers of the district, and to be delivered to their successors in oflBce. 
 
 3. Whenever a new librarian shall be chosen, all the books are to be 
 called in. For this purpose the librarian is to refuse to deliver out any 
 books for fourteen days preceding the time so prescribed for collecting 
 them together. At these periods, they must make a careful examination 
 of the books, compare them with the catalogue, and make written state- 
 ments, in a column opposite the name of each book, of its actual condi- 
 
 'tion, whether lost or present, and whether in good order or injured, and 
 if injured, specifying in general terms the extent of such injury. This 
 catalogue, with the remarks, is to be delivered to the successors of the 
 trustees, to be kept by them ; a copy of it is to be made out and deliv- 
 ered to the new librarian, with the library, by whom a receipt, in the 
 form above prescribed, is to be given, and to be delivered to the trustees. 
 Another copy, certified by them as before mentioned, is to be delivered 
 to the librarian. 
 
 4. Trustees, on coming into oflSce, are to attend at the library for the 
 purpose of comparing the catalogue with the books. They are at all 
 times, when they think proper, and especially on their coming into 
 office, to examine the books carefully, and note such as are missing or 
 injured. For every book that is missing, the librarian is accountable to 
 the trustees for the full value thereof, and for the whole series of which 
 it formed a part ; such value to be determined by the trustees. He is 
 accountable, also, for any injury which a book may appear to have sus- 
 tained by being soiled, defaced, torn or otherwise. And he can be 
 relieved from such accountability only by the trustees, on its being 
 satisfactorily shown to them that some inhabitant of the district has 
 
 fCoDE.l 42 
 
330 DISTRICT LIBRARIES. 
 
 been charged or is chargeable for the book so missing, or for the amount 
 of the injury so done to any work. It is the duty of the trustees to take 
 prompt and efficient measures for the collection of the amount for which 
 any librarian is accountable. 
 
 5. The librarian must cause to be pasted in each book belonging to the 
 library a printed or written label, or must write in the first blank leaf 
 of each book, specifying that the book belongs to the library of School 
 District No. , in the town of , naming the town and giving 
 
 the number of the district ; and he is on no account to deliver out any 
 book which has not such printed or written declaration in it. He is 
 also to cause all the books to be covered with strong wrapping paper, 
 on the back of which is to be written the title of the book, and its 
 number in large figures. As new books are added, the numbers are to 
 be continued, and they are in no case to be altered ; so that if a book 
 be lost, its number and title must still be continued on the catalogue, 
 with a note that it is missing. 
 
 The librarian must keep a blank book, that may be made by stitching 
 together half a dozen or more sheets of writing paper. Let those be 
 ruled across the width of the paper, so as to leave five columns of the 
 proper size for the following entries, to be written lengthwise of the 
 paper: In the first column, the date of the delivery of any book to any, 
 inhabitant ; in the second, the title of the book delivered, and its num- 
 ber ; in the third, the name of the person to whom delivered ; in the 
 fourth, the date of its return ; and in the fifth, remarks respecting its 
 condition, in the following form : 
 
 Time of Delivery. 
 
 TlUe & No. Book. 
 
 To whom. 
 
 When Eetamed. 
 
 Condition. 
 
 1839, June 10. 
 
 History of Va. 43. 
 
 T. Jones. 
 
 20th June. 
 
 Good. 
 
 As it will be impossible for the librarian to keep any trace of the 
 books without such minutes, his own interest to screen himself from 
 responsibility, as well as his duty to the public, will, it is to be hoped, 
 induce him to be exact in making his entries at the time any book is 
 delivered, and, when it is returned, to be equally exact in noticing its 
 condition, and making the proper minute. 
 
 A fair copy of the catalogue should be kept by the librarian, to be 
 exhibited to those who desire to select a book ; and if there be room, it 
 should be fastened on the door of the case. 
 
DISTRICT LIBRAEIES. 331 
 
 REGULATIONS OONCEBNINO THE USE OP THE BOOKS IN DISTRICT LIBRA- 
 BIES, PRESCRIBED BT THE SUPERINTENDENT OF PUBLIC INSTRUCTION. 
 
 I. The librarian ias charge of the books, and is responsible for their 
 preservation and delivery to his successor. 
 
 II. A copy of the catalogue required to be made out by art. 1 and 2 
 of the preceding regulations is to be kept, by the librarian, open to the 
 inspection of the inhabitants of the district at all reasonable times. It 
 •will be found convenient to affix a copy of it on the door of the book- 
 case containing the library. 
 
 III. Books are to be delivered as follows : 
 
 1. Only to inhabitants of the district ; 
 
 2. Only one can- be delivered to an inhabitant at a time ; and any 
 one having a book out of the library must return it before he can 
 receive another ; 
 
 3. No person upon -whom a fine has been imposed by the trustees, 
 under these regulations, can receive a book while such fine remains 
 unpaid ; 
 
 4. A person under age cannot be permitted to take out a book, 
 unless he resides with some responsible inhabitant of the district ; nor 
 can he then receive a book, if notice has been given by his parent or 
 guardian, or the person with whom he resides, that they will not be 
 responsible for books delivered such minor ; 
 
 5. Each individual residing in the district, of sufficient age to read 
 the books belonging to the library, is to be regarded as an inhabitant, 
 and is entitled to all the benefits and privileges conferred by the regula- 
 tions relative to district libraries. Minors will draw in their own names, 
 but on the responsibility of their parents or guardians ; 
 
 6. "Where there is a sufficient number of volumes in the library to 
 accommodate all residents of the district who wish to borrow, the libra- 
 rian should permit each member of a family to take books, as often as 
 desired, so long as the regulations are punctually and fully observed. 
 But where there are not books enough to supply all the borrowers, 
 the librarian should endeavor to accommodate as many as possible, 
 by furnishing each family in proportion to the number of its readers or 
 borrowers. 
 
 IV. Every book must be returned to the library within twenty days 
 after it shall have been taken out ; but the same inhabitant may again 
 take it, unless application has been made for it while it was so out of 
 the library by any person entitled, who has not previously borrowed 
 
332 DISTRICT LIBRARIES. 
 
 the same book, in whioli case such applicant shall have a preference in 
 the use of it. And where there have been several such applicants, the 
 preference shall be according to the priority in time of their appli- 
 cations, to be determined by the librarian. Upon application to the 
 superintendent, the time for keeping books out of the library will be. 
 extended to a period not exceeding twenty-eight days, where sufficient 
 reasons for such extension are shown. 
 
 V. If a book be not returned at the proper time, the librarian is to 
 report the fact to the trustees ; and he must also exhibit to them every 
 book which has been returned injured, by soiling, defacing, tearing or 
 in any other way, before such book shall again be loaned out, together 
 with the name of the inhabitant in whose possession it was when so 
 injured. 
 
 VI. The trustees of school districts being, by virtue of their office, 
 trustees of the library, are hereby authorized to impose the following 
 fines: 
 
 1. For each day's detention of a book, beyond the time allowed by 
 these regulations, six cents ; but not to be imposed for more than ten 
 days' detention ; 
 
 2. For the destruction or loss of a book, a fine equal to the full value 
 of the book, or of the set, if it be one of a series, with the addition to 
 such value of ten cents for each volume. And on the payment of such 
 fine, the party fined shall be entitled to the residue of the series. If he 
 has also been fined for detaining such book, then the said ten cents 
 shall not be added to the value ; 
 
 3. For any injury which a book may sustain after it shall be taken 
 out by a borrower, and before its return, a fine may be imposed of six 
 cents for every spot of grease or oil upon the cover, or upon any leaf of 
 the volume ; for writing in or defacing any book, not less than ten cents, 
 nor more than the value of the book; for cutting or tearing the cover 
 or the binding, or any leaf, not less than ten cents, nor more than the 
 value of the book ; 
 
 4. If a leaf be torn out, or so defaced or mutilated that it cannot 
 be read, or if anything be written in the volume, or any other injury 
 done to it which renders it unfit for general circulation, the trustees will 
 consider it a destruction of the booE, and shall impose a fine accord- 
 ingly,- as above provided, in case of loss of a book ; 
 
 5. When a book shall have been detained seven days beyond the 
 twenty days allowed by these regulations, the librarian shall give notice 
 to the borrower to return the same within three days. If not returned 
 
DISTRICT LIBRARIES. 333 
 
 at that time, the trustees may consider the book lost or destroyed, and 
 may impose a fine for its destruction, in addition to the fines for its 
 detention. 
 
 VII. But the imposition of a fine, for the loss or destruction of a 
 book, shall not prevent the trustees from recovering such book in an 
 action of replevin, unless such fine shall have been paid. 
 
 VIII. When, in the opinion of the librarian, any fine has been incur- 
 red by any person under these regulations, he may refuse to deliver any 
 book, to the party liable to such fine, until the decision of the trustees 
 upon such liability be had. 
 
 IX. Previous to the imposition of any fine, two days' written or 
 verbal notice is to be given by any trustee or the librarian, or any other 
 person authorized by either of them, to the person charged, to show 
 cause why he should not be fined for the alleged ofibnce or neglect ; 
 and if, within that time, good cause be not shown, the trustees shall 
 impose the fine herein prescribed. No other excuse for an extraordinary 
 injury to a book, that is, for such an injury as would not be occasioned , 
 by its ordinary use, should be received, than the fact that the book was 
 as much injured when it was taken out, by the person charged, as it 
 was when he returned it. As such loss must fall on some one, it is 
 more just that it should be borne by the party whose duty it was to 
 take care of the volume than by the district. Negligence can only be 
 prevented, and disputes can only be avoided, by the adoption of this 
 rule. Subject to these general principles, the imposition of all or any 
 of these fines is discretionary/ with the trustees, and they should ordi- 
 narily, be imposed only for wilful or culpably negligent injuries to books, 
 or where the district actually sustains a loss or serious injury. Reason- 
 able excuses for the detention of the books beyond twenty days should 
 in all cases be received. 
 
 X. It is the special duty of the librarian, to give notice to the 
 borrower of a book, that shall be returned injured, to show cause why 
 he should not be fined. Such notice may be given to the agent of the 
 borrower who returns the book, and it should always be given at the 
 time the book is returned. 
 
 XI. The librarian is to inform the trustees of every notice given by 
 him to show cause against the imposition of a fine ; and they shall 
 assemble at the time and place appointed by him, or by any notice given 
 by them, or any one of them, and shall hear the charge and defence. 
 They are to keep a hook of minutes, in which every fine imposed by 
 them, and the cause, shall be entered and signed by them, or the major 
 
334 DISTRICT LIBRARIES. 
 
 part of them. Such original minutes, or a copy certified by them, or 
 the major part of them, or by the clerk of the district, shall be conclu- 
 sive evidence of the fact that a fine was imposed, as stated in such 
 minutes, according to these regulations. 
 
 XII. It shall be the duty of trustees to prosecute promptly for the 
 collection of all fines imposed by them. Fines collected for the deten- 
 tion of books, or for injuries to them, are to be applied to defray the 
 expense of repairing the books in the library. Fines ccllected for the 
 loss or destruction of any book, or of a set or series of books, shall be 
 applied to the purchase of the same or other suitable books. 
 
 XIII. These regulations being declared by law " obligatory upon all 
 persons and oflScers having charge of such libraries, or using or pos- 
 sessing any of the books thereof," it is expedient that they should be 
 made known to every borrower of a book. And for that purpose, a 
 printed copy is to be afiSxed conspicuously on the case containing any 
 library, or on one of such cases if there be several, and the librarian is 
 to call the attention to them of every person, on the first occasion of his 
 taking out a book. 
 
 The ofiices of trustee and librarian are incompatible, and cannot be 
 held by the same person. 
 
 No. 167. The legal voters in any two or more adjoining 
 districts may, in such cases as may be approved by the town 
 superintendent, unite their library moneys and funds, as they 
 shall be received or collected, and purchase a joint library for 
 the use of the inhabitants of| such districts, which shall be 
 selected by the trustees thereof, or by such persons as they 
 shall designate, and shall be under the charge of a librarian, 
 to be appointed by them ; and the foregoing provisions of this 
 act shall be applicable to the said joint libraries, except that 
 the property in them shall be deemed to be vested in all the 
 trustees, for the time being, of the districts so united. And 
 in case any such district shall desire to divide such library, 
 such division shall be made by the trustees of the two districts 
 whose libraries are so united, and in case they cannot agree, 
 then such division shall be made by the ioim superintendent. 
 ( -Sec. 141, chap. 480 of 1847, ) 
 
 No provision is made in the act of 1856 for devolving the powers of 
 the former town superintendent, under the above section, upon the 
 supervisors or school commissioners. The section must, therefore, for 
 the present, remain inoperative. 
 
DISTRICT LEBEARIES. 335 
 
 No. 168. Where, by reason of the non-compliance with the 
 conditions prescribed by law, the library money shall be with- 
 held from any school district, the same may be distributed 
 among other 'districts complying with such conditions, or may 
 be retained and paid subsequently to the district from which 
 the same was withheld, as shall be directed by the State 
 Superintendent, according to the circumstances of the case. 
 {Sec. 142, chap. 480 o/1847.) 
 
 The determination of the State Superintendent may be made upon 
 an appeal from the decision of the school commissioner, excluding the 
 district from an apportionment. Upon a notice from the commissioner, 
 that it is his intention to exclude the district, the trustees may, with Lis 
 concurrence, present a statement of the facts to the superintendent, for 
 his direction. Such statement must be verified . and served upon the 
 commissioner, that he may add such remarks as- the case calls for before 
 forwarding it to the department. That course may be pursued in 
 regard to any case of accidental delinquency, under the next section. 
 In reference to the form and contents of such statement, see pp. 133, 
 134, ante. 
 
 No. 169. Whenever an apportionment of the public money 
 shall not be made to any school district, in consequence of 
 any accidental omission to make any report required by law, 
 or to comply with any other provision of law, or any regula- 
 tion, the State Superintendent may direct an apportionment to 
 be made to such district, according to the equitable circum- 
 stances of the case, to be paid out of the public money on 
 hand ; or, if the same shall have been distributed, out of the 
 public money to be received in a succeeding year, ( Sec. 39, 
 chap. 480 0/1847.) 
 
 No. 170. The State Superintendent, whenever requested by 
 the trustees of a school district, under the directions of the legal 
 voters of such district, may select a library for their use, and 
 cause the same to be delivered to the clerk of the county in 
 which such district is situated, at its expense. ( Sec. 143, chap. 
 480 0/1847.) 
 
 No. 171. Whenever the Superintendent of Public Instruc- 
 tion shall receive from any author or publisher two copies of 
 any book published vj him or them, a copyright of which 
 shall have been duly entered under the laws of the United 
 
336 DISTRICT LIBRARIES. 
 
 States, with an offer on the part of such publisher to furnish 
 such book to the district school libraries of the state, and the 
 Packer Collegiate Institute of the city of Brooklyn, at a price 
 not exceeding two-thirds of the retail price of said book, 
 which price shall be specified in said offer, it shall be the 
 duty of said superintendent to place one of said copies in the 
 state library at Albany, retaining the other for his own use, 
 and to make a complete list with the prices annexed, of such 
 of said books as in his opinion are proper and suitable to be 
 placed in the district school libraries of the state ; and, there- 
 upon, on or before the first Tuesday of December in each 
 year, the said superintendent shall cause printed circulars, 
 addressed to the trustees of common schools, and the trustees 
 of the Packer Collegiate Institute of the city of Brooklyn, to 
 be forwarded by mail or otherwise to the several town super- 
 intendents, containing the titles and prices of said books so 
 selected and specified, with such remarks as the said superin- 
 tendent may deem useful, together with a statement of the 
 estimated amount of library money to be apportioned to the 
 town and the said Packer Collegiate Institute for the current 
 year, and a brief notice that the books so specified, or so 
 many of them as the trustees may select, not exceeding in 
 amount the library money to which such district or said 
 Packer Collegiate Institute may be entitled, can be obtained 
 in the manner provided by -this act. {Sec. 1, chap. 186 of 
 1856.) 
 
 No. 172. The trustees, or a majority thereof, of any school 
 district entitled to participate in the library moneys, together 
 with the trustees of the said Packer Collegiate Institute, may 
 select from such list, or the list of any previous year, so many 
 of said books as they may wish to purchase, under the limita- 
 tion aforesaid, and shall make and deliver to the town super- 
 ■ intendent of schools, as soon after the receipt of such circular 
 as practicable, a list of the books so selected, with the prices 
 annexed, to the town superintendent, specifying the number 
 of the district or the institution for which the same are 
 ordered ; and the town superintendent shall thereupon make 
 out for the town a complete list of the books so selected by 
 each of the several districts, and the said Packer Collegiate 
 Institute, specifying the number, titles and prices of the books 
 selected by each, under the limitation aforesaid, and shall, 
 before the time in the next section mentioned, transmit such 
 list to the county clerk of his county, who shall file the same 
 
DISTRICT LrBRAEIES. 387 
 
 in his office ; the delivery of such list by the trustees to the 
 town superintendent shall be taken and reported by him as a 
 lawful expenditure of the library money. {Sec. 2, chap. 186 
 f/ 1856.) 
 
 No. 173. The several county clerks shall thereupon, and 
 on or before the last Tuesday in each year, make out a com- 
 plete list for the county of all the books so ordered, specifying 
 the number, title and prices of the books ordered by each town 
 and the said institute, and forthwith transmit a copy thereof 
 to the State Superintendent. {Sec. 3, chap. 186 of 1856.) 
 
 No. 174. The State Superintendent shall, thereupon, and 
 on or before the first Tuesday of February in each year, pro- 
 cure the books so ordered, and cause the same, as ordered, to 
 be transmitted to the county clerks of the several counties, 
 who shall deliver the same oii demand, taking a receipt there- 
 for, to the several town superintendents and the trustees of 
 the said institute, according to the number ordered b-y the 
 respective towns and the trustees of said institute, to be 
 distributed by the town superintendent* among the several 
 school districts entitled to the same, and the trustees of 
 said institute ; the receipts so taken by the county clerks 
 from the town superintendents shall be sent by mail to 
 the State Superintendent, as vouchers for the proper dis- 
 tribution of the same. The expenses of transportation, 
 and other necessary disbursements under this act, shall be 
 certified by the State Superintendent, and paid by the comp- 
 troller out of the money annually appropriated for the trans- 
 portation of books from the public offices. ( Sec. 4, chap. 186 
 0/1856.) 
 
 No. 175. The State Superintendent shall retain in his hands 
 so much of the library money apportioned to each town and 
 ward as may be necessary to pay for the books ordered by 
 such town or ward, or the said Packer Collegiate Institute, 
 and shall pay the same to the author or publisher of said 
 books, on the contract for the purchase thereof, taking 
 receipts therefor and filing the same in his office. ( Sec. 5, 
 chap. 186 of 1856.) 
 
 No. 176. Town superintendents [school commissioners, 
 supervisors], trustees, collectors and clerks of school districts, 
 refusing or wilfully neglecting to make any report, or to per- 
 
 fCoDE.l 43 
 
338 SUITS AGAINST DISTRICT OFFICERS. 
 
 form any other duty required by law, or by regulations or 
 decisions made under the authority of any statute, shall seve- 
 rally forieit to their town or to their district, as the case may 
 be, .for the use of the common schools therein, the sum of ten 
 dollars for each such neglect or refusal, which penalty shall 
 be sued for and collected by the supervisor of the town, and 
 paid over to the proper officers to be distributed for the bene- 
 fit of the common schools in the town or district to which 
 such penalty belongs; and when the share of school or library 
 money apportioned to any town or district, or school, or any 
 portiops thereof, or any money to which a town or district 
 would have been entitled, shall be lost in coQsequence of any 
 wilful neglect of official duty by any town superintendent, 
 [school commissioner, supervisor], or trustees or clerks of 
 school districts, the officers guilty of such neglect shall forfeit 
 to the town or district the full amount, with interest, of the 
 moneys so lost ; and they shall be jointly and severally liable 
 for the payment of such forfeiture. {Sec. 145, chap. 480 of 
 1847.) 
 
 As aU the duties formerly discharged by the town superintendents 
 are now divided between the school commissioners and the supervisors, 
 the latter are subject to the same penalties, for any official delinquency 
 affecting the interest of a town or district, as the town superintendent 
 would have been. 
 
 SUITS AGAINST DISTRICT OFFICERS. 
 
 No. 177. In any suit which shall hereafter be commenced 
 against town superintendents or officers of school districts, for 
 any act performed by virtue of or under color of their offices, 
 or for: any refusal or omission to perform any duty enjoined by 
 law, and which might have been the subjecti of an appeal to 
 the superintendent, no costs shall be allowed to the plaintiff 
 in cases where the court shall certify that it appeared on the 
 trial of the cause that the defendants acted in good faith. 
 But this provision shall not extend to suits for penalties, nor 
 to suits or proceedings to enforce the decisions of the superin- 
 tendent. {Sec. 146, chap. 480 of 1847.) 
 
 The object of the legislature in this provision was, as before remarked, 
 to punish those persons who will harass school officers by prosecution 
 in the courts, where they might have found a remedy in appealing to 
 
SUITS AGAINST DISTRICT OFFICERS. 339 
 
 the State Superintendent, by compelling them to bear their own costs 
 whenever it shall appear to the court that the defendants, though acting 
 illegally, acted in good faith. {See 3 Benio, IV 7, before quoted.) The 
 exemption from costs, given by the above section to town superinten- 
 dents, will doubtless extend to supervisors or school commissioners, if 
 prosecuted for their official action in respect to any duty formerly 
 imposed upon the town superintendent. 
 
 By § 108, title 4, chap. 8, part 3, Revised Statutes, it is provided that 
 in suits against trustees of school districts, and certain other ofiScers, 
 " the debt, damages or costs recovered against them shall be collected 
 in the same manner as against individuals, and the amount so collected 
 shall be allowed to them in their official accounts." 
 
 This provision does not relate to actions for personal delinquencies, 
 but was intended to provide only for those cases in which the officer 
 was subjected to damages and costs, without his fault, in consequence 
 of the legitimate performance of a public duty. The legal presumption, 
 when a judgment is recovered against an officer, is, that it was incurred 
 by his doing something which he ought not to have done, and when it 
 includes costs, that he has failed to mal^e it appear that, though mis- 
 taken, he acted in good faith. For this reason his account is subjected 
 to the scrutiny provided by the following section, before he can be 
 reimbursed or permitted to retain the amount from money in his hands. 
 
 If a trustee's term of office expires while an action is pending against 
 him and the other trustees in their official character, his successor may 
 procure himself to be substituted, or in a court of record — but not in a 
 justices' court — the opposite party may procure him to be substituted 
 as defendant. (2 Benio, 125.) 
 
 No. l78. Whenever a suit shall have been commenced, or 
 shall hereafter be commenced, against the trustees of a school 
 district, in consequence of acts by them performed in pur- 
 suance of and by the direction of such district, for any act per- 
 formed by virtue of or under color of their office, and such suit 
 shall have been finally determined : or. 
 
 Whenever, after the final determination of any suit com- 
 menced by or against any trustees or other officers of a school 
 district, a majority of the taxable inhabitants of any school 
 district shall so determine : 
 
 It shall be the duty of the trustees to ascertain, in the man- 
 ner hereinafter described, the actual amount of all the costs, 
 charges and expenses paid by such officer, and to cause 
 
340 SUITS AGAINST DISTRICT OFFICERS. 
 
 the same to be assessed upon and collected of the taxahle 
 inhabitants of said district, in the same manner as other 
 taxes of said district are by law assessed and collected, 
 and, when so collected, to pay the same over to the officer by 
 virtue of this act entitled to receive the same ; but this pro- 
 vision shall not extend to suits for penalties, nor suits or pro- 
 ceedings to enforce the decisions of the superintendent. ( Sec. 
 1, chap. 172 of 1847, as amended by chap. 388 of 1849. ) 
 
 This section is singularly blind ; and such judioial commentary as has 
 been spent upon it has not, on the whole, rendered it more lucid. All 
 the judges who have expressed opinions concur in regarding it as having 
 " great and embarrassing ambiguities." ( See 6 How. Pr. R., 334 ; 
 8 id., 125, 358; 10 id., 145, 468.) By some, it is regarded as autho- 
 rizing the inhabitants at a district meeting to vote a tax for the payment 
 of legal expenses incurred by the trustees in the defence of an action 
 brought against them in their ofiBcial character, and permitting the 
 trustees to levy such a tax without an application to the board of super- 
 visors, under the succeeding sections : But as requiring the authority of 
 the board of supervisors to levy such taxes, if it did not appear on the 
 face of the judgment that the trustees were sued as trustees, and not as 
 persons who had lost the protection of their official character, and were 
 mere trespassers ; and as also requiring such authority of the board of 
 supervisors in all cases where the action had been brought by the 
 trustfees, or either by or against any officer other than the trustees. By 
 others, the vote of the supervisors is regarded as in all cases indispen- 
 sable ; but it is not clear in what cases the vote of a district meeting is 
 requisite to give the board of supervisors jurisdiction, and in what cases 
 that board may direct the levying a tax without the question feeing first 
 submitted to a district meeting. 
 
 Amid these doubts, the only entirely safe course is to take all the 
 steps pointed out by the statute in every case ; that is to say, to make 
 out the verified account mentioned in the succeeding section, and serve 
 it with the notice therein prescribed upon the trustees ; present it, also, 
 to a district meeting, and procure a vote directing the trustees to ascer- 
 tain the actual amount of such costs, &c., and to cause the same to 
 'be assessed and collected'. If the inhabitants are satisfied with the 
 items, as presented, the resolution should declare that fact. If they are 
 not, and the account is claimed by the trustees in their own behalf, the 
 meeting may appoint some person to contest it before the board of 
 supervisors. The account, with the resolution adopted by the district 
 
SUITS AGAINST DISTRICT OFFICERS. 341 
 
 meeting.in respect to it, together with evidence of the service upon the 
 trustees of a CQpy thereof and of the notice prescribed, should then be 
 presented to the board of supervisors. If that board then directs the 
 account to be paid, there is small room for doubt that a tax founded 
 upon all these proceedings would be legal. If any of them are omitted, 
 the result will depend upon the particular judge before whom the ques- 
 tion is brought, and his peculiar method of endeavoring to make that 
 intelligible which the legislature has left unintelligible. 
 
 No. 179. Whenever any person mentioned in the first 
 section of this act shall have paid any costs, charges or 
 expenses, as mentioned in said first section, he shall make 
 out an account of such charges, costs and expenses, so paid 
 by him, giving the items thereof, and verify the same by his 
 oath or affirmation ; he shall serve a copy of said account so 
 sworn to upon the trustees of the district against which such 
 claim shall be made, together with a notice in writing that 
 on a certain day therein specified he will present such account 
 to the board of supervisors of the county in which such school 
 district shall be situated, for settlement at some legal meeting 
 of such board ; and it shall be the duty of the officer upon 
 whom such copy, account and notice shall be served to 
 attend, at the time and place in such notice specified, to protect 
 the rights and interests of such district upon such settlement. 
 {Sec. 2, chap. 172 of 184:7.) 
 
 Proof of service of a copy of the account and of the notice upon the 
 trustees is essential to give jurisdiction to the board of supervisors. It 
 is very plain that when the trustees are themselves the claimants they 
 ought to show that they have given notice of their claim, with its items 
 verified by oath, and notice of the time it is to be presented to the 
 supervisors, to a district meeting, so that it shall have had the opportu- 
 nity either to admit its justice or to make provision for contesting its 
 allowance. Tliis is not in the terms of the statute, but is in the equity 
 of the case, and the board of supervisors might insist upon it as a pre- 
 liminary to paying the account. 
 
 No. 180. Upon the appearance of the parties, or upon due 
 proof of service of the notice and copy of account mentioned 
 in the second section of this act, if the said board shall be of 
 opinion that such account or any portion thereof ought justly 
 to be paid to the claimant, such board may, by an order to be 
 
342 SUITS AGAINST DISTRICT OFFICERS. 
 
 made by a majority of all the members elected to the same, 
 and to be entered in its minutes, require such account, or such 
 part thereof as such board shall be of opinion ought justly to 
 be paid to the claimant by such district, to be so paid ; but 
 no portion of such account shall be so ordered to be paid 
 which shall appear to the said board to have arisen from the 
 wilful neglect or misconduct of the claimant. The account, 
 with the oath of the party claiming the same, shall be prima 
 facie evidence of the correctness thereof. The board may 
 adjourn the hearing, from time to time, as justice shall seem 
 to require. (Sec. 3, chuTp. 172 q/'1847.) 
 
 The hoard of supervisors act judicially in allowing or disallowing an 
 account, and their decision will not be reviewed in any tribunal. ( 8 How. 
 Pr. R., 358.) Their order should recite all the facts necessary to show 
 their jurisdiction, such as the presentation of an account in items, its 
 verification by the oath of the claimant, the service tipon the trustees 
 or their appearance to contest it, and should declare that no portion of 
 the account, as allowed and ordered to be paid, appeared to have arisen 
 from the wilful neglect or misconduct of the claimant. It should con- 
 clude, after these recitals : " It is therefore ordered by this hoard, a 
 majority of all the members elected to the same having voted for this 
 order, that the sum of dollars cents he paid by School District 
 
 No. of the town of , in satisfaction of such account ; that a 
 
 copy of this order be forthwith served by the clerk upon the trustees 
 of said district, to the end that within thirty days after such service the 
 said trustees may, as required by law, cause the same to be entered at 
 length in the hook of records of said district, and issue to the collector 
 of said district a warrant for the collection of the amount herein above 
 directed to be paid." 
 
 No. 181. It shall be the duty of the trustees oi any school 
 district, within thirty days after seryice of a copy of such 
 or.der upon them, to cause the same to be entered at length in 
 the book of records of said district, and to issue to the collec- 
 tor of said district a warrant for the collection of the amount 
 so directed to be paid, in the same manner and with the like 
 force and effect as upon a tax voted by said district. ( Sec. 4, 
 cAap. 172 0/1847.) 
 
 The concluding words, " as upon a tax voted," &c., have been cited 
 as implying that the tax was not, in point of fact, voted by the district. 
 
SCHOOLS FOR COLORED CHILDREN. 343 
 
 The heading of the tax list made out by the trustees should state the 
 purpose for which the money is raised, and the date of the order of the 
 board of supervisors authorizing it. The remedy of the claimant, in 
 case the trustees refuse or neglect to issue their warrant, is by applica- 
 tion to the supreme court for a mandamus. {See Digest, ante, p. 43.) 
 Their wilful refusal would be suflBcient ground for an application for 
 their removal from office, under No. 8. 
 
 MISCELLANEOUS PROVISIONS. 
 
 * 
 
 No. 182. A school for colored children may be established 
 in any city or town of this state, with approbation of the 
 commissioners or town superintendent of such city or town, 
 which shall be under the charge of the trustees of the district 
 in which such school shall be kept ; and in places where no 
 school districts exist, or where from any cause it may be 
 expedient, such school may be placed in charge of trustees to 
 be appointed by the commissioners or town superintendent 
 of common schools of the town or city, and, if there be none, 
 to be appointed by the State Superintendent. Eeturns shall 
 be made by the trustees of such school to the [school com- 
 missioners] at the same time and in the same manner as now 
 provided by law in relation to distiicts ; and they shall par- 
 ticularly specify the number of colored children over [four] 
 and under [twenty-one] years of age, attending such school 
 from different districts, naming such districts resp^tively, and 
 the number from each. The [school commissioners] shall 
 apportion and pay over to the trustees of such school a por- 
 tion of the money received by them annually, in the same 
 manner as now provided by law in respect to school districts, 
 allowing to such schools the proper proportion for each child 
 over [four] and under [twenty-one] years who shall have 
 been instructed in such school at \e&st four months by a teacher 
 duly licensed, and shall deduct such proportion from the 
 amount that would have been apportioned to the district to 
 which such children belong ; and in his report to the State 
 Superintendent, the town superintendent shall specially 
 designate the schools for colored children in his town or city. 
 ( Sec. 147, chap. 480 o/" 1847, modified in conformity to § 13, chMp. 
 151 of 1851, and No. 67, ante.) 
 
 There is some obscurity in the provisions of this section. A. school 
 in which children are separated from others, on the ground of their 
 
344 SCHOOLS FOR COLORED CHILDREN. 
 
 complexion, is an anomaly whioh it is very diflScult to reconcile witli 
 our political or educational system. The policy of the section appears 
 to be to constitute so many of the colored children, of a town which 
 establishes a colored school under trustees distinct from those of a territo- 
 rial district, as attend a separate school therein for four months, a quasi 
 district for the purpose of the apportionment of public money. Those 
 who attend the schools in any territorial district, or who attend no 
 school at all, are left to be enumerated in the district whose boundaries 
 contain their residence. Separated as a class, they are deprived of the 
 advantages which white and Indian children derive from having their 
 rate bills reduced by the enumeration of those who do not attend the 
 school. This palpable injustice is a strong argument against the estab- 
 lishment of such schools. Where they are established, the most libe- 
 ral interpretation of the law should be employed in their favor. 
 
 Where a separate school for colored children is established in a din- 
 trict, the trustees must provide suitable rooms at the expense of the 
 district, and must treat it in all respects as a part of the district school ; 
 maintaining a qualified teacher, applying the public money to his com- 
 pensation, and paying any remainder of his wages, beyond the public 
 money applied thereto, by rate bill upon the attendants in all the depart- 
 ments of the district school, without discrimination. They have no 
 right to give to colored children teachers or facilities for education in any 
 respect inferior to those of the whites. The law contemplates no such 
 distinction between them, and it is impossible to reader .its provisions 
 harmonious With any attempt to institute one. Where, in such a branch 
 district school, colored children attend who reside in other districts, the 
 law assigns the public money apportioned on their account to the dis- 
 trict in which they attend. 
 
 In the other case, of a colored school established under the charge 
 pf trustees, distinct from the trustees of a district, that is, of a town 
 colored school, the only way to avoid the injustice above referred to is 
 to regard " the proper proportion" for each child instructed four months, 
 as to be found by dividing the money apportioned to the district of his 
 residence equally between the children who have attended at least four 
 months. A proportion must be between things of the same nature ; if 
 one term of it is based upon attendance, the other must be also. 
 
 No. 183. No person shall wilfully disturb, interrupt or dis- 
 quiet any assemblage of persons met at any school district, 
 with the assent of the trustees of the school district, for the 
 
MISCELLANEOUS PROVISIONS. 345 
 
 purpose of receiving instruction in any of the branches of 
 education usually taught in the common schools of this state, 
 or in the science of music. ( Sec. 1, chap. 228 of 1845. ) 
 
 This statute was entitled " An act to prevent the disturbance of even- 
 ing schools in the several school district houses of this state.!' The terms 
 of the act are much broader than its title, and extend to an assemblage of 
 persons at any time of the day, as well as in liie evening. It has been 
 repeatedly held, that the title is no part of a statute [Dwarris on 
 Statutes, 653 ) ; and though the title is sometimes referred to for aid in 
 removing ambiguities, where the intention of the legislature cannot be 
 plainly gathered from what are acknowledged parts of the statute, it is 
 not to restrict the clear meaning of the latter, and i% regarded in any 
 case as having only slight influence in its exposition. ( 1 Gh-ay Mass. 
 E., ill.) 
 
 No. 184. Whoever shall violate the provisions of the fore- 
 going section may be tried before any j ustice of the peace of 
 the county, or any mayor, alderman, recorder or other magis- 
 trate of any city where the offence shall be committed, and, 
 upon conviction, shall forfeit a sum not exceeding twenty- 
 five dollars, for the use and benefit of the school district in 
 which such offence shall be committed. ( Sec. 2, chap. 228 of 
 1845.) 
 
 No. 185. It shall be the duty of the trustees of any school 
 district in which any such offence shall be committed to pro- 
 secute such offender before any officer having cognizance of 
 such offence. ( Sec. 3, chap. 228 of 1845. ) 
 
 No. 186. If any person convicted of the offence herein pro- 
 hibited shall not immediately pay the penalty incurred, with 
 the costs of conviction. Or give security, to the satisfaction of 
 the officer before whom such conviction shall be had, for the 
 payment of the said penalty and costs within twenty days 
 thereafter, he shall be committed by warrant to the common 
 jail of the county until the same be paid, or for such term, 
 not exceeding thirty days, as shall be specified in such war- 
 rant. ( Sec. 4, chap. 228 of 1845.) 
 
 No. 187. It shall and may be lawful, for any person who 
 may be complained of for a violation of the provisions of this 
 act to demand of such magistrate that he may be tried by a 
 
 [Code.] 44 
 
346 MISCELLANEOUS PROVISIONS. 
 
 jury. Upon such demand, it shall be the duty of such officer 
 to issue a venire to the proper officer, commanding him to 
 summon the same number of jurors, and in the same manner, 
 and the said court shall proceed to empannel a jury for the 
 trial of said cause, in the same manner and subject to all the 
 rules and regulations prescribed in the act providing for the 
 trials by jury in courts of special sessions. {Sec. 5,. chap. 228 
 0/1845.) 
 
 No. 188. All such provisions of law as are repugnant to or 
 inconsistent with the provisions of this title are hereby 
 repealed ; but nothing herein contained shall be so construed 
 as to impair or affiict any of the local provisions respecting 
 the organization and management of schools in any of the 
 incorporated cities or villages or towns of this state, except as 
 the same are affected by the preceding sections of this act. 
 {Sec. 150, chap.. 480 o/1847.) 
 
 The act of 1851, to establish free schools throughout the state, chap. 
 151, § 8, has a similar saying of all special acts relating to schools in 
 any of the incorporated cities or villages of the state, except so far as 
 they are inconsistent with the first {N^o. 149, ante), second, third and 
 fourth sections thereof. The latter sections, which relate to the amount 
 of the state tax for schools, and mode of distributing its proceeds, have 
 been superseded by Nos. 25 to 32, inclusive. 
 
 No. 189. If any person, for gambling purposes, shall keep 
 or exhibit any gambling table, establishment, device or appa- 
 ratus, or if any person or persons shall be guilty of dealing 
 "faro" or banking for others to deal "faro," or acting as 
 " look-out" or game-keeper for the game of " faro" or anv 
 other banking game, where money or property is dependent 
 on the result, or if any person shaU sell or vend what are 
 commonly known as or are called lottery policies, or any 
 writing, card, paper or document in the nature of a bet, 
 wager or insurance upon the drawing or drawn numbers of 
 any public or private lottery, or if any person shall endorse 
 a book or any other document for the purpose of enabling 
 others to sell or vend lottery policies, he shall be taken and 
 held as a common gambler, and, upon conviction thereof, shall 
 be sentenced to not less than ten days' hard labor in the peni- 
 tentiary, or not more than two years hard labor in the state 
 prison, and be fined in any sum not more than one thousand 
 
UNION FREE SCHOOL LAW. 347 
 
 dollars, to be paid into the county treasury where such con- 
 viction shall take place, for the use of the common schools 
 therein, to he divided among the school districts in that 
 county, in the same manner as the school money of the state 
 is divided among said districts, and in default thereof shall 
 remain imprisoned until such fine be remitted or paid. ( Sec. 
 2, chap. 504 of 1851, as amended by chap. 214 of 1855.) 
 
 UNION FREE SCHOOL LAW. 
 
 No. 190. Whenever fifteen persons, entitled to vote at any 
 meeting of the inhabitants of any school district in the state, 
 shall sign a call for any such meeting, to be held for the pur- 
 pose of determining, by a vote of such district, whether an 
 union free school shall be established therein, in conformity 
 with the provisions of this act, it shall be the duty of the 
 trustees of such district, wdthin ten days after such call shall 
 have been presented to them, to give public notice that a 
 meeting of the inhabitants of such district, entitled to vote 
 thereat, will be held for such purpose as aforesaid, at the 
 school-house, or other more suitable place, in such district, at 
 a day and hour in such notice tp be specified, not more than 
 tvs'enty days after the publication of such notice. The quali- 
 fications of such inhabitants, entitled to vote at such meeting 
 as now by law expressed, shall be sufficiently set forth in the 
 several notices aforesaid. ( Sec. 1, chap. 433 of 1853. ) 
 
 This act is entitled " An act to provide for the establishment of union 
 free schools." The above section relates to the measures for introducing 
 the system which it estabhshes into a sinffle district, whUe a subsequent 
 one provides for the consolidation of districts for that purpose. The 
 form of the call by the inhabitants may be as follows : " The under- 
 signed, inhabitants of School District No. , in the town of , 
 entitled to vote at any meetings of the inhabitants of said district, 
 hereby call for a meeting, to be held for the purpose of determining by 
 a vote of such district whether an union free school shall be established 
 therein, in conformity to the provisions of chap. 433 of the Laws 
 of 1853." 
 
 This, being first signed by at least fifteen qualified voters, should be 
 delivered to the trustees. The notice to be given by the trustees should 
 consist, first, of a copy of the call and of the signatures thereto, after 
 which the notice should proceed as follows : 
 
348 UNION FREE SCHOOL LAW. 
 
 " The undersigned, trastees of School District No. , in the town 
 
 of , in compliance with a call of fifteen (or, more than fifteen) 
 
 persons, entitled to vote at any meeting of the inhabitants of said 
 district, of which the above is a copy, hereby give notice that a 
 meeting of the inhabitants of said district, entitled to vote thereat, 
 viz., every male person of full age, residing therein, and entitled to hold 
 lands in this state, who owns or hires real property in such district, sub- 
 ject to taxation for school purposes ; every resident of such district 
 authorized to vote at town meetings of the town of (in a joint 
 
 district, say either of the towns, of , or ), and who has paid any 
 rate bill for teachers' wages in said district within one year preceding 
 the day of (the date of the meeting, not of the notice), 
 
 or who owns any personal property liable to be taxed for school pur- 
 poses in said district exceeding fifty dollars in value, exclusive of such 
 as is exempt from execution, will be held at ( the school-house, or other 
 more suitable place) on the day of next, at o'cloct 
 
 in the noon, for the purpose of determining by a vote of such 
 
 district whether an union free school shall be established therein, in 
 conformity to the provisions of chap. 4'33 of the Laws of 1853. Dated 
 this day of ,185 . 
 
 (signed) A. B., ) Trustees of District 
 C. D., > No. in the 
 
 E. F., ) town of ." 
 
 The day to be specified in the notice must be not more than twenty 
 days after the first posting of the notices. The statute appears to 
 require the posting of the original call of the inhabitants and notice of 
 the trustees, and at least five copies thereof in addition ; and, also, that 
 a taxable inhabitant, designated by the trustees, shall be required to give 
 personal notice, in the manner provided by No. 82, ante. His failure 
 to do so, in full, would expose him to a penalty of $5, but would not 
 ecessarily invalidate the proceedings of the meetmg. 
 
 No. 191. The notices aforesaid,, and at least five written 
 or printed copies thereof, shall be severally posted at various 
 conspicuous places in, and may also be published in any 
 newspaper -circulating vsdthin such districts. The trustees of 
 any such district shall authorize and require any taxable 
 inhabitant of the same to notify every other inhabitant 
 (qualified to vote as aforesaid) of such meeting, to be called 
 as aforesaid, who shall give such notification in the manner, 
 
TNION FREE SCHOOL LAW. 349 
 
 and subject to the penalty, bylaw provided in the case of the 
 formation of new school districts. ( Sec. 2, chap. 433 of 1853. ) 
 
 No. 192. The reasonable expense of such notices and of 
 their publication and service shall be chargeable upon the 
 district, in case an union free school is established therein 
 under the provisions of this act, to be levied and collected 
 upon and from the said district by the trustees, as in cases of 
 taxes now levied for school purposes; and if in the event 
 such union free school shall not be established, then the said 
 expense shall be chargeable upon the inhabitants signing the 
 call, jointly and severally, to be sued for if necessary in any 
 court having jurisdiction of the same. (Sec. 3, chap. 433 of 
 1853.) 
 
 No. 193. Whenever fifteen persons, entitled as aforesaid, 
 from each of two or more adjoining districts shall unite in a 
 call for the consolidation of the same, and also for a meeting 
 of the inhabitants entitled to vote, as aforesaid, in such 
 districts to determine whether an union free school shall be 
 established within the limits of such districts, pursuant to the 
 provisions of this act, it shall be the duty of the trustees of 
 such districts, or a majority of them, to give liiie public notice 
 of such meeting, at some convenient place within such dis- 
 tricts, and as central as may be, within the time and to be 
 published in the manner set forth in the foregoing section, in 
 each of said districts. The reasonable expenses of said notices 
 and their service, in each of said districts, to be chargeable 
 upon them in equal shares, or on the inhabitants signing the 
 several calls therein, as by the foregoing section is provided. 
 {Sec. 4, chap. 433 of 1853.) 
 
 The form of the call under this section may be same as that above 
 given under No. 190, except that it should expressly call "for the con- 
 solidation of said districts (the numbers of which will be previously 
 stated) and for a meeting," &c. It must be signed by at least thirty, or, 
 if it is proposed to consolidate three districts, by forty-five persons, 
 fifteen of whom must he qualified voters in each of the districts. The 
 trustees of each district should appoint a taxable inhabitant to give per- 
 sonal notice therein ; and an original and five copies of the call and 
 notice should be posted in each of the districts, signed by a majority of 
 the board composed of the trustees of all the districts to which the 
 notice relates. The place of meeting may be in either district. It is 
 
350 UNION FEEE SCHOOL LAW. 
 
 important that the- original ';all and notices should be preserved, to be 
 filed with the certified copy of the minutes in the county clerk's oflSce. 
 If the proposed consolidated district includes parts of more than one 
 county, the call and notices should be signed in duplicate. 
 
 iVo. 194. Any such meeting, to be held as aforesaid, shall 
 be organized by the appointment of a chairman and secretary, 
 and may be adjourned from time to time if deemed by a 
 majority vote expedient, provided any such adjournment shall 
 not be for a longer period than ten days ; and at any such 
 meeting, vrhere at least one-third of such inhabitants of such 
 district are present, whenever the question whether an union 
 free school shall be established, in pursuance of the call for 
 such meeting, shall be determined by a two-third vot^ of 
 those present and entitled to vote, as aforesaid, in the affirma- 
 tive, it shall then be lawful for such meeting to proceed to 
 the election, by ballot, of not less than three nor more than 
 nine , trustees, who shall, by the order of such meeting, be 
 divided into three several classes, the first class to hold for 
 one, the second for two, and the third for three years ; and 
 thereupon the office of any existing board of trustees shall 
 cease. Tbe said trustees and their successors in office shall 
 constitute a board of education of and for the city, village, 
 district or districts for which they are elected, and the desig- 
 nation of the place, whether as of such city, village or school 
 district number , in the town of , or of consolidated 
 
 school districts numbers and , in the town of , 
 
 shall be comprised in the title of said board, and the said 
 board shall have the name and style of the board of education 
 of (adding the designation aforesaid). Copies of the 
 
 said call, minutes of said meeting or meetings, duly certified by 
 the chairman and secretary thereof, shall be by them or either 
 of them .transmitted and deposited, one to and with the town 
 clerk, one to and with the clerk of the county in which said 
 districts are located, and one to and with the State Superin- 
 tendent ; but when at any such meetings the question as to 
 the estalslishment of an union free school shall not be decided 
 in the affirmative, as aforesaid, then all further proceedings at 
 such meeting, except a motion to reconsider or adjourn, shall 
 be dispensed with, and no such meeting shall be again called 
 within one year thereafter. {Sec. 5, c^ap. 433 of 1853.) 
 
 It is important that it should appear from the proceedings of the 
 meeting that at least one-third of the inhabitants of each district con- 
 
TJNION FREE SCHOOL LAW. 361 
 
 cerned are present. For this purpose, as soon as the meeting is organized 
 by the election of a chairman and secretary, the clerk of each district 
 or the inhabitant required to give notice therein should make a return, 
 specifying the names of the voters in his district, which should he read 
 by the secretary, and the names of those present from each district 
 entered upon his minutes. 
 
 The numbers and constitution of the meeting being thus ascertained, 
 and found to be sufficient to give jurisdiction of the subject, the question 
 should be brought before it by a resolution that " a union free school 
 be established within the limits of Districts No. , in the town of 
 , and No. , in the town of , pursuant to the provisions 
 
 of chap. 433 of the Laws of 1853." The meeting may adjourn from 
 time to time by the vote of a majority of those present, although less 
 than one-third of the inhabitants, for not more than ten days at each 
 time. At any such adjourned session the question may be taken, on 
 the resolution above mentioned ; but when it has once been decided in 
 the negative, by failing to receive a two-third vote, no further proceed- 
 ings are in order except a motion to adjourn without day or a motion 
 to reconsider, which latter motion may be carried by a majority vote, 
 and the session may then be adjourned. On the reconsideration, at the 
 adjourned meeting, if the resolution should be again lost, all further 
 proceedings are to be suspended. 
 
 If the resolution to establish a free school shall pass the meeting, it 
 should next fix upon the number of trustees to constitute the board of 
 education. As the statute has made no provision for subsequently 
 increasing or diminishing the number of the board, it should not be 
 fixed without mature deliberation. It may be a number not divisible 
 by three, as five or seven, and in such case the meeting may divide them 
 into unequal classes, by a resolution which should be adopted before 
 proceeding to an election. 
 
 It seems to be the intent of this act — which is singularly wanting in 
 perspicuity — that an annual meeting of the inhabitants should be held 
 to elect trustees, as vacancies occur by the expiration of their office. 
 The meeting should, before adjourning, appoint a time for the next 
 annual election, except in the case provided for in the next section, and 
 should annually repeat such appointment. 
 
 No. 195. Whenever said board of education shall be consti- 
 tuted for any district or districts whose limits correspond with 
 those of any incorporated village or city, the three classes 
 
352 "UNION FREE SCHOOL LAW. 
 
 shall hold jointly until the next charter election for such 
 village or city, and their regular term of service as by the 
 foregoing section shall be coniputed from the several days of 
 such charter elections. And thereafter there shall be annu- 
 ally elected in such villages and cities, in the same manner as 
 and upon the same ticket with the charter officers thereof, 
 trustees of the said union free schools, to supply the places of 
 those whose terms by the classification aforesaid are about to 
 expire. The term of office of all trustees elected under the 
 provisions of this act, after the first election as aforesaid, shall 
 be three years. ( Sec. 6, chap, 433 of 1853. ) 
 
 No. 196. The said boards of education are hereby severally 
 created bodies corporate ; and each shall, at their first meet- 
 ing, and at times thereafter fixed by their by-laws as for their 
 annual meetings, elect one of their number president, another 
 the clerk, thereof, the latter of whom shall also be the general 
 librarian for the district. In districts other than those whose 
 limits correspond with those of any city or incorporated 
 village, said board shall have power to appoint one of the 
 taxable inhabitants of their district treasurer, and another 
 collector of the inoneys raised and to be raised within the 
 same for school purposes, who shall severally hold such 
 appointments for one year from the date thereof, and until 
 others are appointed in their stead, unless sooner i-emovBd by 
 the board for cause. Such treasurer and collector shall, 
 severally, and within ten days after notice of the appointment, 
 in writing, duly served upon them, and before entering upon 
 the duties of their offices, execute and deliver to the said 
 board of education a bond, with such sufficient penalty and 
 sureties as the board may require, conditioned for the faithful 
 discharge of the duties of their respective offices. And in case 
 such bond shall not be given within the time specified, such 
 offices shall thereby become vacant, and said board shall 
 thereupon make other appointments to supply such vacancies. 
 (iSec. 7, cAop. 433 0/1853.) 
 
 The annual meeting, herein referred to, is the annual meeting of the 
 board of education, not that of the inhabitants. In respect to the 
 treasurer and collector, the statute evidently contemplates that neither 
 of them shall be a member of the board. The bond to be given by 
 those officers, which the board has no power to waive, should run to 
 the board of education in its corporate name. 
 
UNION FREE SCHOOL LAW. 358 
 
 No. 197. The corporate authorities of any incorporated 
 village or city, in which any such union free school shall be 
 established, shall have povs^er, and it shall be their duty, 
 to raise from time to time by tax, to be levied upon all 
 the real <and personal property in said cities and villages 
 respectively, as by lavp^ provided for the defraying of the 
 expenses of their respective municipal governments, such 
 sum or sums as the board of education established therein 
 shall declare necessary (in a detailed statement, to be fur- 
 nished in writing by the said board to such municipal 
 authorities, of each and every expenditure so declared to be 
 necessary) for the furtherance of any of the powers vested in 
 them by law ; provided, however, that the said corporate 
 authorities shall have power to refuse for one year any sup- 
 plies other than those for the annual support of the teachers 
 of said union free schools, and the necessary contingent 
 expenses of the said schools. And in case the said corporate 
 authorities shall refuse, as aforesaid, they shall communicate 
 in writing to the said board of education their objections to 
 each and every expenditure which they may, under the power 
 as aforesaid, refuse to allow ; and thereupon, the said board 
 of education shall cause the said communication to be pub- 
 lished six times in at least one paper circulating in said village 
 or city. Nothing in this section contained shall be construed 
 to prohibit any such municipal government of any city or 
 village from reconsidering their vote in regard to the refusal 
 of any such supplies, as aforesaid, within the year above 
 specified. ( Sec. 8, chap, 433 of 1853. ) 
 
 This section, doubtless, is applicable to those villages and cities only 
 who correspond in their limits with an union free school district, as 
 described in § 6. The above section denies by implication the power 
 of the city or village corporate authorities to refuse supplies " for the 
 annual support of the teachers of said union free schools, and the 
 necessary contingent expenses of said schools." 
 
 The salaries of the teachers are by a subsequent section to be fixed 
 by the board of education, and the general school law requires schools 
 to be maintained for at least six months. The decision of the supreme 
 court of Massachusetts [Batchelder v. Oity of Salem, 4 Cushing, 602) 
 is an authority for the position that the teachers might maintain an 
 action against the village or city for the amount of six months' wages 
 at the rate fixed by their contract with the board of education. The 
 
 fCoDE.] 45 
 
354 UNION FREE SCHOOL LAW. 
 
 framers of our statute seem to have designed that the school should be 
 maintained during the whole year ; but in this as in various other par- 
 ticulars the union free school law is not only ambiguous as to its purpose, 
 but deficient in prescribing the means by -which it is to be effected. 
 
 By " the necessary contingent expenses of said schools," the framers 
 of the act probably meant all those expenses which are necessary to 
 keep the ordinary machinery of education at work, without making 
 improvements or permanent additions to it, such as the cost of warming, 
 lighting, cleaning and repairing the school buildings, and renewing the 
 necessary annual decay and wear of their furniture and apparatus. The 
 act is open 4o the construction that it is within the discretion of the 
 village authorities to determine what are necessary contingent expenses. 
 
 ^0. 198. The taxable inhabitants of any districts, as afore- 
 said, other than those whose limits correspond with those of 
 any city or incorporated village, at any annual or special 
 meeting, held as by provisions of existing law, may vote to 
 authorize such acts and raise such sums of money as they shall 
 deem expedient for the purpose of making additions, altera- 
 tions or improvements, with reference to site or structures, in 
 the academy or union free school buildings, or of buying 
 apparatus or fixtures, or for such other purpose as they may 
 by a two-third vote approve ; and to direct the trustees to 
 cause the sums voted to be levied and raised by instalments or 
 directly by a tax ; and such trustees shall make out a tax list, 
 in the manner by law provided in cases of school district 
 taxes, and direct such taxes or such instalments to be collected 
 at the times they shall become due. And the inhabitants of 
 such districts shall have no power to rescind the vote to raise 
 such money, or to reduce the amount at any subsequent 
 meeting, unless the same be done within ten days after the 
 same shall have been first voted. ( Sec. 9, chap. 433 of 1853. ) 
 
 This section must be understood as intending to confer upon the 
 inhabitants, assembled in. district meeting, powers additional to those 
 which they would have possessed under the general law, i£ they had 
 not organized a free school district. It gives them the power to raise 
 such sums as they may deem expedient, without limitation as to the 
 amount for making additions and improvements to sites, buildings, fix- 
 tures and apparatus. These are mere investments of money for 
 permanent objects, which remain as a part of the capital of the district, 
 and are in their nature different from those expenditures which disappeai 
 
UNION FREE SCHOOL LAW. 355 
 
 in the using, and leave nothing behind capable of sale, and thereby 
 of replacing their original cost. There is no reason in law or in the 
 grammatical construction of the act for supposing that, in regard to 
 raising money for these specially enumerated objects, any other rule is 
 to prevail than that of the common law, which mates a majority vote 
 equivalent to a unanimous one. 
 
 The section proceeds to confer an additional power to raise money 
 " for such other purpose as they may by a two-third vote approve." It 
 imposes no express limitation, and none can be raised by intendment, 
 other than that those purposes must be in furtherance of the general 
 objects of the corporation. There can be no doubt that by a two-third 
 vote, the meeting may authorize the trustees to levy a tax to pay the 
 teachers, so as to dispense with any rate bills. Whether, independent of 
 such vote, it was the intent of the law that rate bills should be collected 
 for tuition, is a question that admits of much argument without a satis- 
 factory conclusion. It speaks throughout of free schools. The question 
 at the organization is "whether an union free school shall be estab- 
 lished?" and to carry this requires a two-third vote, which may be 
 regarded as the approval of the purpose of all taxes necessary to make 
 the school free. Our standard lexicographer gives, as a definition of 
 this adjective, " open to all, without restriction or expense, as a free 
 school." Nevertheless, there are passages in the act from which the 
 power of the board to levy a rate bill may be plausibly inferred. The 
 question must wait for judicial determination or further legislation. 
 
 In the vote authorizing a tax, the inhabitants may direct at what time 
 and by what instalments it shall be raised. The sums and periods may 
 be equal or unequal in their discretion. 
 
 No. 199. Whenever any school districts shall have been 
 consolidated as aforesaid, or by any provision of law, they 
 shall be entitled to the same portion of the one-third of the 
 public moneys, distributed among the several school districts, 
 m pursuance of an act entitled " An act to establish free 
 schools throughout the state," passed April 12, 1851, as they 
 would have been entitled to if they had not been consolidated ; 
 provided that they shall not receive such portions for any 
 longer period than for five years after the passage of this act, 
 in the cases of all districts already consolidated, and in other 
 cases for five years after such consolidation shall have been 
 effected as aforesaid. ( Sec, 10, cimp. 433 of 1863. ) 
 
356 UNION FREE SCHOOL LAW. 
 
 This section is in effect repealed by the provisions of No. 30 and No. 
 31, ante, for a different mode of distributing the district quotas. It 
 would be well, nevertheless, for the school commissioners to gi^e, in their 
 reports, the date of the organization of every union free school or con- 
 solidated district. 
 
 No. 200. The said boards of education, by this act esta- 
 blished, shall severally have power : 
 
 1. To pass such by-laws as they may deem proper for the 
 regulation and exercise of their lawful business and powers ; 
 
 2. To fill any vacancy which may happen in said board by 
 reason of the death, removal or refusal to serve of any mem- 
 ber or officer of said board ; and the person so appointed, in 
 the place of any such member of the board, shall hold his 
 office until the next election of trustees, as by this act pro- 
 vided; 
 
 3. To remove any member of their board for official miscon- 
 duct. But a written copy of all charges made, of such mis- 
 conduct, shall be served upon him at least ten days before 
 the time appointed for a hearing of the same ; and he shall 
 be allowed a full and fair opportunity to refute such charges 
 before removal ; 
 
 4. To take charge and pjossession of the school-houses, sites, 
 lots, furniture, books, apparatus, and all school property 
 within their respective districts ; and the title of the same shall 
 be vested respectively in said boards of education, and the 
 same shall not be subject to taxation for any purpose ; 
 
 5. To take and hold, and for the use of the said schools or of 
 any department of the same, any real estate transferred to it 
 by gift, grant, bequest or devise, or any gift, legacy or 
 annuity, of whatever kind, given or bequeathed to the said 
 board, and apply the same, or the interest or proceeds thereof, 
 according to the instructions of the donor or testator ; 
 
 6. To have, in all respects, the superintendence, manage- 
 ment and control of said union free schools, and to establish in 
 the same ah academical department, whenever in their judg- 
 ment the same is warranted by the demand for such instruc- 
 tion ; to receive into said union free schools any pupils 
 residing out of said, districts, and to regulate arid establish the 
 tuition fees of such non-resident pupils in the several depart- 
 ments of said schools, and also those of scholars residing in 
 said districts and attending its academical department ; to 
 regulate, in accordance with the provisions of this act. the 
 
UNION FKEE SCHOOL LAW. 351 
 
 transfer of scholars from the primary to the academical 
 departments, and from class to class, as their degree of scholar- 
 ship may warrant ; to direct what text books shall be used 
 therein ; to provide fuel, furniture, apparatus and other neces- 
 saries for the use of said schools, and to appoint such assistant 
 librarians as they may, from time to time, deem necessary ; 
 
 7. To contract with, license and employ teachers competent 
 in the several departments of instruction, in all not less than 
 one for every sixty scholars attending such schools ; to remove 
 them at any time for neglect of duty or immoral conduct, and 
 to pay the wages of such teachers out of the moneys appro- 
 priated for that purpose ; 
 
 8. And generally to possess all the powers and privileges, 
 and be subject to all the duties in respect to the common 
 schools, or the common school departments in any union free 
 scliool in said districts, which the trustees of common schools 
 now possess or are subject to, not inconsistent with the pro- 
 visions of this act; and to enjoy, whenever an academical 
 department shall be by them established, all the immunities 
 and privileges now enjoyed by the academies of this state. 
 {Sec. 11, chap. 433 o/1853.) 
 
 Such exposition as may be required of the power and duties of the 
 board of education, under this section, will be found in the preceding 
 pages under the similar provisions of the general law relating to the 
 different school officers. TJiader the 8th subdivision it is the duty 
 of the board of education to make an annual report to the school 
 commissioner, and to submit an annual account to the inhabitants 
 assembled in district meeting, in the same manner as the trustees of 
 ordinary districts. Such reports should be adopted at a meeting of the 
 board, and authenticated by the signature of its president and secretary. 
 
 No. 201. It shall be the duty of each of the said boards of 
 education to have a regular meeting at least once in each 
 quarter, and a,t such meetings to appoint one or more com- 
 mittees, each to consist of not less than three of their own 
 number, to visit every school or department under the super- 
 vision of said board, and such committees shall visit all said 
 schools at least twice in each quarter, and report at the next 
 regular meeting of the board on the condition and prospects 
 thereof. {Sec. 12, chap. 4.33 of 1853.), 
 
358 UNION FREE SCHOOL LAW. 
 
 No. 202. It shall also be the duty of said boards, respec- 
 tively, to have reference in all their expenditures and con- 
 tracts to the amount of moneys which shall be appropriated, 
 or subject to their order or drafts, during the current year, 
 and not to exceed that amount. And said boards shall seve- 
 rally apply all the public moneys apportioned to the common 
 school districts under their charge to the departments below 
 the academical ; and all moneys from that of the literature 
 fund or otherwise, appropriated for the support of the academi- 
 cal departments, to the latter departments. {Sec. 13, chap. 
 433 0/1853.) 
 
 No. 203. All moneys raised for the use of the union free 
 schools in any city or incorporated village, or apportioned to 
 the same from the income of the literature, common school or 
 United States deposit funds, or otherwise, shall be paid into 
 the treasury of such city or village, to the credit of the board 
 of education therein ; and the funds so received into such 
 treasury shall be kept separate and distinct from any other 
 funds received into the said treasury. And the officer having 
 the charge thereof, shall give such additional security for the 
 safe custody thereof as the corporate authorities of such city 
 or village shall require. No money shall be drawn from such 
 funds, credited to the several boards of education, unless in 
 pursuance of a resolution or resolutions of said board, and on 
 drafts drawn by the president and countersigned by the secre- 
 tary, payable to the order of the person or persons entitled to 
 receive such money, and stating on their face the purpose or 
 service for which such moneys have been authorized to be 
 paid by the said board of education. ( Sec. 14, chap. 433 of 
 1863.) 
 
 No. 204. All moneys raised for the use of said union free 
 schools, other than those whose limits correspond with those 
 of any cities and incorporated villages, or apportioned from 
 the income of the literature or common school or United 
 States deposit funds, or otherwise, shall be paid to the respec- 
 tive treasurers of the said several boards of education entitled 
 to receive the same, and be by them applied to the uses of 
 said several boards, who shall annually render their accounts 
 of all moneys received and expended by them for the use of 
 said schools, with every voucher for the same, and certified 
 copies of all orders of the said boards touching the same, to 
 
UNION FKEE SCHOOL LAW. 359 
 
 the [school commissioner] of the town in which said districts 
 are severally located. ( Sec. 15, cAop. 433 of 1853. ) 
 
 No. 205. Every academical department, so as to be estab- 
 lished as aforesaid, shall be under the visitation of the regents 
 of the university, and shall be subject in its course of educa- 
 tion and matters pertaining thereto (but not in reference to 
 the buildings or erections in which the same is held, unless 
 in cases where the buildings aforesaid are separate from those 
 of the common school department) to all the regulations 
 made in regard to academies by the said regents. In such 
 departments, the qualifications for the. entrance of any pupil 
 shall be the same as those established by the said regents for 
 admission into any academy of the state under their super- 
 vision. {Sec ]6, cltap. 433 o/1853.) 
 
 No. 206. Whenever an union school shall be established 
 under the provisions of this act, and there shall exist within 
 its district an academy, the trustees thereof may, by an 
 unanimous vote, to be attested by their signatures and filed 
 in the office of the clerk of the county, declare their offices 
 vacant ; and thereafter the trustees of such union school shall 
 become the trustees of the said academy, and be charged with 
 all the duties of the former trustees, and the said academy 
 shall be regarded as the academical department of such union 
 school. ( Sec. 17, chai^. 433 of 1853. ) 
 
 Although the eflfect of this provision probably is to transfer to the 
 trustees of the free school district all corporate property vested in the 
 trustees of the academy, it will be prudent for the latter, in pursuance 
 of a resolution to that effect adopted at a regular meeting, to execute a 
 deed of all their corporate property to the board of education. 
 
 No. 207. All acts or parts of acts inconsistent with the 
 provisions aforesaid are hereby repealed ; and the provisions 
 of this act, in reference to the establishment of academical 
 departments, shall be as applicable to those school districts 
 or villages where free schools have been established, by 
 special charter, as if no such charter had been granted ; but 
 nothing in this act shall be construed to impair the charters 
 or alter or abridge the rights or privileges of any free schools 
 now by law established in any city of the state. {Sec. 18, 
 cAop. 433 0/1853.) 
 
360 REAPPORTIONMENT OF MONEY. 
 
 REAPPORTIONMENT QF UNEXPENDED MONEY. 
 
 iVo. 208. All moneys apportioned by the [school commis- 
 sioners] to the trustees of a district, part of a district or sepa- 
 rate neighborhood, which shall have rei^iained in the hands 
 of the [supervisor] for one year after such apportionment, by 
 reason of the trustees neglecting or refusing to receive the 
 same, shall be added to the moneys next thereafter to be 
 apportioned by the [school commissioners], and shall be 
 apportioned and paid therewith in the same manner. ( Sec. 
 17, chap. 480 of 1847, modified in conformity to Nos. 32 and 50. ) 
 
 The trustees, strictly speaking, receive nothing but library money. 
 The payment of their orders, drawn in favor of teachers, must be 
 regarded as equivalent to its reception by the trustees, in order to give 
 any force to this section ; and their neglect to exhaust the money, by 
 such orders, as abandoning it for reapportionment among all the dis- 
 tricts of the county. They are to draw such orders in payment for 
 teachers' wages earned during the year in which the money was appor- 
 tioned, and are required to report before the fifteenth day of January 
 that all the money received has been so applied. A year " after the 
 previous apportionment" does not expire, however, before the first 
 Tuesday of April, and until it has expired the supervisor is at liberty to 
 pay orders for teachers' wages earned previous to the first of January. 
 It is his duty to report to the school commissioner in charge of the 
 district to which his town belongs the amount of all sums then remain- 
 ing unexpended in his hands, that it may be apportioned to the several 
 districts of the county, and charged to such town as a partial payment 
 of the sum to which it is entitled on the new apportionment. A com- 
 parison of the sum reported, as received by the trustees, with the amount 
 apportioned to the district the previous year, will furnish the commis- 
 sioners with information which ought to correspond with the report of 
 the supervisor. If the trustees reports are correct, the commissioners 
 will learn from them how much money is to be reapportioned, without 
 waiting for the report of the supervisor. 
 
OD EX. 
 
 ALIENS: P^aj. 
 
 When may hold office, 17 
 
 When qualified to vote, 81, 209 
 
 ANNUAL MEETING: 
 
 Time of, 3, 20, 103, 204 
 
 Elections at, 59, 218 
 
 Any business legal at 63, 214 
 
 Surprise, good cause for ordering new meeting, 64, 75 
 
 Noticed foi- tenth and adjourned to eleventh, held to be legal, 94 
 
 Estimates of expenses must be submitted item by item, 94, 226 
 
 General powers, ., . 213 
 
 ANNUAL EEPORTS OF TEUSTEES, pages 301 to 317: 
 
 Time when to be made,.... , .,. 301 
 
 What to contain, 302 
 
 Form of, and to whom made, 304 
 
 Children at poor-house and asylums,.. 306 
 
 Enumeration of children, 307 
 
 Indian children,.. <. 308 
 
 Beports for joint districts, 312 
 
 " for separate neighborhood, 312 
 
 Penalty for false roports, 318 
 
 APPEALS, pages 817 to 324: 
 
 Jurisdiction of school department, 12, 43, 72, 318 
 
 Operates as stay of proceedings, ^ 70 
 
 Letters, and ex parte applications, 321 
 
 Bules respecting appeals,. 322 
 
 APPORTIONMENT OF SCHOOL MONEYS: 
 
 State tax, , - 120 
 
 Common school fund, 120 
 
 United States deposit fund, 120 
 
 School moneys, how to be expended,.,. ...,. 121 
 
 Library money, 121 
 
 Salaries of school commissioners, 122 
 
 Mode of one-third apportionment to districts 122 
 
 Districts entitled to draw money, 124 
 
 Districts, number to be enumerated 125 
 
 Two-third apportionment by population » 127 
 
 Defective census, how siupplied, 187 
 
 Clerks of supervisors to report to State Supt. the county valuations, ... 137 
 
 Reapportionment of unexpended money, 360 
 
 fCoDB.] 46 
 
362 [NDEX. 
 
 PAS& 
 
 ARBITRATION : 
 
 Claims may be settled by, 22, 246 
 
 ASSESSMENT: 
 
 Notice, when required, 17, 44, 73, 284 
 
 Non-resident land, roll guide to valuation, not to liability, 93 
 
 &c title "Tax." 
 
 ASSEfeSMENT ROLL: 
 
 When deemed complete, 104 
 
 Valuations, how ascertained, 282 
 
 ASSESSMENT AND COLLECTION OF TAXES, pages 267 to 301 : 
 
 Real estate 267 
 
 Personal property, 268 
 
 Non-residents, debts due to, 271 
 
 Land, real estate and real property, 268 
 
 Property of temporary sojourners, 268 
 
 Property exempt 269 
 
 Rents reserved, 270 
 
 Land of non-residents 272, 276 
 
 Land worked by contract, 273 
 
 Land worked by agent 275 
 
 Tenant at will, 276 
 
 Return of land for unpaid taxes, 277 
 
 Certificate of trustees 278 
 
 Board of supervisors, 279, 280 
 
 County treasurer 279 
 
 Owner of land may pay, 280 
 
 Land in two or more towns, 281 
 
 Certificate of equalization, 281 
 
 Valuations, how ascertained, 282 
 
 Reduction, when to be allowed 284 
 
 Claim of reduction, 286 
 
 Exemption from tax for building house, , 287 
 
 Tax list, when to be made out, 287 
 
 Form of tax list, 289 
 
 Warrant to collector, 290 
 
 Delivery of warrant, 291 
 
 Suits against -collector 294 
 
 Levy and collection, 296 
 
 Renewal of warrant, . ; 298, 800 
 
 BAIL: 
 
 Of collector, cannot be released > 22 
 
 BLIND: 
 
 Selection of 'pupils, 116 
 
 BOARD OF TEACHERS: 
 
 How to beprovided for, S, 248 
 
 BOARDS OF SUPERVISORS: 
 
 State tax, 120 
 
 Clerk to transmit valuation to superintendent, 137 
 
INDEX. 363 
 
 Salaries of school commissioners 183 
 
 Auditing accounts of commissioners, , 183 
 
 Unpaid taxes 279 
 
 Costs and charges of district ofScers, 339 
 
 BUILDING COMMITTEE : 
 
 of trustees, 11, 66, 246 
 
 CERTIFICATE: 
 
 Annulled for cruelty, 18, 35 
 
 Notice of intention to annul, 24, 172 
 
 Annulling of, ends contract to teach, 36 
 
 Examination for, 97 
 
 Forms 168 
 
 Annulling 171 
 
 CHAIRMAN OF MEETING: 
 
 His right to rote, 68, 215 
 
 CHARITABLE INSTITUTIONS: 
 
 Selection of pupils,. ; 115 
 
 CHILDREN : 
 
 Enumeration of, 16, 23, 38, 306, 307 
 
 School age of, 309 
 
 Non-resident, • 100, 254, 310 
 
 Colored, schools for, 343 
 
 CLERK: 
 
 Elected trustee, vacates clerkship 6 
 
 Notice to call meeting may be verbal 43 
 
 Cannot employ another to give notices, 43 
 
 l>owers and duties 240 
 
 CLERK OF SUPERVISORS: 
 
 Transmit valuation to State Superintendent, 137 
 
 COLLECTOR: 
 
 Must obey warrant ; neglect finable, and bail cannot be released, 22 
 
 Delivery of warrant to, 291 
 
 Fees 291 
 
 Penalty for neglect / 293 
 
 Return of, 293 
 
 Bond, form of, 295 
 
 Execution of warrant, 294, 298 
 
 Force of warrant, 293 
 
 COMMISSIONERS: 
 
 Cannot declare void proceedings of predecessors, 1 
 
 Consent to additional site 103 
 
 Consent to raise tax over $400 12, 229 
 
 General duties, > 156 to 179 
 
 See title " School Commissioners." 
 
364 IKDEX. 
 
 FAS& 
 
 COMMON SCHOOLS: 
 
 Free, to whom ' 310 
 
 COMMON SCHOOL FUND : 
 
 Income, ■ 120 
 
 CONSOLIDATION OF DISTRICTS: 
 
 Rules to govern 57, 58 
 
 CONTINGENT EXPENSES: 
 
 Tax for, iUegal, 3, 225 
 
 COSTS: 
 
 When tax may be raised to pay, i 23, 339 
 
 Under chapter 214, Laws of 1847 43, 72 
 
 COUNTY TREASURER: . 
 
 Not entitled to per centage 9 
 
 When to apply for school moneys 141 
 
 Notice to supervisors, 141 
 
 CorDmissibn of one per cent, 142 
 
 To pay unpaid taxes 279 
 
 DEAF AND DUMB: 
 
 Selection of pupils, 115 
 
 DISMISSAL FROM SCHOOL: 
 
 On what grounds, 3, 311 
 
 DISTRIBUTION OP SCHOOL MONEYS: 
 
 School moneys to be paid into state treasury, 138 
 
 How transferred, 138 
 
 How drawn from the treasury , , 139 
 
 When to be drawn, 139 
 
 For what cause to be withheld, 133, 140 
 
 County treasurer to draw for, 141 
 
 Notiee to supervisors of towns, 141 
 
 Bond'to be taken from supervisors 142 
 
 DISTRICT, DIVISION OF: 
 
 Effect upon officers, 5 
 
 Size of new districts, 57 
 
 Alteration of, 98, 194 
 
 See titles " School District" and " Meetings." 
 
 DISTRICT MEETINGS AND DISTRICT OFFICERS: 
 
 Pages - 199 to 239 
 
 First meeting of new district 199 
 
 Notice of, 200 
 
 Notice^ how served, 202 
 
 Penalty for neglect to serve notice, . . ; 203 
 
 Notice, what to contain, 204 
 
 Annual meetings 204 
 
INDEX. 365 
 
 Faoe. 
 
 Special meetings 206 
 
 Besidence defined, 207 
 
 Voters at district meetings, 209 
 
 Penalty for illegal voting, 212 
 
 General powers of district meeting, 213 
 
 Challenge of votes, 214 
 
 Appointment of chairman 265 
 
 Choice of officers 211 
 
 Designation of site, 218, 228 
 
 Levying taxes, 221, 234 
 
 Alteration and repeal of proceedings, 225 
 
 Book of records 227 
 
 Tax for more than $400, 229 
 
 Tax by instalments 231 
 
 Change of site 232 
 
 Sale of old site, 233 
 
 Proceeds of sale, how applied 234 
 
 Deficiencies on tax lists and rate bills, 234 
 
 Tax of $10 for library, 235 
 
 Library money for purchase of books, . . * 236 
 
 Classification and term of office of trustees, 236 
 
 Term of office under appointment, 237 
 
 Vacancies in office, how filled 105, 238 
 
 Penalty for refusing or neglecting to serve, 239 
 
 Resignations, to whom made, 239 
 
 ELECTION OP OFFICERS: 
 
 Cannot be rescinded by adjourned meeting, 1, 16 
 
 When set aside, . . , 16 
 
 Minor elected, how displaced, 45 
 
 Person elected, cannot be removed on a collateral issue 45, 74 
 
 At adjourned meeting, valid ; 102 
 
 Choice of officers, 216 
 
 ENUMERATION OF CHILDREN: 
 
 Of temporary residents 16, 38 
 
 Boarders 23, 308 
 
 Of residents, 306 
 
 Indians, 308 
 
 EXEMPTION : 
 
 Duty of trustees, 31, 69 
 
 From tax, to build school -house 40, 287 
 
 Ministers exempt from tax, 62, 274 
 
 Must be collected by tax, 105 
 
 Indigent persons, 252 
 
 FORMATION AND ALTERATION OF SCHOOL DISTRICTS: 
 
 Pages 185 to 199 
 
 General rules 185 
 
 Form of order 186 
 
 Association of supervisor and town clerk, 188 
 
 Notice to trustees, 190 
 
 Joint districts, 191^ 194 
 
 Orders, when to take efifect, I93 
 
 Consolidation, 195 
 
366 INDEX. 
 
 Faoe. 
 
 Moneys of annulled districts 197 
 
 Collection of tax lists or rate bills of annulled and dissolved districts,. . 198 
 
 FORMS: 
 
 Notice of application to remove officer, 112 
 
 Apportionment for teachers' wages, 135 
 
 Certificate of apportionment to supervisor, 136 
 
 Bond to treasurers for towns, 143 
 
 Account of supervisors, 148 
 
 Taking and reporting testimony, 183 
 
 Order for formation of district, 186 
 
 Notice to trustees, 190 
 
 Joint districts 191, 194 
 
 Notice of first meeting, 200 
 
 Contract witli teacher 249 
 
 Order upon supervisor for teachers' wages 251 
 
 Certificate of exemptions, 253 
 
 Rate hill and warrant 257 
 
 Teacher's list of daily attendance 263 
 
 List for term attendance, ....*. 264 
 
 Abstract for the year, , 265 
 
 Return of land for unpaid taxes 277 
 
 Certificate of trustees to treasurer, 279 
 
 Treasurer to pay unpaid taxes, 279 
 
 Certificate of equalization in joint districts, 281 
 
 Notice of completion of tax list, 285 
 
 Tax list 289 
 
 Warrant to collector, 290 
 
 Return of collector 293 
 
 Bond of collector, 295 
 
 Renewal of warrant, 298, 300 
 
 Annual report of trustees, 304 
 
 Order of board of supervisors to levy tax for costs and charges of trustees, 342 
 
 Call for meeting to form union free school, 348 
 
 Vouchers of supervisor 149 
 
 Certificates of teachers, 168 
 
 FUEL: 
 
 How provided 260 
 
 GAMBLING: 
 
 Fines for, a part of school money, 346 
 
 ILLEGAL VOTING: 
 
 When proceedings will be set aside for, 2, 212, 228 
 
 INDIAN SCHOOLS: 
 
 How supported, 114 
 
 INDIGENT PERSONS: 
 
 Trustees to exempt, 31, 69 
 
 Exempt from rate hill, 252 
 
 INSTALMENTS : 
 
 Tax by 67, 79 99, 230 
 
ESTDEX. 367 
 
 JOINT DISTRICTS: Pasb. 
 
 Alteration and dissolution of, 8, 71, 191, 194 
 
 Order for alteration must show on its face the presence of proper officers, 50 
 
 LEASE OF SITE : 
 
 On what terms, 3, 32 
 
 Lease, when authorized, 245 
 
 LIBRARY: 
 
 American books, 335 
 
 What part may be sold, 6, 196 
 
 Tax of $10 for increase' of, 236 
 
 Laws and rules respecting, 326 
 
 When superintendent may select, 335 
 
 LIBRARY MONEY: 
 
 When to be expended, 41 
 
 For teachers' wages, 41, 236 
 
 LIBRARIAN: 
 
 His duties 328 
 
 MEETINGS: 
 
 Power to appropriate public moneys, 2 
 
 How many voters constitute a meeting, 6, 10, 20, 59 
 
 When trustees bound to call, 9, 20, 77 
 
 Power to raise taxes 15, 19, 229 
 
 Adjourned meetings cannot displace officers, , . . . 16, 19 
 
 May prescribe terms of contract, 17, 246 
 
 Annual, when to be held 20, 21, 103, 204 
 
 Cannot excuse trustees for neglect to report and pay over balance, .... 25 
 
 Cannot employ or dismiss teacher, 38 
 
 Cannot annul district, 42 
 
 Questions of order 42, 90, 226 
 
 Legali though order to call was verbal, 43 
 
 Illegal proceedings set aside only on appeal, 55 
 
 Notice of object of annual meeting not necessary, 63, 103 
 
 Surprise, cause for setting aside proceedings, 64, 75 
 
 Oha«ge of site by 65, 232 
 
 Legal voters at,.,, 67, 68, 209 
 
 Cha,irman's right to vote,..,.. 68 
 
 Special, object must be stated, 86, 214 
 
 Powers of district meetings 199, 288 
 
 Annual meetings 103, 204 
 
 Special meetings 206 
 
 General powers of meetings 213 
 
 Additional site 103, 228 
 
 See title " Annual Meetings" and " District." 
 
 MINISTERS OF GOSPEL: 
 
 Exempt from tax 62, 274 
 
 MONTH : 
 
 Twenty-six days being specified, teacher allowed Saturday afternoon or 
 alternate Saturdays ; month's work, 37, 126 
 
368 IKDEX, 
 
 MORTGAGE: Pao*. 
 
 Money due on, who taxable, 39 
 
 MOTIONS : 
 
 Chairman must put 42, 215 
 
 NEW DISTRICT : 
 
 Officers of, 5, 199 
 
 NON-EESIDENT CHILDREN: 
 
 Terms of admission to school 1, 10, 56, 100 
 
 Tuition of, 45, 95, 255 
 
 iJSrOTICES OF ALTERATION: 
 
 On whom to be served, 1, 2, 188 
 
 Must be given before order can talie effect, 8, 193 
 
 NOTICE OF MEETING: 
 
 Verbal, suifficient, 2, 43 
 
 Must be given by clerls himself, 43, 240 
 
 Twenty days' notice of new valuation, 44, 73, 285 
 
 Object of annual meeting need not be speciiied, 63 
 
 Due notice presumed, 95 
 
 Annual meeting, 200 
 
 Trustees to order notices, 244 
 
 OFFICERS OF SCHOOL DISTRICTS: 
 
 Acts regular till appealed from 46 
 
 Removal of, for cause, 58, 62, 112 
 
 Right to hold office will not be Inquired into collaterally, 45, 74 
 
 Choice of, 216 
 
 OLD SCHOOL-HOUSE: 
 
 Avails of sale, how to be applied, 234 
 
 ORDER: 
 
 Void in part and valid in part, 8 
 
 For alteration, when to take effect, 8, 193 
 
 Unrecorded, good after five years 79 
 
 Order to draw money by two trustees, 88 
 
 PENALTIES: 
 
 For neglect or violation of duty, S38 
 
 For disturbing schools, '. 344 
 
 For gambling, to whom paid, 846 
 
 PRAYERS: 
 
 School may be opened with, 4 
 
 POWERS AND DUTIES: 
 
 Of State Superintendent, 109 to 119, 335 
 
 Of trustees 241 to 267 
 
 Of district meetings and officers, 199 to 239 
 
INDEX. 369 
 
 Of school commissioners, 156 to 179 
 
 Supervisors, 145 to 154 
 
 District clerk, 240 
 
 Town clerk, 184 
 
 Collector 291 to 295 
 
 County treasurer, 141 
 
 Clerk of supervisors, 137 
 
 PUBLIC MONET: 
 
 When to be expended, 2, 78, 360 
 
 To whom to be paid, 3, 62 82 
 
 How divided between towns, 11, 17, 48, 52, 85 
 
 Wages for winter tenn, 17 
 
 In reduction of rate bill 47 
 
 Must be paid over to officers defaMo, 61- 
 
 Apportionment of, 120 to 127, 360 
 
 Distribution of, 138 to 142 
 
 PUBLIC MONEY: 
 
 When forfeited, may be restored by State Superintendent 335 
 
 Not expended by district, to be reapportioned, 860 
 
 PUNISHMENT : 
 
 Cruelty reprehended, 18, 311 
 
 KATE BILL: 
 
 To pay teachers for different terms, 48, 52, 78 
 
 Legal only for teachers' wages, 49 
 
 Exemptions, 31, 69 
 
 Deficiencies 234 
 
 How assessed, 254 
 
 Property exempt from 211, 259 
 
 HEAL ESTATE: 
 
 Lying in two districts, how taxable, 40, 273 
 
 Land worked by contract, 100 
 
 Possession defined, 274 
 
 Exemptions 62, 287 
 
 EEAPPOETIONMENT : 
 
 Of moneys unexpended, 860 
 
 EE-ELECTION OP TRUSTEE RESIGNED : 
 
 Cannot be made against his will, 2 
 
 REPEAL: 
 
 General repealing section, 846 
 
 REPORTS: 
 
 Of trustees, children of temporary residents, 16, 38 
 
 What children to be enumerated 23 
 
 State Superintendent's annual report, 110 
 
 Of trustees, when to be made 301 
 
 Of school commissioners, 180 
 
 Code. 47 
 
370 INDEX 
 
 RESOLUTION: Paoi. 
 
 Effect of subsequent resolution, 6, 226 
 
 RESIDENCE : 
 
 How gained or lost 49, 91, 209 
 
 What constitutes, ....... i 207 
 
 SCHOOL: 
 
 When trustees bound to open 5 
 
 Branch schools, 73, 265 
 
 For colored children 343 
 
 Disturbance of 344 
 
 SCHOOL COMMISSIONERS: 
 
 Election, 154 to 156 
 
 Jurisdiction, 166 
 
 General duties 156 to 179 
 
 Visitation of schools, 158 
 
 Advising with trustees, 159 
 
 Advising with other officers, 160 
 
 Resignations, 180 
 
 Filling of vacancies, 180 
 
 Report to State Superintendent, • • • •. 180 
 
 Taking affidavits and oaths,. 181 
 
 Taking testimony 181 
 
 Forms, 182 
 
 Salaries and accounts '.. 122, 144, 183 
 
 City superintendents, , 184 
 
 Formation and alteration of districts • 186 
 
 Notice to trustee^, 190 
 
 Examination of teachers 165 
 
 Certificates of teachers, 168 
 
 Annulling certificates 171 
 
 Notice to teacher of intention to annul, 173 
 
 Order of annulment, 173 
 
 Teachers' institutes, 176 
 
 Not to be trustee, 217 
 
 SCHOOL DISTRICT : 
 
 Cannot borrow money, 3 
 
 Dissolution is not alteration i 6 
 
 Designation of site, 6 
 
 Dissolution of joint districts 8 
 
 Establishment by appeal final 9, 87 
 
 Consent to alteration 10 
 
 Alteration, 19, 71, 74, 79, 88, 89, 91, 96 
 
 Power to levy taxes, 19 
 
 For uncollected rate bills, 19, 234 
 
 Size of new districts, 67 
 
 Consolidation of 67, 68 
 
 Must be foi-med of contiguous territory 80 
 
 Formation and alteration of, 186 
 
 SCHOOL DISTRICT LIBRARIES : 
 
 Rules respecting, 326 
 
INDEX. 371 
 
 SCHOOL-HOUSE : Pase. 
 
 Joint use, when allowable, 3, 223 
 
 Stove and pipe, appendages to, 61 
 
 Purposes for which it is to be used 70, 246 
 
 Repair of, 259 
 
 SITE OF SCHOOL-HOUSE : 
 
 Pesignation of, 6, Te, 103 
 
 Title, occupancy good notice to purchasers, 7 
 
 Perpetual rent for, will not be permitted, 32 
 
 Must be described by metes and bounds, 33 
 
 When trustees have located school-house, department will not interfere, 34 
 
 Purchase of additional grounds not a change of site, 34, 62 
 
 Amount of purchase money not limited, and certificate not necessary,. . 41 
 
 Purchase of site ' 54, 62, 98, 245 
 
 Change of, by what vote, 65, 231 
 
 Tax for, not raised by instalments, 79 
 
 Additional site, 103 
 
 Sale of old site 233 
 
 Proceeds of sale, how applied 234 
 
 SPECIAL MEETINGS : 
 
 How called, 9, 20, 77, 244 
 
 STATE SUPERINTEJ^DENT OF PUBLIC INSTRUCTION: 
 
 Powers and duties, 109 to 119 
 
 His election and term of office, 109 
 
 Salary 109 
 
 Clerk hire 109 
 
 Seal of office, 110 
 
 Exemplification and copies of papers 110 
 
 Visitation and inspection of schools, 110 
 
 Annual report 110 
 
 Regent of university, ex officio, Ill 
 
 County visitors, Ill 
 
 State certificates, Ill 
 
 Removals from office of school officers, 112 
 
 Indian schools 114 
 
 Charitable institutions 115 
 
 Overseers of poor to report deaf and dumb, 115 
 
 Selection of deaf and dumb pupils, 115 
 
 Selection of blind 117 
 
 Forms and instructions, 119 
 
 Duty in case of defective census, 137 
 
 Appeals, . 317 
 
 Selection of district libraries 335 
 
 Apportionment of school moneys 120 to 127 
 
 " of forfeited moneys, 333 
 
 STATE TAX: 
 
 How raised, 120 
 
 STAY OF PROCEEDINGS: 
 
 Appeal operates as, 70 
 
372 INDEX. 
 
 SUITS AGAINST DISTRICT OFFICERS: Pagk. 
 
 Pages 838 to 342 
 
 Costs of suits 338 
 
 Tax for costs and expenses, 339 
 
 Amount of costs and charges, how ascertained, 340 
 
 SUPERVISORS : 
 
 Cnf tody and disbursement of money, 145 to 154 
 
 Supervisors to receive money fi-om treasurers, f 145 
 
 Form of bond to treasurer for towns, , 143 
 
 Penalty for embezzlement 146 
 
 Disbursing and accounting for moneys, 146 
 
 Accounting to successors, 148 
 
 Town school fund, 150 
 
 Moneys from overseers of the poor, ..'. 152 
 
 Alteration of school districts 185 
 
 SUPERVISOR : 
 
 May be trustee, 47 
 
 Board for alteration, 19,71,74,88,91, 96 
 
 Suits against, for school moneys, 301 
 
 Suits for penalties, against trustees, 149, 316, 317 
 
 Forms of vouchers, 149 
 
 lAX: 
 
 For building school-house, 1, 7, 98, 229 
 
 For contingent expenses, erroneous, 3 
 
 Note cannot be received in payment 7 
 
 For more than ®400, to build house, 12, 79, 99 
 
 To pay legal costs 23 
 
 When levied without vote of district, 27, 50 
 
 Money due on mortgage, 39 
 
 For building school-house, who exempt from, 40 
 
 For purchase of site, not limited in amount, 41, 54 
 
 For stove and pipe, legal, 61 
 
 Ministers of gospel exempt, 62 
 
 For site, not raised by instalments, 79, 99 
 
 Items of expenditure, 94 
 
 Tax by instalments, 67, 79, 99, 229 
 
 Deficiencies 234 
 
 For repairs 259 
 
 For fuel, 260 
 
 Tax, without vote of district, 266 
 
 Possession defined, '. 274 
 
 Equalization of taxes, 281 
 
 TAX LIST : 
 
 When to be made out,, , , 22, 287 
 
 Correction, after part collected, 26, 300 
 
 Must include all taxable inhabitants, 29, 39, 93 
 
 Contiguous territory 40, 93 
 
 Tax list not having been delivered to collector, the vote to raise it may 
 
 be rescinded, 55 
 
 Notice that it is in collector's hands unnecessary 73 
 
 In making out, all the trustees must be consulted and act together,. 95, 244 
 
 Deficiencies, 234 
 
 Property exempt from, 211, 259 
 
INDEX. 3T3 
 
 Fask. 
 
 What to include,. 39, 267 
 
 Possession defined, 274 
 
 TEACHER : 
 
 How to be paid 3, 82 
 
 Wages, debt cannot be offset against, 3, 251 
 
 Dismissal of, 10 
 
 Improperly dismissed, entitled to full wages, 15 
 
 Certificate annulled for cruelty, 18, 35 
 
 Notice of intention to annul 24 
 
 Legal employment of, 27 
 
 Anniilment of certificate ends contract to teach, 36 
 
 Saturdays, 37 
 
 Can be employed only by trustees, 38 
 
 Employed by one trustee, report of others, when implied, 80, 82 
 
 Examination for license, 97, 165 
 
 TEACHER'S LIST: 
 
 Teacher not keeping, cannot recover his wages, 2, 263 
 
 TEACHERS' INSTITUTE: 
 
 Conduct of, 175 
 
 TOWN CLERK: 
 
 Board for alteration 19, 71, 74, 88 96 
 
 General duties, 184 
 
 Alteration of school districts, 188 
 
 Notice of annual meeting, 205 
 
 TOWN SUPERINTENDENTS: 
 
 Towns transferred, 179 
 
 TRUSTEES : 
 
 Col-poration to hold district property, 313 
 
 Cannot be librarian or collector 7 
 
 De facto, how far acts are binding 11 
 
 Appointment of, set aside for fraud, 25 
 
 Annual account and payment of balance 25, 102, 314, 315, 316 
 
 Correction of tax list 26 
 
 Employment of teacher, 27,80, 82, 99 
 
 Have no lien on moneys for expenses, 27 
 
 Notice to all, and concurrence of a majority necessaiy to validity of acts, 28 
 
 Have sole power of making contracts for district, 29, 66 
 
 Have sole executive authority, 30 
 
 Have sole power to employ teacher, 38, 80, 82, 99 
 
 May be elected supervisor, 47 
 
 Division of public money, 11, 17, 48, 52, 78, 85 
 
 Levying taxes without vote 50, 266 
 
 What absence will amount to vacancy 51, 53 
 
 No power to set aside proceedings of a meeting 55 
 
 Admission of non-resident children, 10, 45, 56, 95, 100, 310 
 
 Removal for cause 58, 62 
 
 Vacancy, how filled 65, 105, 238 
 
 Power to establish schools, 73 
 
 Duty to call meetings 9, 20, 77 
 
374 INDEX, 
 
 Pagb. 
 
 Contract by one, when assent of others will be implied 80, 250 
 
 Power to call meetings,.... ., 83 
 
 Office honorary — without pay, i 84 
 
 Order to draw money, ministerial 88 
 
 Cannot give and accept notice to themselves, 89 
 
 All must confer and consult together, in order to make their acts 
 
 valid 3, 9, 95 
 
 Beports from joint districts 180 
 
 Annual reports; to whom made, 180 
 
 Should not be teachers, 99 
 
 Term of office, : 236 
 
 Penalty for refusing- to serve 239 
 
 Resignations, to whom made, 239 
 
 Powers and duties,. ■. 241 to 267 
 
 How their powers must be exercised 242 
 
 Calling special meetings, ; 244 
 
 Notices of meetings 244 
 
 Making out tax lists, 244 
 
 Annexing warrant to tax list, 245 
 
 Purchase or leasing of sites and building house 245 
 
 Custody of school-house 246 
 
 Employment of teachers, 247, 249 
 
 Division of public money 252 
 
 Exemption of indigent persons 252 
 
 Payment of teachers, 251 
 
 Bate bill, how assessed 254, 259 
 
 Bepairs of school-house 259 
 
 Fuel, tax for, 260 
 
 Blank books for inventory of property and for teachers' lists 261 
 
 Teachers' list, 262 
 
 Power to levy tax without vote of district, 266 
 
 Assessment and collection of taxes 267 to 301 
 
 Eenewal of warrant 298 
 
 Suit against supervisor for school moneys, 301 
 
 Annual reports of trustees 301 to 317 
 
 Holding of district property 313 
 
 Penalty for not rendering yearly account 315 
 
 Suits for penalties, 816 
 
 Libraries under their care 327 
 
 Colored children, school for, 343 
 
 Union free school law, 347 
 
 See title " Annual Reports." 
 
 TUITION: 
 
 Of boarder, who responsible for 45, 255 
 
 TUBNPIKE: 
 
 How to be assessed, 84, 269 
 
 UNION FREE SCHOOL LAW: 
 
 Pages. 347 to 357 
 
 UNITED STATES DEPOSIT FUND: 
 
 Income 121 
 
INDEX. 3V5 
 
 VACANCY: 
 
 When absence will amount to, 51 
 
 By reason of imprisonment, 63 
 
 In office of trustee, how filled, 65, 105, 238 
 
 VALUATION: 
 
 Where new valuation should be made, 17 
 
 Notice to be given of new vlauation 44, 73 
 
 How ascertained, 282 
 
 Keduction, 284, 286 
 
 VOTERS : 
 
 Bight to vote, 61 
 
 Who are legal voters, 67, 68, 81, 90, 209 
 
 Challenge of, 214 
 
 Besidence, 207 
 
 VOTES, ILLEGAL : 
 
 When proceedings will be set aside for, 99 
 
 WARRANT : 
 
 Time of delivery to collector, 18