Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY 1^ Cornell University Library Public school law of the United States : 3 1924 019 906 241 (S0rn?U ICam ^rljnol Eibrary Cornell University Library m The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019906241 Public School Law UNITED STATES, A.S A-DtdlNISTERED BY THE COURTS. WITH APPENDIX, Containing Synopses of Peincipal Statutes of Each State. By IRWIlSf jTAYLOR, OV THE TOPSEA BAB, AuTHOB OP Kansas Digests, Colobado Digest, Pleading and Pbacticb, Genebal Statutes or Kansas, etc. ' TOPEKA, KANSAS : GEO. W. CBANE & CO., PBISTTEES AlTD BINDEBS. 1892. /d /l^/-7 Copyright, 1893, by \-swss Tayloe, Topbka, Kansas. PREFACE. Fob many years the Attorney General's office of this State was burdened and overworked with knotty school questions, more than one-half the time being taken up in matters of school law ; and the inability to find any law book that thoroughly covered this field suggested to me the necessity for a work of this kind. In presenting a law book on the subject of Public Schools, I claim that this is one of the mo^t important subjects that come under the supervision of courts, and is farther reaching than any other — covering in its scope, social, business, religious and official rela- tions. I have quoted largely on prominent subjects from the leading cases, and it has been a task of pleasure to prepare the volume for publication, knowing that while many decisions may appear conflicting, yet they are presented in such a manner that those who use this book can readily distinguish and apprehend the law applicable to the system in their State. I trust that Teachers, School Officers and the Bar will appre- ciate the effort to unravel and present in a tangible form the law of the land, taken from nearly 5,000 cases in the courts. IRWIN TAYLOR. ToPBKA, Kansas. 1893. (3) PUBLIC SCHOOL LAW. § 1. Appeals. — Oi'dinarily an appeal does not lie, the sole purpose of iwhich is to determine the validity of a claim against the district, and the right of appeal is confined to the party affected by the decision. It is generally an adequate remedy from the exercise of discretionary powers imposed on an officer, but often where the obligation on the officer is mandatory the courts of law give speedier relief by the writ of mandamus. "Where the right of appeal is given, and the record shows that this right was attempted to be exercised, that the appellate tri- bunal took jurisdiction of the matter, that the parties interested appeared before such tribunal, that no objection was made to its jurisdiction of the appeal, the regularity of the steps taken to perfect such appeal will, in any collateral inquiry, be pre- sumed.'" Under Ind. Law of 1855 an appeal would lie to the state superintendent from action of trustees on location of school-house ;^ and under law of 1861, if trustee refused to locate, appeal would be to examiner, and trustee would be compelled to locate site by mandamus.' In E. I. the school commissioner cannot reverse decision of school committee of town on location of site, but appeal is confined to redress of grievances violating rights,* and there is no appeal in a dispute between tax officers as to payments of moneys.^ The decision of the supreme court judge on appeal from school commission- 'Bd. Ed. T. Campbell, 17 K8s. 541. 'State V. Custer, 11 Ind. 810. sTrager T. State, 21 Ind. 317. ♦Gardner's Appeal, 4 K. I. 602. 5 Appeal of James, 5 E. I. 602. (5) PUBLIC SCHOOL LAW. ers is final,^ and the jurisdiction on appeal is comprehensive in its character, and settles many controversies and disputes. In Md. the question decided on appeal is considered as res adjvdi- cata.^ The remedy by appeal is one more suited to settle the questions there involved, and often gives more satisfactory, cheaper and speedier relief.' Under N. J. L. 28, all appeals must be to the county superintendent.* In Wis. the state superin- tendent has appellate power over the decision of town boards on division of districts, and he may make his own rules, requir- ing evidence to be in form of aflBdavits, and briefs to be filed without oral argument ; ° and when not required by statute, it is not always necessary that the board or officer hearing matters in dispute should require the witness to be sworn ;° and in the delicate questions of teachers' fitness, it seems best sometimes that it is advisable not to pursue the same strictness required in court as to evidence.' The county superintendent in Ind. can- not compel the building of a school-house on a site when the land does not belong to a township,' and no appeal will lie to the superintendent from action of trustee making contracts or dismissing teacher in a city or town,' but appeals should ex- clusively relate to school matters, and in certain cases the deci- sion of the superintendent is final ;" and when the school law is doubtful, the opinions of the officials having power to pass on school questions is of great weight," and the decisions of the state superintendent are entitled to great weight.'* In fact, the decision by the tribunals having jurisdiction are always prvtna faeie proper, and must be overthrown by the appellant. 1 Smith's Appeal, 4 B. I. 590. 2 Wiley v. Sch. Comm'rs, 51 Md. 401. 'Wiley V. Comm'ra, 51 Md. 406: Appeal of CottreM, 10 R. I. 618. < State V. Gloucester City, 45 N. J. L. 100. 'State V. Whitford, 54 Wis. 150. •People V. Bd. Bd., 3 Han (N. T. ), 177. ' People T. Bd. Ed., 3 Hun (N. T.), 177. BKoontz T. State, 44 Ind. 383 ; State v. Me- whinney, 67 Ind. 397. •Crawfordsville v. Hayes, 4SInd. 806. lOFogle V. Gregg, 26 Ind. 346. 11 Appeal of Cottrell, 10 E. I. 615. "State T. Burton, 45 Wis. 160. APPEAL. § 2. Appeal. — In N. Y. the county judge under the act of 1864 can only review cases arising under § 8, and cannot review refusal of a district to vote a tax to reimburse trustee for costs in endeavoring to recover a penalty imposed under § li of that act,* and the power of the board of education to hear appeals in removal of teacher by trustees is discretionary, and the supreme court cannot reinstate.' When teacher's certificate is annulled and he appeals to the state superintendent, his decision is final,' and under act of 1864 the manner of investigating the appeal is left to the discretion of the board of education.* In Mich, an appeal from the action of inspector to the town board on ar- rangement of districts, is a waiver of the questions requiring judicial review.' In Cal. certiorari was refused to review the action of board of education in adopting text-books, it being held that the adoption was legislative and not judicial.' On reviewing the decision of state superintendent on appeal, the proceedings by certiorari only go to the extent of ascertaining whether the officer having jurisdiction has acted according to the law ; errors and irregularities will be corrected,' but the writ will not warrant reviewing questions of fact, where there is conflict of evidence or judgment on the merits.' § 3. Appeal. — It was held that where appeal was given, that precluded the right to apply for mandamus," and an appeal re- specting location of school-house does not give the president of a district power to employ counsel at the expense of the dis- trict ; such an appeal is not a suit." Where pupil is expelled, the party is not relegated to his right of appeal to county super- 1 People T. Hatch, 60 Barb. (N. T. ), S28. "People V. Bd. Ed., 3 Han (N. T. ), 178. 'People V. Collins, 34 How. (N. T. ), 336; 11 Wend. 80. *People V. Bd. Ed,, 3 Hon (N. Y.), 177. ^Brody v. Tp. Bd., 32 Mich. 272. •People T. Oakland Bd., S4 Cal. 375. ' Milwaukee Iron Co. v. Schnbee, Clerk, 29 Wis. 444; Brody v. Tp. Bd., 33 Mich. 272. 8 State V. Whitford, 54 Wis. 154. » Marshall v. Sloan, 35 Iowa, 445. lOTemplinv. Dist. Tp., 46 Iowa, 411. PUBLIC SCHOOL LAW. intendent, but he may maintain action of mandamus,' and no pupil can be suspended except as a punishment for breach of discipline or an offense against good morals.^ Where a teacher was wrongfully discharged for incompetency, it was held the remedy was appeal, and that he could not maintain an action on his contract.' The refusal of an annual meeting to act on a proposed change of boundary cannot stop an appeal,* and on appeal from change of boundary-line the commissioner must confine himself to the question whether the change proposed at said election shall be made.^ In Mich, the approval of the ap- peal bond is essential to the appeal,* and the township board there will entertain appeal on apportionment of debts on di- vision of a district.'' On selection of site by trustees, one-third of the electors may appeal in Ky. to county superintendent, whose decision is final,' and his decision cannot be disturbed unless it is shown he acted on improper motives." The removal of an assessor by the township board is reviewable on certiorari," but its proceedings can only be reviewed in courts of law on questions of law," and its action in removing a director is final unless speedily brought up for review.'^ §4. Appeal.— It was held -in Krdght v. Woods (Ind. Sup.), 28 N. E. 306: "Under Eev. St. Ind. 1881, §4537, providing that appeals shall be allowed from the decisions of the township trustees relative to school matters to the county superintendents, and their decision of all local questions relating to the establish- ment of schools and the location of school-houses, etc., shall be final, the decision of the county superintendent prohibiting the 1 Clark V. Bd. Dir., 24 Iowa, 266 ; Smith v. Ind. Dist., 40 Iowa, 518; Dove v. Same, 41 Iowa, 689; Perkins v. Dirs., 56 Iowa, 476. sperkins v. Dirs., 56 Iowa, 476. 8Kirkpatrick v. Ind. Diet., 63 Iowa, 585. *S5Mo. 156. '86 Mo. 156; 89 Mo. 23; 94 Mo. 618. « Clement T. Everest, 29 Mich. 19. ' Sch. Dlst. V. Wilcox, 48 Mich. 404. ' Stiles V. Beall, 11 Ky. L. K. 486. 'Brinsmore v. Cottingham, 12 Ky L H 720 J" Merrick v. Tp. Bd., 41 Mich. 630. "Tp. Bd. V. Holiham, 46 Mich. 127. "Qeddes v. Tp., 46 Mich. Sid. APPEAL. ■erection of a school-house on a location selected by the trustee is within his jurisdiction, and is final and binding on the trustee ; And it is immaterial whether the selection has been made by the trustee on his own motion, or by proceedings instituted by the "voters. . . . It is immaterial at what time the superintend- •ent's decision in such case is entered on his record." "By § 4637, Kev. St. Ind. 1881, appeals lie in matters of this ■character from the decision of the township trustee to the county .superintendent, and the decision of the superintendent is made £nal. In so far as the decision of the county superintendent -related to the condemning and prohibiting the erection of the «chool-house on the site designated by the trustee, it was within his jurisdiction, and was valid and binding upon the trustee, and took from the trustee all authority to build a school-house on that site. The finding of facts shows that this decision was made upon the 29th day of October, 1889, and that the trustee iad full knowledge ofi the decision when he let the contract to Williams ; though it appears that such portion of the decision -was not entered on the superintendent's record until after Nov. -5 th. The decision was binding, though not entered until after- wards. {Tufts V. State, 119 Ind. 232.) "It is contended by counsel for appellant that the duty of Tjuilding and providing proper school-houses is enjoined on the -trustee by §4444, Eev. St. 1881; that it is exclusively within the discretion of the trustee, and cannot be affected by an ap- peal to the county superintendent ; that the right of appeal lies ■only when proceedings are instituted by the voters of the school district, as provided by § 4499, Kev. St. 1881 ; and that in no ■event can the sound discretion of the trustee be controlled as •declared in the proviso to § 4499, supra. The proviso appended 10 PUBLIC SCHOOL LAW. to § 4499, sitpra, relates to the action taken by the voters in re- lation to repairs, removing or erecting school-houses, and costs thereof, and provides that the action taken by the voters shall not be conclusive, and prevent the trustee from exercising a. sound discretion ; while § 4537, supra, gives the right of appeal in such matters to the county superintendent, and inakes his de- cision final. There is no inconsistency in these sections of the- statute. The trustee first determines in regard to the loca- tion, building, or removing of school-houses, and from his de- cision there is an appeal to the county superintendent, and his- decision is made final. The decision of the superintendent in this case went beyond his power in ordering the school-house erected on another site not owned by the township, and that portion of his decision is probably void ; but that question i» not involved in this case. " It is further contended that the appeal was not taken from the trustee within the proper time, but it is not shown by th& finding of facts the date when the trustee made his decision. No entry of it was made of record, and the voters of the dis- trict and patrons of the school were in no way notified of his having made it. He paid for the land Oct. 1st, and afterwards, gave notice that he would let a contract for the building of a. school-house. When those steps were taken, the appellees took immediate steps to preserve their rights. The trustee granted the appeal, and appeared and submitted the question to the- county superintendent for decision, and by such decision he was bound. The judgment is affirmed, with costs." § 5. Bonds. — In an election, "the" omitted from the words, "for the bonds" on the ballot does not invalidate the election,^ 1 state T. Metzger, 26 Kas. 395. BONDS. 11 and mere irregularities will not invalidate.' A vote was re- quired by a majority of all the inhabitants of a district entitled to vote ; it was held that a vote in favor of bonds by a majority of those voting was sufficient, though this was less than half the voters at that meeting f but it was held, where bonds may be voted for at special or at regular city election, and must have a majority of votes polled, if voted for at a regular city election all the votes cast at such election for any officer must be con- sidered to determine the issue of the bonds f and where bonds were voted and sold, and proceeds used by district, on petition to compel the officers of the district to report the amount of debt, the court will not investigate the regularity of the election when the same was held in good faith by iona fide residents of the district.* The successors of a school district, sued on a bond given by former district, are not estopped from making defense of non-incorporation of former and ultra vires.^ The right to recover on refunding bonds cannot be defeated because a part of the proceeds of their sale was misapplied ;° but where a board issued to one of its members a bond for an unauthorized pur- pose, a person who received the bond from the payee, knowing that he was a member, could not recover on the bond ;' but bonds issued under a law for a proper purpose are valid in the hands of innocent holders for value, notwithstanding the uses for which they were intended have been prevented.* No au- thority is given school directors to issue bonds and place them on the market for anything less than their par value. If they > state T. Ellvrood, 12 Wis. 552; State v. Ca- vers, 2S Iowa, 343; Cattell v. Lowry, 45 Iowa, 478; Clark v. Robinson, 88 III. 498; Kirk V. Rhoads, 46 Cal. 398. 'Smith V. Proctor, N. T. App., 29 N. B. 313; 6 N. T. S. 212. 8 state V. Benton (Neb.) 45 N. W. 794. * state V. Adams Co. Sch. Dist., 13 Neb. 83. SDartmonth etc. v. Sch. Diet., 6 Dak. 865. "Cummins v. Dist. Tp., 42 F. 644. ' Hewitt v.Norm. Sch. Dist. Bd. etc., 94 111. 528. 8 Sherlock v. Village Winnetka, 68 111. 531. 12 PUBLIC SCHOOL LAW. •do, they are liable in 111. for any loss the school fund may sus- tain.' § 6. Bonds. — 111. Kev. St. 1874, p. 47, conferring upon school ■directors the power to give bonds for money borrowed, enlarges the power they would otherwise have in connection with the power to borrow money.'' The right of the secretary of state •and auditor of public accounts, in La., to claim possession of the assets of the free-school fund, is not affected by the pre- scription of three years.' Payment of interest does not estop , district from repudiating where it is not shown that the district officers and people had knowledge.* In action against direct- ors in 111., on a note, it must be alleged that the indebtedness was incurred for a purpose authorized by statute.' The Neb. statute that the submission of bonds to vote must also include a proposition to levy tax to pay interest on same, does not apply to act of March 31, 1887.° Bonds issued under a vote not authorized by law are not valid even when held by innocent purchaser,' but authority to issue a certain amount does not invalidate the issue of a lesser amount or levy of tax at lesser rate.' §7. Bonds, — In an action against a district on refunding bonds, the burden is on defendant to show that at the date of the original issuance the outstanding indebtedness of the district exceeded its constitutional limitation,' but the refunding of an outstanding valid bonded indebtedness is not the creation of a debt, within the inhibition of Const. Iowa, art. 11, p. 3, provid- ing that "no county shall be indebted in any manner exceeding 'Adams v. State, 83 Ul. 132. ' PolBom T. Sch. Dirs., 91 HI. 402. •San. M. Co. v. Bd. of Liquidation, 31 La. An. 175. ■•Astiuelot Bk. v. Sch. Dist., 41 F. 514. 'Sch. Dist. V. Sippy. 54 Ul. 287. » State V. Benton ( Neb ) 46 N. W. 794. ' Ashnelot Bk. v. Sch. Dist., 41 P. 514. e Rogers v. Trs., ( Ky. ) 13 8. W. 587. •CumminB v. Dist. Tp., 48 F. 644. BONDS. 13; five per centum on the value of the taxable property."* Ad act authorizing trustees of district to hold an election, subscribe stock, and issue bonds in aid of a railroad, is unconstitutional,*' and the act which abolished the free-school fund, and ordered the bonds composing that fund to be sold, is unconstitutional,. and no title is acquired at a sale made under said act.' In Kas. a school district irregularly created and organized may issue bonds that will be binding on that territory,* so a school district de facto, but not de jure, may issue bonds; its acts bind itself,, third persons, and its successor,* and power to borrow money implies power to issue bonds therefor under Neb. statutes.^ §8. Bonds.— Under 1st Ind. Kev. St. 1876, p. 343, where trustees of incorporated town have filed a verified report show- ing contract to purchase land on which to erect building, and showing amount of debt and cost of building, and asking the issuance of bonds, the board may authorize sale of the city bonds not exceeding limit specified in the first section of the act f but where bonds were issued to purchase a site and erect a building, and the bonds recited on their face that they were issued in exchange for a school-house and site, it was held that the issue of bonds for that purpose was not authorized by stat- ute, and that they were not valid.' The ofiicial certificate of call for bond election to purchase a site and build a school- house, and of the posting of notices, and result and issuance of the bonds purporting to be by officers of the district, and of the election and registration of the bonds, are evidence of corporate existence of the school district.' The selection of an ineligible site, or the fact that a former election bad resulted against their 1 Cnmmins v. Dist. Tp., 42 F. 644. » Williams v. Albion, 58 Ind. 329. STrastees of School v. People, 63 HI. 299. ' State v. Sch. Dist., 16 Neb. 182; State v. Bd. aState V. Bd. of Liqnidators, 29 La. An. 77. ^ Co. Comm'rs, (Neb.) 48N. W. 146, 4 Sch. Dist. y. State, 29 Kas. 57. « State v. Sch. Dist., ( ^ eb. ) 33 N. W. 206. » State V. Adams Co. Sch. Dist., 13 Neb. 78. 14 PUBLIC SCHOOL LAW. issue, does not invalidate the issue of bonds at a later election.^ "The St. Joseph (Mo.) board of public schools had power to is- sue bonds in 1868 and 1871 to build school-houses, and to re- fund same.^ The leasing of a public school building for private school unauthorized by law, will not render the building bonds invalid.' Boards of education in cities of first class under law of 1879, in Kas., had no authority to issue bonds to raise funds to purchase a school-site, or to erect buildings.* § 9. Bonds. — In the case of Oibbs v. Sch. D. (Mich.), 50 N. W. 294, it was decided: "Under How. St. Mich., §§5104, 6105, which authorize the school-district board to issue bonds only in specified instances and on a vote of the school district, the question whether the proceedings to vote bonds are such as will authorize the board to issue them is one of fact, to be de- termined by the board, and hence a recital in a bond, signed by two of the three members of the board, that the bond is issued pursuant to a vote of the qualified electors at a special school meeting, held at a designated date and place in accordance with law, is sufiicient evidence of the legality of the issue to protect a l>07ia fide purchaser, though the records of the board •do not show its authority to issue the bond. " Purchasers of municipal bonds are bound to know the ex- tent and limitations upon the authority of the corporation to issue the bonds. They are bound, in other words, to know the law under which the authority is exercised. Purchasers of such securities have a right to rely upon all facts asserted or appear- ing upon the face of the bonds, made by any person or body authorized by law to pass upon and determine the facts. In purchasing this bond the purchaser was bound to know that iTaylorv. Brownfleia, 41 Iowa, 264. I » Sherlock T. WinTietka, 68 III. 530. ' ii St. Joseph Sch. Bd. V. Gay lord, 88 Mo. 401. | *Bd. Bd. v. State, S6 Kas. 44. BONDS. 15 fichool districts have no authority to issue bonds except for the purposes specified in the statute, and that their authority is lim- ited by the number of scholars between five and twenty years then residing in the district ; that there must be a two-thirds vote of the qualified electors in favor of their issue. The pur- chaser is chargeable with knowledge of the prerequisites of a legal special meeting, and of the provisions for a board of in- spectors, and their duties, and of the requirement that the vote shall be by ballot. The recitals in this bond are made by the director and moderator, who compose a majority of the school board. Neither the school board nor the moderator and director are authorized to issue the bonds unless voted by the district at a lawful meeting; and under §5104, before the board can act they have a function to perform, in its nature somewhat judicial, and that is as to their own authority to issue the bonds. The statute limits that authority to bonds voted by the school dis- trict, and consequently the question whether the proceedings to vote such bonds are such as will authorize the board to issue them must be passed upon by the board. A purchaser of the bonds, therefore, need look no farther back than the face of the bonds for the facts which show a compliance with the law. We think the assertion appearing upon the face of the bond is suffi- cient evidence to an innocent purchaser that the board ordered and directed the bond to be issued. The officers signing the bond are two of the three officers who constitute the board, and the director is the officer whom the statute requires should make a record of the proceedings of all district meetings, and the or- ders, resolutions and other proceedings of the board. It mat- ters not, theref9re, that the records kept by the board do not show the order of the board to execute the bonds. The title of 16 PUBLIC SCHOOL LAW. a iona fide holder of the bond cannot be defeated by a neglect to enter the order in cases where the face of the bond upon which he has a right to rely recites the fact that such order was- made. "This case is not controlled by Spitzger v. Village of Blcmeh- (M-d, 82 Mich. 234. In that case there was a limitation upon the authority to borrow money in excess of a certain percentage upon the taxable property. In that case the law did not desig- nate any body or board to pass upon the facts, and only per- mitted the bonds to be issued for 'loans lawfully made.' The bonds could only be issued upon the vote of the electors, and the bonds did not recite that such a vote was taken. In that case we said that 'where there is a total want of power, under the law, in the officers or board who issue the bonds, the bonds will be void in the hands of innocent holders, the distinction being between questions of fact and questions of law. If it is a question of fact, and the board or officers are authorized by law to determine the fact, then their determination is final and conclusive ; and although it may be contrary to the fact, yet if recited in the bond that the necessary and proper steps required by law to be taken had been taken, then the municipality is es- topped from denying that they were taken.'" § 10. Building contract. — Where a school district votes to purchase a building for a school-house, and raises funds, and a committee of the district make a bargain in behalf of the district for the purchase of the building at an agreed price, if the district afterwards uses the building for a school-house, in an action by the owner to recover the price the defendant cannot deny the authority of the committee, and is bound, in the absence of fraud or mistake, to pay the price agreed on by the committee. BUILDING CONTEACT. 17 although they acted in making the purchase without any legal antecedent authority.^ Where a school district contracted witli a builder to erect a school-house for a certain sum, with liberty to build a public hall over the same, as the builder's property, the district to have the use of the hall free of charge, for meet- ings and for examinations of the schools, etc., and the house was so built, the district did not exceed its authority, and a tax therefor was legal.^ "Where a tax was raised to build a school- house, and a committee was appointed for this purpose, but, owing to some difficulty as to the land for the site the com- mittee did not proceed, and a second meeting was called to take the whole matter into consideration, and the district was unable to elect a committee, but requested the selectmen to proceed and build the house, this was construed as npglect and refusal on the part of the district to give the selectnien jurisdiction.' § 11. Building contract, — A district authorized its school board to build a school-house, and to expend not to exceed 15,000 in building, and to procure plans for the house, which were to be presented at the next meeting. At that meeting plans were not accepted, but an architect was empowered to make other plans and specifications for a certain size building, and to have them ready at the next meeting. At that meeting no plans or specifications were presented, or adopted by the dis- trict, but the meeting appointed the school board a committee to carry oat the previous vote of the district to build a school- house, and with power to act fully in the matter, limiting the board to a certain size for the building and the amount to be expended ; the power thus conferred on the school board was; full and complete, limited only as to size of school-house and "Keyserv. Sch. Diet., 35N.H. 477. I 'Blake v. Sturtevnnt, 12 N. H. 667. ' George v. Meudon, 6 Mete, ( Mass. ) 497. | 18 PUBLIC SCHOOL LAW. the amount of money to be expended, and their acts were legal and binding.^ The school board let the contract for building accordingly, and as the work progressed certain changes were necessary in order to make the building symmetrical and strong, which changes were made by order of the board, causing an ad- ditional outlay. Held, that so long as the changes were bene- ficial and necessary, and the additional cost, added to the original contract, did not exceed the amount limited to be expended, the board had the power to make them, and its acts are binding.' A committee with power to lease executed a lease to A for five years ; another committee, same year, subsequently executed a lease for the building to B for four years, which lease B ac- cepted and had recorded ; in an action by A against B, under Conn. Stat., title 56, ch. 1, § 12, against selling pretended titles, it was held that the first committee had authority to make the lease to A, and that A was rightfully in possession under it ; but that as he was tenant of the society, claiming under it, the society were not ousted of their possession, and consequently B had not incurred the forfeiture of the statute.^ The board of di- rectors of a district township, having power to make contracts for the erection of school-houses in the sub-districts, may ratify a contract of this character,' but where vote to raise money to bund is absolutely void for want of power, no claim will lie against district, and cannot be made by ratification.* The board of public schools in St. Louis, in contracting for building may take a bond from contractor to protect material and labor, and may sue in their behalf on said bond ;^ and in Iowa, contract for building school-houses must be let to lowest bidder, who must give bond ;" and under Ohio Eev. Stat., § 3988, board of lEdinburg Am. L. & M. Oo. v. City of Mit- chell, S. D., 48 N. W. 131. 2 Emerson v. Goodwin, 9 Conn. 422. * Steyenson v. Tp. of Summit, 35 Iowa, 462. ■•Brown v. Sch. Dist., (N. H. ) 10 A. 119. 6 St. Louis Sch. Bd. v. Woods, 77 Mo. 197. 6 Weitz V. Ind. Dist. of Des Moines, Iowa, 44 N. W. 698. BUILDING CONTRACT. 19 education can accept only the lowest responsible bid for im- provement or repairs,' and a contract for building at larger cost than authorized is void.*' § 12. Building contract. — In Ind. the school trustees can- not bind a township without an order from county commission- ers, for erection of a school-house, when the debt of a township already exceeds the money in hands of trustees and that to be raised by taxes for the next year ;' but Mich. Comp. Law, § 3618, in providing that the township school director shall keep the necessary school-house furniture in proper order, and that his expenses shall be subsequently audited and paid, does not in- tend that money must be put into his hands beforehand.* A provision in a building contract that a board may retain in their hands a certain fund to meet the demands of material-men is valid,^ and equity will treat the transaction as an assignment of the fund, to the exclusion of any other creditors of the origi- nal contractor.* Contracts should be made with reference to the funds in the treasury for that purpose, and the district board has no authority to draw orders on a fund which has been pro- posed, but not raised by taxation." § 13. Building contract. — A school district having voted a certain sum toward purchasing land and erecting a school- house, it is no defense to an action against them on a contract with their committee, that the committee expended a larger sum than that named in the vote, nor that the school-house was worth no more than that sum ;' and where the district voted to build a school-house, and located it, and chose a committee to superintend the building thereof, and the committee employed ' state T. Bd. Ed., 42 Ohio St. 374. 2 App, Lnbnrg, 23 W. N. C. 454, Pa ; 17 A. 245. aMiddletown v. Greeson, 106 Ind. 18; Eose- boom T. .Tefl. Sch. Tp., 182 Ind. 377. ♦Hantranck v. Holikan, 46 Mich. 127. ^Lnthy v. Woods, 6 Mo. App. 67. «Sch. Dist. V. Stongh, 4 Neb. 357. ' Jnnkins v. Union Sch. Dist., 39 Me. I 20 PUBLIC SCHOOL LAW. the plaintiflEs to build the house, and they built it where the committee directed, but not where the district had voted to locate it, and on land owned by the district, the plaintiffs acting in good faith under the direction of the committee, the district was held liable.* In a suit on a building contract against trus- tees, where there was no allegation that they were trustees and had contracted as such, or were so authorized, a recovery could not be had.^ Where a school-house was used to keep all the schools of the district, without objection from anyone, and the district at its annual meeting, after the house was built, voted to sell the old house to help pay for the new one, and also voted to raise money to pay for the house and land, the evidence was competent to show a ratification of what had been done by the plaintiff and an acceptance of the house by the district, notwith- standing an informality in the notice of the meeting.' § 14. Building contract. — The inhabitants cannot em- power a building committee to advertise or make a contract for building a school-house, or do any other act binding upon the trustees, without their assent.* In Ind. the township trustees may levy a tax to build school-houses ; and their contracts for building such houses are binding on the township.* Where a district erected a school-house with a hall on the second floor, on a petition praying for an injunction against the collection of tax for same, on the ground that such expenditure was illegal, the court found that the house, with the exception of the hall, was not more than the convenience of the district required for school purposes ; it was held, that aside from any question as to the propriety of erecting said hall, the proceedings of the iBaker v. Sch. Diat. No. 2, 46 Vt 189; Norris V. Sch. Djst., 12 Me. 293. sShuIerv. Meyers, 5 Lans. N. Y. 170. sChapin v. Sch. Diet. No. 2 in Walpole, 30 N. H. (10FoBt.]g5. * People V. BanfleM, 6 How. (N. T. ) Pr. 437. 5 Heal V. Jefferson, 13 Ind. 431 : Eose y. Bath. 10 Ind. 18. BUILDING CONTRACT. 21 district were not illegal ;^ and where the expense of such hall was about one-fifth of that of the whole building, and it would be useful and convenient for holding district meetings and ex- hibitions, these were legitimate objects ; and the vote authoriz- ing the building of such school-house was not void, because it specified, among other uses of the hall, that of holding school society meetings and lectures therein.^ §15. Building contract. — The board of directors of dis- trict have no power to employ one of their number to oversee the completion of a school-house abandoned by the contractor, nor can he recover from the district for services so rendered.' Under the Iowa law ■v^hich empowers the electors to vote a tax "for the payment of any debts contracted for the erection of school-house, and for procuring district libraries," etc., they can- not be incurred by the directors before a tax has been voted upon.' A warrant in W. Va. against sheriff for material and labor furnished for school-house is a novation, and after accept- ance an action of assumpsit will not lie against board, but holder must sue sheriff.* Where board of education does not take bond required from contractor for building school-house, the board will be liable for labor and material, but the payments thereon will be a set-off in action by contractor on the contract.' Where land is held by city in trust for public school, the board of edu- cation may build thereon, (the law of Neb. forbidding building of brick or stone school-house without at first obtaining title in fee.)' In 111. the board of education cannot contract to build school-house without petition of majority of voters of district.' 1 Sheldon v. Centre Sch. Dist., 25 Conn. 224. 2 Moore v. Toledo City Dlst., 55 Iowa, 654; Weitz V. Ind. Dist. Iowa, 43 N. W. 577. 'Manning v. Van Buren, 28 Iowa, 338. *Canby v. Sleepy Creek D. B., 19 W. Va. 93 swells V. Bd. Ed., (Micli. ) 44 N. W. 287. "State V. Benton, (Neb.) 45N.W. 794. 'Bd. Ed. T. Eoehr, 23 111. App. 639. 22 PUBLIC SCHOOL LAW. (They may now on petition of 600 voters, or one-fifth the vot- ers.) In assumpsit to recover pay for building a school-house and finding materials therefor, the district cannot object to the absence of proof of a legal meeting to determine upon the build- ing and the raising of the money therefor, unless they have raised such objection by their specifications of defense,^ and a contract for school-house building not authorized by vote re- quired by statute is void ; but the district cannot recover money advanced to the contractor.^ § 16. Building contract. — Where at a meeting it was voted to build a school-house, and the committee was directed to make a contract proposed, and the meeting adjourned to a certain day, and before that day another meeting was legally called, and the district voted at that time to build on a plan proposed by another party, the second meeting rescinded the first ;' and where the meeting notice was not legal, and a committee was chosen who superintended the erection of a school-house, it did not thereby bind the district.* A contract to build a school-house for an amount in excess of funds on hand, or subject to collection for that purpose, and the amount that could be realized by the max- imum tax which could be levied by the inhabitants for the cur- rent year and used for that purpose, is void, and could not be ratified.^ § IT. Building contract. — Where one contracts to build a school-house in a particular manner, to the acceptance of a dis- trict, and erects one thereon which is not built according to the contract, and the committee do not unreasonably refuse to ac- cept it, and there is no acceptance, he cannot recover •," nor be- cause defects were waived, unless the subsequent work is done 1 Cnllins V. School Dist., 52 Me. 522. ! Fluty V. Sch. Diet., 49 Ark. 94. ' George v. Metidon, 6 Mete, ( Mass. ) 497, « Jordon t. Diet., 38 Me. 164. s Cap.Bk. V. School Diet., ( N. D. ) 48N. W. 363. •Hill V. Sch. Dist. No. 2, 17 Me. 318. BUILDING CONTRACT. 23 conformably to the contract, or accepted.* Boards of school commissioners in cities of more than 30,000 inhabitants, un- der Ind. Eev. Stat., § 4460, may contract for building school- house and give its notes for deferred payments.' Where contract is required to be let by township board to lowest re- sponsible bidder, this power cannot be delegated to sub-district officers.' § 18. Under Yt. Gen. Stat., ch. 22, § 43, it is within the prov- ince of a school district to build a hall in connection with a school-house, designed to accommodate the school and the in- habitants of the district for the purpose of examinations and exhibitions, and such other things as are proper and customary in connection with district schools.* Mandamus lies to compel trustees to erect a school-house, according to the superintend- ent's decision in Ind.;° (but see § 1, cmte.) No power is given in Wis. K. S., § 434, to the district board to build a school-house and then afterward impose the cost on the district, and Laws 1883, ch. 116, do not imply a ratification.' The normal-school authorities, having accepted the buildings erected by plain tiflE and leased to them, which buildings were erected in pursuance of the authority granted by vote of the citizens, cannot retain the buildings and repudiate the conditions attached to the grant •,' and the plaintiffs' recovery is not defeated because their con- tract was with a committee styled the " building committee of the district," instead of a "committee to superintend the laying out and expending of the moneys raised by the district," such a committee being the only one authorized by Laws 1860, art. 2, ch. 193, § 9, Me.' A sub-contractor can recover; in a suit against iHlU T. Sch. Dlst. No. 3, 17 Me. 316. 2 Fatont V. IndianapoliB S. C, 102 Ind. 223. 'Stock Bd. &c. T. MUla, 38 Ohio, 383. «GreenbankB v. Boutwell, 43 Vt. 207. 'State V. Cnster, 11 Ind. 210. •Nevil T. CUflqrd, 63 Wis. 435. 'City Emporia v. Partch, 21 Kas. 208. « Collins V. Sell. Dist., 52 Me. 522. 24 PUBLIC SCHOOL LAW. the district and the principal contractor, only an indebtedness of the contractor to him to the amount due such contractor from the district.* § 19. Building contract. — Under act of 1853, since re- pealed by act of 1857, a school-house erected in a sub-district formed from two townships was to be paid for solely by the part of the sub-district included in the township in which it is erected.^ The Ohio statute authorizes the committee to assess "such portion" of the cost as they deem just upon the sub- district, and under that they may assess the whole upon the sub-district, and their certificate to the auditor need only state the amount, and not their reasons therefor.^ The school board has no power to contract for work- upon a school-house, unless authorized by voters of the district, under Neb. Gen. Stat., 966, §§ 29, 30.' A district at special meeting can vote to raise money to build school-house, notwithstanding a previous failure of such vote the same year.* Under N. J. Law, a majority vote of those present at a meeting is binding, except in regard to condemning land.* In Ga. a purchase of an interest in a building for public school purposes, where it is not kept up for private gain, is not illegal.^ By the 111. act of 1857, a tax to erect school-houses must be voted by the people." Kesolution to raise a single sum for building and furnishing a school-house is not bad for un- certainty because the amounts are not separately stated.' An order of a board of Ind. township trustees, signed by the clerk and president, on the treasurer, for the building of a school- house, was a valid demand, upon which an action might be maintained." JRadeunz v. Sch. Dist., 42 Wis. 397. 2 Bryant v. Goodman, 9 Ohio St. 471. * Gehllng v Sch. Dlst., 10 NeK 839. ■• State V. Clark, ( N. J. ) 19 A. 462. "Danully v. Cabaniss, 52 Ga. 211. 'Beverly v. Labin, 20 111. 357. 'State V. Clark, (N. J. ) 19 A. 462 'Heal y. Jefferson, 15 Ind. 431. BUILDING CONTEACT. 25 § 20. Building contract. — It was held in Capital Bank of St. Paul V. School List. No. 53 of Barnes County, 48 N. W. Eep. 363 (N. D.) — opinion by Corliss, C. J. : "A contract authorized by the inhabitants of a school district at a district meeting, to build a school-house for an amount in •excess of funds on hand or subject to collection for that pur- pose and the amount that could be realized from the maximum tax which could be levied by the inhabitants for the current year and used for that purpose, is void. Therefore, held, that ■such a contract, void because the district board had no author- ity to make it, could not be made binding upon the district by subsequent ratification by the inhabitants. Whether there was sufficient evidence of such ratification, not decided. " Such contract being impliedly prohibited by statute, the re- •ceipt by the district of the fruits thereof creates no liability •either under the contract or for the value received. "A warrant creates no greater liability than the debt it rep- resents, whether in the hands of the original party or of a pur- •chaser before maturity and for value. . . . "That the action of the district board in making the contract to construct the building was wholly unauthorized and void, •cannot well be disputed. (See Farmers <&c. Bank v. School Dist. No. 53, [Dak.J 42 K W. Kep. 767.) The power to desig- nate a site and to authorize the building of a school-house is vested exclusively in the inhabitants. But it is urged that, al- though not originally binding upon the district, the contract .has been ratified by the conduct of the inhabitants since the erection ■of the school-house and the issuing of the warrants representing the alleged contract price therefor. While we do not wish to be considered as assenting to this view of the evidence, we will 26 PUBLIC SCHOOL LAW. assume, for the purpose of this opinion, that there was sufficient evidence of ratification to submit to the jury : still we think the court would have been justified in rendering judgment for de- fendant. Nay, we hold it would have been the duty of the court to give such judgment. Batification is equivalent only to original authority, and we are of the opinion that the inhab- itants, under the statute, had no authority to direct the building of a school-house whose cost would exceed the funds provided for that purpose. We hold that this contract was void, not only for want of power in the district to make it, but because prohibited by the spirit and necessary implication of the statute. "Our views find support in the decision of the territorial supreme court in Farmers' &c. JBamJc v. School Dist. No. 53^ (Dak.) 42 ]Sr. W. Kep. 767. We find nothing in Capital Bcmh V. School Dist. No. 85, id. 774, decided by the same court at the same term, at war with the other decision. It is true that in the first case the court, while favoring the construction we adopt, limited the scope of its decision to the denial of the right to create a present indebtedness by the issue of warrants, payable immediately, in excess of the amount of tax that could be levied during the year the debt was contracted. This is th& doctrine of Minn, under a similar statute, but we cannot give it our assent. . . . " The language of the supreme court of Wis., in Kane v. School District No. S, 62 Wis. 502, meets our full approval: 'We en- tertain very grave doubts whether the board and the voters of the district combined can make a contract payable out of funda not intended to be voted or raised by taxation during the cur- rent year, except by taking such proceedings in the particular BUILDING CONTRACT. 27 cases authorized as are necessary, under the statute, to make a. loan in behalf of the district. If they can, then it would be wholly unnecessary to make any loans on behalf of a district,, and the district might during any current year incur such an amount of indebtedness, to be charged upon the funds of suc- ceeding years, as to absorb all the taxes which could be lawfully collected in such years, and leave the district wholly without re- sources, except by a repetition of the same system of mortgag- ing the future for the necessities of the present. Either this result would follow, or, if such liabilities were held to be debts lawfully incurred by the district, then the tax-payers of the dis- trict could be compelled to raise the necessary amount to pay the same at the time agreed upon for their payment, notwith- standing such sum might exceed the limit fixed by the statutes- for raising money by taxation for the purposes for which tlie debt was incurred. It seems to be the policy of the laws of this state to restrict the expenditures of the towns, cities, counties,, and school districts within certain specified limits ; and in the case of school districts it has put a very effectual restraint upon such expenditures by fixing a limit to the amount which can be- lawfully collected from the tax-payers of the district for school purposes in any one year. To give proper force to these legis- lative restrictions, it would seem necessary to restrain the dis- tricts, as well as their officers, from contracting debts drawing interest which can become a lawful charge upon the future re- sources thereof.' " § 21. Building contract. — In the case of Sullwam, v. School District, 39 Kas. 347, it was decided : "A contract for building a school-house, void because made by only one member of the school board, may afterward be ratified and made binding upon '28 PUBLIC SCHOOL LAW. the school district by the full school board, or by the school dis- trict. The evidence in the present case tended to prove such a •contract and such a ratification. Held, suflBcient when attacked by a demurrer to the evidence. . . . "It is admitted that the original contract with Eley was at the time it was made void, for the reason that it was not made by the entire school board, but only by a portion thereof. (Aikman v. Sch. Dist., 27 Kas. 129 ; Mincer v. Sch. Dist.^ 27 id. 253.) But it is claimed by the plaintiffs that the evidence introduced in the court below tended to show a ratification of the contract by the entire school board, and also by the entire school district. We think such a contract might be ratified and might be made binding upon the school district. {Fisher v. Sch. Dist, 4 Gush. 494 ; Xeyser v. Sch. Dist., 35 N. H. 477 ; Kim- hall V. Sch. Dist., 28 Yt. [2 Williams] 8 ; Jordcm v. Sch. Dist., •38 Me. 164; Cory v. Som&rsei, 45 N. J. Law, 445 ; National Bank v. Aliany, 92 N. Y. 363 ; same case, 2 Am. & Eng. Corp. Cases, 61 ; Head v. Plattsmouth, 107 U. S. 568 ; Corwim, v. Wal- ■lace, 17 Iowa, 374 ; Humphrey v. Mercantile Association, 50 id. ■607 ; Cooh v. Tullis, 18 Wall. 332 ; City of Conyers v. JSwh, [Ga.J 3 S. E. Kep. 442; Sherman v. Fitch, 98 Mass. 59; Finches v. Luth&ram, Church, 65 Conn. 183 ; Brown v. City of Atchison, 39 Kas. 37, and the numerous cases there cited. See also Walworth County Bamk v. Farmers' Loan and Trust Co., 1^ Wis. 629 ; Supervisors v. Schenck, 5 Wall. 77.)" § 22. Building control.— Under Gen. Stat. Ky., pp. 1155, 1167, § 7, arts. 6, 8, providing that it shall be the duty of the ■county superintendent to condemn dilapidated school buildings, and of the trustees, when notified by the superintendent of the •condemnation, to repair the old building or erect a new one. BUILDING CONTROL. 29' the superintendent and the trustees are the judges of the neces- sity for a new building, and their action cannot be questioned by the tax-payers of the district ;* and where a town is incorpo- rated within the limits of a school township, a school-house sit- uated within the limits of a town passes under the control of the school trustees of the town.^ Under laws of Ind., state- school property is held in trust for school purposes by the per- sons or corporations authorized for the time being to control the same, and it is within the power of the legislature at any time to change the trustee.'' The inhabitants of school district having the power of determining the kind of houses requisite- for their use and the amount necessary to defray the expenses,, courts ought not to interfere, except in cases where it has been manifestly abused.' Injunction, and not mandamus, is the proper remedy to restrain the erection of a school-house, against parties claiming right to control the same.* The city is entitled to possession of normal-school building, where the rent is un- paid, built by bonds and rented to pay interest on the bonds.^ In Ga., where the mayor and council of a city had power to- levy tax for and control school, and a school was built by sub- scription, an injunction was granted, preventing the teacher retained by citizens from interfering or taking possession of building." § 23. Building control. — Kev. Stat., ch. 11, § 22, Me., em- powers school districts to sell and dispose of any school-house or other property, if necessary, and the school district is the judge of this necessity ;' and before school districts were spe- cially authorized to do so by statute, they might make sale of iTruBtees Sch. Dist. v. Jamison, (Ky.) 15 S. W. 1. sCareon v. State, 27 Ind. 465. 'Sheldon v. Centre Sch. Dist., 25 Conn. 224. McDonald V. Starkey, 42 ni. 442. I 'Jaoksonville T. Akers, 11 111. App. 393. •Cbapllnv. Hill, 24Vt. 628. | COLORED SCHOOLS. 37 constitutionally exclude colored children from all benefits aris- ing from this tax, because white people pay the tax, there is no good reason why the state may not limit and distribute the ben- efits of government in every respect according to race or color, and in proportion to the taxes paid by each race or color." ^ Where the statute of the state does not authorize separate schools for colored pupils, they will be entitled to a writ of mandamus for the purpose of obtaining admission to public schools, and shall have equal facilities and be entitled to attend the same school as the whites.^ It is the duty of district offi- cers to provide and furnish equal school facilities for blacks and whites, and they cannot claim immunity by apportioning to the pupils of each color their proportion of the fund.' The privi- lege of attending the public schools of a state is a right granted by the state, and when granted may be enforced by mandamus,* and since 1880, colored children cannot be refused admission in Ca,l. to the public schools, notwithstanding separate schools have been established for them by board of education or school trustees,^ and the law of 1869-70, authorizing separate schools for colored pupUs, was repealed in 1880.° A white person can- not enjoin the sale of bonds, in Ga., to be issued and sold, and proceeds divided according to pro rata of tax as to colored and white.' "Where the state has not authorized separate schools for colored children, a city board of education has no right to establish them.' The directors cannot maintain a separate school solely to instruct three or four colored children of the district when these can be accommodated at the school-house with the other scholars of district.' The law contemplates that 1 Claybrook v. Owensboro, 23 Fed. E. 634. « Knox T Bd. Ed., 45 Kae. 156 ; Bd. Ed. v. Lin- non, 26 Kas l; People v. Bd., 101 Ul. 308. ^Maddox v. Neal, 45 Ark. 181. ■« Ward V. Flood, 48 Cal. 36. s Wyslnger v. Crookshank, 88 Cal. 588. 8Eeid V. TownBatoncon, (Ga.) 6 S. E. 602. 7 People V. Quiiicv Bd. Ed., 101 111. 3Uti,— t Walker, J., dissenting. ) tiase V. Stephenson, 71 111. 383. 8 Chase PUBLIC SCHOOL LAW. all children within the district between the ages of six and twenty-one years, regardless of race or color, shall have equal and the same right to participate in the benefits of free schools ;' and in Iowa, a person cannot be denied admission as a pupil in the public schools on account of his color, nor can he be com- pelled to attend a separate school for colored children.^ The act of 1867 is applicable to the city of Detroit, and under it the school board of that city cannot exclude a resident of that city from any of its schools on account of color,' and mandamus will lie to compel the admission of a negro child to the public schools.* A declaration against school directors, " that the plaintifiE is a resident of a district, having children which he is desirous of having taught in said school, and that the defend- ants, contriving to deprive him of the benefit of having his chil- dren therein educated, unlawfully admitted colored children into the school, whereby the plaintiff was deprived of the benefit and advantage of having his children taught in said school," is bad on demurrer, and states no cause of action.^ Youth of negro, Indian and white blood, but of "more than half white blood," are entitled to the benefit of the school fund.' The children of a white mother and a father three-fourths white, are entitled to participate in the school fund.' Where the number of colored pupils in any district in Pa. is less than twenty, they cannot be excluded from the schools where white children are taught.' § 30. Colored schools. — A state has the power to provide by statute for separate schools for colored children.' It is now well settled that any classification which preserves substantially 1 Chase v. Stephenson, 71 TI. 383. «Lane v. Baker, 12 Ohio, 237. s Smith V. Sch. Dist. of Keokuk, 40 Iowa, 210 ; ' Williams v. Drs., etc., Wright ( Ohio ) 5T9 Dovev.Ind.Sch.Dist., 41 Iowa, 689; Clark « Com. v. Williamson, 10 Phila. (Pa ) 490 V. Bd. Dirs., 24 Iowa, 266. «Bd. Ed. v. Linnon, 26 Kas. 1: Cory v Cnr- 'Peoplev. Bd. Ed., ISMich. 400. ter, 48 lud. 327; State v. McCann, 21 Ohio f State V. Stontmeyer, 7 Nev. 842. St. 198; Ward v. Flood, 48 Cal. 36 Berton- "Btewart v. Southard, 17 Ohio, 402. mean v. Dirs., 3 Woods, 177. COLORED SCHOOLS. 39 equal school advantages does not impair any right, and is not prohibited by the constitution of the U. S/ In suit of man- damus for school facihties for blacks as well as whites, the parents of the children are proper parties plaintiff.'' Where there are white and colored scholars, the laws of Ark. contem- plated separate schools.' In the case of State v. McOcmn, 21 Ohio St. 211, Judge Day, delivering the opinion of the court, says: "Equality of rights does not involve the necessity of edu- cating white and colored persons in the same schools, any more than it does that of educating children of both sexes in the same school, or that different grades of scholars must be kept in the same school; any classification which preserves substantially equal school advantages is not prohibited by either the state or federal constitution, nor would it contravene the provisions of either." § 31. Colored schools. — Where the statute allowed the board of education to adopt regulations so that pupils could be assigned to schools affording equal advantages, and a colored man sought by mandamus to compel the admission of his chil- dren to a school where white children were taught, instead of that for colored children to which they were assigned by the board, the two schools affording equal advantages, the supreme court refused the mandamus ;* and the right to enact laws as shall give to the children of the white and colored races equal educational advantages, but in separate schools, has been rec- ognized and declared.' The Ohio act of Mar. 14, 1853, oblig- ing towns to provide schools for both whites and blacks, is to be construed as a law of classification, and not a law of exclu- iBertonmean v. Dirs., 3 Woods, 177. SMaddox v. Neal, 45 Ark. 121. 'County Pt. T. EobinBon, 87 Ark. 118. < People T. Baston, 13 Abb. Pr. (N. S. ) 164, 185. »Pttitt T. Comm'rs, 94 N. C. 709. 40 PUBLIC SCHOOL LAW. sion, though its practical effect maybe exclusive where the number of black children is too small to fill a school ;^ and "white" and "black" are to be taken as commonly under- stood,* and under it a colored child regarded as such in the community, though more than half white, (and so far entitled to vote,) was not, as matter of right, entitled to admission to the white schools ;* and it will be presumed that a person who was a slave before 1865, in this country, is a negro ; and the word "generation," as used in the N. C. act, means a single succession of living beings in natural descent, and is not equiv- alent to " degree " ; and an order from the board of education to admit a negro pupil to a school from which negroes are ex- cluded does not require the school committee to admit him.^ The Ark. law of 1868 required only districts containing both white and colored children to have separate schools.' In Ind. the complaint to obtain admission as a pupil was held defective unless it affirmatively showed that the person is between the ages of five and twenty-one years, is neither a negro nor mu. latto, nor the issue of a mulatto, and is unmarried.* Where under the laws of IST. Y., a city or incorporated village of the state creates separate schools for white and colored children, a colored child has no right to attend a school established for white children.^ A pupil may be refused admission, in Cal., to a public graded school if he has not sufficient education to enter the lowest grade of such school.' The Ohio act of 1849, "to authorize the establishment of separate schools for colored chil- dren," is constitutional.' A law authorizing the classification according to color of children for school purposes, and the es- 1 Van Camp v. Bd. Ed., etc., 9 Ohio St. 406. 2 McMillan v. Sch. Com., 107 N. C. 6ii9. * County Ct. of Union County v. Bobinson, 27 Ark. 116. * Draper v. Cambridge, 20 Ind. 268. 'Dallas T. Fosdlck, 40 How. (N. Y. 1 Pr 249 'Ward V. Flood, 48 Cal. 36. ' State V. City of Cincinnati, 19 Ohio, 178. COLORED SCHOOLS. 41 tablishment of separate schools for each class, equal in every particular, does not contravene the fourteenth amendment to the constitution of the IT. S.^ § 3'^. Colored schools. — The act establishing the Ala. Uni- Tersity for colored people, 1887, is unconstitutional, as it gives the school fund into the care of the trustees and takes the super- v^ision of the university out of the hands of superintendent of instruction.* Acts N. C. 1886, ch. 51, and 1889, ch. 60, provid- ing for separate schools for the Croatan Indians, from which all negroes " to the fourth generation " are to be excluded, is con- stitutional.' Where separate schools are maintained for colored pupils, and the same is unlawful, a petition in qiio warranto against directors will not be allowed where petition does not show improper exclusion of whites.* Under act of 1887, in 'Ohio separate schools for colored pupils have been abolished, ;and the regulations must be made without regard to color.' It was held, under the Ind. Stat. 1881, courts could not control the rights of school officers to establish separate schools for colored pupils,' and mandamus to require trustee to maintain separate school for colored children was refused, the necessity not being shown ;' and since 1881 a colored scholar could not be required to attend separate colored schools in Pa.' A col- ored pupil cannot be excluded from public school on account -of color.' The general school committee of Boston had power to establish and maintain separate schools for colored pupils." A resolution of the board of the city of Albany, N. Y., assign- ing a particular school for colored children, and excluding col- 1 state v.McCann, 21 Ohio St. 198; see also 10 F K 735; LehewT.Brnmmell, 103 Mo. 548. -SEUsberry v. Seay, 83 Ala. 614. 3 McMillan v. Sch. Com., 107 N. C. 609. -•People T. McPall, 26 Hi. App. 319. -6Bd.Bd.v. State, (Ohio) 16 H.B. 373. | •state V. Gray, 93 Ind. 303. 'State T. Grnbb, 85 Ind. 313. 8Kame t. Commonwealth, 101 Pa. St. 490. « State V. Union D. S. T., 46 N. J. L. 76. "Eoberts y. Boston, B Cnsh. (Mass.) 198. 42 PUBLIC SCtiOOIi LAW. oVed children from schools assigned for white children, is not in violation of the foiirteenth amendment of the constitution of the TJ. S. ;^ and where the officers provide public schools of equal excellence for all children, but do not allow children of colored parents to attend the same schools with children of white par- ents, the rights of the colored under the constitution of the- U. S. are not thereby impaired.^ § 33. Colored Schools.— In Hall v. Be Ouir, 95 U. S. 504,. it was held : " Questions of a kindred character have arisen in several of the states, which support these views in a course of reasoning entirely satisfactory and conclusive. Boards of edu- cation were created by a law of the state of Ohio, and they were authorized to establish within their respective jurisdictions one or more separate schools for colored children when the whole num- ber by enumeration exceeds twenty, and when such schools will afford them, as far as practicable, the advantages and privileges of a common-school education. Under that law, colored chil- dren were not admitted as a matter of right into the schools for white children, which gave rise to contest, in which the attempt was made to set aside the law as unconstitutional ; but the su- preme court of the state held that it worked no substantial in- equality of school privileges between the children of the two- classes in the locality of the parties ; that equality of rights does, not involve the necessity of educating white and colored persons in the same school any more than it does that of educating chil- dren of both sexes in the same school, or that different grades of scholars must be kept in the same school ; and that any clas- sification which preserves substantially equal school advantages is not prohibited by either the state or federal constitution, nor iPeople V. BaBton, 13 Abb. N.T. Pr. (N. 8.) 159. | aBertonmeau v. Scb. Dre., 3 Woods C. Ct. 177. COLORED SCHOOLS. 43; would it contravene the provisions of either. (State v. McOcunn et al., 21 Ohio St. 198.) Separate primary schools for colored, and for white children were maintained in the city of Boston.. Children in the state who are unlawfully excluded from public- school instruction may recover damages therefor against the- city or town by which such public instruction is supported. It. appears that the plaintiff was denied admission to the primary school for white children, and she by her next friend claimed, damages for the exclusion ; but the supreme court, Shaw, C. J.,, giving the opinion, held that the law vested the power in the committee to regulate the system of distribution and classifica- tion, and that when the power was reasonably exercised their decision must be deemed conclusive. Distinguished counsel in- Bisted that the separation tended to- deepen and perpetuate the^ odious distinction of caste ; but the court responded, that they were not able to say that the decision was not founded on just grounds of reason and experience, and in the results of a dis- criminating and honest judgment. {Roberts v. City of Boston,. 5 Gush. [Mass.] 198.) "Age and sex have always been marks of classification in public schools throughout the history of our country, and th& supreme court of Nev. well held that the trustees of the public schools in that state might send colored children to one school and white children to another, or tiiey might make any such classification as they should deem best, whether based on age,, sex race or any other reasonable existent condition. {State v. Buffy, 7 Nev. 342.) "Directors of schools in Iowa have no discretion, under the existing law of the state, to deny a youth of proper age admis- sion to any particular school, on account of nationality, color, 44 PUBLIC SCHOOL LAW. or religion. Former statutes of the state invested the directors with such discretion, and it is impliedly conceded that it would be competent for the legislature again to confer that authority. (Clark V. The Boa/rd of Directors, 24 Iowa, 266.) " School privileges are usually conferred by statute, and as such are subject to such regulations as the legislature may pre- scribe. Such statutes generally provide for equal school advan- tages for all children, classifying the scholars as the legislature in its wisdom may direct or authorize; and the supreme court of N. T. decided that the legislature of the state may from time to time make such limitations and alterations in that regard as they may see fit. {Ballas v. FosdicJc, 40 How. [N. Y.] Pr., 249.) Public instruction of the kind is regulated in that state bv offi- cial boards created for the purpose ; and it is settled law there that the board may assign a particular school for colored chil- dren, and exclude them from schools assigned for white chil- dren, and that such a regulation is not in violation of the fourteenth amendment. {People v. Gaston, 13 Abb. [N. Y.] Pr., N. S. 160.) " 34. Contract; attorney. — Where attorney was employed by director to defend a suit and it was dismissed, and another suit brought in the circuit court, and then the electors met and ap- 3)ointed a committee to defend, one of which committee was this attorney, a valid contract existed.* The Ind. state superin- tendent of public instruction and state auditor may employ an attorney to collect a desperate claim due the state school fund." "Where prudential committee were instructed by vote of district to prosecute for trespasses to property, the district was liable ior attorney-fees," and a verbal contract of a school board em- ^i^Me^f lta9f76M.'3&^*^''' ^°"- I 'Ki»g«^'iTv.Scli.Dlat.,12Metc. (Ma8a.)99. CONTRACTS, NOTES, ETC. 4|l ploying an attorney is valid/ but the prudential committee have no authority, without a vote of the district, to employ counsel in the name of the district to defend a suit against an officer of the district in which the district may be interested.' A school district, under act 1821, ch. 117, § 8, Me., may raise money to pay expenses of litigation growing out of the exercise of express. powers conferred by the statute.' In Iowa, the president of a. school district township has no authority to employ counsel, un- less in a case brought by or against the district, and an appeal to the county or state superintendent contesting the location of school-house, is not a case.* The pendency of a suit, and the employment of an attorney by the prudential committee, with- out authority, though known to the officers and to the voters,, does not show a ratification.' § 35. Contracts, notes, etc. — Notes given by trustees for indebtedness of the district are binding on the district, and on, the successors," and plaintiff suing on note made by trustee for price of land, need not allege facts showing that statute had been complied with,' and the trustees of a district may become indorsers of a promissory note, and set off the same in an action against them ; nor are they under any obligation to show how they came by the note untU it is impeached.' It is no defense to a note given to school commissioner for school funds that there was an agreement by which the commissioner was to use- the money for private speculation.' The assent of a majority of the board at a legal meeting is essential to the validity of an order.^" The directors of a school district have power to borrow- iPage V. TownsMp Bd., 59 Mo. 264. 2 Harrington v. Set. Dist. No. 6, 30 Vt. 155. 'Sell. DiBt. No. 1 V. BaUey, 13 Me. (3 Fairf.) 254. *Templin T. Tp. ol Fremont, 36 Iowa, 411. 6 Harrington T. Scb. DiBt., 30 Vt. 155. 'Bobbins v. Sch. Dist., 10 Minn. 340. ' Craig Sch. Tp. v. Scott, ( Ind. ) 24 N. B. 585. 8 Brewster v. Colwell, 9 Wend. (N. T. ) 28. « Ware v. Kelley, 22 Ark. 441. lOHerrington v. Sch. Dist. Tp., 47 Iowa, 11;^ McCortle T. Bates, 29 Ohio St. 419. 46 PUBLIC SCHOOL LAW. money to discharge a debt which has been legitimately created, and may pledge the credit of the district, but they cannot in Iowa make the obligations evidencing such a debt bear a higher >rate of interest than six per cent.' A note reciting that "in- habitants of Dist. No. 6, in S., promise to pay," etc., and signed by "B., treasurer of Dist. 'No. 5," was held to be the promise of the district,^ but a trustee cannot borrow money and give notes in name of school corporation, especially where there is Tio necessity and party had notice ;' but advancements by offi •<;ers for the use of the district in anticipation of taxes may be treated as borrowed money,* and advancement for that purpose -was held to be an implied pledge of funds for the payment of rsame.* § 36. Contracts, notes, etc. — A township trustee has no -power to borrow money for the school township ; but for money borrowed, and actually used in a legitimate way, the township may be held liable.' "Where no notice was given, a vote to hire money at a district meeting did not impose liability ; and a sub- -sequent vote at a meeting legally called, to pay the debts due by the district, was not a ratification.' In 111. the board of -school directors have no power to make acceptances of orders or bills of exchange so as to bind the school district and create a right of action thereon against them.* §37. Contract; officer interested. — Where a committee «mploy a person to labor for their principal, th'e person em- ployed may by a suit in his own name recover of their principal the amount due him, though he is one of their own number, employed in good faith by the committee." Proceedings to re- 1 Austin T. Colony, 51 Iowa, 102. 2 Whitney v. Stow, 111 Mass. 368. 8 Union t. Crawfordsville Bk., 102 Ind. 464. -* Brock V. Brnce, ( Vt. ) 10 A. 93. -«Zartman v. State, (In*. ) 10 N. E. 94. •Crawfordsville Bank v. TInion, 75 Ind. S Wallis V. Johnson, 75 Ind. 368. 'Lander v. Sch. Dist.. 33 Me. 239. •Peers v. Bd. Ed., 78111. 508. » Junkins T. Union Sch. Dist., 39 Me. 820. CONTRACT; OFFICER INTERESTED. 47 move a director for refusing to recognize a teaching contract were taken by a township board, one of the members of which was related to a third person who had a contract subject to the same objections ; this did not disqualify him from acting on the case before the board.* A director will not forfeit his oflBce by making contract with his minor daughter as a teacher ;' and a contract with one of the school committee to board teacher is valid.* A contract by a school board for the purchase for a school-site, of land owned by one of its members, the resolution to purchase which was carried by his vote, all the members act- ing in good faith, is not void, but voidable merely, and is bind- ing when ratified by a new board acting with full knowledge of all the facts.* The Pa. act of. Mar. 31, 1860, p. 66 (P. L. 400), providing, "Nor shall any member of any corporation, or any officer or agent thereof, be in any wise interested in any con- tract for the sale or furnishing of any supplies or materials to be furnished to or for the use of any corporation, municipality or public institution of which he shall be a member or officer, or for which he shaU. be an agent, nor directly or indirectly interested therein, nor recover any reward or gratuity from any person interested in such contract or sale," cannot be extended to include cases of sales of realty not mentioned therein.* A member of the district school board during his membership took a contract from the board for the erection of a school- house, and participated in the proceedings for letting the con- tract; this was contrary to public policy, and forbidden by law. A school director is prohibited from making personal contract with district, and money paid thereon may be collected 1 Hamtramck v. Hollhan, 46 Mich. 127. «SrateT. Bnrchfleld, 12 Lea, fTenn.) 30. 'Brown t. Sch. Dist., 55 Vt. 43. * Trainer v. Wolfe, 140 Pa. St. 279. 'Pickett V. Sell. Diet. 25 Wis. 551. 48 PUBLIC SCHOOL LAW. from him;' and an official making contract for district must not be party to same individually ;' and where the statute for- bade a school officer from being interested in a contract, and a contractor was elected to the office of clerk of district, and the incumbent refused to deliver up the books and office, on the ground that the contractor could not fill both positions and was therefore ineligible, the court refused to install the newly-elected clerk, and sustained the action of the party refusing to give up the office.' §38. Contracts; officers' liability. — (See also "Officers' Liability.) Where the president of a board promises in their behalf, by a note, to pay a debt contracted in the erection of a school-house, he acts as a public agent, and therefore is person- ally liable on the note.* Where a contract by directors did not expressly show that they were acting on behalf of the district^ or intending to make the instrument the contract of the district, the directors were individually liable.' In a suit against school directors in their individual capacity on a contract purporting to be signed by defendants in their official capacity, and suffi- cient in form to bind the district, the averment that it had been determined in a former action, in which defendants were not parties^at they had signed the instrument in their individual capacity, did not aver a cbuse of action." § 39. Contract, power. — Under Laws 1858, ch. 62, §§ 1, 8, Iowa, the board of directors may bind the district by a contract after their successors have been elected, but before they have qualified.' Contract by two trustees, in Minn., must be author- ized at a meeting of the trustees, but use of supplies may amount iSch. Dist. v. Parks, 85 HI. 338: Hewitt v. Normal Sch. Diet., 94 111. 528. 2Currie v. Sch. Dist., 35 Minn. 163. •Weston V. Lane, 40 Kas. 480. ♦Hodges V. Bnnyan, SO Mo. 491. 'Sharp T. Smith, 32 111. App. 336. "Armstrong v. Borland, 35 Iowa, 537. ' Dubuque &o. College 7. Dubuque, 13 la. B55. CONTRACT, POWER. 49 to a ratification/ One appointed to take charge of a public school may, if necesBary, employ a subordinate to keep order outside while the school is in session, especially if one of the school committee approves ; and the city will be liable, although the school committee has not acted officially.' The board of an independent district may authorize steps to be taken to secure a highway by its school-house, and may bind district for expenses incurred.' Where a district committee contract, but not bind- ing the district, and the district votes to accept and pay a cer- tain sum, this binds them to pay a qucmtwm meruit, not limited to the sum voted.* A legislative change of the board, without altering the limits of the district, does not affect the obligation of a legally created debt thereof.^ "Where a committee were au- thorized and bought a lot for a site, and gave their individual notes, and the district then rescinded the authority, the district was liable to the officers for the amount paid for it.' Those who contract with directors cannot repudiate their contract be- cause their action was unrecorded.' Where trustees are author- ized by legislature to administer school property and lease it for not more than fifty years, they may lease for that term the 16th" section in their township.' Where contract and statute gave board power to remove janitor at pleasure, a removal of janitor before expiration of year was authorized.' § 40. Contract, power. — Board, furnished to teacher, under a contract with the prudential committee, constitutes a charge upon the school-money coming to the hands of the committee ; and payment by him out of the fund, made after his term had expired, but before demand upon him for the money, extin- I Andrews v. Sch.Dist., (Mmn. ) 33N. W. 217. SHnsev. Lowell, 10 Allen, (Mass.) 149. a Flint River Ind. Dlst. v. Kelley, 65 Iowa, 568. 4 Kimball v. Sch. Dist., 28 Vt. 8. ^Shankland v. Phillips, 3 Tenn. Cli. 558. —4 Kingman v. ISth Sch. Dist., 2 Cush. (Mass. ) 426. ' Sch. Dirs. v. McBride, 22 Pa. St. 215. ' Garland T. Jackson, 7 La. Ann. 68. » Weldman t. Bd. Ed., { N. Y. ) 7 N. T. 8. 309. 50 PUBLIC SCHOOL LAW. guishes the claim against the district for the board.^ Where the committee notified the contractor that the house would not be accepted unless defects were remedied, and he replied that he should do the work as he pleased, and did not wish their in- terference until the work was done, no implication can arise from their silence that the defects were waived.^ Ind. Kev. Stat., §§ 6006, 6007, as to limiting debts, applies to trustees of school townships.' A member of a board of education cannot change a contract made by the board, unless he has been authorized,* and the individuals composing the board have no power to act so as to bind the corporation unless at a meeting of the board and any such contract is void unless regularly approved.' Where two persons are authorized by a board to make a con- tract in its behalf, a contract signed and sealed by one only, is not evidence against the district." Contracts made with officers de facto are not binding where parties contracting are warned and have notice ;' contract made by part of directors at irreg- nlar meeting and no notice given to other directors, is not bind- ing.' Under the Minn. Comp. Stat., the trustees of districts cannot take a debt out of the statute of limitations by a new promise.' Where defendant claimed the indebtedness was in- curred by a fraudulent agreement between plaintiff and its own agents, it was competent for plaintiff to show that there was a valid consideration." If a district vote to raise money for pur- poses not authorized, it is a nullity, and whoever presumes to carry it into effect, does so at his peril ;" and the powers of the 1 Barrett V. Sch. Dlst. No. S, 37 N. H. 445. «HilI T. Sch. Dist. No. 2, 17 Me. 316. 8 Middletown v. Greeaon, 106 Ind. 18. * state T. Tiedeman, 69 Mo. 515. 'Bd. T. Chitwood, 8 Ind. 504; OMo v. Treae , SS Ohio St. 144; McCortles v. Bates, 290 Ohio St. 419 ; Hazenv. Leiche, 47 Mich. 626. •McLaln V. Snyder Tp. Sch. Dist., 12Pa.St.204. ' Genesee Ind. Sch. Diet. v. McDonald, 98 Pa. St.444;,Whltev.Sch.Di8t.,(Pa.18A.443. 'Sch. Dist. v. Bennett, 52 Ark. 571; Pa. L. Eod Co. V. Cass Bd. Bd., 80 W. Va. 360. » Sanborn v. Sch. Diet., 18 Minn. 17. loWormley v. Dist. Tp., 46 Iowa, 666. " Sch. Dist. No. 1 V. Bailey, 18 Me. (3 Fairf. CONTRACT, RATIFICATION. 51 building committee are limited to the amount voted by the dis- trict.^ § 41. Contract, ratification. — Where the inhabitants of a district, in a suit for building school-house, repudiated the agree- ment alleged, denying that it had been accepted by them, though executed by the plaintiff, and it was proved that the district agreed to build the house, raised money for the purpose, chose a committee to superintend the building, and said committee and the inhabitants had seen the work advance, without any objection, the inhabitants of the district were liable to pay what the house was reasonably worth, though not built agreeably to the special agreement.' The vote of electors directing settle- ment of disputed claim growing out of contract is a ratification though originally the board of directors exceeded their powers ;' and the board of education can legalize and confirm the acts of de facto school officers, under a law which is declared invalid.* There is an implied liability on part of district to reimburse a de facto committee for boarding teacher and for material fur- Dished, when district did not object, though the district had voted to have the teacher board around,' and school districts like individuals are liable for money had and received ;° so where district accepted benefit of contract made by prudential commit- tee de facto, it was held there was an implied promise to pay.' §42. Contract, ratification.— The court says, in School Town of Milford v. Fowner, Ind., 26 N. W. 485 : "The con- tract of employment is assailed as invalid on the further ground that it never received the concurrent action of the school board as a body, but was acted upon and signed by the trustees sep- 1 WllBon V. Sch. Dist., 32 N. H. 118; Harris v. Sch. Dist., 28 N. H. (8 Fost. ) 58. 2 Norris v. Sch. Dist., 12 Me. ( 3 Fairf. ) 293. aByerts v. Dist. Tp., 77 Iowa, 37. ♦ Dnbnque &c. Coll. v. Dnbnilne, 13 Iowa, 555. 'Kowell T. Tnnbridge Sch. Dist., 69 Vt. 658. •Trustees v. Trustees, 81 ni. 470. 'Kowell V. Sch. Dist., (Vt.) 10 A. 754. 52 PUBLIC SCHOOL LAW. arately and severally. It is undoubtedly true that the indi- vidual members of a school board, acting separately, cannot legally employ a teacher, nor can they make any other contract binding upon the corporation. The statute requires that they shall meet within five days after they are elected and organize by electing one of their number as president, one as secretary, and one as treasurer; and they are required to keep a record of their proceedings relative to the schools. The individuals composing the board have no power to act so as to bind the corporation, except when they are convened as a board ; and any contract made by them when not thus convened, unless it is afterwards freely approved and confirmed when legally in ses- sion, is not valid. (Boardv.CTiitwood, 8 Ind. 504:-, Ohiov.Treas- ttrer, 22 Ohio St. 144 ; Hasen v. Zerche, 47 Mich. 626.) Nor can the members of a board, by any prearrangement or contract entered into when not in session, bind themselves afterward to ratify or confirm any contract or engagement thus entered into. (McCortle v. Bates, 29 Ohio St. 419.) There was evidence which tended to show that the plaintiff and one of the trustees signed the. contract at a time when the school board was not in session. Afterwards, at a special session of the board, the con- tract of employment was approved and signed by one of the other members, and the proceedings of the meeting, the em- ployment of the teacher and the approval of the contract were duly entered of record. As applicable to the evidence upon this point, the court stated the law correctly to the jury in a charge in which they were told, in effect, that if the plaintiff and one of the members of the board signed the contract before the meeting on April 26, 1886, and at a called meeting the con- tract was adopted by the board and signed by another member, COEPORATION. 63 it became binding upon the corporation. (City of Logomsjport v. Byhemcm, 116 Ind. 15.) " §43. Corporation. — Incorporated township for common- school purposes, is a quasi public corporation ; the legislature may modify or change its powers.^ By act of 1875, Ark., a district may sue and be sued f but a school district is only a quasi corporation, and not included in § 1, art. 12, § 17, art. 2, of constitution of Kansas, in regard to special legislation, and art. 12 applies only to corporations proper in Kansas.' The board of education in 111. may act by agent, and it is not neces- sary to have seal for the agent to make a contract.* The Mis- souri acts relating to boards of education and school districts do not apply to those incorporated under special acts.* School districts and boards of education are not corporations in Ohio within the provisions of const., art. 18, § 1.° Changing the name of the district is not a change of corporate character of the district, nor a change in the relations of parties dealing with it.'' Where districts were established in Mass. under act of 1789, but not by geographical division, they were not made districts by act of 1817.' School townships are not municipal corpora- tions in their nature or purpose," and school districts are not strictly municipal corporations, but territorial divisions having many of the attributes of a corporation ;" they are only quasi corporations, and can exercise no powers except those specially conferred by statute." Trustees of school districts are public corporations to be controlled by the legislature.^^ iBoBli V. Shipman, 5 Dl. 188. •Sell. Dist. T. Bodenhamer, 43 Ark. 140. •Beach V. Leahy, 11 Kas. 23. *Bd Bd. y. Greenbaum, 39 ni. 609. « SWte v. Vaughn f Mo. ) 12 S. W. 507. "State V. Powers, 38 Ohio St. 54. »Kobbln»T. Sch. DiBt., lOMinn. 340. •Fry T. Sch. Dist., 4 Cnsh. (Mass.) SoO. 'People V. Sch. Trs., 78 Ul. 136. "Wharton t. Sch. Dirs., 48 Pa. St. 358. " Eapelye v. Van Sickler, 1 Edm. { N. T.) Sel. Cas. 175; Sch. Diet. v. Thompson, 5 Minn. 280; Littlewort v. Davis, 50 Miss. 403; Sch. Dist. No. 3 v. Macloon, 4 Wis. 79. "Trs. of Schools v. Tatman, 13 Dl. 27; State V. Hulin, a Ore. 306. 54 PUBLIC SCHOOL LAW. § 44. Crime. — Party can be punished for disturbing private school taught in a district school-house.^ Where indictment avers neglect to maintain school for three years in succession, and there ig a verdict of guilty, no certain penalty can be in- flicted under Mass. Eev. Stat., ch. 23, § 60, and a motion in ar- rest of judgment will be sustained.* In Conn, it is a crime to disturb any district, public, private or select school while in ses- sion, and this applies to a singing-school.' In Mass. it is an oflEense at common law to violently disturb a town meeting.* So in Pa., any malicious disturbance of a meeting of school di- rectors, lawfully assembled, is a crime.' §45. District alteration, — (See also "District Boundary Organization.") Under Ark. Laws, §75, acts 1887, p. 286, it is not necessary that the petition should be signed by a majority of the electors of each of the districts to be divided." Under notice to district and warning to town meeting for annexation of adjoining district in Conn., where the town meeting refused the change, but on appeal the court decreed that a part only should be annexed, the decree was not error,' and a setting aside action of town in dividing school district by appellate court, but making no further order, does not preclude the town from further altering;" but a petition by a majority of citizens in district to be affected by change in the boundaries of district, is a condition precedent to formation of new district by county superintendent of Dakota.' The act of 1889, 111., annexing municipalities to others, gives the enlarged city the legal title to the property, and imposes on it the school debt of added 1 state V. Leighton, 35 Me. 195 ; State v. Tager, 26 Conn. 607. 2 Commonwealth v. Sheffield, 11 Cash. ( Mass.) 178. •State V. Yager, 86 Conn. 607. ♦Com. V. Hoxey, 16 Mass. 385. 'Campbell t. Com., 59 Pa. St. 266. '.Hndspeth v. Wallis (Ark. ) 15 S. W. 1S4. ' Gfavel Hill Sch. Dlst. v. Old Sch. Dist., 55 Conn. 844. 'Sixteenth Sch. Diet. v. B. Sch. Dist., 54 Conn. 50. •Dartmouth S. Bk. v. Sch. Diet., 6 Dak. US:!. DISTRICT ALTEEATION. 55 territory/ and when municipalities had been annexed to cities before passage of act giving boards of education of cities of 100,000 inhabitants control of public schools, they are under control of same, though not mentioned in the act.^ A map and a list of tax-payers in the newly-arranged district must be filed in the county clerk's office ; this provision of the statute is man- datory in 111.' Under the law of 1877, a petition for a change of a district must aver that the petitioners constitute two-thirds of the legal voters of the territory, and that the district from which they wish to be severed has no bonded debt.' When the old district is extinguished, if they fail to apportion its indebt- edness and lay it upon the new organizations, the old district wUl continue in existence to enforce its liabilities, and service upon those who were directors at the time of the change will be good.' The legality of alteration cannot be questioned col- laterally on an application for judgment for school taxes, but must be tested by quo warranto against the directors,* and the courts wUl not interfere in altering districts except in cases of gross injustice.* A bill in chancery filed by a creditor against the district into which the debtor district had become consoli- dated will not lie, the remedy, if any, being at law." Entering the funds distributed to a new school district, in 111., to the credit of such district by the treasurer of board of trustees, is not condition precedent to the organization of the new district ;' and where the record shows that the board met for the purpose of appraising and distributing school property and funds conse- quent upon the formation of a new district, but does not state who made the appraisement, it will be presumed that it was made by the board of trustees.' iMcGnrn v. Bd. Bd. (111.) 34 N. E. Cravener t. Bd. Bd., Id. SSZ. sPotter V. Sch. Trs., 10 ni. App. 343. » Rodgers v. People, 68 111. 154. < People V. Newberry, 87 111. 41. 'Dirs. V. Trs., 68 111. 247; Metz v. Trustee, ( 111. 247. « Sch. Dirs. v. Miller, B4 111. 338. ' Sch. Dire. v. Sch. Dirs., 73 111. 249. 56 PUBI;IC SCHOOL LAW. §46. District alteration. — (111.) Where the old districts refuse to pay over the funds to the treasurer of the new, and the board of trustees neglect to compel suet payment, the rem- edy is by a bill in chancery to compel the collection and the ap- plication of the fund.^ The failure to show, in the petition, that the district to be divided has no bonded debt, and that the boundary of the new is not nearer than one mile to a school- house, and that it is signed by all the voters of the new district, and that such district contains not less than five families, is fatal.^ Until the township trustees shall make a division of the prop- erty, each district is bound to pay its debts ;' and where a district is formed from another the latter may sue in equity to recover as trustee of the former, money or property coming to former.* Where directors retain possession of a house on land which has been detached to form a new district, and continue to levy taxes on the detached territory, and the school trustees refuse to sell such house, a court of equity will grant relief from such acts, at the suit of the directors and tax-payers residing in new dis- trict.' §47. District alteration. — (Ind.) If the boundary of a district is changed conformably to a legal petition, the conse- quent alteration of the adjoining district is valid without peti- tion therefor.' Under 1st Kev. Stat., p. 780, § 4, real estate conveyed to a school township, and paid for by it, remains its property, although included in territory afterwards annexed to adjoining city.' §48. District alteration.— (Iowa.) Certain territory of the independent school district of V. was set apart by r^rfsolution of 1 Sch. Dirs. v. Sch. Dirs., 73 111. 249. ^Scb. TrB. V. Ball, 71 ni. 559. »Sch. Dist. V. Miller, 49 111. 495. *Soh. Dist. V. Sell. Dist., 16 111. App. 651. 6 Sell. Dirs. T. Sch. Dire., (III.) 28N. B.4i « Nutter v. Trs. &c., 4 Blackf. ( Ind. ) 361. 'Keckert t. Peru, 60 Ind, 473. DISTRICT ALTERATION. 57 the electors to "all parties interested desiring to form a new school district," and certain territory of district township of C. was set ofE by its board of directors for the same purpose ; this combined territory applied to the independent district of L. for admission ; the district township of C. brought suit to restrain independent district of L. from exercising control over the terri- tory ; it was held that the action of electors of independent dis- trict of Y. was illegal, and that never having been legally detached from independent district of V., the district township of C. could not maintain an action to have it declared part of its territory.* In an action by an independent district to compel board of di- rectors of a district township to take action on its proposition to change boundaries, that the independent district is co-exten- sive with a village does not deprive it of the benefits of the act. (Code, § 1809.)' When a part of one district is attached to an- other, the boards of directors of the two, or arbitrators chosen by them, have power to apportion the assets ; and their juris- diction is exclusive,' and it is only upon their failure to agree that the disputes are to be referred to arbitrators.* An appeal •will lie from their adjudication to the county superintendent, whose decision is binding.* The court on arbitration in Iowa on division of assets where district is divided, (Code, §§ 1716, ■34:16, 3431,) must render same judgment as the award.^ The boards of directors of independent school districts have no power to change the boundaries; such changes can only be made, if at all, by the county superintendent, under the joint provisions of Code, |§ 1797-1806 ;" and concurrent action of boards of directors of both townships is necessary before an in- aDist Tp. of Center v. Ind. Dist. Lansing, ^l^t^^slflil-TTdo^-) 47K. W 1030. ■Biiist. Tp. V. Dist. Tp., 45 Iowa, 104 «Ind. Sch. Dist. of Lowell v. Ind. Sch. Dist of Duser, 45 Iowa, 391. 6 Little Sch. Dist. Tp. v. Little Sell. Ind. Dist., 60 Iowa. 616. 'Eason T. Donglass, 55 Iowa, 390. 58 PUBLIC SCHOOL LAW. dependent district lying within the limits of two district town- ships can be deprived of its territory.* Where no written request was made to call a meeting for an election upon the consolidation of independent district with another, and no call was made at a proper meeting of the board, there could be no legal consolidation, Code, § 1811 f and under § 1797, Code, a county superintendent cannot divide district and annex the part to another unless on account of natural obstacles that prevent attendance, and if the order is void a legislative sanction subse- quently will not divert the taxes.' Before 1866, a transfer from one township was unauthorized, unless it was made because of . reason of natural obstacles.* The treasurer in refunding an ille- gal tax under Code, § 870, should apportion the amount between the districts occupying the territory from which it was collected.'' A portion of township A was annexed to township B, a war- rant executed by the A to the B, in consideration that the A should be entitled to receive all the taxes, was valid.' The re- moval of an old school-house to make place for a new one, does^ not disorganize a district comp'osed of territory in different townships.' The apportionment by the directors of assets and liabilities cannot be attacked collaterally.' The law does not limit the extent of territory which may be added to a town or city district for school purposes ;' and where two-thirds of the- electors of territory that had been detached from one district and attached to an independent district petition for its restore^ tion, which is refused by the independent district, the remedy is by appeal arid not mandamus." Under Code, § 1798, the ilnd. Dist. of Fairview v. Dnrland, 45 Iowa, 53. • State V. Leverton, 63 Iowa, 483. »Ind. Dist. V. Ind. Dist., 6S Iowa, 616. *Troy T. Doyle, 53 Iowa, 667. 'Spencer v. Birerton, 56 Iowa, 85. 'Wesley t. Algona, 58 Iowa, 153. ' State V. McCormiok, 37 Iowa, 142. 8 Ind. Dist. V. Ind. Dist., 45 Iowa, 391 : 43 id. 444. •Port Dodge v. Wahkansa, 15 Iowa, 434. "Bamett v. Ind. Dist., (Iowa) 34N. W. 780. DISTRICT ALTERATION. 59 boundaries of an independent district might be changed in the sanae way as where territory had been afterwards attached ;' and the extension of limits of a town does not necessarily enlarge the district therein.'' §49. District alteration. — (Kas.) Board of education of city of second class may attach adjacent territory in Kansas, and notice to the district affected is not a condition precedent where majority of electors of such territory apply f and appor- tionment of school property is yalid, though not made for seven months after new district was formed.* School district admit- ting liability for property obtained by division of district may be compelled to pay by mandamus f and a petition, stating county superintendent ordered district to pay sum for retaining property on organization of district, held good.° It is not nec- essary to prove that school district had notice of superintend- ent's action in directing it to pay for property on division of districts.* Where there is no provision for compensation, and a district is divided by extension of city limits, and the city claims the building on the ground annexed, without making^ any compensation therefor, and the officers of the district pre- vent such control, the original district should retain control of the school-house until some arrangement is made for adjust- ment of the property rights.' "Where the territory detached was not organized or placed in any other district for one year,, an award made about three years thereafter, that the old dis- trict shall pay the new the value of the property retained, is binding.'' § 60. District alteration.— (Me.) Where two new districta 1 Albin T. West B. I. S. D., 58 Iowa, 77. •state V. Ind. Dist, 46 Iowa, 425. "Sch. Dist. v. Board, 16 Kas. i536. ^Scli. Dist. T. State, 15 Kas. 43. »Scli. Dist. T. Sch. Dist., SO Kas. 76. «Bd. Ed. Y. Sch. Dist., 45 Kas. 560. "Sell. Diet. V. Sch. Dist., 3S Kas. 1S3. iQQ PUBLIC SCHOOL LAW. ^re formed from an old one, the title to the school-house is in tlie district within which it falls ;* and if a town in dividing a .school district includes that which it is not authorized to do by the warrant, a mere stranger cannot therefore avoid the whole proceedings.^ It is not illegal for a town, in reconstructing its districts, to make its action depend on' the wishes of the districts to be affected." Where by a change in the district line the school-house is left out of the district in Me., the district still ■owns the building, and may authorize an agent to remove the same.' Eev. Stat. 1857, ch. 11, § 26, authorizing school dis- tricts to unite without the action of the town, is not repealed by the act of 1854, ch. 104, § 1, which provides that towns may determine, etc., so far as to invalidate a union made under the former statute, although after the passage of the latter.* A dis- trict in Me. cannot be divided by town vote unless selectmen have submitted written statement required by law ;' and towns cannot form new school districts from adjoining without co- operating and giving due notice to all.' A recital in a report of the selectmen and school committee that a division would not be desirable if its inhabitants could agree to it, yet the feel- ing existing was such as to require the division, is a sufficient •"statement of facts;'" and a vote passed at an annual meeting as required is not invalidated by the fact that the report had also previously been made at a special town meeting.' The vote of a town to discontinue one district and to annex it to others, is not void because of an omission to make any pro- vision about the disposition of the school-house.' Under E. S., ch. 11, § 1, requiring the recommendation of the municipal au- 1 Whitmore v. Hogan, 82 Me. 664. "Smyth V. Titcomb, 31 Me. 272. « Whittier v. Sanbom, 38 Me. 32. ter- DISTRICT ALTERATION. 77 minable on the settlement of a minister, a trust for each theo- logical association, or any other imaginable interest, is of no consequence. . . . It is apparent that when Candia was formed from Chester, though this lot fell within its boundaries it was not conveyed to that town, either in its charter or by any vote of Chester. The title to it, therefore, like the title to all other land within its limits, remained unchanged, and the town [of Candia] acquired over that, as over other land, only a cor- porate jurisdiction.' This was approved in Southampton v. Fowler, 52 N. H. 225, 230. Whittier v. Samhom, 38 Me. 32, is directly in point. It was there held that the alteration by a town of the lines of a school district, whereby its school-house is left within the limits of another district, will not defeat or affect its right of property therein. (See also North Ya/rmouth V. Shillings, 45 Me. 133.) "In the case of Board of Health v. City of East SaginaWy 45 Mich. 257, the facts were, that land had been conveyed to the board of health, in trust for cemetery purposes for the township of Buena Vista. Subsequently the city of East Saginaw was incorporated out of a part of the township, including the ceme- tery. This case, while perhaps lite Union Baptist Society v. Town of Camdia, supra, distinguishable in its facts from the present one, is nevertheless in point, in view of grounds upon which its decision is made to rest and the legal propositions laid down by the court. It was there held that corporate prop- erty is not affected at common law by changes which leave the corporate character in existence and do not destroy the corpo- rate identity ; that there is no common-law rule by which prop- erty can be transferred from one corporation to another without a grant ; and that, as there was no statute making any different 78 PUBLIC SCHOOL LAW. provision, the property was unaffected by the change in bound- tiries. "In Town of MUwoMleee v. Oily of Milwaukee, 12 Wis. 102, a portion oT the town was annexed to the city, including a tract of land which the town had acquired by purchase. It was held that the act extending the city limits over the land in question did not divest the town of its title. The case does not disclose for what purpose the town acquired cfr used the land, but it is fair to assume that it was only for some public and municipal purpose. The weight of the decision as an authority in point, however, is weakened by the fact that the court denied the 3)0wer of the legislature to divest a corporation of its property without the consent of its inhabitants. '.'In Town of Depere v. Town of Belleime, 31 Wis. 120, the broad and unqualified proposition was laid down, that if a part -of the territory of a town is separated from it by annexation to another, or by the creation of a new corporation, the remaining part of the town, as the former corporation, retains all its prop- erty and remains subject to all its obligations, unless some ex- press provision to the contrary is made by the act authorizing the separation. In this case, however, the only question before the court was the right of the old town to compel the new town to contribute toward the payment of corporate debts contracted before the division. "We find no decision in conflict with this rule, although there are some ohiter dicta suggesting the limita- tion or qualification of it contended for by plaintiff. Thus in Eartford Bridge Co. v. East Hartford, 16 Conn. 149, 171, after stating the rule as above, the court adds, 'at least as it regards property which has no fixed location in the new town, as lands, buildings, etc. ; ' and in School District v. Tapley, 1 DISTKICT ALTERATION. 79 Allen, 49, the court, referring to the dictum in School District V. Richardson, supra, remarks: 'It is at least questionable whether the better practical rule in all cases would not be to regard this species of property [school-houses] in towns as strictly local in its character and uses, and as vesting in the district in which, upon any new division, it might chance to fall.' How far this remark was suggested by the peculiar relations which school districts and school property bore to the towns in that state, it is impossible to say. "In Lmim&r Co. v. Albmy Go., 92 U. S. 307, 315, the judge delivering the opinion says: 'Old debts she [the original cor- poration] must pay without any claim for contribution, and the new subdivision has no claim to any portion of the public prop- erty, except what falls within her boundaries; and to all that the old corporation has no claim.' The same limitation is re- peated in Mi. Pleasant v. Beckwith, 100 U. S. 614, 525, and quoted by this court in State v. City of Lake City, supra. " This is all we have been able to find in support of plaintiff's contention. But it is a remarkable fact that these suggestions of a limitation or qualification of the rule are not only purely obiter, but the question is not discussed, no reason is assigned, and no authority cited in its support, unless it be the old case of North Hempstead v. Hempstead, 2 Wend. 109, which, as we shall see, is not at all in point. "There is a line of cases, often confounded with, but clearly distinguishable from, that now under consideration, where the old corporation was entirely abolished, and new ones created out of its territory. In such cases it is well settled that the new cor- porations are td be deemed the successors of the old one, and as such liable for all its debts and entitled to all its property. 80 PUBLIC SCHOOL LAW. And in the absence of any legislative provision on the subject, it is held in such cases that each of the new corporations will take the property which happens to fall within its limits. This result the courts have arrived at from what seem the necessities of the case, in view of the defective legislation on the subject. School District v. Richa/rdson^ supra, and School District v. Tap- ley, supra, fall under this head. Cases where two corporations have been united or consolidated into one may also be placed in this class. Such is RoUbins v. School District, 10 Minn. 268 (340, 349.) The case of North Hempstead v. Hempstead, supra, also belongs to this class ; for, as we understand the statement of facts, the original town of Hempstead had been entirely abolished and two new towns erected out of its territory, called respectively North Hempstead and South Hempstead, the latter afterwards changed to Hempstead ; and notwithstanding some loose remarks apparently on both sides of the question we are now considering, the court made the decision of the case largely to turn upon the fact that the two new towns had acquiesced in a practical division of the property (common) for thirty-seven years, and therefore whatever their rights might have been at the date of the division, they were barred by the lapse of time. In Oormor v. Boa/rd of Education, supra, the title of the school- house was held to be in the city of St. Anthony, not by virtue of the act of 1860, extending the city limits, but under the ex- press provisions of the act of 1861. "The authorities on the question, so far as there are any, are therefore all against the contention of plaintiff, and upon reason and principle we cannot see why any distinction should be made as to property which, on change of boundaries,' falls within the DISTRICT BOUNDARY. 81 limits of another municipality, or why the title should not, like that of all other property, remain unaffected by the change." § 65. District boundary. — The boundary of a district may be established by its boundaries on a former division of the town into districts,' and where school society voted that F. and the occupants of his house shall be set to certain district, this included the farm and a house rebuilt in another place when first was taken down ; and acquiescence for many years will estop the owner ; and in 1808, school societies of Conn, had power to alter districts." Under Mo. St. of 1879 the county commis- sioner cannot change, except as shown by the petition and notice.' Clerical error in defining boundary made by statute attempting to make union school-district boundary same as city, may be corrected.* The Mass. act of 1789, ch. 19, § 2, gives to a town the power to define the limits of school dis- tricts by geographical division of the town only.' A farm situ- ated in an adjoining town having been annexed to a school district in P., a subsequent act, providing that P. shall consti- tute but one school district, was construed as meaning that P. (as now existing for school purposes) shall constitute bat one school district." Extending the territorial limits of a munici- pality does not enlarge the school district within it ;' and courts will not consider whether certain territory included in a district, is contiguous thereto, until the action of the oflSicers of the dis- trict.' Where two districts were organized, embracing certain common territory, it would be included in the district whose organization was first commenced.' In Me., where the town 1 Wilson T. Sch. Diet. No. 4, 32 N. H. 118. aScoTille v. Matteon, 55 Conn. 144. 8Sch. Dist. v. Sch. Dist., (Mo.) 7 8. W. ^5. ■• Attorney General v. Hatch, 60 Mich. 889. 5 Withington v. Eveleth, 7 Pick. (Mass. ) 106. 'Pickering v. Coleman, 53 N. H. 424. ' State v. Eld. Sch. Dist., 46 Iowa, 425. ^Ind. Dist. V, Sioux County Sapervisors, 51 Iowa, 658. 82 PUBLIC SCHOOL LAW. changes the limits of the district without the recommendation required by law, it is void.* § 66. District dissolution, — A tax-payer may have sale of property enjoined on dissolution of district, where a majority of the tax-payers do not vote, as required by law.^ § 67. District library. — In the absence of any general and local regulations in regard to libraries, an action cannot be maintained by a tax-payer against the librarian for refusing to allow her children to take out books.' § 68. District organization. — Where a school society di- vided itself into five districts, designating them as the eastern, middle, southern, western, and northern, these terms were used as descriptive, and not for fixing their names, and evidence that one had been known by the name of the south district was admissible.* Proof that trustees are discharging the duties re- quired by statute hs prima facie evidence of the organization of the district.^ On the formation of a town in Ind., it is entitled to the public-school buildings within its limits.' In 111., an omission to file in the county clerk's office a list of the tax- payers and a copy of proceedings as to change of district will not prevent a de facto organization ;' and under the 111. school law the trustees of schools have no discretion to refuse to form a new district when it embraces at least five families ; and when the law is complied with, if they refuse to grant such petition they will be compelled by mandamus;' but, in 1874, a new district line cannot be brought nearer than one mile to any school-house.' The only way in which the illegality of forma- tion of district can be inquired into is by a quo warramto? 1 Allen 7. Archer, 49 Me. 346. SBriggs V. Bordean, (Mich. ) 38 N. W. 712. » Kennedy v. Bay, 28 Barb. (N. T. ) 511. i Davis V. Comm'rs, 44 Ind. 38. 94 PUBLIC SCHOOL LAW. auditor to issue a warrant for its share of taxes assessed by original township, the latter is not a necessary party ;^ and the dog-tax fund must be apportioned among the schools of the township, and cannot be used to employ a teacher in a single school district, or used in advance of the general apportionment for the year.^ Laws 1858, ch. 52, § 32, Iowa, directing divi- sion of one-half of the school fund in equal amounts among all the school districts in the county, is unconstitutional and void.' Under Yt. Law 1888, ch. 12, § 233, a district cannot sue a town for money paid to other districts by order of selectmen.* §76. Funds, apportionment. — "Where treasurer's books ahow that he has money belonging to a district that he has not disbursed, to maintain an action on his bond for conversion an apportionment to the district does not have to be proven.^ The Ky. act of 1874 — attempting to empower the commis- sioner in counties to draw "the bonded surplus of school fund in the state treasury to the credit of his county," etc. — is un- •constitutional.' The state superintendent may consider pay- ment made to a parish under an erroneous apportionment when he makes a proper apportionment.' The Mich, constitution provides that certain revenues shall be applied to "the extin- guishment of the state debt " ; the debt is to be considered " ex- tinguished " when there is money enough in the state treasury not subject to other claims, to pay it, even though it has not matured and has not been actually paid.* Township board can- not apportion money collected for the erection of a school-house in one sub-district, between the two new districts into which the same has been divided since the assessment. The Mo. law. I Towle T. state, (IiidO ION. B. 941. 'Dist. Tp. t. Bsperet, ( Iowa) 39 N. W. 809. ^Maloy T. Madget, 471nd. 241. . 'Aaditor v. Holland, 14 Bush (Ky.) 147. 8 DiBt. Tp. T. County Judge, 13 Iowa, 250. '" " ^--v / ■•Soh. Diet. t. Town of B., ( Vt.) 22 A. 570. ' State T. Fay, 36 La. An. 241. 'Aud. Qen. v. State Treasurer, 45 Micli. 161. FUNDS, APPORTIONMENT. 95 f 25, provides a remedy for inequality of application ;* and in Neb. a treasurer cannot rightfully demand moneys belonging to his district from the county treasurer, except upon a warrant of the director, countersigned by the moderator f the county treas- urer is not authorized to pay out funds to the credit of the county school fund, until they have been duly apportioned by county superintendent.' The inmates of Orphans' Home, Car- son City, Nev., not having public-school privileges, are not to be counted as part of the children of Ormsby county in making the apportionment under the constitution,' and under the stat- utes, one-tenth of the property tax in Ormsby county in Nev., in 1863, levied for the county purposes, not including building purposes, should be set off for the school fund in Heu of 10 per cent, of county property tax required to be so set off by law, and one-tenth of the tax of 80 cents on |100, levied in 1864 in said county for general county purposes and a contingent fund, should also be set off in like manner.* Under Kev. Stat. N. H., ch. 72, the power of the selectmen to apportion school-money among the districts is to be exercised from time to time, as changes in the district may require ;^ money apportioned may be held by trustees for the benefit of the district, even if it is after- ward abolished.' Tie act of 1850 — as to incorporated orphan asylums, except in the city of' New York — entitles them to share in the distribution of all moneys raised in their respective cities or received by the board of education for school purposes, except moneys which are received from the state for the school fund, the appropriation of which is fixed by art. 9, § 1, of the constitution of 1846.' lEice T. McClelland, 58 Mo. 117. 'Donnelly v. Dnrass, 11 Neb. 283. s state T. Dovey, (Nev.) 12 P. 910. *Trs. Sch. put. T. Co. Comm'ra, 1 Nev. 334. sSch. Dist. V. Sanborn, 25 K. H. (5 Post.) 34. «Sch. Dlst. V. City Concord, (N. H.) 9 A. 630. 'It. Patrick's Orphan As "" '"' "' How. (N.T.)Pr. 227. ' St. Patrick's Orphan Asylum v. Bd. Ed., 34 _ Pr. f" 96 PUBLIC SCHOOL LAW. § 77. Funds, apportionment. — Laws N. Y. 1864, ch. 655^ art. 2, does not confer upon the superintendent of public in- struction power to determine an appeal from an apportionment by the board of town auditors under act of 1870. Laws N. Y. 1870, ch. 591, authorized the town of H. to^ elect a treasurer to receive moneys from the sale of lands, and that so much of the interest as might be deemed necessary for the common schools should be apportioned among the several districts as the public- school moneys of the state were apportioned, and the apportion- ment certified to the treasurer by the board of town auditors. When the board of town auditors had apportioned the moneys- of certain years, mandamus would not lie to compel them to modify their apportionment to conform to the corrections sub- sequently made by the superintendent of public instruction;^ and the provision of act of 1848 has reference only to the money raised for the support of schools in and by the city of Brooklyn." Under § 24 of the act to establish the school fund, providing that township tax, levied for the continuation of the schools after the state tax has been exhausted, shall be applied only to the payment of the teachers in the proper townships, the board cannot make distribution in any other proportion than that authorized by statute, although it has not funds to keep a school in each sub-district for seven months without so doing.' Mandamus will not lie to compel the payment by treasurer of U. county to M. county of taxes of 1884 collected by TJ. county ; and the board provided for by act 1885 to de- termine the proportion of net indebtedness to be assessed by M. county had no right to determine the rights of the two iPeoplev.Bd.TownAiids.,(N.T.)27N.B.968. I »Bd. Ed. T. Cheney, 5 Ohio St. 67. 2 People V. Bd. Ed., 13 Barb. (N. T.) 400. | FUNDS, APPORTIONMENT. 97 counties to the school taxes for 1884:.* The state appropriation for schools is based upon the taxable inhabitants of each dis- trict, and the amount to be assessed by the directors of a dis- trict is based upon the amount of the state appropriation for that year." On the subdivision of a district, it is the duty of a county judge to apportion its school funds among the new dis- tricts formed, under Laws Tex. 1884, ch. 25, p. 46.' Order of apportionment does not have to be filed in forming a new dis- trict.* Mandamus lies to compel the county superintendent to make the proper order for money belonging to any district ; and this is so where an act had been passed changing a district to another county, and school-moneys had previously become due the district from the former county.^ Under Iowa St. 1885, " credits " in connection with " assets " include houses, sites, fur- niture and fixtures, school-tax levy, county school tax and cash, less the liabilities of the district.^ Where districts were divided before Mich, act 1891, the old district remained liable for all debts and retained title to all the property.' §78. Funds, apportionment, — A district detached from one county and attached to another, in Ark., (the children of the detached district having been included in the enumeration of the former,) must be included in the apportionment made by the county court.' Counties are owners of the school funds until they are accredited to the several school districts." The board of education of San Francisco has no power to divert the school-money to any purposes not authorized." The treasurer cannot refuse to pay to one scliool district the apportionment iConnty of Monow v. Hendrix, (Oreg.) 12 P. 806. SAlter V. McBride, 7 Pa. St. 147. "Porter v. State, 78 Tex. 591. ♦State V. Baton, 11 Wis. 29. 'Brown v. Nash, 1 Wy. Ter. 85. — 7 »Bd. Pelican v. Bd. Wis., 51 N. W. 871. 'City Winona v. Sch. Dist., 13 Mich. 14. «MerrittT. Merritt, (Arls.) 16 8. W. E. 287. •Cooke V. Sch. Dist., 12 Col. 453. "Barry v. Good, 89 Cal. 215. 98 PUBLIC SCHOOL LAW. as part of the primary fund where it is the only district entitled thereto and the superintendent of public instruction makes the apportionment under Mich. St., § 5029, but the township clerk does not.* In N. H. a district situated in two or more towns is entitled to its proportion of the money raised ;^ and a district can claim its share of the funds, though no school is kept.' An action on a demand belonging to the district must be brought in the name of the district ;* and a district may maintain a bill in equity against another which retains a tax claimed by the former.^ The parish treasurer, in La., may demand from the collector the fund due to his parish, and sue to recover it ;" and one board may recover its apportionment illegally obtained by another board, and when invested the property may be recov- ered.' The superintendent of a new town formed out of a part of an old one is entitled to sue for moneys that may have come into the hands of the treasurer of the latter, and which belong to those parts of districts within the limits of the new town.' § 79. Funds, appropriation. — Where there is an implied appropriation for a certain purpose, funds will not be diverted by mandamus.' The Ind. act of Feb. 24, 1871, in relation to the distribution of school funds to the several counties, held to be valid.'" An action for money had and received is the only proceeding, by one school district against another, for money belonging to the plaintiff and wrongfully in the defendant's pos- session." Under Mich. C. L., S 3647, a town treasurer can pay school-moneys only to the district assessor, and only on the warrant of the proper officers." In Minn, a district treasurer 1 Moiles T. Watson, 60 Mich. 4l5. s Sch. Diat. v. Twitchell, 63 N. H. 11. 8Sch. Diat. v. Morrill, 59 N. H. 367. ^Donnelly v. Duraa, 11 Neb. 283. « Sch. Diet. v. Dean, 17 Mich. 283. "Hendricks v. Bobo, 12 La. Ann. 620. 'East Carroll Sch. Bd. T. Union Sch. Bd., 36 La. Ann. 806. 8 CasaTille v. Morris, 14 Wis. 440. 'Zartman v. State, 100 Ind. 360. loShoemaker v. Smith, 37 Ind. 222; Fulwiler V. Zern, 38 Ind. 208. "Midland Sch. Diat. v. Sch. Diat. No. 6, 40 Mich. 551. FUNDS, APPROPRIATION. 99 cannot pay a judgment out of moneys applicable only to other specific purposes.^ The Mo. Constitution of 1875, art. 10, § 19, abrogated the continuing appropriations for the state normal schools made by the act of 1875 ;^ and the inhabitants of the school township for the time being cannot dispose of, or in any way impair, the township school fund f and the Neb. State Uni- versity regents under the charter cannot dispose of the endow- ment fund or the fund accruing from f mill tax, in absence of statutory legislation.* The town system of N. H. authorizes the annual meeting to direct how the school-money shall be as- signed.^ Payment of a county superintendent's order for the state appropriation for public schools will not be compelled where the money has been applied for school purposes in the preceding year." The common council of a city cannot appro- priate money voted by the inhabitants to any other purpose ;' and where there is no proceeding pending before the superin- tendent of common schools, he is not authorized to make an order directing the commissioners of a town to retain in their hands, to abide such order as may be thereafter made, the money about to be apportioned, pursuant to law, to a school district for teachers' wages.' An act of the legislature directed that the amount of a judgment, recovered against former trustees of a school district, for teachers' wages, should be levied and collected by tax, and the ofi&cers of the district had neglected to execute the law ; the superintendent of common schools, was not • authorized to prohibit the school-moneys thereafter apportioned under the general laws of the state, from being paid over to the trustees.' 1 Sch. Dist. V. Roach, 43 Minn. 495. estate V. Holladay, 66 Mo. 385. 8Veal V. Chariton, 15 Mo. 412. * State V. Babcock, 17 Neb. 610. 6 Sch. DiBt. v. Prentiss, (N. H.) 19 A. 1090. « State V. Sheridan, 42 N. J. L 64. 'State v. Hammell, 31 N. J. L. 44S. BBennett v. Burch, 1 Den. (N. Y.) 141. 100 PUBLIC SCHOOL LAW. § 80. Funds, bonds. — In a suit in Texas by surety of treas- urer of county as assignee of audited school claims against the county, the fact that the treasurer had turned over special school funds to him who is surety on general bond, and that the treas- urer had defaulted, will not defeat the suit.* La. Acts 1872, abolishing the free-school fund, is unconstitutional, and sale of bonds of said fund thereunder is void.' Act of legislature, di- recting commissioners of school fund to invest same in bonds issued to pay members of legislature, is void.^ §81. Funds; constitution. — The act of Fla. 1886, direct- ing county treasurer to forward school-money to state treasurer, for apportionment by state superintendent, is contrary to Const, art. 8, § 7, which provides for the apportionment and distribu- tion in the counties in proportion to children.* Act Ky., April 19, 1886, " to establish a public school in Morganfield, in Union county," the object being, by additional taxation within the district thus created, to have better school accommodations than its annual share of the common-school fund would afford, is not unconstitutional.' The act of 1866, Ind., that county auditor's report of amount of school fund when approved by superintend- ent of ptiblic instrutitidti shall be conclusive, is uticonstitutional, because it may be the means of not securing all." An act of leg- islature which in effect makes a donation of a portion of the fund for another purpose than common school, is void.' The Ind. school laws of 1852, consolidating the several school funds into a common fund, violates article 8, § 7, of the constitution of the state, and is void.' (See also "Sectarian Schools.") 'Co. Caldwell v. Crocket, (Tex.) 4 S. W. 607. 'Snn Mntnal Ins. Co. T. Bd. of LlqnidationB, 31 La. Ann. 175. 'State V. Board, 4 Eae. 261. * State V. Bainee, W Fla. 8. 'Bd. Trs. Morganfield v. Thomas, (Ky.) 15 S. W. 670. •Howard Co. V. State, ( Ind.) 22 N. E. 255. 'People V. Allen, 48 H. T. 404. estate T. Springfield, 6 Ind. 63. FUNDS; FINESv V 101 §83. Funds; finest — (See also "Funds, Liquor.") In Iowa, the county where a forfeited appearance bond is collecti- ble is entitled to the money for its school fund, under § 3370, Code ;^ and in Dakota, under act of 1875, all fines for offenses committed in the city of Yankton shall be paid into the city treasury to the credit of the board of education.' Fines belong to the school districts, and prosecuting officer cannot retain the fees out of them, in Iowa.' All such fines in last part of § 5, art. 8, Neb. Const., applies only to those arising under the rules, by-laws, etc., set out in the foregoing part of section.* The fines for breaches of penal laws are part of the school fund in Wis.,^ and this fund belongs to the state, and an action is properly brought in its name for such, in the absence of statute ;* and the act of 1891, giving two-thirds of a fine to informer, is constitu- tional ; the proceeds for school means the remainder after lawful deductions." The Neb. law of 1877, p. 171, relating to liquor licenses, contravenes § 6, art. 8, Const., and is void ;' this clause of the constitution, giving license-moneys to the use of "com- mon schools in the respective subdivisions where the same may accrue," passes the same to the school fund of the cities instead of the counties.' The county treasurer may maintain a civil ac- tion to recover for the school fund of the county, moneys re- ceived by towns and cities of the second class for license to sell liquor ; this power is implied in his authority to collect.' The penalty for failure to forward freight imposed by N. C. Laws 1874-5, ch. 240, is not given to the county school fund by N. C. Const., art. 9, § 5 ;' under Const. N. C, penalties for non-com- iLncas Co. t. Wilson, 61 Iowa, 141. «T»nkton Co. v. Fanlk, 1 Dak. 348. • Woodward t. Gregg, 3 Greene (Iowa) 287. • State v. Heint, lOleb. 477. 'Statev. Casey, SWis. 318. • State V. DeLano, (Wis.) 49 N. W. 808. 'State V. McConnel, 8 Neb. 28; Hastings t. Thome, 8 Neb. 160. 'City of Tecnmseh v. Phillips, 5 Neb. 305; Wbite V. City of Lincoln, 5 Neb. 805. ' Katzenstein v. E. & G. E. E. Co., 84 N. C. 688. 102 PtJBLIC SCHOOL LAW. pliance with the provision of § 1959 should be paid to the school fund.' In Ind. personal effects unclaimed, and found by coro- ner on dead bodies, belong to common-school fund of county," and the Ind. act of 1844 as to funds from estrays belonging to common-school fund is not repealed by act of 1881.' The board of education cannot be substituted as relator, "or as party plain- tiff, in an action for penalty brought by a private person in the name of the state, the right to sue being vested solely in the state.* § 83. Funds, interest. — The interest of the public moneys in the United States, which by the act of 1836 is appropriated to the use of the common schools, is not a part of the proceeds of the school fund, within the proviso to § 9 of the act of 1827, entitled "An act to provide for the support of common schools.'" § 84. Funds, investing. — School boards in Neb. may in- vest in U. S. three-per-cent. bonds, and the premium paid for same should be paid from permanent school fund ; but when so invested they are not to be changed." Mo. Sess. Acts, 1865, p. 16, § 6, providing that the purchase-money arising from the sale of the stock held for school purposes by the state might be paid in the bonds and coupons of the state, is not unconstitu- tional.' Expending the proceeds of the 16th section of lands for the exclusive use of the township in which the land lies, is a sufficient compliance with the act of Congress; nor is a state bound to provide any additional fund for a township receiving the bounty, even though it does for other parts of the state,* and the proceeds of the sale in each township becomes a trust 1 state T. B. E., 108 N. 0. 84. estate v. Marion Co. Comm'rs, 85 Ind. 489. » Tippecanoe Co. Comrn'ra v. State, 92 Ind. 353. estate V. Marietta &c. B. B., 108 N. C. 24. estate V. Jericho, 12 Vt. 127. »/« re School F., 15 Neb. 684. 'State V. Bank of State, 45 Mo, 538. 8 Springfield v. Quick, S2 How. (Ind.) i FUND, LOAN. 103 fund to be applied to the use of the schools in that township, and not elsewhere.* § 86. Funds, liquor. — Where parts of three districts are within the limits of an incorporated village, the moneys re- ceived for liquor licenses will be divided equally between them in Neb;^ and where a village is partly in three districts and school -houses of each outside of town, and $1,000 is derived from liquor licenses in the town, each is entitled to equal parts of the money.' §86. Funds, liquor. — Under the two acts N. M. 1891, it was held that license-money for liquors should be placed to the credit of school districts and not to that of county ;' and in Neb. the money received for liquor licenses issued by county board belongs exclusively to county fund for common schools and not to district in which the liquors are sold." Where $1,000 was required to be paid in Neb. for liquor license it was held that the whole belonged to the district." § 87. Fund, loan. — Selling under a school-fund mortgage for a sum materially exceeding the amount due, is a material irregularity.' Laws 1864, ch. 118, § 1, Iowa, reduced the rate of interest on loans after Jan. Ist, 1864, whether before or after, from ten to eight per cent.' The statute provides for loans of the school fund to a certain class of railroad companies ; the commissioners of the fund shall draw their warrant if they are satisfied that the work has been done ; their determination is a final, judicial decision,' and whether the company is such that their application can be entertained, is a fact upon which their determination is not final ;° and in this case the warrant I state T. Springfleld, 6 Ind. 83. 2 State v. White, (Nek) 45 N. W..631. "State T. Broadboll, (Neb.) 441Sr. W. 186. *Bd. Ed. T. Laforge, ( N. M.j 27 P. 816. 'State V. renton, (Neb.) 45 N. W. 464. « State T. Wilcoz, 17 Neb. 219. I Arnold v. QafE, 58 Ind. 543. 'State V. Hendershott, 21 Iowa, 437. « Houston etc. E. Co. v. Bandolpb, 24 Tex. 317. 104 PUBLIC SCHOOL LAW. does not even show that the applicant is an incorporation, and only corporations can receive the aid.^ Under § 811 of the Revision, Iowa, when the state becomes the purchaser under the foreclosure of a mortgage executed to secure a loan from the school-fund taxes, a purchaser of the same lands from the state acquires a title discharged of all tax liens.' By Eev. Stat. Ind., 1881, § 4326, the counties are Kable for the public school fund intrusted to them, and the annual interest ; by §§ 4390, 5904, it is the duty of the county auditor, when premises mortgaged to secure a loan of such funds fail to sell for sufficient, to bring suit on the notes in the name of the state ; the county might pay the deficiency before the auditor brought suit ;' and where mortgaged lands to secure loans of school funds are sold and the county auditor bids in the land on account of the fund, no deed to the state is required, but the land must be appraised and sold before a suit will lie on the mortgage notes for deficiency.* § 88. Funds, loan. — A surety who signs a note given for a loan of the common-school fund, made by the county auditor, is not released by reason of the loan not being secured by a mortgage of real estate." By Ind. Laws 1833, 89, § 96, it is provided that a school commissioner should not loan to any one applicant a greater amount than $300 ; a loan for a greater sum than |300 was void, and the mortgage was void.' When a county in Ind. has loaned school funds on a mortgage and bought the property in a foreclosure, and at subsequent sale it brings more than debt, the county is entitled to be reimbursed for interest advanced and paid.' A honafide purchaser of land incumbered by a mortgage given to secure a loan of school > Honston etc. E. Co. r. Randolph, 84 Tex. 317. 'Helphery v. Eoss, 19 Iowa; 40; Jasper Co. v. Eodgera, 17 Iowa, 264. •Lopp V. Woodward, (Ind.) 27 N. E. 675. * Clark T. State, (Ind.) 10 N. E. 125. 'Scotten T. State, 61 Ind. 53. •State v. State Bank, S Ind. S6S. I Bd. Comm'rs v. State, 122 Ind. 333. FUNDS, LOAN. 106 funds, which was never acknowledged or proved, as the statute requires, to admit a mortgage to record, but was nevertheless recorded, is charged with constructive notice of the existence of fiuch mortgage ;* and a mortgage to secure a loan of school funds upon land on which there is a prior incumbrance, known to the auditor who had charge of the fund, is valid as against the borrower, notwithstanding loans should be made only on unin- cumbered land.* The act of 1861, Ind., which directs a three- weeks notice only, of foreclosure sales, applies to mortgages executed while the act of 1843 was in force.' The legislature has the power to direct in what manner the school funds shall be loaned." A declaration on a note given for "school-money," on the school law of 1845, must aver that it was given for school-money, and claim the penalty ; otherwise only ordinary interest is recoverable.* The act 1865, ch. 637, § 17, Wis., provides that in a certain contingency drainage-money in the town treasury " may be applied under the direction of the board of supervisors " ; the money must be paid into the treasuries of the school districts and expended under the direction of the dis- trict boards, and not of the supervisors ;* if the supervisors im- properly loan such funds, taking a due-bUl therefor, and transfer the due-bill to the school districts, instead of paying the fijnds into the district treasuries, the districts may maintain an action upon the due-bill against the makers.' § 89. Funds, loan. — Pending a litigation between the board of education of a township and a special school district, as to the custody and control of a fund in the township treasury, the board permitted the treasurer to use the fund in his business on 1 Deming v. State, 23 Ind. 416. a Webb v. Moore, 25 Ind. 4; Jones T. Hop- kins, 26 Ind. 4S0. • Bush V. Shipman, 5 HI. (4 Scam.) 186. 4 Sexton T. Scb. Conim'rs, 19 ni. 51. 'Sch. Dists. T. Bdwaxds, 46 Wis. 150. 106 PUBLIC SCHOOL LAW. his agreeing^ to pay interest thereon ; when the treasurer's term expired the loan was renewed and a note with sureties taken. Such loan contravened public policy and the statute ; the sureties- thereon were not estopped from setting up the illegality of the- transaction as a defense ; in the absence of statute, the board had no power to ratify a contract made in violation of law.^ In Ind., under §§ 79, 81, 82, of the act of March 5th, 1855,. relating to school-fund mortgages, a county auditor might sell the land under the mortgage, or recover judgment on the debt,, or both, or bring an action to recover on the debt and to fore- close the mortgage, but the auditor could not then sell the land under the mortgage, it being merged in foreclosure.' Where a. county in Ind. loaned the congressional school fund, and on de- fault paid interest, on foreclosure realizing enough to pay all due from the mortgages, the school fund is not entitled to in- terest paid, but that is for the county.' § 90. Fund, loan.— Under Miss. Acts 1854 and 1856, the board of police or the treasurer have the power to sell land in- cluded in the deed of trust from the borrower of the common- school fund to the sureties on the borrower's ■ note ; and for such purchase-money and the balance due on the original note- may, in renewing the old note, take a new note from the origi- nal obligors, with new sureties.* In Mo., where additional security is given for prior loan, it relates back to date of origi- nal execution of the bond.^ A mortgage by auditor of county for loan of school funds to himself is not void." Married woman, in Ind., cannot obtain a cancellation of mortgage on her land for loan of school fund, on the ground that it is a debt 1 Hartford Tp. Bd. Ed. v. Thompson, 33 OMo St. 331. •Ferris v. Cravens, 65 Ind. 268. •Hamilton v. State, (Ind.) 24 N. E. 347. iGaiacB T. Faris, 39 Miss. 403. 5 Co.Montgomery T. AncUey, ( Mo.) 4 S. W.425. « state V. Levi, 99 Ind. W, (overrnling Warey.. T. State, 74 Ind. 181;) Stockwellv. State,. 101 Ind. 1. FUND, LOAN. lOT of her husband, because the auditor is not a party in interest.* In Mo. a payment of a school-fund mortgage to a deputy county clerk, who failed to pay the same into the county treasury, did not release the mortgage ;^ and a mortgage in Mo, to secure a. loan of school funds is not invalid by reason of the clause "for the use of a specified section of land," instead of "for the use of the township to which the fund belonged."* 111. statute re- quiring loans of school funds to be secured by mortgage, does, not render an unsecured note void.* The riparian commis- sioners have no power, by a convenant contained in a grant to- a railroad company, to discharge a mortgage investment of the school fund, such an act being unconstitutional.^ A loan of school fund upon other security than that required is a misap- plication of the fund for which the trustees are personally liable, but the mortgage or other security is not void ;" and a, mortgage taken by the county for the loan of funds, not under the statute, but good at common law, and containing a power of sale, is valid.' The Oreg. act to provide for the loaning of common-school funds, approved Dec. 19, 1866, is constitutional and valid.' Where the additional security required in Gross. 111. Stat. 701, §60, is demanded and not given, the whole debt matures, and may be foreclosed.' Where the statute re- quires two or more sureties to a note given for a loan, it will be- presumed that at least two of the signers are sureties." A per- son who signs as surety, after delivery, a bond under seal given to secure loan of school-moneys, cannot escape liability by- showing that no order requiring additional security was entered. iSnodgrassT. Morris, (Ind.) MNJB. 151. 2 Knox Co. V. Goggin, (Mo.) 16 S. W. 684. •Grant v. Hnston, ( Mo.) 16 S. W. 880. *Bdwards v. Trs. of Sch., 30 HI. App. B28. 'American Dock Imp. Co. t. Sch. Trs., 35 N. J. Eq. 181. •Littlewort v. DaviB, 50 Miss. 403. 'Manny. Best, 62 Mo. 491. «Knbli T. Martin, 5 Oreg. 436. »Bd. Trs. ifcc. V. DavidBon, 65 El. 125. "OTrs. of SchB. Y. Southard, 31 HI. App. 359.. 108 PUBLIC SCHOOL LAW. •of record, without also showing that there was no other con- sideration.* § 91. Fund, loan. — The power of a township trustee, under Eev. Stat. Ind., 1881, pp. 4328, 4329, to rent school lands, and to reserve rents payable in money, or improvements on the land, must be strictly construed; and where a tenant has un- •dertaken improvements greater than the aggregate rents for the remainder of the term, an agreement by the trustees to ex- tend the term after its expiration, if the tenant would complete the improvements, is void.' Under the Miss, act of Mar. 4j 1846, authority is given to county treasurers to loan out the -school fund, not appropriated by the school commissioners.' 'The fact that one who signed a bond after delivery permitted it to remain with the county court without objection fo* six years, would estop him from setting up want of consideration in an action thereon ;* such court cannot delegate the power to make loans, or to compromise those already made, without requiring the final approval by the court of the security.* In Miss, the trustees of school lands are authorized to loan money only upon personal security ; and if a loan is made by them secured by a deed of trust, and lost, they will be liable." In Mo., where a person borrows school-money of a county, and secures the payment by mortgage, the county court may on default of payment of interest, without notice, order the sheriff to sell the land according to the provisions of the mortgage.' M., a de- faulter to the school fund in the sum of $500, agreed with B., his debtor, that the latter should give his note ioi $600 to the school fund and execute a mortgage to secure it. M. signed 1 Montgomery Co.t. AncMey, (Mo.) 15 S.W.6S6. s Anderson v. Prairie Sch. Tp-i (Ind.) 37 N. E. 439. -» Murray v. Smith, 28 Miss. 31. ♦Montgomery Co. v. Auchley, (Mo.) 15 S.W. 620. 'Lindsey t. Marshall, St) Miss. (13 Smed. & M.) 587. •Hurt T. Kelly, 43 Mo. 238. FUNDS, OFFICER. 109< the note as surety, and it was received by the school fund com- missioner and credit given to M., on his liability ; the mortgage- was never executed ; taking the note without the mortgage could not be taken advantage of by the defendants.' A sale by the auditor, of lands mortgaged in Ind., is void if made for- the payment of a greater sura than actually due ;^ and it makes- no difference that the borrower had not filed the treasurer's receipt for interest with the auditor.' § 92. Funds, officer. — Where a school commissioner loans money on real estate to which the mortgagor had no title as. shown from the public records, he was at once liable on his- bond for the full amount of the loan.' Under Mich. C. L., §§ 2272, 7596, district assessor is the sole disbursing officer tO' be drawn upon by the director for any money of the district in the township treasurer's hands.* Under Wagn. (Mo.) Stat.,. 1246, 1247, the justices of a county court are bound to issue to the township clerk a warrant for the amount of the delinquent list of land taxes due the sub school districts before collection.^ It is the duty of a school commissioner, on retirement from office, to deliver over to his successor the funds held by him." By receiving money ordered by trustees of a township to he-. paid to them, the directors of a district are not liable to an action by the directors of another district claiming it ; it must be against the trustees.' Under the 111. school act of 1866, the: school commissioner may refuse to pay money to a township- treasurer who has not filed his bond.' In 111., township col- lector must pay school tax to township treasurer.' In Mo., the county cannot discharge a surety on a bond for the loan of 'Bremer Co. v. Barrich, 18 Iowa, 380. «Key V. Ostrander, 29 Ind. 1. 'People T. HatneB, 10 HI. 628. *Frac. Sch. Dist. T. Mallary, 23 Mich. 111. « Wallendorf v. Cole Co., 45 Mo. 228. •Hamilton v. Cook Co., 6 111. 619. 'Sch. Dirs. v. Sch. DirB., 36 111. 140. space V. People, 47111. 321. 'People V. Teazel, 84 111. 539. 110 PUBLIC SCHOOL LAW. money upon his giving his note with personal security.^ The ■Supt. Pub. Inst. Ky. had no right after the auditing of school •commissioner's claim by county judge to reject it because it did snot show that the commissioner had visited the schools.* Where by statute school commissioners are given exclusive ■power over the school fund and all money due that fund is made payable to their order, they may sue for money due the fund;' and it is no objection that the defendant might have 'been sued on his official bond in the name of the state, or that ;the money due was raised by an illegal tax.' § 93. Funds, use. — The Straight University is not a public institution of learning, and therefore the constitutional prohibi- iiion to appropriation made in its favor must prevail.* The Wis. law, 1869, giving surplus drainage-money to schools, means "to be expended by the school officers of the district.'" Where •public lands were sold for Cornell University, and proceeds in- vested in four-per-cents, bought at a premium, the university was entitled only to net income.' County treasurer in Mo. is proper party in injunction suit to prevent illegal use of school fund.' Where the officials of a district have failed for years to account for funds received to pay debts for bounties to recruits, and there was no money in the treasury, the school board were . authorized to levy a tax to pay matured obligations.' The legis- lature may delegate the power of taxation to the taxable inhab- itants for raising a fund for the support of schools ;' and the power to authorize local taxation for erection of school build- ings is not unconstitutional.^" The power of townships in N. J. 1 Montgomery Co.v.Anchley, (Mo.) 15 S. W.62I 2 Pickett V. HaiTOd, (Ky.) 5 S. W. 473. » O'Neal V. Sch. Comm'rs, 87 Md. 237. * State T. Qiabam, 26 La. Ann. 440. eSch. piBt. v. Bdwarda, 46 Wis. 150. « People T. Davenport, 30 Hnn ( N. T.) 177. ' Black Y. Cornell, 30 Mo. App. 64. -8 St. Clair Sch. Bd's Appeal, 74 Pa. St. S52. •Burgees v. Pne, 2 GUI. (Md.) 11; Steward T. Jefferson, 3 Harr. (Del.) 336. lONewman v. Thompson, 4 S. W. 341; Bd. v. HarrodsbnrgBd., 7 S. W. 312 ; Fitzpatrlck T. Bd., 7.S. W. K. 896; Sch. Dist. v. Webb, 12 S. W. B. 298; Bd. Trs. T. Thomas, 15 S.' W. 670. FUNDS, USE. Ill to raise money for schools was restricted by act of 1846 to an amount not exceeding double that received from the state.^ Where sub-districts lie in two counties, the taxes for contingent and teachers' fund belong to the district township to which the territory was attached, in Iowa.' The act of Va., authorizing payment of moneys due the literary fund to be made in coupons, is illegal, and act of 1884, providing that all taxes for school fund shall be paid in lawful money of the United States, is con- stitutional.' The excess over $50 from dog license under Ind. act of 1881, received by a city, goes to the township in which the city is, and the city cannot claim any of it for school pur- poses.* The act directing the purchase of " Collins's Historical Sketches of Kentucky " is unconstitutional in appropriating part of the school fund to that purpose.' § 94. Funds, use. — Where the territorial laws C. L., §§ 1840, 1845, authorized the board of education to designate private institutions where instruction should be given, and the tuition paid by the territory, and a contract was made accordingly, which contract required three months' notice to cancel, it was held that the constitution of the state subsequently adopted prohibiting appropriation to any sectarian institution, terminated the contract ; and such provision did not contravene the U. S. constitution prohibiting the impairing of obligations of contract." Miss. Acts 1878, p. 123, allowing pupils in private schools to receive pro rata share of the common-school fund, but not re- quiring freedom from sectarian control, or supervision of any state or county superintendent, or that the conductors exclude no pupils, is unconstitutional.' 1 state V. Kingsland, 23 N. J. (3 Zab.) 85. ^Honey Creek t. Floete, 59 Towa, 109. 'McGahey V. State, (Va.) 135 U. S. *Sontli Beud v. Jaqulth, 90 Ind. 495. ' Collins v. Henderson. 11 Bush (KyO W- « Synod of Dakota v. State, (S. D.) 50 N. W. 632. 7 Otken V. Lankin, 56 Miss. 758. 112 PUBLIC SCHOOL LAW. § 95, Fund, use. — ^Under N. Y. Laws 1860, ch. 261, orphan asylums incorporated since its passage are entitled to share in money raised by tax in school districts, as well as in that raised by the state ; but where a mandamus is ask;ed, to compel the trustees of a district to pay to such asylum its share, and no money has been raised by the district for the asylum, and all the money has been appropriated to specific purposes, and the asylum school has not been taught by a duly authorized teacher, a mandamus ought not to issue.^ The provision of § 8 of the Ind. law of 1866, prohibiting expenditure of certain school rev- enues in advance of apportionment, applies only to the school revenue for tuition, which belongs to the state and is by it apportioned.^ Although a district may have voted a tax for erecting a school-house, the fund is beyond the control of its officers until its expenditure is authorized by a vote of the dis- trict.' Under the Pa. law of 1854, § 33, school-district taxes for building purposes cannot be diverted to ordinary purposes.* Under the authority of the board of school directors of a par- ish, the treasurer may make valid sale of the warrants of the state which represent that portion of the interest on the free- •school fund due to said parish.' The power given by the Ky. constitution to the legislature to control the school fund cannot be diverted to the county courts.' By the act "imposing an additional tax of fifteen cents for the purpose of increasing the common-school fund," any sum produced thereby can only be applied in aid of the common schools.' In 111., directors of schools may levy a special tax for school purposes without a vote of the people, but cannot use funds raised for one object ^St^ Thomas On^han^eytam y. Gowacki, Z 'AnS V.Holland, 14 Bush. (Ky.) 147. 'Collins V. Henderson, 11 Bnsh (Ky.) 74. Thpmp. &C. (N. TJ436. — ■ -Olnc' - « Harney v. Woden, 30 Ind. 178. 8Sch. Dist. T. Stough, 4 Neb. 357. * German Tp. Soh. Dist. v. Langston, 74 Pa. St. 454. 6 Concordia Sch. Dirs. y. Hernandez, 31 La. Ann. 168. GRAMMAR AND HIGH SCHOOLS. 113 for another.^ The Ky. act of 1872, appropriating common- school funds to V. Academy, is unconstitutional.'' Special leg- islation which does not aid the general system, or relieve against hardships of its provisions or the defaults of officers, is calculated to destroy the system of common schools, and is un- constitutional." § 96. Funds, etc. — In order to entitle the plaintiff to re- cover the penalty of 20 per cent, interest under the act of 1835, it must be claimed in the declaration, in a suit on a note given for loan of school funds.' The Miss, acts of 1864, ch. 345, and of 1856, ch. 27, are directory in requiring deeds of trust on real estate to secure the repayment of the loans of the common- school fund, but they do not make void a note given for such loan, not secured by a deed of trust.* In the absence of specific appropriation of 1891, Conn., §2228, providing for 'annual division of income of school fund," amounts to an ippropriation.' §97. Grammar and high schools. — In Mass. it is not competent for a town to establish a grammar school for the benefit of one part of the town to the exclusion of the other.* The Ky. act of 1884, authorizing the establishment of graded schools and application thereto of the districts pro rata, is not unconstitutional.' In Ind. a majority of the whole number of trustees establishing a joint graded school may transact all the business.* The act of March 12, 1868, Iowa, for the establish- ment of high schools in the counties, is unconstitutional and void.' In Wis., where a joint high school was divided and one iPennlngton t. Coe, W Dl. 118. sHalbert v. Sparks, 9 BnBli ( Ky.) 259. • Kusaell v. Hamilton, 3 rl. (8 Scam.) 56; Hamilton v. Wright, 2 111. ( 1 Scam.) 582. *Gaine8 v. Paria, 39 Mies. 403. 'State T. Staub, (Conn.) 23 A. 924. 'Commonwesltli t. Dedbam, 16 Mass. 141. 'WlUlamstown Q. P. B. t. Webb, (Ky.) 12 S'. W. 298. 'Hanover Sch. Tp. v. Gant, 125 Ind. 557. "High Sch. V. Clayton, 9 Iowa, 175. 114 PUBLIC SCHOOL LAW. of the districts failed to levy its portion of taxes, the remedy is by mandamus;^ and that a course of study adopted is different from that contemplated by law, is not a ground for enjoining a legal tax for maintaining the school.' Where a high school was vested in township board, the formation of that territory into an incorporated village did not transfer the property or control of the high school to the board of education of the village.' The 111. Kev. Stat., 957, § 36, for the creation and maintenance of high schools for a township on a vote of the people, is not unconstitutional.* A court will not interfere with establish- ment of high school when officers do not exceed their powers ;' and taxes for high school were sustained in Mich.' § 98. Judgment. — In 1864, a school district was indebted to the petitioners. In 1866, it was united with other districts, and ceased to hold district meetings, in 1870 ; the petitioners recovered judgment upon their claim ; the judgment was valid, and a mandamus would issue commanding vacancies in the dis- trict offices to be filled ;' but in Mich, it was held after School District No. 6 of a town had been united to District No. 2 and a judgment was obtained against No. 5, that under 1 Com. Laws, ■§2335, the new district was alone liable for the debts of the two former districts, and the judgment was therefore void.' A judgment against a school district cannot be impeached col- laterally ;' if judgment is rendered against a school district hav- ing no corporate funds, the remedy in the absence of statute is in equity." If the members of a school district are individually liable for the debts thereof, under the school acts prior to 1851, 1 Joint High Sch. v. Town of Green Grove, 77 Wis 533. 2 Richards v. Kaymond, 92 HI. 618. 8Bd. Ed. T. Bd. Ed., 41 Ohio St. 680. * Richards v. Haymond, 92 111. 612. 'Wiley T. Sch. Comm'r, Bl Md. 401. • Stnart v. Dist., 30 Mich. 69. 'Clark V. Nichols, 58 N. H. 998. 8 Brewer v. Palmer, 13 Mich. 104. •McLond Y. Selby, 10 Conn. 190. lOKenyon v. Clarke, 8 B. I. 67. JUDGMENT. 115 R. I., their goods and chattels, or bodies, if to be fouud, must be levied upon before resorting to their real estate.^ Under act of 1836, where there is a judgment against school district and it becomes dormant, it will have to be revived before execution •can issue.' An order that a judgment for services as a teacher ■shall, after a return of no property found, be paid out of school funds of the delinquent township in the county treasury, does not improperly divert those funds ; and " teachers of common •schools," means in the free common schools of the state estab- lished by law.' The trustees of a district are not" a corporation, BO as to be liable to an action subjecting school property to execution.* In Mass. an execution against the inhabitants of a school district may be levied on the property of an individual member of the district ; and may be so levied in the first in- stance, even if there is corporate property of the district, which can be taken and applied towards satisfaction of such execu- tion.' One who has a judgment against a district township upon an order on the school-house fund, and to whom the di- rectors have issued an order upon the treasurer for payment, in compliance with the Iowa Code, § 1787, is not entitled to pay- ment out of the general fund to the exclusion of the holders of other orders on the school-house fund who have not obtained judgments. He may levy upon the property of the district, if any, to compel by mandamus the levy of a special tax, if the dis- trict has not levied the limit.' -In 111. a district treasurer can- not be compelled by mandamus to pay a judgment against the •district, when there has been no order of directors or court for the payment of same.' T Kenyon t. Clarke, 2 E. I. 67. ■sScli. Dlst. T. O'Donnell, (Pa.) 19 A. 358. '*Trs. V. Simpson, 11 Ind. 520. 'Allen T. Trs. of Sch. Dlst., 23 Mo. 418. BGaskill T. Dudley, 6 Mete. (Mass.) 546. « Chase v. Morrison, 40 Iowa, 620. 'Watts V. McLean, 28 111. App. 537. 116 PUBLIC SCHOOL LAW. § 99. Legislature, powers. — The rights of inhabitants of school districts, which depend upon the corporate existence of the district, are liable to be taken away by the legislature.' And the legislature has the general supervisory power over the public-school system, and may from time to time alter or change it by general laws not conflicting with the constitution of the state. § 100. Mandamus. — Mandamus to compel payment of debt can only be compelled after it has been reduced to judgment ;" but this is an appropriate remedy to compel the county com- missioners to pay over the amount of taxes levied for school purposes.' Mandamus will not lie against the treasurer of the old district to compel payment of funds to the new of such funds beyond his control ;* and where district was divided into three townships, and one was to pay debts of original, the holdei of an order could not compel the two to contribute." The treas- urer of the board of school inspectors is the proper custodian of the township library money ; and the town treasurer is bound to pay it over ; and mandamus will lie to enforce this duty." § 101. Mechanics' lien. — In 111. a general execution can- not issue against school directors.' The property of a school district is exempt from levy, and it is probable that no me- chanics' lien can be maintained against it ;' but in Oonn. the private property of the inhabitants may be taken to satisfy a judgment against such district.' The "Board* of Education of the State of Illinois " is a corporation, and its property is sub- ject to a mechanics' lien;" and a lien was allowed against irammn's Petition, 61 N. H. 376; Connor v. St. A. Bd., 10 Minn. 352. ' Sch. Diet. v. Bodenhamer, 43 Ark. 140. • Bd. Co. Sch. Comm'rs t. Gantt, (Md.) 21 A. 548. *Peopie V. Hodge, 4 Neb. 265. 'People V. Bd., 41 Micli. 647. • McPharlin t. Mahoney, 30 Mich. 100. 'WatBon T. Abry, 9 HI. App. 280. 8 Leonard v. City Brooklyn, 71 N. T. 498; Loring v. Small, 50 Iowa, 261 ; Ctaamack v. Dist. Tp. Colfax, 61 Iowa, 70; Bd. Ed. v. Maidenburger, 78 111. 58: Qninn v. Allen, • 8=) 111. 39; Fluty v. Sob. Diet, 29 Ark. 97. 8McLoud V. Selby, 10 Conn. 390. 10 Bd. Sd. V. Greenebaom, 39 111. 609. MEETING, ETC. 117 school-house in Kas. ;* but in Brinkerhoff v. Bd. Ed.^ 37 How. Pr. 520, a mechanics' lien was refused and could not be enforced against a school-house, and so held in many cases;' and ordi- narily will not lie against school-house in absence of statute authorizing same.' Whether execution can issue against Bchool-house on mechanics' lien, is not decided.* §102. Meeting, etc. — Where time of annual meeting is fixed it cannot be adjourned ;' but an annual meeting may ad- journ to next day in order to complete its business, and may appropriate money to pay for building a school-house.' It is not necessary that the meetings of a school district in Ky., to adopt the school system, should be fixed by the county court.'' In order for the selectmen in Me. to call a meeting under K. S., ch. 11, a vacancy in office of agent of the district or refusal to act, must be shown, and a return on the notice may be amended.' A meeting called to see if the district will vote not to defend a suit for labor and materials in building a school-house, is not a meeting " for raising money for building or repairing a school- house," under Pamp. Laws, ch. 222, § 2.° Plaintiff offered evi- dence to show that at a subsequent meeting of the district prior authority was revoked. It was competent for the counsel claim- ing to have the authority to show that the vote of revocation was passed by illegal votes.' Where a meeting voted that the school-house should be sold at auction, and a new one built on the same site, the contract therefor to be given to the lowest bidder it was a legal vote, and authorized the trustees to raise by tax the amount to be paid the contractor, deducting the pro- 1 Wilson v. Sch. Dist., 17 Kas. 104 spMUips' Mech. Lien, 25.% 610, 611, 60 Mo. 23; State V. Tiedeman, 69 Mo. 306; Wilson v. CnmminB, 7 Watts, 197; Williams v. Con- troller, 18 Pa. St. 275; Foster v. Fowler, 60 Pa. St. 87; Poillon v. Mayor, 47 N. 1 . 666; Shattel V. Woodward, 17 Ind. 2a5: Char- nock V. Dist. Tp., 61 Iowa, 70; Mayerhofer V. Bd. Ed., 89 Cal. 110. »Hovey v. Town. (E. I.) 20 A. 205. < Wilson T. Sch. Dist., 17 Kas. 104. 'State V. Cones, 15 Neb. 444. « Maher v. State, ( Neb.J 49 N. W. 436. 'Chiles V. Todd, 4 B. Mion. (Ky.) 126. 8Siarblrdv. Sch. Dist., 51 Me. 101. "Davis V. Sch. Dist., 43 N.H. 381. 118 PUBLIC SCHOOL LAW. ceeds of the old house.* A school district in its annual meeting may pay equitable claims." Under the Minn. Oomp. Stat., it is not necessary that the time for next annual meeting be des- ignated at the preceding annual meeting ;' and the directions to contract for erection or lease of a school-house must come from a district meeting in Minn.* In Minn, the powers of a special meeting are the same as those of annual meeting ;^ and ratifica- tion of act of trustees by district meeting renders the district liable, and this cannot be rescinded. In Yt., when collector of taxes for a school district was elected at annual meeting held at a time other than last Tuesday in March, he cannot justify un- der a tax warrant.' Where a district had adopted the Somers- worth act, and had not chosen a committee, it was the duty of the selectmen to appoint a committee, and in case of their re- fusal to do so, a peremptory mandamus should issue.' The N. T. laws authorizing building of school-house and issue of bonds, whenever the majority of all the inhabitants, etc., means the majority of those voting.' § 103. Meeting, notice. — Where notice of annual district meeting is given by two of the district directors it will be held sufiScient, in Ark." The record in a matter where there had been no notice in the warning, is of value only as to those matters upon which the district might lawfully act ;" and under a call for district meeting to obtain information on assessment, a committee cannot be authorized .to employ counsel to litigate at expense of district." Where the warning stated that the ob ject was to be "to take into consideration the expediency o> 1 Ackennan v. Vail, 4 Den. (N. T.) 897. 'Stockdalev.Wayland Sch. Diet., 47 Mich. 228. » Sanborn T. Sch. Dist, 12 Minn. 17. *Hobbins t. Sob. Dist., 10 Minn. 268. •Sanbom v. Sch. Dist, 12 Minn. 17. •WiUard y. Pike, ( Vt.) 9 A. 907. 'Butler T. Selectmen, 19 N. H. 553. 'Smith T. Proctor, 63 Hnn (N. T.) 143. ' •Holland v. Davies, 36 Ark. 446. "Wilson T. WateiBTille Sch. Dist, 44 Com 157. "Wright 7. North Sch. Diat, 63 Conn. B74 MEETING, NOTICE. 119 raising money for the use of schooling for the year ensuing," held, it was sufficient to authorize the laying of a tax for that purpose.^ Where, in 1839, a meeting was warned by posting a notice on two public sign-posts only, held, that by the act of 1823 (tit. 88, ch. 2, §2), Conn., under which this meeting was warned, the notification was sufficient, notwithstanding a vote of the society 1822, that the notice should be on all the public sign-posts.^ All that is requisite in the form of notice of a meeting for a special purpose, is, that it should be so that the inhabitants may understand the purpose.^ Where the notice stated the purpose of the meeting, to decide whether the in- habitants would direct a suit to be commenced for the damage then lately done to the school-house and its furniture, and ap- point agents to conduct a suit if necessary; it was sufficient, although it did not specify the nature or amount of the dam- age, or when or by whom it was done f and where a notice of an election specifies several purposes in such a way as that no doubt is left as to its meaning, it will be sufficient.' Where the law does not prescribe what notice shall be given, reasonable notice only is required, and such notice will be presumed if the board meets and all members are present.* No notice is re- quired for a regular meeting.' A meeting called to consider whether it would re-establish the school -district system and choose the officers required in such an event, and a vote taken at that meeting to so re-establish, is sufficient, under the Mass. act of 1870 (ch. 196), where the district was abolished by the act 1869 (ch. 110).' At a meeting called "to choose a district committee and to act on other business that may be thought 1 Bartlett V. Kinsley, 16 Conn. 327. «Sch. Dist. V. Blakeslee, 13 Conn. 227. 'Merrit v. Farris, 22 ni. 303. * People V. Frost, 32 111. App. 243. « Aikman v. Sch. Dist., 27 Kas. 129; Hazen v. Lerche, 47 Mich. 626; Sch. Diet. v. Jen- nings, 10 ni. App. 643; Ballard v. Davif^, 31 Miss. 533; Downing v. Eager, 21 V.iia. 178; Sch. Dist. v. Bennett, 52 Ark. 511. • Pefkins v. Crocker, 109 Mass. 128. 120 PUBLIC SCHOOL LAW. necessary," it was voted that future meetings should be warned by the clerk of the district ; and at a future meeting so warned a sum was voted, which was afterwards assessed ; the vote at the first meeting was invalid, there being no article in the war- rant concerning the calling of future meetings, and the assess- ment was illegal.^ A return on a warning that "he had warned all the legal voters" in the district "to meet at the time and place, and for the purposes within mentioned," was defective in not specifying how or when notice was given.* § 104, Meeting, notice. — Where the warrant for calling the meeting shows the purpose of acting on the articles named in the application for calling the same, the articles are as much a part of the warrant as if embodied in the same.' Where the warrant for a town meeting was, "To act on anything in relation to the limits of school districts, that the town may see cause," and a petition from the inhabitants of the four school districts was presented and referred to the selectmen, who made a report, at an adjourned meeting, recommending that said four districts be made into three only, and their report was recom- mitted to them, "to divide said districts," the warrant for a subsequent meeting included, "To hear all reports of com- mittees and act thereon," "To act on anything in relation to the limits of school districts, or relating to individuals or parts of districts, wlio may wish to be set off from one district to another," these were sufiBcient to authorize the last meeting to accept the report of the selectmen making three districts out of said four, and to establish them.* Where the clerk issued a warrant not under seal for annual meeting at time and in manner required by the by-law, as per order of the prudential 'Little V. Merrill, in Pick. (Mass.) 543. I "Oeorge v. MendoD, 6Metc. (Mass ) 497. 'Perry v. Dover, 13 Pick. (MusB.) 206. | *Alden v. Hounaeville, 7 Mete. (Mans.) 218. MEETING, NOTICE. 121 •committee, and returned on warrant in pursuance of the above ■warrant, " I have warned the legal voters of the district " " as prescribed by the by-laws, to attend and act upon the business therein named," the warrant and warning were valid.^ A clerk, directed by vote as to how he should give notice for future meetings, has no power to call a meeting except when directed by proper authority;* and where a clerk was empowered to warn -annual meeting he was not authorized to call other meetings ;' and the manner prescribed by district for warning future meet- ings must be pursued;* and a district meeting cannot act •excepting upon articles stated in the warrant.' § 105. Meeting, notice. — A vote to raise money at a meet- ing not properly called is illegal." A meeting of a district ••saUed by the school agent, without the written application of ^hree or more legal voters, is not in conformity with the statute.' The act 1850, ch. 193, Me., provides two modes in which meet- tags of school districts may be legally called. Since 1856, no opportunity for conflicting meetings has existed.' It is not •aecessary to the validity of a warrant from the selectmen, that khe application should be recorded, or produced, or recited in •the warrant.' § 106. Meeting, notice. — Where there was no school-house in the district, a return upon the warrant that he had notified, ■etc. "by posting up four copies of this warrant, one on the sign-post at the confluence of the A and B roads, one on the comer of the blacksmith shop, one on the Methodist meeting- house, and* one in the postofiBce, all of which places are in said •district," was sufficient, under ch. 17, § 24, Me.' A district I Kingsbnry v. Sch. Diet., 18 Mete. (Mass.) 99. 'Stone V. Sch. Dist., 8 Cush. (MassO 593- 8 Sch. Dist. V. Atherton, 12 Mete. ( MassO 105. ■< Hay ward v. Thlrteentli Sch. Diat., 2 Cnsh. (Mass.) 419. 'Holbrook T. Fanlkner, 55 N. H. 311. oRideont v. Scb. Dist., 1 Allen (Mass.) 333. ' Sch. Dist. No. 5 v. Lord, 44 Me. 374. 'Soper T. Sch. Dist. Ko. 9, 38 Me. 193. 122 PUBLIC SCHOOL LAW. meeting may be called by the selectmen of the town, in Me., oa the written application of three voters residing in the district,, although not described as such in the application ;' notice of dis- trict meetings is sufficient, if posted on the 16th of the month, the meeting to be held on the 24th.^ Under act 1834, Me.,, where notices were posted "one at the school-house and one at the grist-mill, both in said district," this was a compliance with the statute.' Where a town has directed the mode of calling the meetings of school districts, it is necessary to show that such directions have been pursued.'' A notice "for the purpose of hearing the inhabitants of said aistrict on the subject of their disagreement, respecting a suitable place to be selected for the erection of a school-house in said district, and of deciding where such school-house shall be located, and lay out the same," is in- sufficient where application had been made to determine dam- ages caused by appropriation of lot, under Me. E. S., ch. 11, §57.' Under Mich, law of 1867, §16, (requiring ten days' notice of the meetings of boards of school inspectors,) no busi- ness not specified in the notice can be transacted.* Under ch. §6, § 38, Gen. St. Minn., where the notice failed to recite on its face that the signers were freeholders, it is not void for the- want of such recital.^ A resolution for the call of a meeting of the legal voters of the district of S. A. for the purpose of de- termining upon the erection of a school-house or school-houses, and the purchase of a site or sites therefor, and the amount of money to be raised for that purpose, etc., was sufficiently spe- cific under the act of 1860, Minn.' It may not be necessary that all three of the school officers must unite in a contract, to 1 Fletcher v. Lmcolnville, SO Me. 439. «Moor T. Newfleld, 4 Me. ( 4 Qreeul.) ■ •Leavitt T. Bastman, 77 Me. 117. ^Passage v. Sch. Insp., 19 Mich. 330; Andresa- V. Same, id. 333. 'Stnrm v. Sch. DlBt., 45 Minn. 88. ° State V. St. Anthony, 10 Minn. 433. MEETING, NOTICE. 123^ make it binding upon the district, yet all of them should be- duly notified, and afforded an opportunity to be present at all meetings at which any business is transacted for the district,^ and official certificate of posting notice of election by director ■was held to be proof of due notice ;' so an appearance before- the selectmen and committee acting on a change in district may waive notice.' § 107. Meeting, notice. — Where the prudential committee- on application of voters refuse to call a meeting, but within ten days afterwards call a meeting for the same purpose, but for a. more distant day, this is such a refusal to call a meeting as, under Kev. Stat., ch. 70, N. H., will authorize the selectmen to- call it ; and the selectmen's warrant, dated before the lapse of ten days, but posted after, is valid.* In N. H. a notice of seven days is required for annual school-district meeting;^ where there is a prudential committee duly appointed and qualified,, the selectmen have no authority to warn a district meeting ;' and an article in the warrant for a district meeting, to be held before the law of July 9, 1855, to "raise money" to build a school-house, will not authorize a vote to borrow money for that purpose, though passed at an adjourned meeting held after said law took effect ;' and where proper officers neglect to call meeting for election of officers, in N. H., a justice may do so, and the warrant need not recite their failure.' "Where money is voted to be raised by taxation, at a special meeting, the pre- vious action of the trustees in calling the meeting under act 1867, § 39, subdiv. 11, N. J., should appear in the certificate of 1 People T. Peters, 4 Neb. 864. "State V. Sch. Dist., (Neb.) 33 N. W. 266. » Andover v. Carr, 56 N. H. 452. *DenniBon v. Sch. Dist., 17 N. H. 492. echapinT. Sch. Dist, SON. H. (10Fost.)25; Harris v. Sch. Dist., 8 id. 8. 'Giles V. Scb. Dist., 31 N. H. (11 Fost.) 304. ' Weare v. Sa-wyer, 44 N. H. 198. 8 Pickering v.DeKochemont, (N.H.) 83 A. 88. 124: PUBLIC SCHOOL LAW. the clerk to the assessor ;* and special meetings of the voters must be called by the board of trustees regularly convened.' The notices should set forth the objects of the meeting; the resolutions adopted at the meeting should conform to the no- tice, and should show the objects for which the tax is voted ; and the certificate of the trustees to the assessor should show all the prerequisites of taxation have been complied with.' A •defective precept for meeting to elect officers cannot be taken advantage of to charge such officers as trespassers for official acts ;* and in N. Y. it was held that the annual meeting is valid without notice if the time and place are fixed at the next pre- ceding annual meeting, and the clerk acts in good faith ;° and notice of special meeting to appropriate money to build a school-house gives power to consider the plans for the same, but not unless notice of purpose to build is given." In Pa. an •order to commissioners to view for an independent school dis- trict must direct ten days' special notice to be given to the •directors of the district from which the new one is to be taken ; putting up handbills is not such notice.' Condemnation pro- ceedings were not illegal because the record did not show how the notices were posted, nor at what hour held, but did recite, •" duly notified," and the notice showed the hour.' § 108. Meeting, notice. — A notice of special meeting, stating object to be "to take action in regard to the collection of the tax already assessed," will authorize the election of a •collector ;' posting one on school-house, another on building for- merly used as a~ grain building, and the third against wall facing the road, held to be posting in public places ;' a notice by 1 state T. Hnrfl, 38 N. J. L. 310. 2 State V. Soh. Trs., 43 N. J. L. 3B8. " State V. Brownlns, 28 N. J. L.J 4 Dutch.) 558. •iRingv. Grout, 7 Wend. (N. Y.) 341. -'Marchant v. Langworthy, 6 Hill (N. T.) 646. •People T. Bd. Ed., (N. T.) 1 N. T. S. 693 'Clenrfield Ind. Sch. Diet., 79 Pa. St. 419. SHowland t. Sch. Diet.. (K. I.) 8 A. 337. "Seabury v. Holland, (K. I.) 8 A. 341. MEETING, NOTICE. 125 trustee for district meeting, in R. I., six days before the meeting, stating time, place and purpose is sufficient;^ and notice of annual meeting in R. I., stating one of the objects to be "ta decide what amount of money shall be raised by tax," is not invalid for not stating the use to which the money is to be applied ;' but the notice of a special meeting, stating the "laying of a tax to meet the expenses of repairs," will not warrant rais- ing, in addition, premium paid for insurance ;' it was held that it is necessary that the warrant for a meeting of school district should be recorded by the district clerk ;* and if it does not appear from the record of the warning, that the hour was speci- fied in the warning, it cannot be supplied by parol evidence- that it was, nor that all the legal voters in the district were present at such meeting, and voted upon the question of raising- the tax ;* but it has since been held the Yt. statute does not. require a warning of a school-district meeting to be dated, and if the record shows no date, the date may be shown by parol ;, and it may be shown by parol when the warrant was posted up f if a meeting of a district is duly warned by the clerk,, without any application to him in writing for that purpose, and is held pursuant to the warning, it is legal and valid, but if such. application in writing should have been made, the court would presume that it was made ;• where a statute requires seven days' notice, a notice dated on the 1st day of the month, for a meet- ing to be held on the 7th, is insufficient, and the warrant for such meeting must also specify the business to be done;' and in computing time for notice, either the day on which the notice was posted, or the day on which the meeting was held, will b& 1 Howland T. Sch. Dist., 15 R. 1. 184. sSeabnryT. Holland, (E. I.) 8 A. 341. "Holt's Appeal, 5 B. I. 603. iSherwin v. Bngbee, 17 Vt. 337. ^Bealey v. Dickenson, 48 Vt. 599. "Mason v. Sch. Dlst., 20 Vt. 487. 7 Hunt T. Sch. Dist., 14 Vt. 300. 126 PUBLIC SCHOOL LAW. -counted ;' where one article in the warning for a town meeting was, " To see if the town will make alterations in school districts when met," this was suflBcient to warrant a vote taking a certain :f arm from one district and placing it in another ;^ a warning "To see if the town will vote to divide School District No. 9, in said town," was sufiBcient to make a division of that district.' § 109. Meeting, notice. — It was decided in Stwrm v. School J)istnct, 45 Minn. 88 ( Yanderburgh, J.) : "A notice of a school ; meeting, over the signatures of five or more freeholders, quali- .fied electors of the district, issued in a proper case under Gen. ■ St. 1878, ch. 36, §38, but which notice failed to recite on its :face the fact that the signers were such freeholders, is not void for the want of such recital. — The first error assigned is that "the notice calling the special school meeting, at which it was voted to remove the school-house in the school district men- tioned in the pleadings, was defective in not stating 'who and what the signers are.' The point intended to be made is, that it does not appear upon the face of the notice that the signers . are freeholders or householders, and qualified electors in the district. The answer which the court allowed to be interposed on opening the judgment herein shows that the persons named, • or more than five of them, were in fact qualified electors and freeholders in the district, as the statute requires, (Gen. St. 1878, - ch. 36, § 38,) and that the notices were duly posted as required by law, after the refusal of the district clerk to give notice of the meeting in pursuance of a petition or request so to do, signed by the requisite number of freeholders, and which peti- tion recited that the signers were qualified electors, freeholders and householders in the district. The statute does not require 1 Mason v. Sch. Dist^ 30 Vt. 487. I 'Weeks T. Batclielder, 41 Vt. 317. -■^ Ovitt V. Chase, 37 Vt. 198. | NOEMAL, ETC. 127 that the notice shall recite the legal qualifications of the persons signing it, although it is the usual and proper practice. But where the proceedings are attacked for want of jurisdiction, it is sufficient that the persons signing are so qualified ; and this is a fact which may be easily ascertained by the officers of the district, or other persons interested, before or at the meeting, and before the subjects embraced in the notice are acted on. It is the fact, and not the recital, which gives the notice legal validity in this respect. ( Willis v. Sproule, 13 Kas. 257; Austin V. All&n, 6 Wis. 134 ; Washington Ice Co. v. Lay, 103 Ind. 48.) " § 110. Meeting, etc.— Act 111. 1889, p. 296, art. 6, § 19, providing that no official business shall be transacted by school directors, except at a regular or special meeting, does not invali- date official actions at a meeting at which all the directors are present, though such meeting is neither regular nor specially called ;' the E". H. statute does not require the moderator of a district meeting to be elected by ballot, or to be sworn ;* pro- ceedings for raising a sum by special tax were held void for want of specification in the vote of the purpose for which the money was raised, and for want of power in the clerk to appor- tion the sum to be raised ;' electors of independent districts in Iowa are given same powers of obtaining highways necessary for school, and voting tax, as at annual meeting of district township. (Acts 9th, G. A.)* § 111. Normal, etc. — The Mo. Constitution having vested all legislative power, not prohibited by the federal constitu- tion, in the general assembly, the establishing of normal schools, it is fair to presume, was intended to be left with the legislature. Normal schools are public schools.^ The es- 1 Lawrence y. Trainer, (El.) 27 5r. E. 197. ^Mitchell V. Brown, 18 N. H. 315. 'State V. Greenleaf, 34 N. J. L. 441. *McShane T. Bd. Sch. Dirs., 76 Iowa, 833. SBriggs T. JolinBon Co., 4 Dill. 148. 128 PUBLIC SCHOOL LAW. tablishment of Ya. normal school for females, is authorized, but the appropriation and handling of the funds provided for to be paid out of the public free school is unconstitutional,' In Kas. the principal and interest from sales of state normal school land is to be paid into the state treasury ; the interest cannot be drawn out of the treasury except by act of legisla- ture passed two years prior thereto.* Neb. state university re- gents cannot dispose of the endowment fund or that arising from the f-mill tax, in absence of statute ;' and the Mo. Constitution abrogated the continuing appropriations made by act of 1875.* In N. Y. it was held that the state superintendent has general supervision of the normal schools.^ A statute directing that normal schools be sustained out of a fund which the legislar ture could not divert for that purpose, does not render the whole act void ; and an act diverting common-school funds to normal-school purposes is invalid.' § 112. Of&cer, etc.— Under K. I. Gen. St., ch. 47, § 5, and the act of 1867, the school committee can appoint the superin- tendent of schools of Woonsocket, only when the council fails to elect •,' the power to appoint a superintendent of schools in a union school district is an incident to that control which the district board has over the schools of the districts ;' under the act of 1864, 825, § 12, the power of appointment and removal of principals and vice-principals in the common schools in the city of New York, is vested in the board of education ;' where a director refuses to give up the books and papers of his office to claimant, his remedy is under How. St. Mich., ch. 296, providing for proceedings to compel delivery of books and 1 state Female N. S. v. Anditors, 79 Va. 233. 2 State V. Stover, 47 Kas. 119. s State V. Babcock, 17 Neb. 610. 1 State V. Holladay, 66 Mo. 385. 'People V. Hyde, 89 N. T. App. 11. ' Gordon v. Comm'rs, 47 N. T. 608. ' Verry v. Woonsocket Sch. Com., 18 B. I. 578. 8 Stewart v. Sch. Dist., 30 Mich. B9. •People V. Bd. Ed., 2 Abb. (N. T.) Pr. N. S. 177; 38 How. Pr. 167. OFFICER'S COMPENSATION. 129 papers by pablic officers to their successors.' In Ind., special bond must be given by county superintendents within thirty days from date of issuing of proclamation of governor announc- ing the making of a contract for furnishing school-books ; superintendents must file their bond within thirty days after election if elected after the act ; where bond is not given, party is entitled to notice and hearing before removal from office." On a bond to disburse the "funds," a treasurer's bondsmen were held liable for drafts and certificates of deposit which the treasurer failed to turn over to his successor.' Where the board of education of a district elected a treasurer, required a bond with security, and it was received and acted upon by the parties, this was a sufficient approval, without any indorsement on the bond or any entry on their records.* The Pa. Const. 1874, prohibited special law incorporating cities, or special law changing school districts, or regulating the affairs of officers. The city of Wilkesbarre elected school controllers under the unconstitutional act of 1889, and at the same time elected six directors under act of 1854. These latter constituted the au- thorized school board." If the clerk of the district fail to attend the meetings, the board may appoint a clerk jpro tern., and the entries of the clerk ^o tern, are competent evidence of the pro- ceedings of the meetings." The clerk of district in N. Y. under the act of 1814 need not take the oath of office within fifteen days if he qualifies before any official act is done, and the col- lector may also be clerk of the district.' § 113. Ofl&cer's compensation. — The act of March 5, 1887, Nev., did not repeal act of Feb. 23, 1887, requiring district iCnlver v. Armstrong, (Mich.) 43 N. W. 776. 2 Knox Co. T. Johnson, find.) 24 N. B. 148. 8Beea V. Bd. Ed., 39 Ohio St. 635. ♦Bartlett t. Bd. Ed., 59 111. 264; Green T. Warden, 17 111. 278. —9 "Com. V. Beynolde, 137 Pa. St. 389. •Hntchineou v. Pratt, 11 Vt. 402; State v. Mo- Kee, (Oreg.) 25 P. 292. 'Howland V. Luce, 16 Johns. (N. Y.) J35. 130 PUBLIC SCHOOL LAW. attorney to serve as ex officio superintendent of school without further compensation.^ Where the district refuses to vote a tax to pay expenses of school ofiBcer, and he appeals but does not serve notice of appeal in time, it should be dismissed.* In Pa., the city treasurer acting as school treasurer as required, can draw salaries for both offices.' By the Ky. act of 1884, changing the commissioners to county superintendents, the commissioners were to be paid as before out of the school fund until their successors were elected and qualified.* The county superintendent cannot recover compensation for examining teachers at any other time than is provided in Iowa Code, § 1766." When the treasurer of a district did not claim com- pensation for his services, in an action upon his official bond for misuse of funds nothing should be allowed for his services." The provision of 111. Eev. St., ch. 122, § 45, that the county collector shall pay over to the township treasurer "the full amount " of the school tax, means the amount less his commis- sion allowed by ch. 53, § 21.' The superintendent of public instruction, Iowa, has power to approve of so much of the com- pensation allowed to a school fund commissioner by the clerk, sheriff and attorney, as he shall deem reasonable.' Where a county auditor in Ind. performs duties in the management of the school funds, he is entitled to compensation." Under § 107, of the Ind. school law, the treasurer is entitled to the commis- sion upon taxes levied by the townships for building school- houses, etc., authorized by § 12 of the same act." Under the Ky. common-school law the commissioner is not entitled to 1 state V. Coanty Comm'rs, (Nev.) 23 P. 935. «/« re Merrill, 8 N. Y. 8. 737. 'City Scrarton v. Simpson, 25 W. N. C. 517; 19 A. X>% McCanley v. Sch. Diat., 25 W. N. 0.519; (Pa.) 19 A. 410. 4 Pickett V. Harrod, (Ky.) 5 S. W. 473. 'Farrell v. Webster Co., 49 Iowa, 245. «Ind. Sch. Dist. v. McDonald, 30 Iowa, 564. 'People v. Wiltshire, 92 111. 260. ' Jones T. Benton, 4 Greene ( Iowa) 40. 'Wright T. McGinnls, 37 Ind. 421. lOMynck Y. Montgomery Co., 33 Ind. 383. OFFICERS, COMPENSATION. 131 fees for each district visited, but only for each district reported ;* and where an officer receives money as pay when he is not entitled to the same, it will be applied as a payment to the proper items.' Per diem includes fraction of day.' A member of the school committee of the city of Manchester, N. H., is, in the absence of any fixed or agreed sum, entitled to reasona- ble compensation.* § 114. Officers, compensation. — In Iowa, the salaries of secretary and treasurer of board of directors are a part of the necessary expenses for which the contingent fund is appropri- ated.* Under Tenn. Acts 1873, ch. 25, § 8, the county court may regulate the pay of the county superintendent of public in- struction ; and the decision of the court is final.' An account verified by county superintendent for services is prvma facie case in his favor.' A superintendent was entitled to his salary, where the county board had not yet, under Wis. Laws 1874, ch. 342, divided the county into superintendent districts, but had treated such superintendent (who had been duly elected) as an officer de facto and de jure} Under the 111. Stat., July 1st, 1872, a county superintendent of public schools had not author- ity to hold a teachers' institute, at the charge of his county, un- less the institute had been provided for by the county board.' Where superintendent sues for salary, it is error to exclude evi- dence that the board knew of his rendering services and ac- cepted them." The Wis. E. S., §§703, 704, in relation to counties having more than 15,000 inhabitants according to last census, and fixing salary of county superintendents by reference' 1 (Pickett T. Harrod, 5 S. W. E., overruled.) Pickett T. Adams, 15 S. W. E. 865; 16 S. W. B. 132. ■2 Pickett T. Adams, 16 S. W. E. 132. »Smitli T. Comm'rs, 10 Col. 17. * Maneliester v. Potter, 30 N. H. ( 10 Fost. ) 409. •'Yaggy T. Dist. Tp. Monroe, (Iowa) 45 N. W. 553. 5 Halle V. Tonng, 6 Lea ( Tenn.) 501. ' Smith V. Comm'rs, 10 Col. 17. 8 Clarke t. Milwaukee Co., 53 Wis. 65. 'Murray v. Bd. Sup. Clay Co., 81 111. 597. 10 Davis V. Sch. Dist., (Mich.) 45 N. W. 989. 132 PUBLIC SCHOOL LAW. to inhabitants, means " inhabitants " as shown by last census.' In a suit against county commissioners for salary as county su- perintendent, pending proceedings to obtain the office, the county was not liable ;* and in Kas., salary of county superintendent is determined from number of school children in the county, ex- cepting cities f in Cal., it is fixed by the supervisors.* County superintendents under Ind. E. S., 1881, are not entitled to spe- cial compensation for making statistical reports.' Acceptance of less than legal amount of salary without protest will not bar an action for remainder.' In 111. a school treasurer is not en- titled to any compensation above that fixed by the board of trustees before his appointment, for the performance of any duty imposed on him by law.' The collector of school tax in Ga. could retain his commission from tax.' In Mich, the director of a school district cannot recover pay for his services.' The Ohio Law of 1853, §41, (S. C. 1360,) authorizmg county com- missioners to allow the auditor for services, is not repealed by act of 1861, (58 O. L., 7.)'° Where money was appropriated by directors for bounties, and additional funds raised by sub- scriptions, and paid to a committee appointed by citizens, the district was not liable for the expenses of the committee." § 116. Officers, contract, etc. — Where a school commis- sioner contracts by a writing showing on its face that he acts in his official character, although he does not add his official des- ignation to his signature, he is not bound personally." A board of directors empowered by statute, without any limitation, to employ a superintendent of schools, may contract for a term » Geraghty v. Ashland Co., (Wis.) 50 N.W. 892. 'Wright T. Comm'rs, SI Kas. 478. •Comm'rs v. McCleary, IS Kas. 149. ♦Peachy t. Redmond, 59 Cal. 326, 648. 'Teager v. Gibson Co., 95 Ind. 487. •O'Herrin y. Milwaukee Co., 67 Wis. 143. 'Lovingston v. Sch. Tr., 99 HI. B64. SMayor v. Bd, Bd., 87 Ga. 22. "Hinman v. Sch. Dist., 4 Mich. 168. "Gallnp T. Lorain Co., 20 Ohio St. 324. " Hartman v. Mt. Joy Sch. Dist., 68 Pa. St. 440 "Lyon V. Adamson, 7 Iowa, 609. OFFICERS, CONTRACT, ETC. I33 beginniag after some members of the board go out of office/ A school director interested in the sale of a piece of property may be enjoined from voting in favor of the district purchasing it.' A contract made by two members of a committee of three authorized to build a school-house will bind the district, espe- cially when ratified by user.' In Wis. a director must present his claims to the board or at the district meeting, before suing thereon.* Where committee is authorized at meeting to either build a new school-house or repair the old one, they may do either.' School directors cannot borrow money or give their note for a site unless a vote first authorized the same, under 111. act, Scates' Comp. 445.' The appointment of school direct- ors by county court of Ark. will be presumed regular, and warrants drawn by them for teachers' salaries will be valid.' Indictment against school officer for neglect to perform act re- quired must state that the conditions precedent (naming them) had been performed.' Where moderator of district was ap- pointed by the assessor and director, on the supposition that there was a vacancy, his official acts are valid ;° and a school director appointed, and performing all the duties of the office, IB a de facto officer, and the district was bound by his acts, in- cluding a contract with a teacher signed during that time." When contest is against appointee of superintendent, the ques- tion as to whether he qualified cannot be inquired into if he acted as such and has been ever since." Where directors were elected and acted, and their successors also acted for years, none but the state can question their right to act because of 'Gates T. Sch. Dist., 53 Ark. 468. 'AppealWitmer, (Pa.) 15A. 4g. 'FiBherT. Sch. Dlst., 4Cn8h. (Mass.) 494. 4 Forbes T. Sch. Dist., 10 Wis. 117. sMorse v. Sch. Dist., 3 Allen (Mass.) 307. eSch. Dirs. v. Miller, 54 111. 338. 'Pierce v. Bdington, 38 Ark. 150. 'State T. Demerith, (N. H.) 9 A. 99; StateT. Corbett, ( N. H.I 9 A. 629. • Talmadge Sch. Dist. v. Town Trs., 61 Mich. 373. i»Sch. Dist. T. Cowee, 9 Neb. 53. " State V. Horton, 19 Nev. 199. 134 PUBLIC SCHOOL LAW. irregularities in organization of the district.' Where contract is with parties not officers dejure, no recovery can be had upon the same.* School trustees continue to be officers de jv/re, as well as de facto, after the expiration of their term of office if no successors to them are elected.' § 116. Oflacer, district.— Pub. Acts Conn. 1889, ch. 125, providing that the secretary of the state board of education shall ex officio be a member of the school committee of every town and school district in which is situated a school whose teachers are appointed by the state board of education, is not unconstitutional ; in the absence of constitutional limitation, the legislature may make any provision as to the composition and appointment of school committees.* Residents of a new school district who have children of school age may maintain manda- mus to compel the county judge to appoint trustees for such district according to the statute.^ §117. Officer, election. — In the election of school ex- aminer in Mich, by the chairmen of boards of school inspectors, only a plurality of the votes cast is necessary to. an election." Where officers should have been elected by ballot and are unanimously elected vi/oa voce and ai'e acting and qualified, they will not be removed by quo wa/rromto? In Pa., the con- tinuing members of a school board are not judges of the legal- ity of any election of directors.* The Ark. statute requiring officers elected to take the oath and file it in office of clerk of county court does not make it the duty of that court to canvass the votes for directors.' The absence of a proclamation will not invalidate a municipal election for school directors if the iFranklin Ave. etc. v. Eoscoe etc., 75 Mo. 408. 2 White V. Sch. Dist., (Pa.) 8 A. 443. "Town Milford v, Powner, 126 Ind. 588. * state V. Hine, 59 Conn. 60. 'Porter v. State, 78 Tex. 691. •People v. Stone, (Mich.) 44 N. W. 333. ' People V. Gartland, (Mich.) 42 N. W. 687. SBoutonv. Eoyce, 10 Phil. (Pa.) 559. •Sch. Dist. T. Bennett, 52 Ark. 611. OFFICER, ELECTION. 135 election was general/ In Mass., where the records of a town meeting showed an election of a prudential and an examining committee, only the latter was construed to mean a school com- mittee.' Where, in Oct. 1853, a school district, not within any incorporated city or village, under the act of June 18, 1853, elected trustees, and on the second Tuesday of Oct. 1858, the plaintiffs were duly elected under the act of April 12, 1858, the latter act repealed the former.' In Iowa, where an inde- pendent district having six directors is, at a date of a certain election, reduced to less than 500, only one director can be elected.* Where a sub-director took the proper oath, but failed to attend a meeting of the board of sub-directors on third Mon- day in March, the board had no authority to declare a vacancy.^ A vote by township trustet for himself for county superintendent is void and contrary to public policy ;" but where a board of township trustees elected one of their own number a member of the board of school trustees of the same town, whereupon he resigned as town trustee, and qualified as school trustee, his election as school trustee was valid.' § 118. Officer, election. — The board of education of a city, under Acts Mich. 1877, p. 440, cannot go behind the statements of election made by their canvassers of any of their members.' Where statute of Nev. provides for an election in May each year for school trustees where there are two or more school districts in same election precinct, this does not authorize sepa- rate May election in a precinct comprising only a portion of several districts.' The Miss, act providing for election of county superintendents in a part only of the counties of the 'Commonwealtli v. Reynolds, 8 Pa. Co. Ct. E. 568. "Hartwell T. Littleton, 13 Pick. (Mass.) 229. 'Briggs V. Ontwater, 30 Barb. (N. T.) 501. * State y. Simpkins, 77 Iowa, 876. 'Bennett v. Colfax, 63 Iowa, 687. •Homung y. State, 116 Ind. 468. 'State V. Meyer, 60 Ind. 288. "People v. Bd. Ed., 38 Mich. 95. •State v. Hanson, 20 Ney. 401. 136 PUBLIC SCHOOL LAW. state is not unconstitutional.^ Act S. D. 1891, ch. 9, § 7, mak- ing it the duty of municipal corporations to hold an election at which a new board of education shall be chosen, leaves the time for holding it to be determined by the municipality ; and the manner of conducting such election is the same as other municipal elections, except so far as the act provides other- wise ;'' and this act, providing for the election of a new board, does not oust from office the members of the old board untU the new board is elected and qualified.* If the clerk, who has been irregularly elected, holding the office de facto, regularly calls an annual meeting of the district, the officers elected then are legally elected." Where Wis. act of incorporation provided for the annual election, and a subsequent general law provided for the election of directors every three years, the latter did not apply to the district in question.* In S. C, upon the estabUsh- ment of a new county, a school commissioner was elected a year before the assembly elections, and accepted a commission " to continue in force until the next general election " ; he could not hold office after his successor, elected at such general elec- tion, had qualified.' Where the constitution provides for the annual election of only one school inspector, and a statute pro- vides for the election of two, the constitutionality of the statute will not be passed upon in a proceeding to review the action of the board in altering a district, where the action of the board was unanimous." Under Mich, act 1885, "majority" to elect trustees and "other officers" means moderator, director, and assessor ; if none receives a majority vote, the old officers hold over.' The plaintiffs suing as trustees of a school district, their 1 Wynn v. State, ( MissJ 7 So. 358. !!/« re Construction, ( S. D.J 48 N. W. 812. 'Woodcock V. Bolster, 35 Vt. 632. * State V. Perkins, 13 Wis. 411. epettigrew v. Bell, (S. C.) IS S. E. 1023. •Donough v. Hollister, 82 Mich. 309. 'Cleveland v. Amj, (Mich.) 60 N. W. 29! OFFICEE, LIABILITY. 137 affidavits and bonds were sufficient evidence.' On certiorari, to reverse a tax, the legal existence of the corporation cannot be tried collaterally." § 119. Officer, liability. — Where a commissioner collects 3, school fund he cannot avoid liability therefor by claiming that the funds do not belong to his office.' Under 111. Eev. Stat., ch. 122, § 77, for a misappropriation of school funds by school directors, a court of equity will not interfere ; there is a remedy at law.* In an action on treasurer's bond for loaning school fund on insufficient security, it is error to permit wit- nesses to testify that they never heard any dissatisfaction ex- pressed in regard to the loan." If a township trustee, relying ■entirely upon the judgment of the board of directors, and against his own judgment, loans school fund on insufficient security, whereby a loss occurs, his official bond is liable therefor.' The final report made by a school township treasurer, and the en- tries in his books made by him in such capacity, are conclusive •evidence against him and his sureties as to the amount due, in an action on his bond." Where a township collector pays school moneys belonging to a certain school district to any person •other than the treasurer of the proper township, he will be guilty of a breach of his bond, and liable to nominal damages, although the district loses nothing.' If school directors exercise powers and functions not conferred upon them, they are responsible for all losses that may occur ;' they may borrow money for certain enumerated purposes, and their treasurer is the only proper •custodian ; should they place it in the hands of anyone else, it is at their own risk.' 'Eads T. Wooldridge, 27 Mo. 251. « state T. Donnhay, 30 N. J. L. 404. -< state T. May, 22 Ark. 445. -•Moore t. Fessenbeck, 88 HI. 422. *Bd. Trs. T. Baker, 34 ni. App. 620. •Longan t. Taylor, 13 HI. App. 263, affirmed in 22 N. E. 745. 'People T. Teazel, 84 111. 539. ■Adams r. State, 82 UI. 132. 138 PUBLIC SCHOOL LAW. § 120. Officer, liability. — Where the treasurer neglects to present a note against decedent for allowance against his estate, where it does not appear but that the sureties are solvent or that the debt is lost, no more than nominal damages can be re- covered of the treasurer.' Under 111. Law of 1857, §§ 45, 46, and 62, in actions for school taxes, the judgment on a collector's bond should find the amounts respectively due to each district.' Even though the school fund of a township may not be entitled to certain sums paid to its treasurer, yet the treasurer collecting the same is liable therefor to the board of trustees.' In a pro- ceeding for mandamus against school trustees, if costs are awarded, it should be against them as trustees, and not person- ally.* School directors who had directed the township treas- urer to receive, in lieu of money due the district, certain coupons upon the district bonds, are estopped from tendering back the coupons and demanding payment of the money.° If a school treasurer releases a mortgage given, due the school fund of his township, without an order of the board of trustees, entered upon their journal, and subscribed by their president and clerk„ he will be liable upon his official bond for any loss.' A clerk of school board should not be taxed with costs personally when the record is quashed.' §121. Officer, liability. — In an action against township treasurer of 111. for not taking mortgage security in loaning school funds, it is no defense that board of education authorized it.' Where, in an action on the bond of a school trustee for a shortage in the funds, it appears that he paid money out of the special school fund, on account of the common-school fund, he iMcHenry v. Sch. Trs., 68 ni. 140. STappan v. People, 67 111. 339. "Lovington v. Sch. Trs., 99 III. 564. 4 Boone v. People, 4 ni. App. 231. 'Hnmieton v. Sch. Trs., 7 111. App. 122. «Bd. Tre. v. Mesenheimer, 78 ni. 22. 'TrnsteeB t. Shepherd, (ni.) 28 N. E. 1073. «Bd. Trs. T. Baker, 24 111. App. 231. OFFICER, LIABILITY. 139^ should be given credit on the amount thus paid.* An agent of the surplus revenue is bound to pay the interest received by him to the school commissioner, without demand.' An indict- ment against a school commissioner, for failing to make a report to the county auditor of moneys received and disbursed by him, should contain an averment that money had been received by the defendant, which he was bound to report.' Under the Ind. act of 1833, the sureties on a commissioner's bond are liable for his acts only during the term of three years.* A school commissioner may be indicted for a breach of duty ; but the in- dictment, to be valid, must show the condition of his bond tO' be broken.* School trustees are not liable for acts of another trustee in improper use of money where they did not cooperate.^ In an action against the treasurer of the city's school trustees,, to recover for interest received by him on the funds in his hands,, the interest received by him being interest accrued upon warrants issued in his favor by the county auditor on the county treas- urer, for the funds themselves, and paid by the latter out of those funds, the defendant was liable.' Under Ind. K. S. 1876, p. 781, § 7, when judgment is recovered against a township trustee on his bond, for default in his duties relating to schools and school revenues, ten per cent, damages upon the amount must be included in the judgment.' The liability of the treas- urer of a school district is absolute for all funds which come into his hands in his official capacity ;' and where a treasurer has settled and been discharged, the fact that his books are con- fused does not of itself create any liability." A prudential committee-man, chosen by the district, is not liable to the district irinney v. State, 126 Ind. 577. sMnllikin v. State, 7 Blackf. (Ind.) 77. sLathrop v. State, 6 Blacfef. (Ind.) 503. STT. 'State V. Lewis, 35 N. J. L. 170. eSch, Dist. v. Thompson, 5 Minn. 221. 142 PUBLIC SCHOOL LAW. signed individually, does not render the signers individually liable ;' but where they promise as individuals and sign offi- cially it is an individual liability," and where they step outside official duties they must show authority.' § 123. OfB.cer, liability. — The members of a board of trustees of the common schools of the city of New York are not liable in an action against them personally for the negli- gence of workmen employed by them ;* and in an action against -a trustee for the neglect of the duties of his office, a declaration in very general terms is sufficient.' The trustees of union free schools (N. Y. Laws 1864, ch. 555, tit. 9) are individually liable for personal injuries sustained by a teacher in falling through a floor which has become defective through their •default and neglect ;° and the board of education of the city of New York is liable in its corporate capacity for personal injuries •caused by its neglect.' The board of education created under N. Y. Laws 1864, ch. 555, as to union free-school districts, are not individually liable for a neglect to perform a duty imposed •on the corporation ; the liability rests upon the corporate body.' It seems, however, that a member charged by the board as its agent, distinct from its corporate relation, with a specific duty, is individually liable for his neglect thereof ;° but a judgment against all the members jointly, for a personal injury caused by one's neglect as agent or servant, is error.' School directors vrho vote for a misapplication of the public funds in payment of a teacher, are personally liable to the township ;" and the treasurer, who was also a school director, and voted in favor of such payment, cannot shield himself under the warrant of the 1 Sanborn v. Neal, 4 Minn. 83. 'Fowler T. Atkinson, 6 Minn. 412; Bingham V. Stewart, 13 Minn. 406. sSch. Dist. T. Thompson, 5 Minn. 221. •i Donovan v. McAlpin, 46 N. Y. Snper. Ct. 111. sFiuh V. Miller, 13 Wend. (N. Y.) 66. 'Bassett v. Fish, 19 N. T. Supreme Ct. 209. ' Donovan V. N. Y. Bd. Ed., 44 N. Y. S. Ct. 53. ' ( Reversing a. c, 12 Hun, N. Y., 209 ) Bas- sett V. Fish, 75 N. Y. 303. •Bassett v. Fish, 75 N. Y. 303. "Dickinson v. Linn, 38 Pa. St. 431. OFFICERS, POWER. 143 board.* When school directors neglect to keep the schools open as long as is prescribed by law, they may be removed, but are not liable to indictment.* A certified settlement by the proper officers of the account of the treasurer of a school dis- trict, is conclusive if not appealed from.' Five years' acqui- escence on the settlement of collector's account by the township auditors, precludes the board from objecting to the record thereof as prkna facie evidence ; the auditors having destroyed his vouchers.' The penalty for non-performance of duties of office, under the act of N. T. 1819, does not extend to any par- ticular act, but to general non-performance of the duties of office.' Where a town in Mass. does not provide for care of its school-houses, the school committee employing a suitable person to cut down a tree in the school-yard are not liable for damages from his negligence." School districts, in Pa. are not liable for negligence of their employes ;' a;nd for trespasses committed by school officers they are personally liable and not the district ;' but school officers in Minn, are not liable for negligence in making repairs.' § 124. Officers, power. — The board of education of the city and county of San Francisco cannot delegate their power of visitation and inspection to other officers appointed by them, and they cannot employ inspecting teachers to visit, inspect, advise, and instruct." Error in appointing a building commit- tee to contract is cured by discharging committee, and the dis- trict board acting instead." By law, state of Ind. is divided into three classes of distinct municipal corporations, for school 1 Dickinson t. Linn, 36 Pa. St. 431. sMcBlhiney v. Commonwealth, 22 Fa. St. 365. 'Porter T. Sch. Dirs., 18 Pa. St. 144. * Scott V. Strawn, 85 Pa. St. 471. 6 Spaflord t. Hood, 6 Cow. ( N. T.) 478. 'McKenna t. Kimball, (Mass.) 14 N. E. 789. 'Ford V. Sch. Dist., (Pa.) 15 A. 812. 8Scli. Diet. v. Williams, 38 Ark. 454. •Bank v. Brainerd Sch. Diet., 51 N. W. 814. 10 Barry v. Goad, (Cal.) 36 P. 785. "Mailer 7. State, (Neb.) 49 N. W. 436. lU PUBLIC SCHOOL LAW. purposes, to wit, "each civil township and each incorporated town or city in the several counties," and within the territorial limits of each of these school corporations each is entitled to the control of its school revenue ; and the school trustees of a town within the limits of a township were entitled to the school funds of the township that belonged to such town.' Where by act Ga. 1889, pp. 1305, 1306, election notice to determine whether a local school should be established was published once a week for four weeks, and the last publication was inad- vertently omitted, the omission may be treated as a mere irreg- ularity if more than two-thirds of the qualified voters actually voted.^ The failure of school trustees, granting a petition for the formation of a new district, to file a map and to order an election of school directors, will not invalidate the formation of the new district.' Where school trustees are compelled by mandamus to grant petition for formation of a new school dis- trict, the legality of such school cannot be collaterally attacked.' An assessor can be compelled by mandamus to pay sum appro- priated by school district, at its annual meeting, to moderator for money paid by him for district.* The courts may compel school directors to perform their duties, or restrain them when they transcend their powers ; but they cannot interfere in mat- ters of discretion." The board of education of San Francisco may maintain ejectment for a school lot ;' but school directors can exercise only such powers as are expressly granted ;' but if district has no school-house, and needs one, the trustees should secure a room.' When a trustee of school funds is such by color of title, his acts are valid as regards third persons ; much IJohnBony. Smith, 64 Ind. 276. •Iryin v. Gregory, 86 Ga. 605. •Sell. Dir. V. Sch. Dlr., (HI.) 28 N. E. 49. *Phmips T. Sell. Dist, ( MicU.) 44 H. W. 429. 'Wharton v. Sch. Dirs., 4S Pa. St. 368. 'Bd. Bd. T. Donahne, 63 Cal. 190. 'Sch. Dir. v. Fogleman, 7B 111. 189. 8 Gould T. B. E. Sch. Dist., 7 Minn. 145. OFFICER, POWERS. I45 more when he is fully in office, except as to giving hond and taking the oath.^ Two of the board of trustees, in 111., concur- ring, may perform any act which the board is authorized to do, and their acts will be valid until vacated by direct proceedings f but in N. Y. two trustees of a school district cannot act in the performance of their duties, except when all three are present, whether the third one refuses to act, or not.' § 125. OflBcer, powers.— Act 111. 1889, p. 296, art. 6, § 19, does not invalidate official actions taken by board of directors at a meeting at which all the directors are present, though such meeting is not a regular one, nor one specially called in a stat- utory manner.* In Oreg. the oldest director in office shall preside as chairman of the meetings of the district ; this means the one who has held office longest.* A district in Mass. may choose one member of a prudential committee and then adjourn and choose the remainder at adjourned meeting, and a majority of the prudential committee may act for the whole when minority refuses.' In Mich., the board of township school inspectors while engaged in altering the boundaries of a district, may adjourn their meeting to another time and place.' In a sub-district in Iowa, containing but five pupils, the board could direct that no school should be taught during the winter in their district, and provide for the attendance of their pupils else- where.' The Eevision of 1860, § 2133, Iowa, allowing an appeal to the county superintendent, does not clothe the latter officer with judicial powers.' Under the Const. Iowa, the educa- tional board have the primary power to provide for all public 1 Rhodes v. McDonald, 24 Miss. 418. sTre. T. Allen, 21 D). 120; Schofield t. Wat- kins, 22 111. 66. „ .™ 8 Whitford v. Scott, 14 How. (N. T.) Pr. 302; Lee V. Parry, 4 Ben. (N. T.) 125; Keeler T. Frost, 22 Barb. (N. T.) 400. —10 ♦Lawrence v. Trainer, (ni.) 27 N. B. 197. 'State V. McKee, (Oreg.) 25 P. 292. • Kingsbury t. Sch. Dist., 12 Mete. ( Mass.) 99. 'Donougb V. Hollister, 82 Mich. 309. spotter V. Predericksbnrg, 40 Iowa, 369. »Scli. Diet. T. Pratt, 17 Iowa, 16. 146 PUBLIC SCHOOL LAW. instruction ;^ and though the legislature can annul acts of the board they cannot originate measures, and they cannot act until the board of education is organized ;^ and the act of Mch. 12, 1858, so far as it provides for a system of public education, is void.' Under Iowa Code, tit. 12, ch. 9, a sub-director cannot interfere with the use of apparatus in schools of his sub-district.^ The duties of school-district board can only be performed by joint action of ofiBcers.' If a board of education refuses, to do an act required to be done at a particular time, and the board could be compelled to perform it, the board may afterwards, on its own motion, do the act.* Under Md. Acts 1872 and 1874, the state board of education have a visitatorial power of the most comprehensive character, and such power is, in its nature, summary and exclusive.' Section 37, of act of April 6th, 1863, Cal., to provide for the maintenance and supervision of common schools, is not repealed as to San Mateo county, by § 9, of act of Feb. 6, 1864, nor by § 12, of act Mch. 24, 1864." Trustees, in cases beyond their authority and duties, must show their authority ;' and the action of county board in Minn, in forming districts is legislative and not judicial, and cannot be reviewed on certiorari.* A party acting as prudential committee in a school district will be presumed to have been authorized." A trustee for good cause may discontinue a school in Ind. where there are only four scholars and other schools are convenient." § 126. Officer, qualification. — School commissioner of the city of New York must be at the time a resident of the ward for which he is chosen ; and a removal from the ward for which 1 Dist. Tp. V. Dnbnqne, 7 Iowa, 262. -Dist. Tp. V. Meyers, (Iowa) 49 N. W. 1048. » State V. Sch. Dist., (Neb.) 33 N. W. 480. < CorrotlierB T. Clinton D. Bd. Ed., 16 W. Va. !>87. « Wiley T. Allegany Co. Comm're, 61 Md. 401. ° People V. San Francisco &c. B. B. Co., 28 Cal 254. ' Sch. Dist. v. Thompson, 6 Minn. 280. 8 Moode v. Stearns Co., f Minn.) 45 N. W. 435. » State T. Williams, 27 Vt. 755. "Tufts T. State, 119 Ind. 232. OFFICER, QUALIFICATION. 147 he was chosen vacates the office.' Pa. act 1867, providing that service as a county, city or borough superintendent is a suffi- cient test of qualification on re-election, does not preclude other objections when the person is unfit to hold the office.^ Pa. act providing that persons residing on certain lands in the township of N. are attached to the borough of S. for school purposes, and shall be entitled to the right to vote for and serve as school directors in said borough, is not contrary to constitution pro- viding that electors shall reside in their election district.' In N. T. the same person may be appointed district clerk and col- lector of the district at the same time ;* and in N. H. the offices of selectman and school committee may be held at same time by the same person.' The assessment by a sole prudential committee of a district, who is ineligible for that office, is in- valid.^ The appointment of district collector under N. Y. L. 1864 should be made in writing, as required by the statute ;^ but a parol appointment of the collector by a sole trustee of the district, his giving bond and the approval by the trustee, and the delivery of the tax warrant to him, constitute him an officer de facto;'' but the government may try the right to the office by qiio warranto; his title may also be questioned where he is sued for an act which he can only justify as an officer.' Sec- tion 27, act of April 17, 1873, requiring an applicant, before appointment as county superintendent, to submit with his appli- cation a certificate from the board of examiners, is constitu- tional, and an appointment without such certificate is invalid ;' but it has been held that the statute of Miss, which provides that superintendent of education must have a first-grade certifi- » People T. Bd. Ed., 1 Den. (N. T.) 647. »0om. T. Wickeraham, 90 Pa. St. 311. sOolvin V. Beaver, 94 Pa. St. 388. *Howland v. Lnce, 16 Johns. (N. Y.) 135. 6 Andover T. Carr, 55 N. H. 458. •Woodcock V. Bolster, 35 Vt. 632. ' Hamlin v. Dineman, 41 How. ( N. T.) Pr. •Bnrnliam y. Sumner, 50 Miss. 517. 148 PUBLIC SCHOOL LAW. cate is unconstitutional, and that anyone an elector is eligible.* Laws Mo. 1887, p. 273, § 6, which provides no person shall be eligible for a director "who shall not have paid a school tax within said city for two consecutive years immediately preced- ing his election," means a tax assessed on property in which the school director has an interest subject to taxation at the date of assessment or date of payment, paid at any time within two consecutive calendar years next preceding the year of the director's election." § 127. Officer, Qualification. — A payment by a copartner- ship of a tax in part for school purposes against its personal property by one who is a member of the copartnership at the time ; the payment of taxes on land by one having a tenancy by the curtsey initiate therein, out of his own means ; and the payment of delinquent taxes on land purchased by the payor, though the payment was made for the express purpose of quali- fying for the oflBce, constitute a payment of taxes f but the pay- ment of delinquent taxes on land by a stranger for the purpose of qualifying for that office, or the payment of taxes for the cur- rent year instead of those for the two years immediately preced- ing the election, or the payment of a merchant's license which does not appear to be for the benefit of the schools, are not such payments of taxes as will qualify.' And superintendent employed by board trustees in Mich, is not required to have teacher's certificate.' Clerk of district in Mass., once duly sworn into office, afterward chosen clerk but not sworn again, may act as clerk under K. S., ch. 23, § 27.* The failure of a moderator of a school district in Neb. to take oath of office does not va- cate the office ; school-district officers are not required to take iWynn T. state, (Mise.) 7 So. 353. I «DaviB v. Sch. Diet., 46 Mich. 989. >StateT. Uacklin, 41Ho. App. 336. | «Scti. Diet. T. Atheiton, 13Metc.(MasB.)105. OFFICER, QUALIFICATION. 149 oath of office ;* and school director in Vt. is not required to be sworn.' § 128. Of&cer, qualification. — In Ark. it is necessary for the school director to qualify within ten days by subscribing the oath of office, and filing the same with the clerk, and until he thus qualifies, his predecessor is entitled to exercise the powers of the office, under Mansl Dig., p. 6205 ;" under Kas. Stat., T[Tf 5594, 5607, the failure of a district treasurer to give bond for nearly a year, where he was elected his own successor, did not create a vacancy ;* but in a similar case the sureties on his original bond were liable for succeeding term.' Where director accepts the office, no notice to him is then necessary, and if he fails to file oath within ten days, the term of his predecessor will continue, in Ark.' An oath attached to the certificate is same as indorsement on, and indorsement on face is as good as indorsement on back of certificate." The oath of office of school director cannot be administered by an election judge." Where assessor and moderator are prevented from qualifying by a conspiracy, and tender their bonds and acceptance to proper party, their acts are valid." An assessor cannot withhold the funds in his hands when the same are properly demanded by his successor, a fortnight after the latter has been regularly elected, and has accepted and qualified, upon any claim that he is entitled to be first personally notified, officially, of such elec- tion and acceptance ;" and the oath of office taken by the clerk of a district will be presumed, when found on the records of the district to have been placed there properly, in the absence of other proof.^' iPrans v. Tonng, (Neb.) 46 N. W. 528. SB rock V. Brace, 58 Vt. 261. 'Sch. Diet. v. Bennett, 58 Ark. 511. *Horneman v. Harlan, ( Kas.) 28 P. 177. ^Riddle v. Sch. Dist., 15 Kas. 168. •Sch. DlSt. V. Bennett, 52 Ark. 511. '"State V. Horton, 19 Nev. 199. 11 Cnlver v. Armstrong, (Mich.) 43 N. W. 776. "Mason v. Frac. Sch.Dist.,34 Mich. 228. "Tozier v. Sch. Dist. No. 2, 39 Me. 556. 150 PUBLIC SCHOOL LAW. §129. Officer, removal, — Where defendant in quo wm- ramto files a disclaimer to ofiBce, the case is not to be dismissed, but a judgment rendered prohibiting him from interfering with the office.^ Where there are two parties claiming to be the committee of school district, the remedy is by quo warrcmto? In Pa. the power of the quarter sessions to remove school directors from office is limited by the act of May 8, 1854, § 9.' The school committee of a town cannot remove the clerk of the board, unless for cause, and after due notice, and opportunity is given him to defend himself ;' but the clerk may waive for- mal notice, and the vote removing him will be valid.* The superintendent of Paris, Ky., city schools may be removed at any time by the board, without the approval of county superin- tendent, the school being carried on by special statute.* Pro- ceedings by a township board to remove a director cannot properly be taken until the action of proper authorities by complaint of some definite violation of duty, (Mich. Comp. L., §3695); but they may be waived.' The willful refusal of a school director to sign a contract made with a teacher, or to accept and file it, or draw orders for the teacher's pay while it is pending, or to furnish necessary supplies, may be considered in proceedings for his removal." The township board is exclu- sive judge of the facts, under Mich. Comp. L., § 3696, to remove a school director, and its proceedings can only be reviewed by the courts on questions of law.' In 111. supervisors may re- move superintendent neglecting duty through intoxication, with- out giving him a hearing.' The directors having exercised their discretion in locating the schools, there was no authority lAtty. Gen. v. JotoBon, (N. H.) 7 A. 381. »Hinckley v. Breen, 65 Conn. 119. • Heard y. Sch. Dirs., 45 Pa. St 93. 4 Willard'B Appeals, 4 E. L 595, 597. •Adams T. Thomas, (Ky.) 12 S. W. 940. * Qeddes v. Thomastown, 48 Micb. 316. ' Hamtranck Tp. Bd. v. Holihan, 46 Mich. 127. 8 People T. Mays, 17 m. App. 361; People v. Mays, 117 UL 267. OFFICER, TERM. 151 for the court to remove them, under act Pa. May 8, 1854, ex- cept on evidence showing want of good faith in their acts ;* and the court will not interfere to remove school directors, under act Pa. May 8, 1854, 9, for failure to provide a "suitable school- house " ( § 23) where the houses provided are cheap, unsightly, unfit for permanent use, and hard to keep in repair, but not uncomfortable or unsafe ;" but a refusal to consider a request by two citizens, made for themselves and on behalf of their neighbors, for enlarged school accommodations, in a case where the same is clearly required, is cause for the removal of the board ;' the superintendent of common schools has the power of removing any county superintendent for neglect of duty, in- competency, or immorality ; but there must be first a charge, notice, and opportunity of defense.* Where township board did not meet to agree on notice to remove school director, the proceedings for removal are not thereby invalidated in Micb.° Where directors were removed for not appointing teachers, the failure to agree as to the salary is no excuse." § 131. OfB.cers, tax. — The curative act of 1886 cures the irregularities in the election for officers and for taxing under Ky. act 1884, "imposing certain duties on board trustees certain district."' The legality of the existence of the district can be tried by an information against the district itself; or by an action of trespass against the members of the committee for any compulsory acts under its authority ; or by resisting the pay- ment of taxes laid by it, but not by quo •wmrramto against an officer.' § 132. Of5.ceT, term. — The term of a truant-officer, appointed 1 Price T. Barrett Tp. Sch. DixB., 9 Pa. Co. Ct. T> ggg 'Ohio Tp. Sch.jDirB., 9 Pa. Co. Ct. B. 392. «ConnoqneneB«ng Sch. DItb., 9 Pa. Co. Ct. B. 435. *Pield V. Commonwealth, 32 Pa. St. 478. 6 Wenzel v. Dorr, 49 Mich. 25. 'Appeal Sch. Dist., (Pa.) 15 A. 543. 'fKy.)7 S. W. 896. "State T. North, 42 Conn. 79. 152 PUBLIC SCHOOL LAW. Tinder Mass. Gen. Stat., ch. 42, § 5, expires at the end of the municipal year.' When a school district, at an annual meeting, has appointed one to act as prudential committee, it cannot during the year appoint another in his place, or add more to the number of the committee f school-district oflBcers, elected at annual meeting of district, will hold their oflSces until suc- cessors are elected, at another annual meeting." The members of the board of education of Port Huron, Mich.^ hold office for specific terms, and are not city officers removable by the com- mon council.' Miss. Const., art. 8, § 5, limits the terms of office of county superintendents of education to two years, and makes no provision for their holding over until their suc- cessors are appointed and qualified ; and the term cannot be extended by legislature ;* but in Vt., the officers of a school district hold their office until their successors are appointed.* Where party ineligible is elected county superintendent there is no election and the incumbent holds over, in Ky.;° and where a school trustee has been appointed to fill a vacancy, under Ind. act 1875, he is entitled under constitution to hold office until the qualification of his successor ;' the successive annual elections for a school trustee should be held at the first regular meeting of the council in June ; but a valid election might be had subsequently ;' and a district trustee elected under § 39 of the act of 1849, Ind., continues in office until a successor is elected by the qualified voters.' The Nev. act authorizing trus- tees to be elected and one to hold for five' years when there are five trustees, is unconstitutional.' § 133. Officer, term. — Where statute required division of 1 Hnse V, Lowell, 10 Allen (Mass.) 149. « Chandler v. Bradish, 23 Vt. 416. 8 People V. Port Huron Bd. Ed., 39 Mich. 636. < Bnrnliam v. Sumner, 50 Misa. S17. 6 Walker v. Miner, 32 Vt. 769. •Howard v. Comett, (Ky.) 1 S. W. 1. 'Sackett v. State, 74 Ind. 486. 8 Stewart v. State, 4 Ind. 396. •State T. Harris, 19 Nev. 2SS. OFFICEE, TEEM. 153 school committee into three classes, the terms of which were ■one, two and three years, and there was a division of seven into classes of three, two and two, and where the term of two expired and another retired, and the council elected three, the first two held three years and the last only one.' The act of Va., in regard to county superintendents, declaring the office v^acant July 1, 1886, and that all terms of four years should begin on that day, is unconstitutional and void.' In N. T., -where the term of attendance agents expired, they cannot claim that their successors are irregularly elected.' In Ark., statute providing that director elected shall within ten days file ao^ •ceptance of office with predecessor, subscribe oath of office and file it with county clerk, and enter at once on his duties, is not affected by statute requiring officers of election to return the result to county clerk ten days before the meeting of county -court, and director's term begins as soon as he has qualified.* Where, upon the establishment of a new county, a commis- sioner was elected a year before the assembly elections, and accepted a commission "to continue in force until the next general election," he could not hold office after his successor, -elected at such general election, had qualified; under Const. S. O., a school commissioner is a state officer, and his election is ^governed by art. 14, § 10.^ The commissioner was a candidate, and did not contest the election before the state board of can- vassers ; he was bound by its decisions." Under act 1887, Ark., the term of office of the director so elected begins as soon as Jie has qualified as required by the terms of the act.' The su- perintendent of public instruction in Mo. continues in office » state V. Lane. (R. I.) 18 A. 1035. iPendletonT. Miller, 82 Va. 390. ■•People T. Bd. Ed., (H. T.) 1 N. T. S. 743. «Scli. Diet V. Bennett, 52 Ark. 511. 'Pettigrew t. Bell, ( S. C.) 12 S. B. 1023. "Sch. Diet. T. Bennett, (Ark.) 13 S. W. 132. 154: PUBLIC SCHOOL LAW. until his successor is duly appointed and qualified.* The board of education in Storey county, Nev., did not continue to hold oflSce under art. 17, § 13, of the constitution, until 1867, as the legislature abolished said board prior to 1867," and the presi- dent of said board was not entitled to exercise the office of superintendent of public schools after said board was abol- ished." By the act of June 18, 1853, K T., and the act of April 12, 1852, the terms of "all school-district officers" there- tofore elected shall expire on the second Tuesday of Oct. 1858.' The provision of the Ark. act 1876, as to time of appointing- county examiner, is directory and not mandatory.* § 135. Officer, treasurer. — The treasurer of city board of education cannot excuse non-performance of duty as required by the records, by contradicting the records.* A settlement and discharge is conclusive unless procured by fraud.' The Ga. school law of 1870 repeals Code, § 378, making the ordi- naries the treasurer of the boards of education of their respective counties.' § 136. Officer, vacancy. — The failure of a school-district officer, in Neb., to file a written acceptance of the office after the election, does not create a vacancy in the office, especially where there is acquiescence for more than a year.' A district- prudential committee vacates his office by removal from town ;* and if a trustee of common schools in the city and county of New York removes from the county, his office becomes vacant j'"* and where the clerk of a school district in Mass. removed from an adjoining district, but within the same town, and another 1 state T. ThomPBon, 38 Mo. 198. s state T. Tilford, 1 Nev. 240. 'Briggs T. Ontwater, 30 Barb. (N. T.) BOl. «Neal V. Burrows, 34 Ark. 491. 'Port Huron Bd. Ed. v. Bonnels, 57 Mich. 46. 'Parish Bd. v. Packwood, (La.) 7 So. 537. ' Clarke v. Levy, 45 Ga. 498. 8 Prans T. Young, ( Neb.)^ 46 N. W. 588. 'Giles V. Sch. Dist.. 31 N. H. (11 Post.) 304- w Qildersleeve v. B. Ed., 17 Abb. (N.T.) Pr.201. OFFICERS, VACANCY. 165, was chosen in his stead, but not sworn, the first continued com- petent to act as clerk ;^ but a trustee's office is not vacated by an unaccepted resignation." Vacancy in board of trustees (N. J. act 1854) may be filled by inhabitants; this does not exclude other modes of filling the same.' A resolution of a special, meeting, appointing a trustee in the place of one who had been chosen a few days before, stated that the one first chosen " had refused to serve," in trespass against the trustee for causing a. district tax to be collected ; the second appointment will be presumed valid.* Where the annual district meeting is not held before Apr. 20th, in N. H., the offices become vacant and the selectmen may appoint.* A school examiner in Mich, appointed to fill a vacancy holds only for the unexpired term ;* and failure to take oath of office by city school trustees in Va.,, in certain time, vacates the office, and others may be appointed.'^ The power of removing trustees of school district!^ was vested in school trustee electoral board in Va., in 1877.'' Failure to elect prudential committee does not create a vacancy, but those in office at the time of annual meeting hold over.' § 137. OfB.cers, vacancy. — Where school board organized and adjourned and there being no quorum, the only member present adjourned for several times ; where the minutes did not show that the meeting for organization adjourned to that for business, the absence of the members from two consecutive meetings did not vacate their office, in Pa.*" Where a school board cannot accomplish a permanent organization because no- one of the members can obtain a majority of votes for president,. 1 Williams v. Iinnenbnrg, 21 Pick. ( Mass.) 75. ^Towneend v. Sch. Trs., 41 N. J. L. 312. 'State T. Patterson, 33 N. J. L. 177. *Eandall v. Smith, 1 Den. (N. YJ 214. 'Att'y Gen. v. Burnham, 61 N. H. 594. • People V. Stone, ( Mich.) 44 N. W. 333. 'Chlidrey v. Bady, 77 Va. 518. SMcTeer v. Caldwell, 77 Va. 596. "Howell V. Sch. Dist., ( Vt.) 10 A. 754. 10 Genesee Ind. S. D.T. McI)onald,98Pa.St.444. 156 PUBLIC SCHOOL LAW. the proper court is justified in declaring their seats vacant, and appointing others in their stead.' A board of school directors can appoint to fill a vacancy until the next annual election" in Pa., and by acts 1838 and 1840, the remaining school directors have the power to declare the seat of the director vacant, in the county of Philadelphia, as in others, but in Penn township this power and duty are expressly vested in the remaining directors, respectively, of each of its election districts of North and South Penn. Under the school law of 1854, directors' meetings are either stated, including the annual meeting when fixed, or spe- cial, adjourned meetings to take place in either case ; but the former only are regular meetings, for non-attendance at any two of which in succession, except in case of sickness or absence, the seat of a director may be declared vacant by the other di- rectors.* Where a board of directors, at an adjourned meeting (there being no quorum at the .regular meeting), declared the seat of one of their number vacant, who had not attended a <' special " meeting called by the president, or the last regular or adjourned meeting; the first meeting being "special" was not "regular," and as the third meeting was but a continuance of the second, which, though styled "regular," did not appear to have been a " stated " meeting, the acticm of the school board in declaring the seat of the absent member vacant, was illegal, because he had not been absent at two regular meetings in suc- cession.* The prudential committee of a school district refusing to do a particular act does not create a vacancy in the office, but creating a new district, including him within its limits, va- cates the office.' The officers of a school district do not become iBonton v. Eoyce, 10 Phila. (Pa.) 559. !Com. T. Thomas, 10 Phila. (Pa.) 600. '>FeltonT, Coinmonwealtb,8Watts&S. (Pa.) 267. *Ziilich V. Bowman, 42 Pa. St. 6 'Steyens v. Kent, 86 Vt. 603. PAROCHIAL, SECTARIAN, RELIGIOUS, ETC. 15T vacant in Yt. merely by the failure of the district to maintain a school, (Gen. Stat., ch. 22, §40,) nor until the selectmen have duly made new appointments.^ §138. Parochial school; sectarian school; religious^ etc, — ^It has been held uncopstitutional to use the school-money to buy a state history for each district f and an act which at- tempts to devote a part of the school fund to a private school is unconstitutional.' In the case of Cownty of Cook v. Indv^ trial School, where girls were committed to Chicago Industrial School for Girls, and the bills for board, tuition, maintenance- and care were presented against the county, and resisted on th& ground that the Chicago Industrial School was a sectarian school, the opinion by Scott, J., was : " In State v. Hallock,. 16 Nev. 373, it was held that the Nevada Orphan Asylum was a sectarian institution, and that the payment of a claim made by it against the state would be a violation of the state consti- tution ; " and, " It is recorded in the national constitution that 'Congress shall make no law respecting an establishment of religion.'" An eminent law-writer says : "Those things which are not lawful under any of the American constitutions may be- stated thus : . . . 2d, compulsory support, by taxation or otherwise, of religious instruction ; not only is no one denomi- nation to be favored at the expense of the rest, but all support of religions instruction must be entirely voluntary. (Cooley Const. Lim., 6th ed., 680.)"* The schools kept by the Eoman Catholic Orphan Asylum Society of the city of Brooklyn are not " common schools " within the meaning of the constitution.^ An act of legislature constituting as a district a private school- iWoodcock y. Bolster, 35 Vt. 632. 'CoUinB V. Henderson, 11 Bneh (Ky.) 74. 'Atkin V. Lamkin, 56 Miss. 764; Gordon v. Comes, 47 N. Y. 616; State v. Springfield, 6 Ind. 86; Bd. Ed. v. Brooklyn, 13 Barb. 409; People v. Allen, 42 N. T. 404; Hnl- bert V. SparkB, 8 Bust ( Ky.) 260. * County of Cook v. Industrial School, 12511k 540 "People V. Bd. Bd., 13 Barb. (N. T.) 400. 158 PUBLIC SCHOOL LAW. touse and place of worship erected with money bequeathed for that purpose, and constituting trustees with power of taxation for the support of the school, is unconstitutional ;' and a city orphan asylum for poor orphans only is not a free public school 'of the state f and public money cannot be subscribed to aid a private sectarian college.' §139. Parochial, sectarian, religious, &c. — The stat- 'Utes in relation to the institution and patronage of a public school in Frederick county, Md., were intended as a part of the -general public-school system, and to invest that school with all ^the rights belonging to the schools previously established in octher counties.* In Mo., children under six years of age are not entitled to free tuition in public schools ; the constitution 'provides public -school system for scholars between six and •twenty years of age.^ The act of Ya., Dec. 1884, giving " Hall's Free School " trustees, funds from school quota, is un- •constitutional ; this school is not part of free-school system ;' and under Ohio constitution, the laws for organizing and regu- lating public schools must be of uniform operation throughout ithe state.' The constitution of all the states in some way pro- hibits the use of the common-school fund for the support of ^sectarian institutions. State Normal of N. Y. is not a " public .school " so as to enable scholars to claim free scholarship in Cornell University.' The inmates of the German Protestant •Orphan Asylum of Cincinnati are not children, wards, or ap- prentices of actual residents in the district of the asylum, and .are not entitled to the public-school privileges of that district.' Statutes of Wis., authorizing sending specified classes of chil- 1 People V. McAdams, 82 ni. 356. 2/» re Malone, 31 S. C. 435. 3 A. T. & S. F. E. K. Co. V. Atchison, 47 Ks. 712. -^ Thomas v. Visitors Frederick Countr Sch., rOill. (SiJ. (Md.) 369. 6 Roach T. St. Lonis Sch. Bd., 77 Mo. 484. •Hall's Free S. v. Home, 80 Va. 470. ' State V. Powers, 38 Ohio St. 54. 8 People V. Crissey, 45 Hun (N. T.) 19. •State T. Sch. Dirs., 10 Ohio St. 443. PAROCHIAL, SECTAEIAN, RELIGIOUS, ETC. 159 dren to public industrial schools, do not involve any interference with the relation of parent and child, nor any imprisonment that may not be imposed.* The school law providing for the education of every individual between the ages of five and twenty-one years, is not unconstitutional.* §140. Parochial, sectarian, religious, etc. — Where the territorial law authorized the board of education to designate private institution where instruction should be given, and the tuition paid by the territory, and a contract was made accord- ingly, which contract required three months' notice to cancel, it was held that the constitution of the state subsequently adopted prohibiting apropriation to any sectarian institution, terminated the contract, and such provision did not contravene the U. S. constitution prohibiting the impairing of obhgations of contracts.' A public institution of learning would be one which is controlled by the state through its agents, and in which the state would have a paramount interest and right of property, and which would depend upon the state for its existence.* Although the Illinois Industrial University at Urbana is a body corporate, yet the state appoints its trustees, and may sell and dispose of the property of the institution, or amend or repeal the charter.* Paying rent for use of church for school purposes is not contrary to 111. constitution." The Ky. act of 1872, appropriating common-school funds to V. academy, is unconsti- tutional.' " Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary ; it is not within the sphere of gov- ernment to coerce it;'" except in N. H., the constitution of iMilwankee Indnetrial Sch. v. SnpemsorB, 40 Wis. 328. „„ -. ,„ aCommonwealtli t. Hartman, 17 Pa. St. 118. s Synod of Dakota t. State, ( S. D.) 50 N.W. 632. * State T. Graham, 25 La. Ann. 440. 'TrnBtees HI. Ind. XT. v. Champaign Co., 76 III. 184. •Millard T. Ed. Bd., 19 111. App. 48. 'Halbert v. Sparks, 9 Bush ( Ky.) 259. ^Cboley Const. Lim., 576. 160 PUBLIC SCHOOL LAW. which permits the legislature to authorize towns, parishes, bodies, corporate, or religious societies within the state to make adequate provisions at their own expense, for the support and maintenance of public Protestant teachers of piety, religion and morality, but not to tax other denominations for their support. § 141. Parochial, sectarian, religious, etc. — In the case of OownMf of McLecm v. Humphreys, 104 111. (Free.) 378, it: was decided that "There is nothing in the various provisions of the act of May 28, 1879, entitled 'An act to aid industrial schools for girls,' which authorizes or contemplates the organization of these schools for sectarian purposes, within the meaning of § 3,. art. 8, of the constitution, prohibiting any appropriation or pay from any public fund, or anything in aid of any church or sec- tarian purpose, by any public corporation ; but on the contrary, it is expressly prohibited in the last section of the act. "If, notwithstanding this inhibition in the act, such a school should be prostituted to any church or sectarian purposes, the law affords ample means for a speedy correction of such an abuse of the act. " Constitution not to be so construed as to deprive the legis- lature of the power of protecting dependent and unfortunate in- fants. It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patrice to protect and provide for the comfort and well-being of such of its citizens as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of them- selves, and all constitutional limitations must be so construed and understood as not to interfere with the proper and legitimate exercise of this important governmental function. "The act does not infringe constitutional guaranty of per- PAROCHIAL, SECTARIAN, RELIGIOUS, ETC. 161 sonal liberty. The act of 1879, in relation to industrial schools for dependent infant females, is not obnoxious to the objection that it infringes upon the constitutional guaranty of the per- sonal liberty of the citizen." §142. Parochial, sectarian, religious, etc. — "It may be said that § 3 of article 8 of the 111. constitution is an inhibi- tion upon the power of appellees to appropriate any public funds for the support of a public school or any school under the domination or control of any church or sectarian denomina- tion, and that § 3 of the Bill of Eights provides that ' the free exercise and enjoyment of religious profession and worship without discrimination shall forever be guaranteed,' etc. In- deed, these sections are cited in appellant's brief, but there is no question of construction of the constitutional provisions raised, or any necessity for an interpretation apparent." (Mil- lard V. Board, 116 lU. 23.) § 143. Parochial, sectarian, religious, etc. — In the case of MiJmamkee Industrial School v. Supervisors of Milwaukee Coimty, 40 Wis. 328, it was decided that "The power con- ferred in terms by § 5, ch. 326 of 1875, upon certain officers, for the commitment of minors to industrial schools, is judicial^ and cannot be exercised by mayors of cities, (3 "Wis. 805); and probably not by judges of courts of record at chambers,, (39 Wis., 35); but any defect of jurisdiction in these will not. afiect the authority of courts under the act. . . . "The statute (which goes on the total failure of the parent to provide for the child) is not invalid on the ground that it invades any natural rights of parent and child. "The commitment of the child to an industrial school, as au- thorized by the statute, is not an imprisonment. . . . "In the sec&nd place, the statute, certainly so far as it is in- —11 162 PUBLIC SCHOOL LAW. volved here, does not go on failure in the measure of support or education by the parent, on some nice fault-finding with the course of the parent with the child, as the court appeared to think that the Illinois statute did, in People v. Twrn&r, 65 111. 280. It goes on the total failure of the parent to provide for the child. And it is difficult to-comprehend the right of a parent to complain, that the discharge by the state of his own duty to his child, which he has wholly failed to perform, is an imprison- ment of the child as against his parental right in it. . . . " We cannot think that it was intended to foreclose the right of a parent, when competent, to resume the custody and care of his child. In this respect there is a significant difference between it and the statute before the court in People v. Turner. That statute provided for process against the parent or guardian of the child, making them parties to the proceeding, and appar- ently bound by it. The statute before us carefully avoids that difficulty, and operates, so to speak, upon the child in personam, without citing the parent or guardian, without any color of in- tent to bind the parent or guardian by the proceeding or by the commitment. It appears to us quite obvious, upon familiar principles, that the parent or guardian is not precluded by the commitment from asserting any right to the custody and care of the child which he may be afterwards able to establish. When a parent or other proper guardian should be able to show that the disability or default on which the child's commit- ment proceeded was accidental or temporary, and no longer exists, and that he is, in the language of § 5, ch. 112, E. S., not otherwise unsuitable for the custody of the child, his right to the custody should prevail over the commitment to which he was not a party. In such a case, if the officers of school should refuse to surrender a child, no court would hesitate to restore PAROCHIAL, SECTARIAN, RELIGIOUS, ET(J. 163 the child to the care of the parent or guardian. The commit- ment during minority binds the child only, not the parent or guardian when competent to fulfill toward the child the duties assumed by the state. It is conclusive as between the school and the child, but not as between the school and the parent or guardian. The statute is a humane one, and should not be bent to a construction inconsistent with one of the dearest rights of humanity. It is our duty to give it a construction, if we can, to give it effect ; and we find no diflBculty in giving it this construction, which seems to us to have been in the mind of the legislature when it was framed. . . . "The case of People v. Turner appears to turn on the ques- tion of compulsory education — a very different question from that here. "We are not prepared to say that we might not de- cide a similar case, under a similar statute, in the same way." § 144. Parochial, sectarian, religious, etc. — In Millard V. The Board of Education, 121 111. 297, it was decided that " Kenting building for school purposes, as, a church building, when it becomes necessary for a board of educatioii to procure a building in which to conduct a public school : They are au- thorized by law to lease a suitable building for that purpose, and it matters not that such building had been used for a church by some religious body. Procuring a building without a vote of the people : Where a proposition to raise money to build a school-house at a site selected is defeated by a vote of the peo- ple, the board of education or directors, being required to pro- vide a school for at least six months in each year, may lawfully rent any suitable building or room in which such school may be kept, without any vote for that purpose. The free schools of this state are not established to aid any sectarian denomina- tion, or assist in disseminating any sectarian doctrine, and no 164 , PUBLIC SCHOOL LAW. board of education or school directors have any authority to use the public funds for any such purpose. The statute has not , prescribed any religious belief as a qualification of a teacher in the public schools, and therefore the school authorities may select a teacher who belongs to any church or to no church, as they naay think best. A bill to enjoin a board of education from the use of school funds for sectarian purposes, alleged that the children of Catholic parents, and the teachers, who were Catholics, were required to attend at a Catholic church, the base- ment of which was used for the school, at eight o'clock in the morning on school-days, and hear mass read by the priest, and then repair to the school-room and engage in the study of the church catechism for half an hour before the opening of the school, and at the close of the school at noon the 'Angelus' prayer was read by the teachers and pupils, but failed to show that the board were in any manner connected with such exer- cises and requirements : Jleld, That the bill did not show any ground of equitable relief, it not appearing that complainant had any children who were required, against his wishes, to at- tend or receive any religious instruction." § 145. Parochial, sectarian, religious, etc. — In the case of State V. Dist. Bd., 76 "Wis. 177, it was decided: "In a peti- tion by residents and tax-payers of a city for a writ of man- damus to compel the discontinuance of the practice of reading the Bible in the public schools therein, averments that the resi- dents of said city, who are taxed for the support of said schools, are equally entitled to the benefits thereof, by having their children instructed therein according to law, and that the read- ing complained of is contrary to the rights of conscience, and in violation of law, and is sectarian instruction and in violation of § 3, art. 10, Const., are held sufficiently broad to cover any PAROCHIAL, SECTARIAN, RELIGIOUS, ETC. 165 valid objection which may be made to such reading. Aver- ments in the return to the alternative writ that the reading of the Bible in schools is not sectarian instruction, and that the school board has a lawful right to permit, but none to prevent, such reading, — being mere legal conclusions, are not admitted by a demurrer. Nor does the demurrer admit an averment in such return that there is no material difference between the King James version of the Bible, used in the schools, and the Douay version, — such averment being against common knowl- edge, and therefor not well pleaded. The courts will take judicial notice of the contents of the Bible, that the religious world is divided into numerous sects, and of the general doc- trines maintained by each sect. The whole Bible, without ex- ception, having been designated as a text-book for use in a school, and it being claimed by the school board that the whole contents thereof may lawfully be read in such school if the teacher so elect, the Bible will be regarded as a whole in de- termining whether such reading is sectarian instruction ; and it is immaterial that the only portions thereof thus far read in such school are not sectarian. The use of any version of the Bible as a text-book in the public schools, and the stated reading thereof in such schools by the teachers, without restriction, though unaccompanied by any comment, has 'a tendency to inculcate sectarian ideas,' within the meaning of § 3, ch. 251, Laws of 1883, and is 'sectarian instruction,' within the meaning of § 3, art. 10, Const. But text-books founded upon the funda- mental teachings of the Bible, or which contain extracts there- from, and such portions of the Bible as are not sectarian, may be used in the secular instruction of the pupils and to inculcate good morals. The fact that the chHdren of the petitioners are 166 PUBLIC SCHOOL LAW. at liberty to withdraw from the school-room during the reading of the Bible does not remove the ground of complaint. The constitutional prohibition of sectarian instruction being unam- biguous, the rules as to interpretation in the light of surrounding circumstances when it was framed and adopted, and as to the authority of contemporaneous exposition, are not controlling. Considered in the light of prior and contemporaneous history, the provisions of our constitution herein cited were manifestly intended to prohibit practices then permitted by other constitu- tions. The stated reading of the Bible as a text-book in' the public schools may be 'worship,' and the school-house thereby become, for the time being, a 'place of worship,' within the meaning of § 18, art. 1, Const.; and to such use of the school- house the tax-payers, who are compelled to aid in its erection and in the maintenance of the school, have a legal right to object. Children of poor parents, who are by law practically obliged to attend the public schools, would, if such reading were permitted, be compelled to attend a place of worship, con- trary to said § 18. Such reading being religious instruction, the money drawn from the state treasury for the support of a school in which the Bible is so read, is for the benefit of a 'religious seminary,' within the meaning of said section. By the adoption of the state constitution and the admission of the state into the Union, the third of the articles of compact in the ordinance of 1787 ceased to be longer in force." § 146. Parochial, sectarian, religious, etc. — In the case of County of Cook v. Industrial School, 125 111. 540, it was de- cided that : "A school is sectarian, and comes within constitu- tional provision 'that public funds shall not be paid out in aid of any sectarian purpose, or in aid of any school, etc., controlled PAROCHIAL, SECTARIAN, RELIGIOUS, ETC. 167 by any church,' where such school is a corporation organized as an industrial school for girls, but does not lease or own any building, although its charter contemplates that it shall have a situs, nor otherwise comply with the provisions of its act of in- corporation, but places all girls nominally committed to it under the sole charge, care, and control of two institutions controlled by a church, where they are taught, maintained and clothed by them alone, and in which institutions the inmates, although not obliged to receive instructions in the Komish faith, are yet taught no other faith or creed ; and in such case a suit to re- cover for tuition and clothing furnished girls so placed cannot be maintained against the county. "To show that a school is controlled by a church, evidence is admissible that a judge of the superior court went to the place where an industrial school was alleged to be carried on, and was refused admittance unless he should first obtain a permit from a bishop or member of the Romish church, it appearing that such judge was authorized to commit girls to an industrial school, and that books containing copies of the warrants of commitments were required to be kept therein. "If an industrial school that has availed itself of the provi- sions of the statute of 111. providing for the payment of moneys to such schools is guilty of the misuse or non-use of its powers, and brings suit against a county upon a contract which the lat- ter can lawfully make, perhaps a defense cannot be maintained solely upon the ground that the school is violating its charter ; the proper proceeding to test that question may be quo wBo7d V. State, 86 Ala. 169. | PUPIL, PUNISHMENT. 181 teacher may refuse to permit a pupil to attend if the pupil does not conform to the rules.^ To render a teacher liable to crimi- nal prosecution he must have been actuated by bad, malevolent motives, using the legal authority for the gratification of a mind bent on mischief in inflicting punishment f but a school master is not relieved from Lability by acting in good faith and with- out malice, honestly thinking the punishment necessary, when it was clearly excessive and unnecessary.' Where a school master punishes, the instrument must be suitable, and be ad- ministered with moderation, or he will be guilty of assault and battery/ In a prosecution for an assault on pupil, and the court left it to the jury to say whether the punishment was excessive, and refused to instruct "that he was criminally liable only when acting from malice or passion, or inflicted excessive punishment," there was no error ;^ and an instruction that for punishment to be illegal it must be so excessive as to excite instant condemna- tion of all men, is too favorable for the teacher and is errone- ous." A rule requiring pay for school property wantonly or carelessly destroyed, should not be enforced by corporal punish- ment.' § 157. Pupil, punishment. — In the case of State v. Pen- dergrass, 2 Dev. & Batt. (N. 0.), 365, it was held: "The law has not undertaken to prescribe stated punishments for particu- lar offenses, but has contented itself with the genera,l grant of the power of moderate correctioil, and has confided the gra- dation of punishments, within the limits of this grant, to the discretion of the teacher. The line which separates moderate correction from immoderate punishment can only be ascer- 1 state T. Mizner, 60 Iowa, 145. _ ^ „ 2 Commonwealth v. Seed, 5 Pa. L. J. B. 78. ^Lander v. Seaver. 38 Vt. 114. ^Cooper T. McJunkin, 4 Ind. 290. s Commonwealth v. Bandall, 4 Gra;, (Mass.) 36. •Patterson v. Nntter, fMe.) 7 A. 373. ' State V. Vanderbllt, (Ind.) 18 N. JS. a66. 182 PUBLIC SCHOOL LAW. tained by reference to general principles. The welfare of the child is the main purpose for which pain is pernaitted to be inflicted. Any punishment, therefore, which may seriously en- danger life, limbs, or health, or shall disfigure the child, or cause any other permanent injury, may be pronounced in itself immoderate, as not only being unnecessary for, but inconsistent with, the purpose for which correction is authorized ; but any correction, however severe, which produces temporary pain only, and no permanent ill, cannot be so pronounced, since it may have been necessary for the reformation of the child, and does not injuriously affect its future welfare. . . , " We hold, therefore, that it may be laid down as a general rule, that teachers exceed the limits of their authority when they cause lasting mischief, but act within the limits of it when they inflict temporary pain. . . . "But the master may be punishable when he does not tran- scend the powers granted, if he grossly abuses them. If he use his authority as a cover for malice, and under pretense of administering correction gratify his own bad passions, the mask of the .jidge shall be taken off, and he will stand amenable to justice as an individual not invested with judicial power."- § 158. Pupil, punishment. — In the following instances, the exercise of power has been sustained : Suspending pupil for refusing to disclose the name of offending pupil ;^ for tardiness ;' for failure to use text-books ;' for absence ;* for misconduct ;* suspension of pupil by officer ;" suspension of pupil by teacher, iBd. V. Helston, 38 111. App. 300. 'Eussell V. Llnnfleld, 116 Mass. 366; Bendick V. Babcock, 31 Iowa, 662. •Spiller V. Wobarn, 18 Allen, (Mass.) 127; McCormick v. Burt, 95 111. 268; Donahoe V. Richards, 38 Me. 379; Kidder v. Chellis, 59 N. H. 473; Gnemsey v. PitkiD, 32 Vt. 226; Sewell v. Bd. Ed., 89 Ohio St. 89. 4Ferriter v. Tyler, 48 Vt. 444; King v. Jefler- son City Sch. Bd., 71 Mo. 628; Churchill v. Fewkes, 13 Brad. (111.) 520. 'Stevens v. Fassett, 87 Me. 866; Larock v. Putnam, 111 Mass. 499; Hodgkins v. Bock- port, 105 Mass. 476: SMte v. Williams, 27 Vt. 755. PUPIL, PUNISHMENT. 183 where the officer opposed the teacher ;^ expelling for immor- ality ;' corporal punishment for misconduct ;' the teacher refus- ing to teach pupil, has been held not liable for damages;* suspending teacher for immorality was sustained.' § 159. Pupil, punishment. — In the following instances, the exercise of authority has not been sustained : For barring out tardy pupil ;" for suspending pupU for failure to use text- books required ;' for suspending for attending a party ;' for reflecting on the director by newspaper article ;° for suspending for not paying for broken window ;" for suspending for using tobacco, the director being opposed to teacher;" for man- slaughter of slave." Corporal punishment : For failing to use text-book ;" for not paying for broken window ;^* for miscon- duct ;" for accidentally adding aloud." § 160. Pupil, punishment. — In Lander v. Seamen, 32 Vt. 114, which is the leading case on the question as to the right to punish pupil for insulting teacher in presence of other pupils' after the pupil has returned home, it was decided : " School master has power to punish pupil for all acts of the latter which are detrimental to the good order and best interest of the school, whether such acts are committed in school hours,' or after the pupil has returned home, or while he is engaged in the service of his parent. "School master is liable in damages for an excessive punish- 1 Scott T. Sch. Diet., 48 Vt 452. 'Sherman v. Inhabitants, 8 Cnsh. (Mass.) 163. » State V. Pendergrass, 2 Dev. & Batt. ( N. C.) 365; Sheelianv.Stnrgis, 53Conn.481; Dan- nehofEer v. State, 69 Ind. 295; State v. Miz- ner, 45 Iowa, 248; DaTls v. Boston, 133 Mass. 103; Patterson v. Natter, 78 Me. 509; Deskins v. Gore, 85 Mo. 485. * Spear T. Cnmmings, 24 Pick. (Mass.) 224. 'McClellan v. Bd., 15 Mo. App. 368. •Thompson v. Beaver, 63 III. 356. 'Trnstees v. People, 87 lU. 303; Morrow t. Wood, 35 Wis.59 ; JElulison v. PoBt,79 ni.se?. 'Dritt T. Snod^asB, 66 Mo. 286. •Murphy v. Directors, 30 Iowa, 489. 10 Perkins v. Directors, 56 Iowa, 476. " Parker T. Sch. Diet., 5 Lea (Tenn.) 525. "State T. Harris, 63 N. C. 7. "State V. Mizner, BO Iowa, 145. "State T. Vanderbilt, (Ind.) 18 N. B. S IS Com. y. Eandall, 4 Gray (Mass.) 36; Boyd •V. MCc" ray T. Sh , _ u Anderson t. State, 3 Head (Tenn.) 455. T. State, 88 Ala. 169; Cooper v. McJuukin, 4 Ind. 890; Hathaway t. Bice, 19 Vt. 102. 184 PUBLIC SCHOOL LAW. ment of a pupil, even though he acted in good faith and with- out malice in inflicting it, and considered it necessary, and not excessive ; but in case of doubt, he is entitled to the benefit of it. "Where excessive punishment of pupil is charged against a school master, evidence that the ordinary management of the latter was mild and moderate is not admissible. "If evidence that school master acted maliciously in admin- istering the punishment should be given by those prosecuting him, evidence that the school master was ordinarily mild and moderate would be admissible. "It is question for jury to determine whether the instrument used by school master to inflict punishment upon the pupil is a proper one for such purpose. " To rebut presumption or proof of malice in punishing pupil, it is competent for the school master to prove that the instru- ment used by him in punishing the pupil was such as was gen- erally used for such purposes by other teachers in the vicinity. "It is competent for school master, who is defending himself in an action of trespass for assault and battery upon a pupil, to prove that at a former trial of the same case the plaintiff made no claim that the punishment inflicted was excessive, and that then plaintiff only claimed that the master had no right to in- flict the punishment, because the offense of the pupil was not committed in school hours. "By Court, Aldis, J.: The defendant was a teacher in a public school in Burlington ; the plaintiff, his pupil. The first question presented is : Has a school master the right to punish his pupil for acts of misbehavior committed after the school has been dismissed, and the pupil has returned home and is engaged in his father's service ? PUPIL, PUNISHMENT. 185 "I. It is conceded that his right to punish extends to school lours, and there seems to be no reasonable doubt that the supervision and control of the master over the scholar extend from the time he leaves home to go to school till he returns from school. Most parents would expect and desire that teachers would take care that their children, in going to and returning from school, should not loiter, or seek evil company, ■or frequent vicious places of resort. But in this case, as appears from the bill of exceptions, the offense was committed an hour and a half after the school was dismissed, and after the boy had returned home, and while he was engaged in his father's service. When the child has returned home, or to his parent's control, then the parental authority is resumed and the control of the teacher ceases, and then, for all ordinary acts of misbehavior, "the parent alone has the power to punish. It is claimed, how- ever, that in this case ' the boy, while in the presence of other pupils of the same school, used toward the master and in his hearing contemptuous language, with a design to insult him, and -which had a direct and immediate tendency to bring the authority of the master over his pupils into contempt and lessen his hold upon them and his control over the school.' This, Tinder the charge of the court, must have been found by the jury. "This misbehavior, it is especially to be observed, has a direct and immediate tendency to injure the school, to subvert the master's authority, and to beget disorder and insubordina- tion. It is not misbehavior generally, or towards other persons, •or even towards the master in matters in no way connected with or affecting the school ; for as to such misconduct, com- jnitted by the child after his return home from school, we 186 PUBLIC SCHOOL LAW. think the parents, and they alone, have the power of punish- ment. "But where the offense has a direct and immediate tendency to injure the school and bring the master's authority into con- tempt, as in this case, when done in the presence of other scholars and of the master, and with a design to insult him, we think he has the right to punish the scholar for such acts if he comes again to school. "The misbehavior must not have merely a remote and indi- rect tendency to injure the school. All improper conduct or language may perhaps have, by influence and example, a re- mote tendency of that kind ; but the tendency of the acts so done out of the teacher's supervision for which he may punish must be direct and immediate in their bearing upon the welfare of the school, or the authority of the master and the respect due him. Cases may readily be supposed which lie very near the line, and it will often be diflBcult to distinguish between the acts which have such an immediate and those which have such a remote tendency ; hence, each case must be determined by its peculiar circumstances. "Acts done to deface or injure the school-room, to destroy the books of scholars, or the books or apparatus for-'instruction,. or the instruments of punishment of the master ; language used to other scholars to stir up disorder and insubordination, or to heap odium and disgrace upon the master; writings and pic- tures placed so as to suggest evil and corrupt language, images and thoughts to the youth who must frequent the school — all such or similar acts tend directly to impair the usefulness of the school, the welfare of the scholars, and the authority of the master. By common consent, and by the universal custom in our New England schools, the master has always been deemed PUPIL, PUNISHMENT. 1ST to have the right to punish such offenses. Such power is es- sential to the preservation of order, decency, decorum and good governnaent in schools. Upon this point the charge of the court was substantially correct. "II. The court charged the jury that although the punish- ment inflicted on the plaintiff was excessive in severity and dis- proportioned to the offense, still if the master in administering it acted with proper motives, in good faith, and in his judgment for the best interests of the school, he would not be liable ; that the school master acts in a judicial capacity, and that the inflic- tion of excessive punishment, when prompted by good inten- tions and not by malice or wicked motives or an evil mind, is- merely an honest error of opinion, and does not make him lia- ble to the pupil for damages. The plaintiff claims that this was erroneous. " 1. It is claimed on behalf of the defendant that the school master is a public officer, that in his government of the school he is invested with public authority, with discretionary powers^ and acts in a judicial capacity, and so is not liable for errors of judgment. His authority has been likened to that of public of- ficers, such as listers in the case of Miller v. Gould, 20 Yt. 643 ; the postmaster-general in Kendall v. Stokes, 3 How. 87; the' mayor of New York in Wilson v. Mayor, etc., 1 Denio 695, (43 Am. Dec. 719) ; or a commander in the navy, as in Wilkes V. Dinsman, 7 How. 89. "We think the school master does not belong to the class of public officers vested with such judicial and discretionary powers.. He is included rather in the domestic relation of master and servant, and his powers and duties are usually treated of as be- longing to that class. In some sense he may be said to act by 188 PUBLIC SCHOOL LAW. public authority, and to be a public officer, but we do not find him spoken of anywhere as acting in a judicial capacity, except in the passage from Keeves's Domestic Eelations, which was read to the jury. In no proper sense can he be deemed a pub- lic officer exercising, by virtue of his office, discretionary and Quasi judicial powers. " 2. It is also said that he stands in loco pa/rentig^ and is in- vested with all the authority and immunity of the parent. Such -would seem to be the doctrine of the passage cited from Judge Heeves's work. " The parent, unquestionably, is answerable only for malice or wicked motives or an evil heart in punishing his child. This great, and to some extent irresponsible, power of control and ■correction is invested in the parent by nature and necessity. It ^springs from the natural relation of parent and child. It is felt rather as a duty than a power. From the intimacy and ^nature of the relation, and the necessary character of family government, the law suflEers no intrusion upon the authority of the parent, and the privacy of domestic life, unless in extreme -cases of cruelty and injustice. This parental power is little Jiable to abuse, for it is continually restrained by natural affec- tion, the tenderness which the parent feels for his offspring, an affection ever on the alert, and acting rather by instinct than reasoning. "The school master has no such natural restraint. Hence he may not safely be trusted with all a parent's authority, for he ■does not act from the instinct of parental affection. He should be guided and restrained by judgment and wise discretion, and hence is responsible for their reasonable exercise. The limit upon the parental authority transferred to the master is well ex- PUPIL, PUNISHMENT. 18^ pressed by Judge Black^tone. He says: 'The master is m Zoc«?^ parentis, and has such a portion of the power of the parent committed to his charge as may be necessary to answer the pur- poses for which he is employed.' An English annotator, in a. note to the passage, very properly adds : ' This power must be temperately exercised, and no school master should feel himself at liberty to administer chastisement co-extensive with the parent.' "Judge Swift, in his Digest, in a very admirable summary of the powers and duties of the school master, remarks that if, the punishment is immoderate, so that the child sustains a ma- terial injury, the master is liable in damages. In a recent case in Massachusetts — Commonwealth v. JSandall, 4 Gray, 36 — the defendant asked the judge to instruct the jury that the- school master is liable only when he acts malo amimo, from vindictive feelings, or under the violent impulses of passion or malevolence, and that he is not liable for errors of opinion or mistakes of judgment, provided he is governed by an honest purpose of heart to promote by the discipline employed the highest welfare of the school and the best interest of the- scholar. In the case at bar the court charged substantially according to that request; but in the case reported in Gray the court refused so to charge, and did charge that if the jury found that the punishment was excessive and improper, then the master might properly be found guilty. The charge was held to be correct, upon the hearing of the defendant's excep- tions in the supreme court. In the case of Hathaway v. Rice, 19 Vt. 102, we think the principle involved in the decision establishes the same doctrine. " Suits of this character have frequently arisen in this state,. 190 PUBLIC SCHOOL LAW. •and the rulings of our courts at nisi prvm, have, we think, been •quite uniform on this point. The law, as we deem' it to exist, is this : A school master has the right to inflict reasonable cor- .poral punishment. He must exercise reasonable judgment and ■discretion in determining when to punish, and to what extent. In determining upon what is a reasonable punishment, various considerations must be regarded : the nature of the offense, the apparent motive and disposition of the offender, the influence 'of his example and conduct upon others, and the sex, age, size, :and strength of the pupil to be punished. Among reasonable persons, much difference prevails as to the circumstances which vwill justify the infliction of punishment, and the extent to which -it may properly be administered. On account of this difference of opinion, and the difficulty which exists in determining what is -a reasonable punishment, and the advantage which the master /has by being on the spot to know all the circumstances, the man- ner, look, tone, gestures, and language of the offender (which ^are not always easily described), and thus to form a correct •opinion as to the necessity and extent of the punishment, con- rfliderable allowance should be made to the teacher by way of protecting him in the exercise of his discretion. Especially rshould he have this indulgence when he appears to have acted ^rom good motives, and not from anger or malice. Hence the 'teacher is not to be held liable on the ground of excess of pun- ishment unless the punishment is clearly excessive, and would be held so in the general judgment of reasonable men. If the punishment be thus clearly excessive, then the master should be held liable for such excess, though he acted from good motives in inflicting the punishment ; and in his own judgment consid- •«red it necessary, and not excessive. But if there is any rea- PUPIL, PUNISHMENT. 191 •sonable doubt whether the punishment was excessive, the master ■should have the benefit of the doubt. Upon this point there was error in the charge. "III. The court admitted evidence to show that the general ■character of the defendant, as a master, in governing his school was mild and moderate. "As the court put the case to the jury upon the question of the defendant's malice in inflicting the punishment, this evidence, in that view, might be admissible as tending to disprove such intent. It might, perhaps, be properly said, that the nature of fiuch an action, turning upon that point, involved the character of the defendant. But as we have already decided that the question of excessive punishment is not affected by the motive or intent of the master, we are of the opinion that this evidence of general good character is not admissible upon that issue. Good character does not tend to prove that the assault and battery were or were not committed, or that the punishment was or was not excessive. But when evidence is given tending to show that the master acted maliciously or wantonly, from an evil heart, and the plaintiff claims to recover damages on that ground, there, we think, the evidence would be admissible (1 Greenl. Ev., § 54, and notes) to rebut such intent. But it should be strictly limited to that purpose. In other respects, we find no error in the charge. "IV. Whether a rawhide was a proper instrument of punish- ment, was left to the jury, with very suitable instructions. The evidence to show that the rawhide was used in other schools in the vicinity was properly admitted to rebut the charge of malice, by showing that he did not resbrt to an unusual instrument of punishmenl. The testimony to show that the plaintiff did not 192 PUBLIC SCHOOL LAW. claim an excess of punishment on the first trial was proper, as tending to prove that that claim on the then pending trial was. not well founded. Judgment reversed." § 161. Pupil, residence. — School directors have power to send pupils to schools of adjoining district, but such power should be carefully exercised ;' the abuse of this discretion by the directors will be official misconduct ; but unless such abuse is clearly shown, courts will not interfere.' Towns and cities in Mass. have no right to receive children into their schools whose parents or guardians reside in another state ; and they cannot sue the parents for such tuition, even on an express contract.^ In Mo., children who are not orphans nor appren- tices, and whose parents are non-residents of the district, should not attend in that district.' Eesidents of government reserva- tions for navy yards, forts, and arsenals, where there is no other reservation of jurisdiction to the state than that of a right to serve criminal and civil processes on such lands, are not entitled to the benefits of the common schools, for their children, in the towns in which the lands are situated.' Where a father bound out his children as apprentices in a district where he did not reside, for the purpose of schooling his chil- dren there, without the consent of the district, they were tres- passers, and liable to an action by the district for attending school.^ In N. H. the children supported at a county poor- farm have the right to attend the public school in that dis- trict.' Tinder G. S. Conn., §§ 2102, 2118, requiring attendance at school, a child whose parents are non-residents, and who lives with others with her parents' consent, with whom she 1 Freeman v. Sch. Dirs., 87 Pa. St. 385. sHaverhill v. Gale, 103 Mass. 104; Wheeler v. Bnrrow, 18 Ind. 14. sBinde v. Klinge, 30 Mo. App. 285. ♦Opinion judges, 1 Mete. (Mass.) 580. csch. Dist. T. Bragdon, 23 N. H. (3 Fost.) 507. 'Sch, Diet. v. Pollard, 55 N. H. 603. PUPIL, RESIDENCE. 193 and her parents expect her to live permanently, has a right to attend the school of the district in which she resides.* § 162. Pupil, residence. — In Lamwr v. Micou, 112 TJ. S. 452, 5 Sup. Ct. Kep. 221, Justice Gray says, in the opinion : "An infant cannot change his own domicile. As infants have the domicile of their father, he may change their domicile by changing his own ; and after his death, the mother, while she remains a widow, may likewise, by changing her domicile, change the domicile of the infants, the domicile of the children in either case following the independent domicile of their parent."' "Generally speaking, domicile and residence mean the same thing."' Under the Comp. Stat. Mont., pp. 1886, 1907, where the census returns, as residents of one district, children whose fathers reside and who attend school in other districts, it is proper for the superintendent to transfer them to the latter districts, and apportion the money accordingly.* Ky. act 1888, § 16, authorizes the trustees to admit children residing outside of the district, "upon such terms and conditions, and upon payment of such charges, as the said board may deem right."' To recover payment for instruction given to non-resi- dents' children, there must have been a previous arrangement between the directors of the respective districts, as directed bj the Pa. school law of 1864 ; regular official action, evidenced by official minutes, is required by the statute." In Acts Ga.. 1889, pp. 1305, 1306, a provision that the local board may admit pupils not residents of the town on such terms as the board may prescribe, does not allow the board to prescribe terms which would cast upon the town or its inhabitants anj iTale V. West Md. Sch. Dist., 59 Conn. 489. «Scli. nir. V. James, 2 Watts & S. 568; Story Confl. Laws, 46. , „ „„ » Kennedy v. Eyall, 67 N. T. 379. — 13 «Sch. Dist. T. Patterson, (Mont.) ! 'Rogers Trs^ (Ky.) 13 S. W. 587. •Cascade v. Lewis, 43 Pa. St. 318. 194 PUBLIC SCHOOL LAW. part of the expense of educating non-resident pupils ;' the main purpose being to establish and maintain a system of public schools in the town, an unconstitutional requirement therein, which exacts an incidental fee annually of all pupils, thereby including resident as well as non-resident pupils, will not vitiate the whole statute f but non-resident cannot be admitted to the exclusion of resident.' The school inspectors of Peoria, 111., may divide the city into districts, and may exercise the same discretion in establishing rules for the admission of pupils.* As an appeal lies from the decision of the township trustee upon the application of an inhabitant to be transferred for school purposes to another township, mandamus will not lie against the trustee.' Special act for Carlisle (Ky.) schools per- mits children non-resident of the district to attend by paying charges fixed by board of trustees." §163. Pupil's tuition. — A. made a conveyance of real estate to the city of Buffalo, reciting that it was made "with a view of aiding in the establishment of an institution where the children of those who are unable or unwilling to provide for their education may receive the same free of expense," and " for the use, maintenance, and support of a free school, and for no other purpose." The word "free" did not mean free in respect to the universal admissibility of the children of all classes of inhabitants of districts.' Where commissioners in Ala. neglect to employ teachers or appropriate money for tuition of children if they attend within the limits of township, the tuition-money may be recovered from any one of them by any legal voter, to defray it.' Under Const. Ga., (Code, ilrvin V. Gregory, (Ga.) 13 S. K. 180. 'Irvin V. Gregory, (Ga.) 13 S. E. 605; 88 Ga. 605. •Irvin T. Gregory, 9 A. 695. 4 Grove r. Scb. Insp., 80 111. S33. "Folge T. Gregg, 26 Ind. 345. •Eogera v. Tro. Graded Soh., (Ky.) IS S. W. 587. 'Le Contenix t. Buffalo, 33 N. T. 333. 'Barnes r. Minter, IS Ala. 316. RECORD, ETC. 195 p. 5304,) a municipal public school cannot exact incidental fees from resident scholars.* Under Iowa Code, § 1793, where the directors of the district in which the children reside, upon being notified of their attendance elsewhere, decide not to pay their tuition, no other demand is necessary, and the account may then be filed with the auditor.'' § 164. Record, etc, — Parol evidence is competent to prove that a board of education had approved the bond of their treas- urer, although no entry was made on the minutes of the pro- ceedings of the board.' Kecord of district meeting which fails to state the hour, but refers to notice which does, is sufficient.* Where the record of the proceedings of the school board is de- fective, it may be explained or supplied by parol testimony,' and where certain parts of the minute book of a board of school directors were read in evidence by one party, and the counsel read and commented to the jury upon other parts of the book not given in evidence, to which objection was made, the court properly directed the jury to confine their attention to such parts of the minute book as were read in evidence.' Where the records showed a vote to adjourn to another place, and ac- tion had at such place, it will be presumed that the adjournment was to meet forthwith, in absence of record otherwise.' The records should prove all matters themselves that should be upon the record.' Failure to keep proper records will not render sub- sequent officers liable therefor, nor render prior proceedings void ;' and the minutes by clerk pro tempore entered of record after he became clerk in fact, were held valid." ilrvin T. Gregory, 86 Qa. 805. 'Horton v. Ochejedan, 49 Towa, 231. "Bartlett v. Bd. Ed., 59 111. 364. ■•Howland t. Sch. Dist., 15 R. 1. 184. J^Oearhart v. Dizon, 1 Pa. St. 824. Manchester v. Beserre Tp., 4 Fa. St. 35. 'Converse v. Porter, 45 N. H. 335. sSherwin T. Bngbee, 17 Vt. 337; Bartlett v. Kinsley, 15 Conn. 327. "Higgins T. Beed, 8 Clarke, (Iowa) 298. 1° Bartlett T. Kinsley, 15 Conn. 337. 196 PUBLIC SCHOOL LAW. § 166. Secord. — Where it did not appear that there was an election of a prudential committee and another record was in- troduced, which the clerk of the district testified contained a true record of the meeting, and in which the election of such a committee was entered, and both records were made by the clerk soon after the meeting, from loose memoranda put on paper at the time of the meeting, the election of the committee was duly proved.* Where the clerk pro tern, took memoranda for minutes, and made up his record after he had qualified as clerk, about two months later, the record was sustained, and in this case the records were not made up before his oath of oflSce was administered ;' a delay of one hour and five minutes is not an unreasonable delay, though meetings should be held on time.' Where it appears from the records that the meeting was held on the day appointed, the presumption of law is, that it was held in a suitable time in the day, and in pursuance of the warning.' Any fact which should be a matter of record should be proved by the record.' In Iowa, the proceedings of a school district will not be void, nor will officers subsequently elected become liable, for the reason that their predecessors have failed to keep the records properly.' The intention of a corporation can be ascertained only by the language of its recorded acts ; and neither the private views nor the public declarations of in- dividual members can be inquired into." §166. Becord. — To show that additional territory had been added, the record showing the clerk of the district had re- ceived from the town clerk a document prescribing new bound- aries for the district, (town meetings having power to prescribe 1 Williams T. Lnnenbnrg, 21 Pick. ( MasB.) 75. SBartlett v. Kinsley, 15 Conn. 327. • Sch. Dint. T. Blakeslee, 13 Conn. 827. *Sherwin v. Bugbee, 17 Vt 337. 'Biggins T. Eeed, 8 Clarke, (Iowa) 898. •Bartlett t. Kinsley, 15 Conn. 387. RULES AND REGULATIONS. 197 new boundaries to school districts,) was evidence.^ An amend- ment of the records of a school district should not be made, on trial of a cause, shaping it to meet a decision of the court.' The records of a school district are evidence of its votes for such district, in a suit to which it is a party.' Bj-laws of board of education are repealed by subsequent statute that conflicts there- with.* In Mich, parol evidence is inadmissible to prove a resolu- tion of the district board, fixing the rate of tuition of non-resident pupils.* A clerk of a district cannot amend his records after his successor is qualified.' § 167. Rules and regulations. — (111.) A rule barring the doors of school-houses against . little children coming from a great distance, in the winter, for being a few minutes 'tardy, is unreasonable and unlawful, and, in its practical operation, is little less than wanton cruelty.' The officers may prescribe necessary rules for classification of pupils, as to studies they are following, and promotion, but cannot expel for refusing to study a required branch that could be omitted without interfering with the classes where the parent demands that it be omitted ;' and where trustees refused to admit pupil to high school unless he complied with rules as to course of studies, the request by parent as to excusing him from grammar recitals should have been complied with ;' where book-keeping was not one of the branches required by law but the board were authorized to have higher branches taught than those enumerated, and where a scholar refused to pursue that study and was ejected forcibly from the building, she was awarded damages ;' a rule suspending pupils for absence six half-days without a valid ex- lEichardsonv. Sheldon, 1 Finn. (Wis.T.) 625. SHadley v. Chamberlain, 11 Vt. 618. »Sch. Dist. T. Blakeslee, 13 Conn. 227. ♦People V. Van Siclen, 43 Hun ( N. Y.l 537. SThompaon v. Sch. Dist. No. 6, 25 Mich. 483. •Sch.Dir.v. Atherton, 12 Mete. (Mass.) 105. 'Thompson v. Beaver, 63 111. 350. 'Trustees v. People, 87 111. 303. «Euli8on V. Post, 79 111. 567. 198 PUBLIC SCHOOL LAW. cuse was held to be a reasonable rule.* (Ind.) A student is required to submit to any proper rule necessary for the good government of the institution.^ (Iowa.) If it is necessary for the good of the school that the pupil should study certain branches that the parent objects to his pursuing, the teacher has no power to enforce the rule of study by beating the pupil, but may expel or suspend.' Expelling a boy from school be- cause he accidentally broke a window playing ball and did not pay for it as required by a rule of board of directors, was not upheld by the courts.* Where a pupil was suspended for being tardy, it was held that rule was for the government of the school, and was proper and reasonable and within the power of the of- ficers to enforce.' (Me.) Expelling a Catholic scholar for not complying with a rule which required the use of the Bible in the school, was sustained, and the court held that it was a proper text-book, and not sectarian, and that the committee had the power to adopt and enforce it, the action was by the scholar ; and that the conscience of the father was not interfered with.' (Mass.) Kegulations forbidding attendance of immoral or licentious persons can be enforced, although the conduct of the persons may be proper while at school.' Where a pupil refused to obey the rule made by the committee, that the school should be opened with prayer and reading from the Bible, and that during prayer the pupils should bow their heads, but might be excused at request of parent, and a pupil was ex- pelled for refusing and his parent refused to request his being excused, his expulsion was sustained by the courts.' A parent sued a city for damages for the expulsion of his child, and the iChnrcUIl v. Fewkes, 13 Brad. K. 6: 'State V. White, 82 Ind. 886. » State V. Mizner, 50 Iowa, 152. *PerkinB v. Directors, 56 Iowa, 479. "Bendlck v. Babcocic, SI Iowa, 563. 'Donahoe v. Richards, 38 Me. 379. 'Sherman v. Charlestown, 8 Cneh. 160. 'SpiUer v. Wobam, 12 Allen, 127. EULES AND REGULATIONS. 199 committee had the sole power of expulsion, but had never acted, (the teacher had suspended the pupil for refusing to take a whipping for disobedience): the court held he should have first applied to the committee to see if they sustained the teacher, and failing to prove this he did not show his child had been expelled/ Where the board fails to record the rules it will not render them void.^ Suspending pupil for violating rules as to tardiness, was sustained, and the court held that this was a reasonable exercise of power by the teacher.' (Mo.) Kules be- yond the power of board to make will not be enforced.* A rule suspending pupils absent six half-days in four consecutive weeks without satisfactory excuse was sustained.* (N. H.) A teacher not having a license required one of the scholars to declaim, and on refusing obedience to the rule which was made by the teacher was ejected from the building, although the parent had requested the omission of that branch. The teacher was sustained, the court in that case refusing to follow the Wis. authority.' (Ohio.) Where a pupil was suspended for failing to observe a rule adopted by the board of education prescribing rhetoric, the court held the rule to be reasonable, and his suspension until he should comply with it or give a reasonable excuse, was proper.' (Pa-) A rule prohibiting an expelled student from attending public exhibi- tions given at the normal schools of the state is tyrannical, and cannot be enforced if the party conducts himself properly at the exhibition.'' (Tenn.) A teacher suspending a pupil for using tobacco in violation of rule adopted by the teacher, the directors objecting to that rule and discharged the teacher, the court up- I Davis T. BoBton, 133 Mass. 103. 'Rnssell r. Lynnfleld, 116 Mass. 365. •Knseell t. Lynnfleld, 116 Mass. 366. *Kmg V. JefE. City Sell. Bd., 71 Mo. 6i 'Kidder v. Cliellis, 59 N. H. 473. •Sewell V. Bd., 29 Ohio St. 89. 'Hnglies 7. Goodell, (Fa.) 3 Pitts E. 364. 200 PUBLIC SCHOOL LAW. held the board, they having the power to suspend scholars by law, the teacher in Tehn. only having power of temporary sus- pension.^ (Vt.) Where Catholic parents requested permission for their children to be absent on Catholic holidays, the rule of the committee suspending for absence was sustained ;' where teacher required pupil to write English composition, and suspended for not complying, the rule and power to enforce were sustained.' (Wis.) Where parent asked teacher to excuse pupil from study of geography and teacher punished the child for complying with request of parent and refusing to pursue that study, the court held she exceeded the authority given her by law and the assault on the child was unjustifiable.* § 168. Site, addition, and appeal. — The authorities may acquire lands adjoining the school-house lot, when necessary for an extension which has been duly voted.^ The Ind. statute authorizes appeals from proceedings by trustees to condemn school-house site, but in proceedings to condemn the decisicJn of the trustees cannot be attacked.' In N. H., on appeal to county commissioners as to location of school-house, their decision is conclusive as to location for five years.' In Iowa, where the state superintendent on appeal grants petition to district directors for removal of school-house, his decision is final, and mandamus will lie to compel the removal.' The decision of the commis- sioner, on appeal, is final. After confirmation by supreme court, another site cannot be chosen except by new proceedings.' The jurisdiction of county commissioners to hear petition from voters in district appealing from location of school-house, extends to towns in which tne district system has been abolished, in N. H." 1 Parker v. Sch. Dist., 5 Lea ( Tenn.) 525. sPerriter v. Tyler, 48 Vt. 444. aGui-rnsey v. Pitkin, 32 Vt. 236. 4 Morrow V. Wood, 85 Wis. 69. 'Couzens v. Sch. Dist., 67 Me. 280. SBraden v. McNntt, (Ind.) 16 N. E. 170. ' Stickney v. Town Oxford, (N. H.) 10 A. 117. SNewby v. Free, (Iowa) 34 N. W. 168. •Cottreirs Appeal, 10 B. I. 615. 10 Adams v. State, ( N. H.) 18 A. 331. SITE, CONTRACT. 201 § 169. Site, condemnation. ^An unqualified refusal to sell land selected by a committee as the location of a school-house, would be a sufficient refusal to justify the selectmen in setting off the land ;* and objections to the persons appointed, if known, must be made before the hearing.^ Seven days' notice in writ- ing is necessary to condemn, when district fails to agree and selectmen locate the site under K. S., ch. 23, § 30, and act 1848, Mass.' The Pa. act 1867, providing for the taking of land for school-house sites, is constitutional.' Where building commit- tee of selectmen choose a site, and on refusal to sell, a meeting was called to authorize the selectmen to select a lot, and it was voted that they are authorized to select a school-house lot from the land of H. heretofore selected by the town, this was not sufficient designation under act 1848, Mass.* In R. I. the ap- pointment of persons to value, or a tender of price for site of flchool-house before a vote of the district, is ineffectual to pass title, but location does not precede vote ;' and the tender of price •of land selected, if the owner lives out of the state, may some- times be made to the party in possession.' A petition to the county commissioners by the owner of land taken for a school- house, for increase of damages, estops him from an action for occupation of the lot on the ground of irregularities in condem- nation ;' and when the district has properly designated the lot, and applied to the owner to sell the same, and he has refused, the selectmen may appraise the damages at the time they lay out the lot, in Me.' The township, in N. H., should be made a party in an action to establish location of school-house.' § 170. Site, contract. — A contract made by the trustee on iTrne v. Melviii, 43 N. H. 603. ■«Sch. Dist. V. Copeland, 2 Gray (Maa«.) 414. »Long V. Fuller, 88 Pa. St. 170. * Harris v. Marblehead, 10 Gray ( MasB.) 40. ^Howland T. Scb. Dist., 15 B. 1. 184. > Gibbons t. East Granville, 4 Allen (Mass.) 508. ' Jordon t. Haskell, 63 Me. 193. •Couzens t. Sch. Dist., 87 Me. 280. •Loverin T. Scb. Dist., 64 N. H. 103. 202 PUBLIC SCHOOL LAW. the authority of a school district, to accept a conveyance of land to be used as a site for a public school, that the district should build and keep in repair the division fence, is valid, though made before any tax to build or repair the fence had been voted.* A statutory prohibition against board of education buying school- site does not prohibit a lease of temporary site.' In N. H. a location made by a committee is not conclusive; the proper notice of a location to be given of a hearing before a commit- tee, to individuals and to the district, is the same as for the ser- vice of process ; and a selectman cannot act in the appointment of a committee, where his brother is a party." § 171. Site, conveyance. — The grant made by the town of Ipswich, in 1650, in trust for the use of a school in that town, conveyed a fee, although it contained no words of limi- tation.* Where a site is bought with the restriction that no building should be erected to stand in front of the line of the school-house and another building, and the deed contained the restriction that no erections should be made upon said land be- tween the school-house and the highway, there was no variance to bar a recovery for the price •,' and one restriction, imposed by the plaintiffs in their proposal, was, that the land should be kept open ; in the deed it was expressed that the land should re- main as a public common, and in the declaration the restriction was expressed as in the deed. This difference constituted no objection to the plaintiff's recovery.' A conveyance of land to a town for the purpose of having a school-house erected and a school taught therein, for the benefit of the youth of the town,, for a term specified, imports a sufficient consideration ;' and an 1 Albright v. Biker, 22 Hnn (N. T.) S67. "Millard v. Bd. Bd., 19 111. App. 48. •True T. Melvin, 43 N. H. 503. 'Feoffees Sch. v. Andrews, Sltletc. (HaBB.)684. 'Dix V. Sch. Dist, 22 Vt. 809. •Dixv. Sch. Dist. No.2 in Wilmington, 22Vt. 309. 'Castleton v. Langdon, 19 Yt. 210. SITE, ELECTION. 203 action of trespass quare clomsum^ may be maintained in the name of the town ;' and if the town erects upon the land a Bchool-house, in which a school should be kept for a reasonable portion of the time, it wUl not forfeit a part of the land, although it should use that portion of it not wanted for the ac- commodation of the school-house, for purposes not connected with the main object in view, as if it should lease it for culti- vation, or a building for a fire engine, or hay-scales should be put upon it, or it should be used as a passage-way, or be used for the purpose of accommodating teams, or a corner of a meeting-house were allowed to rest upon it, without dissent, or a room in the same building occupied as a school-house, should be finished and used by the town for the purpose of holding town and other public meeting ; such conveyances are are always construed liberally.' § 172. Site, election. — Under the N. J. act of 1888, author- izing vote by the district to purchase land and build school- house, the trustees must first designate what lands are to be purchased, and this is to be approved by the voters, and the notice for the meeting must describe the lands." Wagner's (Mo.) Stat. 1244, § 12, construed not to permit the directors to fix the site at their own discretion.' A school district voted to repair its school-house and to buy lands enough to straighten the line west of the school-house this was a sufficient location to give the county commissioners jurisdiction of a petition to change the location.* By Comp. Stat. Vt., ch. 20, § 38, the majority vote of the school district has the right to locate a school-house.' Under E. I. Pub. St., ch. 56, § 5, the selection iCastletonv. Langdon, 19 Vt. 210. •State V. Trs., (N. JJ 18 A. 683. •Seibert T. BottB, B7 Mo. 430. 4Holbrook v. Fanlkner, 55 N. H. 311. 'Bean v. Prad. Comm., 38 Vt. 177. ■204 PUBLIC SCHOOL LAW. •of a Bchool-house site is not a condition precedent to vote to build, and a vote to build on that lot is not a condition pre- cedent to condemnation/ Under the vote of a district, request- ing the selectmen to fix the location of their school-house, the action of the selectmen is not compulsory on the members of the district.' The board of trustees in Dak. has no power to acquire a school-house site, except as designated by the voters of the district at a district meeting, and warrants issued therefor are void.' Section 17 of the act of 1856, Conn., to "provide suitable school-rooms," does not qualify the law which requires a vote of two-thirds to establish or change the site of a school- house.* Where more than one-third of the voters of a school ■district object, by their votes, to the place selected for the loca- tion of the school, the clerk of the district is required, by Me. Rev. Stat., ch. 11, § 32, to make a record of such fact.' In N. Y, the site must be designated by the inhabitants in a district meeting, and such power cannot be delegated to trustees.' The N. J. act of 1880 requires majority vote of taxable residents of district to buy land for school-house, or build, and § 86 of school law is repealed by implication.' Extra rooms cannot be rented and used by board of directors without a vote of the district, in Missouri." § 173. Site, injunction. — The removal of school-house to another site before proper steps required have been taken, will be enjoined at the suit of a tax-payer whose taxes will be in- creased thereby ;" but a private person cannot prevent removal of school-house unless he shows special damage to himself ;" and school district will not be enjoined from erecting school- iHowland v. Sch. Dlst., (E. I.) 8 A. 337. 'Tozier v. Sch. Dist. No. 2, 39 Me. 556. s Fanners Bk. T. Sch. Dlst., 6 Sak. 265. ••Colt V. Eoberts, 28 Conn. 330. 'Norton v. Perry, 65 Me. 183. ' 'Benjamin v. Hull, 17 Wend. (N. Y.) 437. 'Point P. L. Co. V. Sch. Dist., 47 N. J. L. 235. 'Black T. Cornell, 30 Mo. App. 641. •Graves v. Jasper Tp., (S. D.) 50 N. W. 904. "Parody v. Sch. Dist., 16 Neb. 514. SITE, PLACE. 205 house on a certain site, at instance of person not affected ;' and a resident tax-payer cannot sue tke directors for illegal location and purchase of school-site without first making demand on proper parties to sue, and his remedy against an illegal location is by appeal rather than injunction.' Discretion allowed offi- cers will not he controlled though it may be exercised unwisely f but where vote of electors is required before changing site or building of new site, an attempt to act without vote should be enjoined.* § 174. Site, notice. — A committee to locate may be ap- pointed without notice to other parties.' The certificate of the officers of a town, of their determination where a school-house is to be placed, is, after the application, notice to all parties, and a hearing, as required by the Me. Kev. Stat., ch. 11, § 32, and conclusive.' § 175. Site, officers. — When location of a school-house by selectmen is returned to the town clerk for record, no subsequent neglect of the town clerk to make a due record will affect the vab'dity of such location ;' and where a site has been chosen, ir- regularities of the clerk or omissions in describing the site selected wUl not invalidate.' Under the school act of Ohio, Mch. 14r, 1853, the township board of education has the power to designate the particular places where school-houses in sub- districts should be built ; and the powers of the local directors of a sub-district are to be exercised in subordination to the township board of education.* § 176. Site, place. — The trustees of a district were liable in trespass for assessing and trying to collect a tax voted to raise iNixon V. Sch. Diet., 32 Kas. 510. •Ind. Sch. D. v. Qookin, ( Iowa) 34 N. W. 174. •Witherop v. TitusvUle Sch. Bd., 7 Pa. Co. Ct. Bep. 46. iBachaoanT. Hannibal Sch. D., 85 Mo.App.85. »Trne v. Melvin, 43 N. H. 503. •Morton v. Perry, 65 Me. 183. 'Converse v. Porter, 45 N. H. 385. 'Merritt v. Farrise, 22 HI. 303. •Hughes T. Bd. Ed., 13 Ohio St. 338. 206 PUBLIC SCHOOL LAW. money to purchase a site and build a school-house on a site of different location, where the previous consent of the commis- sioners of common schools had not been obtained to change the site.' The trustees of the town of Poplar Plains, under act Ky. of Feb. 28, 1860, and pursuant to vote of the town, sold a lot and school-house, the title to which was in the trustees, and invested the pi-oceeds in the purchase of a seminary lot and buildings just outside the corporate limits of the town; they were not required to make the reinvestment in property within the corporate limits of the town, and after acquiescence for sev- eral years, the trustees were not personally liable." If a loca- tion is void, by reason of its insuflBcient and defective description, the district must proceed anew.' The municipal officers in Me. have ten days within which to give their certificate to the clerk of the district of their location of the place ; they may change their certificate, and agree if their certificate is not recorded, if their determination is duly filed within ten days.' The school inspectors of Peoria have power to maintain a school in a house beyond the city limits for children living within them.* § 177. Site, sale. — Under Pa. act of 1836, whether prop- erty is any longer required for school purposes is a question within the discretion of the school directors.' The N. H. law of 1871, providing for relocation of school-houses, is not un- constitutional.' § 178. Site, tax. — One cannot resist a school tax on the ground that the title to the land purchased for the school build- ing is defective, if there is no ouster of possession.' In N. Y. a tax to build may be collected before the site of the school 'Baker v. Freeman, 9 Wend. (N. T.) i » Samuels T. Trs., 4 Bush (Ky.) 252. 3 Norton T. Periy, 65 Me. 183. -Manlove r. McHatton, 6 Ul. (4 Scan.) 95. *Sima T. McClare, 63 Ind. 267. » StatB V. Earhart, 37 Ind. 119. •Hammond T. Crawford, 9 BnBh (Ky.) 75. 'Denniaton T. Sch. Dist., 17 17. H. 493. SUIT, PARTY. 211 school-money raised by the town, assigned by the selectmen and paid to the committee.* The trustees of the schools of the town- ship may sue in equity in matters aflEecting lands held by state for township common schools ;' and a suit may be instituted by the state on the relation of the board of commissioners for the recovery of congressional school funds.' In a suit on a bond of an ex-school commissioner for not paying over the funds in his hands, the successor of such ex-school commissioners should be the relator.* In Ind., under act of 1838, the treasurer of a district could not sue in his own name for money due to the district.' The county auditor is a proper relator in a suit to collect money loaned by the county auditor, belonging to school fund.' A suit for teachers' wages must be brought against the district by its corporate name and not against the trustees as such.' The school commissioners of the townships of Ala. may sue as such, and the suit may be styled school commissioners of the township, giving number and range.' One commissioner, as such, cannot recover from another the money belonging to the school fund, in his hands ;° but any legal voters of the town- ship, in Ala., may sue school commissioner for funds in his hands which he fails to pay over as directed by law.' The board of education of Troy cannot aid the payee, the chamber- lain, in collecting a draft drawn by the board for school expenses, and not countersigned by the comptroller nor audited by the common council." § 185. Suit, party. — The director of a district, under Neb. G. S. 968, may bring an action for the price of bonds sold by » Sch. Dlst. T. BBty, 16 N. H. 146. •Moore t. Sch. Tra., 19 ni. 8? •OroTes T. State, 9 Ind. 200. * State T. Grant, 7 Blackf. (Ind.) 71; Wright T. State, 7 Blackf. (Ind.) 63. 'Cia?rfoTdy. Sean, 6 Blackf. (Ind.) 181. •Scotten V. State, 51 Ind. 52. ' Sproul v. Smith, 40 N. J. L. 314. 'Sch. Comm'rfl v. Sean, 2 Stew. & P. (Ala.) 190. •Burns t. Minter, 12 Ala. 316. 10 Johnson T. Troy, 19Hdii (N. T.) 204. 212 PUBLIC SCHOOL LAW. that district.* In 1858, in Oreg., a suit to enforce the obliga- tion of a note and mortgage given for a loan of school funds should be brought in the name of county treasurer.'' A suit to recover a fund belonging to the county school board must be brought in its corporate name, in Va.' School board cannot, after a verdict, object to the regularity of the proceeding on account of appearance, by consent of the board, to the action.* The provisions of Wis. Laws 1869, ch. 182, make a town board organized under its provisions the legal successor of the previous board, and authorize it to sue for moneys due to the former board.' The district board have no authority to take the de- fense of a suit from the assessor; the control of suits is not among the powers of duties confided by the statutes to the dis- trict board, in Mich. (C. L. 1871, § 3613.)' In Miss, the county superintendents succeeded, under the new constitution and the laws of 1870, to the rights and powers of the former boards of trustees, and should sue for moneys due to such trustees for lands sold by them.' Under N. H. K. S., chs. 70, 73, a school district may sue a prudential committee after its term of office for neglecting to appropriate to the support of schools money received by him belonging to that district.' Some of the inhabit-, ants of a district may, in behalf of themselves and others, sue to test the constitutionality of the law creating the district, and the legality of the proceedings of its officers under it ;' but one tax-payer cannot sue in behalf of himself and the others to re- strain the sale of their real estate for the purpose of collecting a delinquent tax assessed to pay certain judgments against the district, on the ground that the judgments were obtained on iBowen v. Sch. Dist., 10 Seb. 265. 'Alexander v. Knox, 6 Sawyer C. Ct. 64. 8 Stewart v. Thornton, 75 Va. 315. ♦Thompson v. Sch. Dist., 71 Mo. 495. »SclL Dire. Sigel v. Coe, 40 Wis. 103. »Sch. Dist. T. Wing, 30 Mich. 361. ' Simmons v. Holmes, 49 Miss. 134. «Sch. Dist. V. Sherbnme, 48 N. H. C •Bull V. Kead, 13 Qratt. ( Va.) 78. SUIT, PARTY. 213 illegal and void school orders, etc. Each tax-payer must bring his several action ; ' and the owners of the several judgments sought to be declared void should all be made defendants.* § 186. Suit, party. — Prudential committees of themselves cannot sue ; and the vote of a district to stop an action does not render it liable for prior expenses in prosecuting it without authority.* The answer by clerk and director of school district was held to be the answer of district.' In Yt. the district alone, and not inhabitants, can bring action of trespass qua/re cla/usum fregit} Where a suit was brought against a school district for money borrowed by them to raise money for the township to pay bounties, the record might be amended by substituting the township.' An incorporated town, sued as a school corpora- tion, may be designated either in the title of the action as a school corporation, or in the complaint by an allegation of that fact.' A complaint cannot be brought against the trustee of a civil township to compel him, as such, to erect a school-house within ite territorial limits; it must be against the trustee of the school township.' The board of trustees of the normal school at Oskaloosa, Iowa, organized under act of Jan. 15, 1849, was not a body capable of suing or of being sued.' In an action on a school order of a district township which has been subsequently reorganized into independent districts, the court may render judgment against the several independent districts, and issue a mandamus commanding the directors to assemble and apportion the same among the several judgment debtors;* but either of the districts may maintain an action against the others for contribution if the apportionment is erro- iNewcomb T. Horton, 18 Wis. 566. 'Burgess v. Sch. Dlst., 100 Mass. 132. »Sch. Dist. T. CarsoD, 10 Kaa. 238. * Chaplin v. Hill, 24 Vt. 528. 'Heidelberg v. Herat, 62 Pa. St. 301. •NoblesTille v. McFarland, 57 Ind. 336. 'Hornby t. State, 69 Ind. 102. 'Drake v. Bd. Trs., 11 Iowa, 54. • Asbury Ind. Sob. Diet. v. Dnbuqne Co. Diet. Ct., 48 Iowa, 182. 214 PUBLIC SCHOOL LAW. neous.^ The president of the board of directors of a school district, in absence of statute otherwise, has authority to receive service of process in a suit against the school district.'' An action prosecuted by superintendent of education for La. must be prosecuted by attorney general or district attorney, or it should be dismissed.' The board of trustees of schools under 111. Laws 1865, § 39, can alone maintain an action for a trespass thereon, although not themselves in actual occupancy.* § 187. Superintendent public instruction. — Advice of state superintendent is no defense for unlawful act of trustee depositing money in bank.' The law of Wis., giving state superintendent jurisdiction of appeal from division of districts on decision of town boards is valid ;' and he may make such rules for hearing of cause before him as to him may seem proper, defining the manner of presenting the case, and requir- ing written briefs and refusing oral argument, when the statute does not otherwise direct ;' and the state superintendent of Ind. has jurisdiction of appeal on location of site under* laws of 1865.' The decisions of a state superintendent are entitled to much weight ;' and his decision on appeal annulling certificate of teacher for cause is valid and final." The state superintend- ent in La. may consider payments erroneously made when he makes a proper apportionment." The state superintendent of N. T. cannot determine appeal from apportionment by board of town auditors, (under acts 1864 and 1870.)" "Where a trustee had brought a proceeding to compel the managers of a normal school to pay certain moneys to teacher employed by the trus- 1 Kennedy v. Derby Grange Ind. Sch. Dist., 48 Iowa, 189. »Carr v. Sch. Dist., 42 Mo. App. 151 'Pay V. Jumel, 35 La. Ann. 368. ♦Barber v. Sch. Trs., Bl 111. 396. 'Inglis V. State, 61 Ind. 212. estate v. Whitford, 54 Wis. IBO. ' State V. Cnster, 11 Ind. 810. 8 State V. Bnrton, 45 Wle. 150. •People V. Collins, 34 How. (N. T.) 336. "State V. Fay, 36 La. Ann. 241. "People V. Bd., 37 (N. T.) N. B. 968. SUPERINTENDENT PUBLIC INSTRUCTION. 215 tee, the refusal of tlie trustee to abandon such proceeding when requested by state superintendent, justified his removal by the state superintendent, under L. N. Y. 1864, ch. 565/ The terri- torial superintendent of Utah is appointed by the governor under the organic act.' The superintendent of public instruc- tion may correct mistakes in his rulings if rights of other parties do not intervene.' § 188. Superintendent public instruction. — In the case of People V. Draper, 18 N. T. S. 282, it was held : "-Bemoval of School Trustee — Powers of State Bv/pervntendent. — Where the return of a trustee of a school district to an order made by the state superintendent of public instruction, requiring him to show cause why he should not be removed from his office, admitted that he had neglected and refused to comply with and had violated certain orders of the superintendent, he was properly removed from his office, under Laws 1864, ch. 655, § 18, authorizing such removal in case of the willful disobedi- ence of any decision or order of the superintendent on the part of the trustee. The question whether or not the trustee should discontinue a proceeding which he had brought against the local board of managers of a normal school to compel them to pay over certain public school-moneys they had received, to teachers employed by the trustee, was one upon which the de- cision of the superintendent was conclusive; and the refusal of the trustee to abandon such proceedings, when directed so to do by the superintendent, constituted willful disobedience, justify- ing his removal. . . , The return of the defendant is con- clusive as to the facts therein set forth. (People v. Fire Comrri'rs, 73 N. Y. 437.) That return set forth that the relator appeared iPeople V. Draper, 18 N. T. S. 282. I 'Desmond y. Ind. S. D., (Iowa) 32 N. W. 6. sWilliamsv. Clayton, (Utali) 21 P. 388. | 216 PUBLIC SCHOOL LAW. in person and by counsel before the defendant on the return- day of the order hereinbefore referred to, and by the return and by the statenient of his counsel admitted that he had vio- lated that and a previous order of the superintendent, and had neglected and refused to comply with the orders of the super- intendent ; and that he had advised teachers to commence suits against the district for their wages, instead of levying a tax to raise the money to pay them, as the superintendent had ordered him to do. As above stated, the facts stated in the return are conclusive upon the court here; and these facts, being true, abundantly justified the defendant in removing the relator from office. The proceeding was perhaps summary, but the facts were admitted ; there was no occasion for proof. " But it is claimed that there are facts stated in the affidavit upon which the writ was issued which are not denied in the re- turn, and therefore the court may consider them, under the case of People V. Commissioners Dept. Fire amd Buildings, 106 N. Y. 64, 12 N. E. Kep. 641. The claim of the relator is that the real reason the defendant removed the relator was that he refused to discontinue a proceeding he had brought to compel the local board of managers of the normal school at New Paltz to pay over the public school-moneys they had received to be paid to the teachers employed by the relator. Even if that were so, I see no reason to reverse the order of the superin- tendent. He had made a decision of that question himself. It was in a matter over which he had jurisdiction. He also there and then made a decision in regard to the matter, and it was in a matter where the statute made his decision conclusive. The conduct of the trustee as to school matters was also subject to his supervision and control. He then and there made an order. SUPERINTENDENT, COUNTY. 217 'which he had a right to make, directing the relator to abandon his proceedings against the local board of managers of the normal school. The relator then and there refused to abandon the proceedings, and expressly announced, by his counsel present with him, his intention of continuing such proceedings. This, I think, constituted a willful disobedience of an order or decision of the superintendent, within the meaning of the statute. *WilLful,' I think, in this statute, means intentional, {Anderson v. Rmjoe, 116 N. Y. 336, 22 N. E. Kep. 695 ;) and the relator cer- tainly intended to disobey the defendant's order. It was not a case of neglect, omission, or misapprehension, but of absolute refusal, and an announcement of an intention of doing directly the reverse of what he was ordered to do. The writ should be quashed, and the determination of the defendant affirmed, with $50 costs and printing disbursements." § 189. Superintendent, county. — Where the rights of a citizen are involved in matters required to be submitted to the county superintendent on appeal, the court may determine whether the exercise of such authority is lawful.' In Neb. the county superintendent must apportion the fund before the county treasurer can pay out credits of the county school fund.' The county superintendent may be compelled to perform his duty by mandamus;' and in Ind. he must execute a special bond under the text-book law.* In Iowa he cannot recover compensation for examining teachers at any other than at the time required by law ;° and his salary may be regulated in.Tenn., under acts 1873, by county court.* A vote by township trustee for himself for the office of county superintendent is void, and iPerklne t. Dire., 56 Iowa, 476. 'DonneUy v. Dnias, 11 Neb. 383. » Brown V. Nash, 1 Wy. Ter. 85. *Knox Co. T. Johnson, 24 K. B. 148. 'Farrell v. Webster Co., 49 Iowa, 245. •Halle v. Toung, 6 Lea (Teon.) 601. 218 PUBLIC SCHOOL LAW. contrary to public policy.* The Miss, act providing for election of county superiutendents in only a part of the ^Btate, is not void." Discretion of, canifot be controlled by courts ; ' but he has only such powers as are given by statute ;* and when he is dismissed from office and appeals, he cannot act pending appeal.* Trustees, in Ind., should appoint superintendent on the day fixed by law, or adjourn from day to day.' In that state, to be eligi- ble for county superintendent, he must have been an inhabitant of the county one year prior to appointment.' If county judge refuses to permit school commissioner to qualify, he may be compelled to by mandamus.' Appeals on school questions in N. J. are to the county superintendent," but in Ind. no appeal lies from action of trustee contracting or dismissing teacher in city or town ;'" and he cannot compel the erection of a school building on land not owned by township." He is not liable in damages for changing district on proper petition.*^ The election of superintendent by town school committee may be reconsid- ered before he has been informed of his election.-'' An officer ostensibly a principal, cannot be employed by board directors in Pa., whose duties are same as district superintendent." Un- der N. J. Rev., p. 1071, a dispute over election of a trustee may be submitted to county superintendent for opinion, but the state superintendent is to try and decide the matter in dispute.'* The failure of school superintendent to give bond, under Ind. act March 2, 1889, will not per se forfeit the office." §190. Superintendent, county. — Although the county iHomung v. State, 116 Ind. 468. sWynn v. State, (Mise.) 7 So. 353. SBrinsmore v. Cottineham, 11 Ky. L. E. 488; Bailey v. Ewart, 52 Iowa, 111. *EatclifE V. Farie, 6 Neb. 539. 'WallB V. Palmer, 64 Ind. 493; Matthews v. Chase, 41 Ind. 357. •State V. Harrison, 67 Ind. 71; Sackett v. State, 74 Ind. 487. 'State V. Kilroy, 86 Ind. 118. 8 Greenup Co. Ct. v. Clifton, 5 Ky. L. H. 241. •State V. Gloucester City, 45 N. 3. L. 100. '"Crawfordsviile v. Haye, 42 Ind. 206. "Koontz V. State, 44 Ind. 323. i^Sch. Dist. T. Wheeler, 25 Neb. 199; Cowles. V. Sch. Dist., 37 N. W. (Neb.) 493. I'Wood V. Catter, 138 Mass. 149. i*Delano Land Co.'s Appeal, 103 Pa. St. 347. "State V. Albertson, (N. J.) 22 A. 1083. i«Knox Co. V. Johnson, (Ind.) 24 N. B. 148. SUPEKINTENDENT OF SCHOOLS. 219' auditor is authorized, in Ind., to cast a vote for county superin- tendent in case of a tie, yet he cannot vote on a resolution to- change vote by ballot to yea-and-nay vote, and cannot vote ■when half the trustees vote for one and the other half vote blank or for a fictitious person.^ Where superintendent of public instruction was authorized to remove any county super- intendent "whenever in his opinion the interests of public edu- cation demanded such removal," no notice need be given or charges made, and a removal by him and appointment of an- other to fill vacancy will be upheld." The action of the county superintendent in regard to changing boundaries is discretion- ary, from which an appeal will lie ; but his judgment cannot be controlled by mandamus,' as courts are not disposed to inter- fere with the exercise of mere discretionary authority.* A school board may employ a superintendent whose term of oflBce does not begin until after some of the members of the board go out of office f and the Ind. statutes do not limit the board of school trustees, in contracting with superintendent, as to the time the board shall continue in office." A county su- perintendent should keep his accounts itemized.' The board of directors of public schools in the city of Olney, 111., were re- quired to establish and keep up a system of graded schools in the city; by necessary implication from the duties imposed upon it, the board had authority to appoint a superintendent.' § 191. Superintendent of schools. — In the case of Davis- V. School District No. 1, of the City and Township of Niles, 46 K W. Kep. (Mich.) 989, it was held, Cahill, J.: "Under 1 state V. Edwards, (Ind.) 16 N. E. 627. s State V. Shaver, 54 Ala. 193. •State T. Clary, 25 Neb. 403. • Smith V. Comm'rs, 10 Col. 17. 'Kenbelt v. Noblesville, 106 Ind: 480; Wait v. Eay, 67 N. T. 38; Tappan v. Sch. Diet., 44 Mich. 500; Webster v. Sch. Diet., 16 Wis. 337; Gates V. Sch. Dist., 5.SArk. 470. •Eenbeltv. Noblesville, 106 Ind. 478. ' Smith V. Comm'rs, 10 Col. 17. 8 Spring V. Wright, 63 111. 90. ■220 PUBLIC SCHOOL LAW. How. St. Mich., § 5134, par. 6, authorizing the board of school trustees to employ such officers and servants as may be neces- sary for the management of the schools and the school prop- erty, to fix their compensation and prescribe their duties, one employed as a superintendent, not being a teacher, is not re- quired to have the certificate required by law to qualify one for employment as a teacher. . . . In an action for compen- sation by one employed by a director as superintendent, it ia ■error to exclude evidence that the board of trustees, which alone has authority to make a contract for such employment, knew of his services in that behalf and acccepted them. . . . The plaintiff sued the defendant, being a graded-school district, to recover for services rendered during the months of April, May, and June, 1887, as superintendent. Paragraph 5 of f 6134 authorizes the board of trustees to employ such offi- cers and servants as may be necessary for the management of the schools and the school property, prescribe their duties, and fix their compensation. Under this provision the person em- ployed is not required to be a teacher, nor to have a certificate as a teacher. We think the plaintiff, if duly employed to render the services he claims to have rendered for the school district, was not disqualified from receiving compensation there- ior, by the fact that he had no certificate as a teacher. The doubtful question in the case is as to whether the plaintiff was legally employed to perform the duties for which he seeks com- pensation. It is clear that he was not, in the first instance, so employed, because such employment is required to be made by the board of trustees, and one of such trustees, acting as di- rector, could not lawfully employ the plaintiff so as to biud the district. But, as this contract of employment was one which the board itself could lawfully make, the question arises as to SUPERINTENDENT OF SCHOOLS. 221 «■ . whether, if the plaintiff actually performed the duties with th& knowledge and consent of the board, and the district received the benefit of his services, the law will not imply a promise on the part of the district to pay what such services were reason- ably worth. Cases are not wanting which hold that municipal corporations may become liable upon an implied assumpsit. Where a' municipal corporation receives money or property of a party under such circumstances that the law, independent of express contract, imposes the obligation upon the corporation to do justice with respect to the same, it has been held that it may be liable to an action. (Argenti v. San Francisco, 16 Cal. 265.) In the case just cited. Chief Justice Field says that in reference to services rendered, the case is different. "Their acceptance must be evidenced by ordinance (or express corporate action ) to that effect. ... If not originally au. thorized, no liability can attach upon any ground of implied contract. The acceptance upon which alone the obligation to- pay could arise, would be wanting." I do not see why any distinction should be made between services rendered and ap- propriated by municipal corporations, and any other property so received and appropriated, except that it might be more, difficult, in the case of services rendered, to show an actual acceptance and intentional appropriation than in the case of tangible property. But, if the proof showed that the services were actually accepted by the corporation with full knowledge of aU the facts, I think the same rule ought to apply to services rendered that would apply to money or other property. It '^oes not appear what the plaintiff could have known as to the services having been performed with the full knowledge and. assent of the board of trustees. The offer of proof by him on •222 PUBLIC SCHOOL LAW. this subject was rejected, and we think erroneously. For this •error, and also for the direction of the court that the jury should return a verdict for the defendant, the judgment must be reversed, and a new trial granted." ' § 192. Supplies. — Where township refuses to receive sup- plies on the ground that they are not needed, an assignee of holder of the certificate cannot recover, although he and the seller act in good faith.^ A complaint on note given by Ind. school trustee must allege that the consideration was necessary, ithat the articles were suitable, and that they were received and Accepted ;' and evidence of the usefulness and necessity of school supplies, as to the particular township to which they were fur- nished, is material in an action for the price.' Where there ■was conflicting evidence as to the delivery of the supplies, and whether they were necessary for the common schools of the township, three of defendant's witnesses testifying that the in- ;struments sold were not useful, a verdict for the defendant will not be disturbed ;' and a school commissioner and superintend- ent for the county, and a person who has followed farming in the summer and taught school in the winter in that township, •are competent to testify as to the usefulness and necessity of such supplies in the township ;' and a trustee may refuse to fur- nish any supplies or teachers when the school is not leased or owned by the school township, notwithstanding orders from ■county superintendent, and vote of district.* To enable board directors to buy supplies authorized by Iowa Code, § 1729, the purchase must be made with cash actually in the treasury at the time and unappropriated." Iowa statute requiring physiology 1 Boyd T. Mill C. S. Tp., ( Ind.) 18 N. E. Bll. I < State v. Sherman, 90 Ind. 123. 'Eeeve Sch. Tp. T. Dodson, 98 Ind. 497. 'Naggy v. Dist. Tp. Monroe, (Iowa) 45 N W. ■'Llttonv.Wri^tScli.Tp., (Ind.)87N.B.3a9. | 5S. , v " ; "• " SUPPLIES. 223 and hygiene to be taught does not authorize board of directors to purchase records, maps, etc., except out of the unappropriated funds, or to contract any debt therefor ;^ and where a contract was made with members of a district board for a certain book, and ratified at a board meeting, and at an annual meeting the board were authorized to place a copy of the book in each sub- district in the township, and afterward the board at a regularly called meeting repealed the ratification of the contract, it ap- pears that it was an individual contract of the members, and the ratification was not binding.' Neither the board of directors of a district township, nor the directors of a sub-district, have the power to contract for insurance of school-house, without a vote of the district.' The board of directors of a district township cannot contract for lightning-rods for school -houses, without vote of the district,* and an order drawn on the treasurer for such purchase is invalid.^ § 193. Supplies. — Where the district board of a township, without authority from the electors, purchased maps and other apparatus, the subsequent use and failure to repudiate the con- tract would not amount to a ratification.' In Kas., school- district board cannot bind the district for stereoscope, without vote, and the burden of proof is on plaintiff to establish vote ;' but a director and clerk of school district purchasing school apparatus without authority, are not personally liable, the parties having notice.' A district in Me. has not the power to con- tract for fuel." School charts were held not to be necessary appendages to the school-house, within Mich. Comp. L. 1871, » Wolf v. Ind. Sch. Diat., 51 Iowa, 432. 1 Naggy V. DIst. Tp. Monroe, ( Iowa) 45 N. W. 553. 'Western Pub. H. v. Dlst. Tp., (Iowa) 50 N. W. 551. •American Ine. Co. v. Willow, 55 Iowa, 608. ♦Monticello Bank v. Coffin's Grove, 51 Iowa, 350. • Taylor v. Wayne, 25 Iowa, 447. 'Sch. Dist V. Perkins, 81 Kas. 536. •Watson V. Pickard, 25 Eas. 682; Duncan v. Klles, 33 111. 532; Mann t. Bichardaon, 66 111. 481; Abeles v. Cochran, 22 Kas. 405. ° Sates T. Sch. Dist., 33 Me. 170. 224 PUBLIC SCHOOL LAW. § 3618 ;^ and occasional use in the school cannot operate as a ratification ;* or impose on the district any obligation to pay for them.'' A custom of a district to apportion the wood itself to the scholars, and, if there was a deficiency, to sell the right of supplying it to the lowest bidder, was not binding upon the prudential committee, in the absence of any vote of the district on the subject.' He might supply the deficiency himself, and charge the price to the district, but could not assess the amount on the scholars or the district without a vote." The use of seats in the school-house is no proof that the district has ratified the purchase, where it does not appear that the board ever presented any account for such seats to the district for allowance.* The treasurer need not honor a warrant signed by clerk and district director for fuel, when it is the duty of the board to provide and the board has not acted." The certificate given by inde- pendent township trustee for necessary supplies binds the cor- poration ;° but evidence of the usefulness and necessity of the supplies, as to the particular township to which they were fur- nished, is material, and all persons dealing with a trustee are bound to know he can bind his township only by contracts authorized by law.' §194. Supplies. — In Mich, the trustees of graded school may contract for piano for high -school purposes.' An inde- pendent school district may provide for teaching of music and the board of directors have authority to contract for the pur- chase of a musical instrument, to be paid for out of any unap- propriated funds of the .district ;' and in an action for the price, 1 Gibson v. Sch. Dist, 86 Mich. 404. •Johnson v. Sch. Dist. No. 1, 67 Mo. 319. •Norton V. Tinmonth Sch. Diet., 37 Vt. 521. *Kane v. Sch. Dist., 52 Wis. S02. •Doyce t. Gill, B9 Wis. S18. •Miller v. White Kiver, 101 Ind. EOS. ' Litton V. Wright Sch. Tp., ( Ind. ) 27 N. E. 38B. •Knabe v. Bd. Bd., ( Mich.) 34 N. W. 668. •Bellsmeyer v. Ind. BisL Marehalltown, 44 Iowa, £64. SUPPLIES. 225 the court will presume that there were unappropriated funds of the district on hand at the time the purchase was made.* Pur- chase of flag is authorized in N. J.' A complaint for furnishing school supplies must show necessity, delivery, and acceptance.' District will be liable in Mich, for contract by one director for fencing land inclosing school-house site ; it is a necessary ap- pendage.* A purchase of a mathematical chart by a district board, where such chart may be considered both an appendage and an apparatus, is not illegal ;' and at the annual vote for tax for school appendages the district may ratify acts of board sim- ply irregular in purchasing charts.' The division of the school fund by Iowa statute into teachers', school-house, and contin- gent, is an appropriation of the latter to statutory purpose of rent, fuel, and repairs, and all other contingent expenses neces- sary for keeping the school in operation as regards empowering directors under Code, § 1729, to use unappropriated for maps, etc." School warrants issued by a school board under the pro- visions of S. D. Laws 1879, ch. 14, § 62, in payment of neces- sary appendages for a school-house during the time a school is taught, are prima fade valid claims against a school district, and in the absence of evidence to the contrary, the law will pre- sume that they were lawfully issued.'. Under the 111. statute, school directors may appropriate to the purchase of libraries and apparatus any surplus funds, after all necessary school ex- penses are paid, and the form of the orders to be drawn by them on the treasurer of the township, as prescribed by statute, must be followed.' iBeUsmeyer v. Ind. Dist. Mareliantown, 44 Iowa, 564. »N. J. L. 1890, ch. 177. • Bloomlngton v. Nat. Sch. P. Co., 107 Ind. 43. *CreagerT. Wright Sch. Dist, 62 Mich. 101. 'Sch. Diet. v. Swayze, 29 Kas. 211. —15 •Taggy T. Diet. Tp. Monroe, (Iowa) 45 N. W. 553 'Edinburgh- Am. L. & M. Co. v. Mitchell, (S. D.)48N.W. 131. 8 Clark T. Sch. Dirs., 78 111. 474. 226 PUBLIC SCHOOL LAW. § 195. Supplies.— Z»«m. v. Wright School Tp., (Ind.) 26 N. E. 667 — Elliott, J. : "Our decisions aflSrm that, to entitle a plaintiflE to recover for personal property sold to a township trustee for school purposes, it must be shown that the property was delivered to the school township or its officers : School Tp. V. Barnes, 119 Ind. 213 ; Bloomington School Tp. v. National etc. Co., 107 id. 43 ; State v. Homes, 112 id. 328 ; Bmjd v. School Tp., 114 id. 210 ; Union School Tp. v. Fi/rst Nat. Bank, 102 id. 464. A note or other obligation executed by the trus- tee does not bind the school corporation, for it is only bound where the school supplies are actually furnished : Union School Tp. V. First Nat. Bamk, supra ; Chrknsley v. State, 116 Ind. 130. The notes or certificates issued by a township trustee do not, under the law declared in the cases referred to, preclude the school township from proving the actual or true value of the property purchased by the trustee. If iu fact the property is valueless, nothing can be recovered. The rule which prevails in ordinary cases where parties fix the value of property by the exercise of their own judgment does not apply to the purchase of supplies on credit, for school corporations, for no more than the reasonable value of the property can in any event be recov- ered : Boyd v. School Tp., 114 Ind. 210. The law intends that, where property is sold on credit to school corporations, they shall be only held for the fair and reasonable value of the prop- erty received. Parties who deal with school officers are bound to know the limitations placed upon them by law. It was there- fore proper in this case to admit evidence of the value of the property which the plaintiflE alleged had been sold to the school township." §196. Surety. — Eaising money for building is "school SURETY. 227 purposes" within law of 1864, and the sureties of treasurer are liable for such money ;* and the receipt of the treasurer's draft, the delivery of the bond to him, followed (on payment of the draft being refused) by a return of the bond and erasure of the word "paid,"will not discharge the sureties.^ TJnder N. T. L. 1864, ch. 565, § 7, treasurer of board of education gave a bond, but not under seal, and entered upon the discharge of the oflBce ; the writing was enforceable against the sureties as a bond.' The sureties of defaulting school commissioner cannot sue to recover the revenues.' The sureties of a public oflBcer are only responsible for his performance of the duties assigned him by law ; where the law requires the clerk of the county court to keep the bonds for the loan of school funds, and the county court to renew bonds and to pass upon the sufficiency of the bonds, and if, by an order of the court, these duties are devolved npon the treasurer, the sureties of the treasurer will not be liable therefor.' If the court permit the treasurer to use the school funds as a loan, and any loss happen, his sureties will not be responsible.' Where a chairman, in N. C, gave his bond in Jan. 1855, and continued in office without any new appointment until April, 1867, (when a successor was appointed,) he and his sureties were held liable on such bond for an unex- pended balance of school-money in his hands in 1857.* §198. Surety. — Upon a change in the contract between the school district and the contractor, a consent thereto by his sureties would not increase their obligations or connect them as parties to the amended contract.' While a school district in whose favor a bond to secure a contract had been executed 'PairportSch. Bd. T. Fonda, 77 N.T. 350. 1 * Chairman Com. Sch. t. Daniels, 6 Jones, sPryse t. Hewitt, ( Ky.) 1 8. W. 469. N. C. L. 444. •Nolley V. Callaway Co. Ct, 11 Mo. 447. 1 'Ind. Sch. Dlst. v. Belchard, 39 Iowa, 168. 228 PUBLIC SCHOOL LAW. might have power directly to release the sureties, it had author- ity to change the contract and thus release the sureties.' Sure- ties of a school township treasurer are liable for money coming to his hands during his former term of office and not paid over to his successor.* §199. Tax— Alabama.— The Board Mobile School Com- missioners is a municipal corporation, and the statute authoriz- ing assessing and collection of taxes is not repealed by repealing section of revenue law of 1868 ;' and the statute of 1856 does not repeal the former statute authorizing collection of tax on auction sales.* A board of school commissioners is a municipal corporation, and taxes authorized, assessed and collected for it are for municipal purposes, and are not repealed by § 136 of the revenue law.' The delegation of power to tax to trustees of Cullman school district, they being appointed, not being a municipal corporation, is unconstitutional.' § 200. Tax — Arkansas. — ^The failure of judges of election to state the number of votes cast for or against school tax will not vitiate sale of land for same.' The trustees cannot assess amount of levy ; it is the duty of the electors to determine the amount ; if they do not, the trustees then submit the matter to county court.' The county court could not levy tax for school purposes unless voted by district or recommended by trustee ; and in 1868 there was no limit to amount that might be voted ;' but the act of 1871 prohibited levy of over five mills school tax, not being a separate district in city or town." The statute ilnd. Sch. Dist. v. Eeichard, BO Iowa, 98. sKagay v. Sch. Trs., 68 III. 75. See also 69 111 149. "Horton v. Mobile Sch. C, 43 Ala. 698; Clark V. Mobile Sch. C, 36 Ala. 621. •Brooks v. Mobile Sch. C, 31 Ala. 22T. (Horton v. Mobile Scb. C, 43 Ala. 698. 'Schnltes v. Bberly, 88 Ala., 242. 'Staley v. LeomauB, 53 Ark. 428. "Co. Ct. T. Bobinson, 27 Ark. 116. •Mnrphy v. HarrlBon, 29 Ark. 340; Worthen V. Badgett, 32 Ark. 496. 10 Vanghn t. Bowie, SO Ark. 880. TAX — COLORADO. 229 allowing the board of supervisors to levy the district -school taxes in cities and towns organized in single districts was re- pealed by constitution of 1874.^ Under act of 1871, the county court had no power to levy tax for school purposes unless the amount had been voted or the trustee had reported the amount; ' and county court cannot levy district-school tax except as voted, and if it does the sale and levy will be void.' School warrants of trustees are receivable for school taxes of the district in which they were issued.* Since 1875 the notice for annual meeting for levying tax must be given by the school directors only.* The tax title is inferior to lien of state for unpaid pur- chase-money for school land.' § 201. Tax — California. — Special tax for school purposes can only be levied upon vote of school district,' and substantial compliance with law is sufficient for a levy of school tax,* but the tax must be based upon an assessment made by an assessor, elected by the qualified electors of the school district.' §202. Tax — Colorado. — Exemption of seminary property applies to property in actual use for school purposes.'" Taxes for school purposes are not a lien on personalty until seizure on the tax-warrant ;" where school tax is properly certified to county commissioners, mandamus is proper remedy to compel levy." The statute in regard to levy of school tax, certifying same to county commissioners, and the levy thereunder, is not unconstitutional." If a school district is divided, the secretary of district cannot distrain property out of his district." 'Cole T. Blackwell, 38 Ark. 271. 'Cairo etc. v. Parks, 38 Ark. 131. •Kogers v. Kerr, 42 Ark. 100. *WaUiB T. Smith, 29 Ark. 354. •DavieB t. Holland, 43 Ark. 425. « Simpson T. Eobinson, 37 Ark. 132. 'People T. Castro, 39 Cal. 65. 'People V. Pratt, 59 Cal. 78. •People V. Sac. etc. E. B. Co., 49 Cal. 415. looomm'rs t. Col. Seminary, 12 Col. 497. "HcEay t. Batchellor, 2 Col. 591. "People V. Comm'rs, 12 Col. 89. "McKay y. Batchellor, 2 CoL 691. 230 PUBLIC SCHOOL LAW. § 203. Tax — Connecticut. — Where a school society voted a tax, the omission of the vote to fix a time for the payment of the tax did not render it invalid, as the tax, being legally im- posed, was payable on demand, or within a reasonable time.^ Since 1821 the lands of a non-resident are taxable where situ- ated.^ Notice given by the district committee of the time and place of the meeting of equalizing board, pursuant to the pro- visions of § 10 of act 1839, relating to schools, is suflBcient notice within that statute.' Where the certificate of a district school committee stated the tax, and when and for what laid, and the recorded vote of the district, open to public inspection, specified the list on which it was laid, such rate-bill was not in- valid because it did not show on what list the tax was laid.' In an action of trespass against the collector and committee of a school society, evidence to prove that the defendants, and other members of the society, voted for the tax, with the inten- tion of having the proceeds distributed among the several dis- tricts in the society, was inadmissible.* § 204. Tax — Florida. — The "itemized estimate " of moneys required to be raised by county tax for school purposes, fur- nished by the board of public instruction to the board of county commissioners, should contain the estimated expenditures for the school year, the estimated income from the state school tax, state school fund, and other probable' sources ; and may contain an item for outstanding warrants which were issued by the board of public instruction and are still unpaid.' Under Laws 1879, ch. 3100, § 1, the tax assessor of a county cannot be com- pelled by mandamus to levy a county school tax, merely upon 'Bartlett v. Kinsley, 15 Conn. 327. sRowe V. Blakeslee, 11 Conn. 483. •Sanford v. Dick, 16 Conn. 447. 4 Bartlett v. Kinsley, 15 Conn. 327. 'State V. Bd. Co. Comm're, 17Pla. 418. TAX— ILLINOIS. 231 receiving the statement of the board of public instruction, but only upon the requisition of the board of county commissioners.* §205. Tax — Georgia. — A majority of the complainants having voted in favor of the approval of a local school law, and all of them having acquiesced in the result of the election until after a school was established and put in operation, an injunc- tion was refused ;' and acquiescence in election authorizing tax, is a bar to suit restraining collection ;' the act of 1883, as to Richmond county, did not repeal the act of 1872 giving the board of education the power to raise school funds by taxation.* The acts 1889-90-91 are to be construed as one, and the com- missioners may lower rate of taxation estimated by school board where it does not affect the amount of money needed by the board.* §206. Tax — Illinois. — The 111. statute does not exempt from taxation a private academy conducted for profit ;" to ex- empt it as a public school from taxation, such school must be property under the immediate control of the school directors ;' lands held by Illinois Industrial University's trustees are there- fore exempt from taxation;' and the validity of school tax cannot be questioned by one who participated in the election and seconded the motion to raise the money." A school tax must be certified to the clerk at the appointed time." Directors of district schools have power to levy taxes for the purpose of supporting a school for six months in the year, without first submitting the question to a vote of the inhabitants, but cannot erect a house costing more than $1,000, nor change a site ;^* 1 Jones v. states, 17 Fla. 411. «Irvin y. Gregory, (Ga.) 13 S. B. 120. »Irvln V. Gregory, 89 Ga. 695. 4 Montgomery v. Eichmond Co. Bd. Bd., 74 Ga. 41. 'State V. Co. Comm'rs, (Pla.) 10 So. 14. 'Montgomery v. Wyman, 130 Dl. 17. ' Pace T. Jefferson Co., 20 ni. 644. *Tr8. m. IndnstrialUniversityT. Champaign Co., 76 lU. 184. • Thatcher V. People, 98 HI. 632. lOCowglll T. Long, 15 111. 202. "Mnnson v. Minor, 22 HI. B94; Merritt v. FarriB, 22 111. 303; Schofleld Y. Watkins, 22 111. 66. 232 PUBLIC SCHOOL LAW. and the tax will be binding, although persons and property liable to assessment are not included.^ The county clerk can- not extend school taxes from year to year on his own motion.* The act of 1879, authorizing a levy not to exceed 2 per cent, does not aflEect board of education of Bloomington, that being under a special act, and therefore excepted out of said act of 1879.' The levying of a tax to defray the expenses, and the acceptance of school-house built without vote, and teaching school therein, could not legalize the act or bind the tax- payers.* The prohibition in Const., art. 4, § 22, that the gen- eral assembly shall not pass any local or special law providing for the "management" of common schools, does not prevent levying of taxes by different oflScers in a city from those dis- charging these duties in other localities.' A bill to enjoin a school tax, alleging that the determination to levy was not made by the school directors at a regular or special meeting, nor in their corporate capacity, but as individuals, does not charge that the directors acted in the matter without meeting together." Where the levy of a tax is proper, and is within the statutory limit, it cannot be enjoined as unnecessarily large, or that the directors proposed to use part for another purpose." Under act 1889, p. 296, art. 5, p. 17, a tax levy which has been duly signed by the directors and filed with the township treas- urer is not invalidated by the failure to record the action of the directors in making the levy.* The school law (Kev. Stat. 1874, p. 967, §35) authorizes trustees of high schools to levy taxes for the support of such high school.' The legislature iSchofleld T. WatWns, 82 HI. 60. "Weber v. E. E., 108 111. 451. 'People V. City Blooming ion, 130 HI. 408. Lima t. Jenlcs, 20 Ind. 301. 'Indianapolis S. C. t. Magner, 84 Ind. 07. 'Case T. Blood, (Iowa) 33 N. W. 144. "Casey t. Nutt S. D., 64 Iowa, 659. "Wool V. Fanner, 69 Iowa, 533. 11 Large v. Washington, 53 Iowa, 663. 234 PUBLIC SCHOOL LAW. building used is old and remote from some of the scholars of the district and they cannot attend.' An illegal tax having been refunded entirely from the funds of a portion of the district from which it was collected, that portion may sue the remaining parts for contribution.' A board of supervisors can- not levy a tax to pay a judgment against the school-house fund, after the tax for that fund has reached the limit allowed for the year.' In a proceeding to compel the board of directors of a district township to levy a tax required by the electors of a sub- district, for the erection of a school-house, the records of the proceedftigs of the sub-district meeting, signed by the proper officers, is admissible in evidence, though not required to be kept.* A tax levied at a district meeting not held within the time fixed by the act of 1858, ch. 62, § 10, is not cured by act passed by board of education, Dec. 16, 1862 f the directors of the school district have the power to levy tax to increase the teachers' fund when it becomes necessary to do so." Liability to pay a school tax attaches upon levy of the tax by vote of the district.' Where a tax is levied by a county judge, under § 31 of the act Mch. 12, 1858, for the support of school with- in the county, the county treasurer may lawfully collect the same." Where there is a failure to collect a school-house tax during the year in which it is levied, the power and authority conferred by the warrant do not expire with the year, and a lost warrant may be supplied by a new one ;' and the officer can show that a warrant was issued and lost, and may protect himself by proving its contents." A resident in a school district 1 Seaman v. Banghman, ( Iowa) 47 N. W. 1091. 'Spencer v. Eeverton, 56 Iowa, 85. •Sterling Sch. Furniture Co. v. Harvey, 45 Iowa, 466. *Eose V. Hindman, 36 Iowa, 160. 'Spencer v. Wheaton, 14 Iowa, 38. ' Snyder v. Wampton, 18 Iowa, 409. ' Toothaker v. Moore, 9 Iowa, 468. *Oo. of Louisa v. Davison, 8 Iowa, 517. oHiggins v. Beed, 8 Clarke (Iowa) 298. TAX — KENTUCKY. 236' cannot be assessed in that district for the personal property which is in another district.* A vote "that there be an appro- priation sufficient to build a house on the line between " two specified sub-districts, with a further vote " that there be |800- levied as school-house tax," amounts to voting a tax for the school-house described in the first vote, and cannot be rescinded by the electors.' A levy made later than the time directed by Code, § 1778, was sustained ;' but Code, § 1738, is mandatory,, and a tax cannot be levied by board directors after third Mon- day in May.* The action of supervisors in making a levy under Code, § 1777, depends upon the action of the board of directors^ and when that is invalid the whole will be.* The Code, § 1807,. limitiQg levy, applies only to districts in which no bonded debt has been created;' this section does not limit tax under § 1823,. for tax necessary for independent district to pay bonds." §209. Tax — Kansas. — Agricultural college is wholly a state institution and exempt from taxation.' School-district plat filed, but not attested, is not evidence to show that certain prop- erty is included in a certain school district.' An apportionment, and award after lapse of three years will be held binding ;° and the general rule is, that on a division of a district the original corporation retains its property until settled for." In a suit by a district to recover taxes paid to another, the validity of such district cannot be questioned." §210. Tax — Kentucky. — The legislature could compel the payment of tax for 1885 by residents of district outside of city, cut oflE from the city by act of 1G86 ; the residents of the iLemp V. Hastings, 4 Greene (Iowa) 448. 'Benjamin v. Halaka, 50 Iowa, 648. "Perrin v. Benson, 49 Iowa, 325. < standard Coal Co. v. Ind. Diet, etc., (Iowa) 34 N. W. 870. sElchards v. Lyon Co. S., 69 Iowa, 612. •tr. S. V. Ind. S. D., 20 F. K. 294. 'Bd. Trs. V. Champaign Co., 76 111. 184; City Chicago V. People, 80 111. 384; Board v. Hamilton, 28 Kas. 376. SA. & K. R. R. V. Maqnilkin, 12 Kas. 301. »Sch. D. T. Sch. D., 32 Kas. 123. MBd. Ed. V. Sch. Dist., 45 Kas. 560. "Sch. Dist. T. Sch. Dist., 45 Kas. 643. ■236 PUBLIC SCHOOL LAW. ■outlying district being given the school privileges of the city for one year, said act being adopted by majority of qualified white voters of the district/ Unless the report of the division of ■counties into school districts by boundaries is filed for record ■with the county clerk, the trustees cannot enforce the collection of taxes.' System of education in a particular district, under act authorizing tax so that school may be taught the entire year, and the teaching of Latin and Greek in common schools, is not unconstitutional.' One receiving his share of the bene- £ts of the school system cannot complain that the legislative power, as exercised in the expenditure of the school fund, is unwarranted.* Mere irregularity in the election will not invali- ■date the* levy voted for by majority of voters in a district.' A tax on a town for a school, permitting non-residents of a town to attend free, is void." Under statutes 1884, and 1886, the trustees of a school district may levy a tax to build a new school -house not to exceed a certain rate, without a vote, when a necessity exists, or they have been notified that the old one has been condemned by the superintend- ent.' The statute for assessment of railroad for its length through county, city, and town, for the purposes of county, city, town, or "precinct," does not authorize an assess- ment for school district." The provision of statutes, ch. 92, art. 1, as to use of part of general tax for school, and art. 12, as to application of railroad tax, do not conflict 5 each can stand.' The power of states to maintain common schools by taxation, and to control such schools when established, is a iFitzpatrick v. Bd. Trs., (Ky.) 7 S. W. 896. SRingo T. Stewart, 4 B. Mon. (Ky.) 806. » Newman v. Thompson, ( Ky.) 4 S. W. 341. ■»Followmg8Cow. (N.T.)543; 56Pa.St.359; 22 Gratt. (Va.) 857; Marsliall v. Donayan, 10 BaBh ( Ky.) 681. 6 Common Sch. D. v. QarreT, 80 Ky. 159. •Town Belle P. v. Fence, (Ky.) 17 S. W. 197. 'MackUn v. Trs., (Ky.) 11 S. W. 637. ' L. & N. E. E. V. Johnson, ( Ky.) 11 S. W. 66B. •Auditor V. Frankfort, 81 Ky. 680. TAX — MASSACHUSETTS. 23T power not delegated to the U. S. by the constitution, nor pro- hibited by it to the states.' The trustees of common schools. may appoint their collector and fill vacancies in the ofBce, and a collector failing to give a bond for nine months may be su- perseded." §211. Tax — Louisiana. — Commercial college is exempt;' the exemption for school purposes is not affected by the fact, that the principal owner and a teacher occupy same as a resi- dence.* § 212. Tax — Maryland. — The statute requiring the com- missioners of Allegheny county to levy the balance estimated by the board of commissioners of public schools and reported to the commissioners of the county, is not unconstitutional, as not being uniform throughout the state.* Where inhabitants of a district have the power to tax, it will not be held invalid because the records do not show that every provision of the law was complied with, the contrary not being shown;' and such tax may be voted to defray the expenses of a preceding^ as well as of the current year.° Under the school law, (Code Md., art. 77, p. 22,) and the Code of Public (Local) Laws, art. 2, p. 123, providing that in Anne Arundel county there may be an additional levy, the county commissioners cannot deduct from the school levy, unconditionally made, either the amount of the treasurer's commissions or discounts for prompt payment of taxes, but must pay over the gross levy to the school com- missioners.* §213. Tax — Massachusetts. — The Mt. Hermon school property is exempt, notwithstanding agricultural resources and iMarshall v. Donavan, 10 Bush (Ky.) « sChilea v. Todd, 4 B. Mon. (Ky.) 126. •Blackmail v. Honston, (La.) 3 So. 193. iComin'rg y. Allegheny, 20 Md. 449. ^BurgesB v. Pne, 2 Gill. (Md.) 254. •Bd. Co. Sch. Comm'rB t. Qnatt, (Md.) 21 A. B48. •238 PUBLIC SCHOOL LAW. products.' Under Gen. St., ch. 39, and Stat. 1873, ch. 315, the «tock of a national bank, belonging to an inhabitant in a town ■other than that in which the bank is situated, cannot be taxed for building a school-house in the district." Where tax is assessed by united district, the fact that one district did not assent to action of town uniting it with the other will not invah- -date the tax ;' and a school tax assessed at meeting called by prudential committee, that is appointed by town and school district, is not invalid by reason of the town not voting at the .annual meeting if it had the year before, that teachers should be contracted with by prudential committee, pursuant to act of 1839, ch. 137.' A district valuation based on town valuation ior same year need not describe the real estate and machinery taxed if it shows by the names, figures, and by the town valua- 'tion that the property is in the district ;' and a school district *ax on realty and machinery in the district and belonging to an inhabitant of the town, although not of the district, may be assessed to him or to the tenant ;' an assessment of district tax on a lot, the whole of which is not in the district, is void as to that lot, but this assessment will not affect others of separate -descriptions.' A district tax cannot be assessed against party ■who is set off to another district before assessment is complete.* Where party resides in one town and carries on a trade in ;another, he is not liable to be assessed on his stock in trade, for building a school-house in the district where he resides, under E. S., chs. 7 and 23.° The district in which the land of non- Tesident shall be taxed must be located before the school tax is assessed." A legislative enactment authorizing a town tax for IMt. Hermon Botb' Sch. t. Town of Gill, (Mas».)13N. E. 354. 'Little V. Little, 131 Mass. 367. -3Blac1iBtoiie V. Taft, 4 Gray (Maaa.) 250. 'Jackman v. Sch. D.. 5 Gray (Mass.) 413. 6Bate» T. Sch. D., 9 Gray (Mass.) 433. » Powers T. Sanford, 39 Me. 183. 240 PUBLIC SCHOOL LAW. under a vote to " remove and repair the old school-house " is valid, although the school-house was removed from another district.' Tax collector cannot decide that the law is unconsti- tutional, or refuse to do his duty, and must collect the school taxes as well as the taxes of the town." The statutes exempt the assessors of a town, levying a tax on a school district, from personal liability when they act with faithfulness, and the dis- trict is not liable for errors of the town.' Where municipal oificers may locate site on failure of district to do so within sixty days after vote, they can only expend the amount voted.* §215. Tax — Michigan. — Where the school board failed to certify to the township clerk in time for the supervisor to spread it on his roll, the assessment may be made the succeed- ing year, under § 6090.° The township public school of Long Kapids includes the territory of Montmorency county, and this applies to taxes." Where an injunction is asked to restrain the collection of a school tax irregularly assessed, the school district is a necessary party ;" and a tax on only a part of a district is void.' Where school moneys are received by treasurer of city board of education, they are at once payable to the proper depository." § 216. Tax — Minnesota. — The lease of building for school purposes does not give the owner thereof the benefit of exemp- tion from taxation ;" the act of 1860 requires that voters must determine the number of houses, the sites, and the sum to be raised, before the tax." § 217. Tax — Mississippi. — A statute authorizing levy by > Tozier v. Sch. Dlst. No. 8, 39 Me. 556. 2 Smyth V. Titcomb, 31 Me. 878. » Powers V. Sanford, 39 Me. 183. ^Oarleton v. Newman, 77 Me. 408. 6 Wilcox Y. Tp. Eagle, (Mich.) 45 N. W. B87. « JolmBon V. Cathro, 61 Mich. 80. 'PolkertB T. Power, 42 Mich. 883. 8 Auditor v. McArthur, 49 N. W. 598. • Port Hnron Bd. Ed. v. Hnnnels, 57 Mich. 46. instate V. Bell, 43 Minn. 344. "State T. St. Anthony 10 Minn. 433. TAX— MISSOURI. 241 board of supervisors of county for school purposes, but which does not include a town which is a separate school district, is not thereby unconstitutional.* In Marion county, the levy was limited to 13 mills, 3 of which are for school purposes, but county levy may be 15 where county owes debts; teachers' warrants are county debts, and to pay them the levy may be in- creased to 15 mills.^ A petition for a mandamus to compel the board of supervisors to levy a tax for the erection of school-houses, must define the sub-district where erected.' A tax on liquor licenses or privileges is not "money received for license" which must be used for fi;ee schools.* § 218. Tax — Missouri. — A building used in part for a school-house and in part for other purposes, is not exempt.* The merchant taxes on stock on hand are property taxes, and the merchandise is taxable for school purposes." Where county clerk did not extend school tax, under act 1867, on the assess- ment books, there can be no recovery on tax bill; under back- tax law.' Under Laws 1886, p. 246, the duty of county clerk is merely to extend and apportion the amounts of revenue upon the property assessed for each school district.' Where an acad- emy taught higher branches and a small tuition fee was charged when necessary, and poor children were admitted free, and the trustees were authorized to receive all the school moneys due that town and the commons attached, the tax levied under stat- ute authorizing same for academy was legal.' Four years' laches in attacking irregularity of formation of district will bar relief from taxes levied, where that is the objection." Mandamust will ^Bordeanx T. Ueridian L. & I. Co., (Mies.) 7 So. 296. 'Cowart V. Taxworth, (Miss.) 7 So. 350. •JarriB v. Warren Co., 49 MiBB. 603. (Key. Code, 82053; LawB 1870, ch.ll, §32.) ^Foitwood v. Baekett, 64 Miss. 213. — 16 'Wyman v. St. Lonia, 17 Mo. 335. 'State 7. Tracey, (Mo.) 6 S. W. 709. 'State T. Harpe*, 11 Mo. App. 301. »Sch. DiBt. V. Wickersham, 34 Mo. App. 337. •state T. Vanghan, (Mo.) 12 S. W. 607. 10 stamper V. Eoberte, (Mo.) 3 S. W. 214. 242 PUBLIC SCHOOL LAW. not lie to compel a county court to rescind an order prohibiting the county clerk from assessing and extending a school tax ;' and county court has no control over the county clerk in that matter.' A tax levied under Const. 1875, art. 10, § 11, prior to May 24, 1877, was void, legislation being necessary ;' and de- fendant is not estopped because he did not endeavor to restrain the enforcement of the levy.* From 1875 to 1877, taxes for school in district could not exceed 40 cents on |100. And un- der act of 1877, notice is required to make election under the act valid, to increase levy over 40c.' It is improper to unite taxes for school purposes and building purposes into one levy.* Before a constable can distrain for school tax, he must make a demand upon the person liable.^ Taxes should be distributed according to law in force when distributed." Taxes for " school purposes " cannot be levied to build house or to pay indebted- ness, under K. S. § 6880, there being different qualifications pre- scribed for voting taxes for different things in statutes.' The apportionment of funds derived from taxing railroad bed, to be distributed pro rata to districts, is not unconstitutional.' Under statute of 1875, railroad taxes are applied to the districts when that township has subscribed to the railroad ;' tax for building school-houses cannot be levied on property of railroad." Where party paid school tax for 1873 on realty within extended limits of St. Louis, he was entitled, under act of 1874, to have the same credited on school tax bill for 1881, notwithstanding changes in district." §219. Tax — Nebraska. — School lands which have been 'State T. Byers, 67 Mo. 706. « state V. St. L. K. 0. E. K. Co., 74 Mo. 163. 'State V. E. E., 75 Mo. 526. Stephens v. Sch. Dist, 6 Oreg. 353. 'SchoylWU V. North Manheim, 48 Pa. St. 21. •Conyngham T. Sch. Dist. App., 77 Pa. St. 265. lAppeal Wagner Free Inst., (Pa.) 11 A. 402. •Appeal Wagner Free Inst, 132 Pa. St. 612. •Wilson V. Lewistown, 1 Watts & S. (Pa.> 428. 'Gearhart v. Dixon, 1 Pa. St. 224. sVaegtly v. Sch. Dire., 1 Pa. St. 330. » Commonwealth T. Fraim, 16 Pa. St. 163. ■264 PUBLIC SCHOOL LAW. building that is not needed will be enjoined as to such excess.' The statute must be strictly complied with in order to increase indebtedness of district beyond two per cent, of its valuation, under act of 1874. Notice and statement showing indebted- ness must be filed.' A collector may enforce payment of school taxes by suit, after the expiration of his warrant.' The board of school directors may issue a warrant for school taxes, return- able in a shorter period than two years.' Property held for non-resident minors is taxable in the county where the guardian resides, under the act of Apr. 22, 1846 ;* but where a minor resides with her father in one district and her guardian in another, in the same county, the property is taxable for the district wherein the minor lives.* Under the school law of May 8, 1854, the power of taxation is committed to the school directors, but without any right of appeal.^ The act of Mch. 25, 1864, § 7, to levy a tax "on all property, etc., subject to taxation for state and county purposes," did not authorize directors to tax property not included in the adjusted valuation of the assessors and commissioners.' "Where a school board levy a tax, it is to be collected under a warrant issued by the presi- dent and countersigned by the secretary ;' and if signed by two justices of the peace instead of by the president and secretary, it is of no validity.' Mandamus was refused to compel central board to appropriate to sub-district for improvements, and add the same as for next year, and certify same to council of Pitts- burgh.' § 227. Tax— Rhode Island.— The provision of Gen. Stat., ch. 58, § 13, opening "all the public schools in the state to the iComm'rs Appeal, 103 Pa. St. S5S. ^Witherop v. TitnsTille Soh. Bd., 7 Pa. Co. Ct. Hep. 451. 8 McCracken v. Elder, 34 Pa. St. 839. -•West Chester v. Darlington, 38 Pa. St 157. 6 Wharton v. Sch. Dirs., 42 Pa. St. 358. •Shirk V. Bncher, 53 Pa. St. 94. 'Hilbish V. Hower, 58 Pa. St. 93. 8 Commonwealth t. Shaw, 96 Pa. St. 28 TAX— TENNESSEE. 255 children of officers and soldiers," etc., "without any cost, or ex- pense, or taxes, or other charges imposed for purposes of public education," does not exempt the estate of such officer or sol- dier from taxes levied for school purposes/ A school district can raise money by taxation provided the amount shall be ap- proved by the school committee of the town ; this need not precede the voting of the tax.^ Objection that powers of dis- trict do not authorize the tax, must be taken by appeal.' When assessors are to be appointed, by the school commis- sioner, under Kev. Stat., ch. 64, § 1, to assess a tax, the school district must have notice.* §228. Tax — South Carolina. — Under Constitution and Acts 1882 and 1883, the city of Spartanburg became a sepa- rate corporation, authorized to issue bonds to build school- houses in that city, and the auditor may be compelled to compute the amount and levy the same on the property.* §229. Tax— Tennessee.— Act of Feb. 28, 1870, confer- ring upon the board of president and directors of the Cleveland public schools power to levy a school tax, is unconstitutional." Although a county, without special statute, cannot, after levy- ing taxes for general county purposes in amount equal to the state tax, make additional levy, yet a -levy of an equal amount for school purposes is valid, under act of 1873.' Under act of March 22, 1877, county courts cannot levy a school tax at a higher rate than the state tax, but the illegality goes only to the excess ;' and it is immaterial that a levy was made in July instead of at the first quarterly term of court.' ' Carpenter v. Hopklnton Sch. Trs., 12 E.I. 574. =Seabiiry v. Howland, (E. I.) 8 A. 341 ; Holt's Appeal, 5 E. I. 603. sSeabnry t. Howland, (E. I.) 8 A. 341. < Peckham v. Bicknell, 11 E. I. 596. estate v. Bacon, (S. 0.) 9 S. B. 786. "Waterhonse v. Cleveland Pub. Sch. Bd., 9 Baxter (Tenn.) 398. 'N. C. etc. E. R. Co. v. Franklin Co., 5 Lea ( Tenn;) 707. ^Briglit T. Halloman, 7 Lea (Tenn.) 309. 256 PUBLIC SCHOOL LAW. § 230. Tax — Texas. — Land owned and used by proprietor of private school adjacent thereto, for supplying table with vegetables, is not exempt.* Legislature could not grant power to levy taxes for schools except as provided in constitution.* Whenever an incorporated town assumes control of its public schools, it may levy a school tax thereafter if voted for by two- thirds of property tax-payers ; this does not mean two-thirds of those voting, but two-thirds of the qualified voters that are tax- payers.' The act of 1876, appropriating the "dog tax" to the county free schools, is not unconstitutional.' Constitution, art. 9, § 3, authorizes the legislature to confer upon district boards of education power to levy the school tax, and also those con- ferred by act of April 24, 1871.* The legislature may delegate the power to district the state for educational purposes.* The one-per-cent. school tax, levied under § 5 of the act of April 24, 1871, was not repealed by the act of April 22, 1871, even though the former act may be prior in the true date of its pas- sage.* If a board of school directors levy taxes for school pur- poses for that year, their successors cannot levy a diflferent school tax for that year.* The legislature may confer upon boards of Bchool directors power to assess taxes for school purposes." The section of act Aug. 13, 1870, requiring the boards of school di- rectors to levy an ad valorem tax not exceeding one per cent., applied to assessments made in 1871.' Where act authorized school tax of one-fourth of one per cent., and a city adopted an amendment to its charter allowing one-half of one per cent., and the statute forbade any amendment contrary to constitution and laws, the amendment was invalid:' " Shall such an amount be 'St. Ed. College v. Morris, 17 S. W. 612. 'Pt. Worth V. Davis, 57 Tex. 225. t Ex parte Cooper, 3 Tex. App. 489. >Kiimey T. Zimpleman, 36 Tex. 654. 'Oliver v. Carsner, 39 Tex. 396. •State V. Bremond, 38 Tex. 116. ' Jodon T. Brenham, 67 Tex. 656. TAX— VERMONT. 267 raised by taxation ? " is not the same as " whether or not the city council should be allowed to levy a tax of one-fourth of one per cent. ; " and a vote for latter would not authorize levy under law providing for the former.* § 231. Tax— Utah.— Under act of Jan. 18th, 1865, no pro- vision is made for adjusting the amount of the tax to the neces- sities of the district ; no appeal is allowed the tax-payers for the equalization of assessments, and the trustees are neither required to take oath nor to give bond for the faithful performance of their duty, and the law is void, and collection will be restrained ;* and the act of 1865 for school tax, not providing for equality of tax, or impartial assessment, or faithful disbursement, is void.' Extending boundaries of district so as to take in railroad prop- erty and tax the same for school-house twenty-five miles distant, by action of county court, is authorized.' Where a vote of a levy of one per cent, was voted, the county officials cannot ex- tend the levy for the following year upon that basis, where it would raise three times the amount needed.* § 232. Tax — Virginia. — School taxes must be paid in law- ful money of the United States, and not in states' tax receivable- coupons.* §233. Tax— Vermont. — The buildings owned by St. Johnsbury Academy, a private educational institution, includ- ing club house and residence of students and faculty, and part: rented, is exempt.' "Public schools," in laws exempting from taxation, is construed to mean public in sense of colleges and academies.' To justify taking property, as collector of a school district, all the conditions precedent must be shown to have ipt. Worth T. Davis, 57 Tex. 225. *Lowe t. Hardy, (Utah) 26 P. 982. 'Kerr v. Woolley, 3 Utah, 456. 'Greenhow y. Vashom, 81 Va. 336. 'King T. Utah C. B. B., ( Utah) 22 P. 158. »WiIlard v. Pike, ( Vt.) 9 A. 907. —17 258 PUBLIC SCHOOL LAW. been complied with/ A collector of a school -district tax is liable in trespass, if the district proceeded illegally in voting ; and this, though his warrant and rate-bill be, on their face, regular." The limitation to a maximum amount, of the sum to be raised in a school district, imports sufficient certainty.' Under the act of Nov. 1827 and act 1833, the voters in dis- trict could assess a tax for the support of a school upon such scholars only as actually attended the school.' A committee is justified in assessing individual's real estate situated in the dis- trict, for a value proportioned to the value of all his lands on the town list where statute provides no means of separation ; a vote to raise such a tax need not specify ratio and amount* In assessing a school-district tax the committee cannot assess upon lands which are wholly omitted in the grand list, though they know them to be within the district." If an inhabitant has no list in the school district, his name need not appear in the rate-bill of a tax laid by such district.' Since the act of 1854 (Laws 1854, 44), authorizing school districts to elect a treasurer, the warrant for school-district tax should require the money to be paid to that officer.' A resident of a school dis- trict, on the 1st of April, assessed as owner of personalty, and whose list is designated by the listers as belonging to such dis- trict, is liable to pay such district taxes, though he removes from the district.' The prudential committee of the district is alone authorized by law to assess and certify the tax for remov- ing a school-house.' A school district has a right to assess taxes to pay for defending suits against a tax collector, for col- lecting taxes." The omission of the officer to enter upon the 1 Bates V. Hazeltine, 1 Vt. 81. iiWaterB t. Daines, 4 Vt. 601. SBrown v. Hoadly, 13 Vt. 478. lAdams v. Hyde, 27 Vt 221. °Mo89 r. Hlndea, 29 Vt. ISS. OBnll T. Griffith. 80 Vt. 273. 'Woodward v. French, 31 Vt. 337; Walker t. Miner, 32 Vt. 789. 'Johnson v. Sanderson, 34 Vt. 94. » Johnson v. Colbum, 36 Vt. 693. TAX — WASHINGTON. 259 warrant the time when he received the same, does not invali- date ;' if the warrant was sufficient, no subsequent alteration in it can invalidate the acts done under it ;^ proceedings of pru- dential committee in assessing taxes, and in making out and delivering a rate-biU to the tax collector of the district, will justify that officer in serving the warrant.* Parol evidence was admissible to show the true time when the rate-bill and certifi- cate were made ; and clerical error will not vitiate, and parol evidence may explain an altered warrant.' A vote of a school district to sustain a school for a definite period is not equiva- lent to a vote to defray the expenses of that school.' Under acts of 1868, No. 38, a district enlarged in 1873 cannot vote, in 1874, that a tax be assessed on the list of 1872.' The listers and assessors, being unable to determine the boundaries of a district, set the lands therein to an adjoining district, and the collector of the latter distrained for tax therein ; this was held to be illegal.* Where selectmen were required to assess annually a school tax previous to Jan. 1, without specifying the list, it should be assessed on the list last completed and in force at time of assessment.' That a tax shall not be assessed until the money is required, means that the assessment may be made long enough beforehand to raise the money needed.' §234. Tax — Washington. — Where the boundaries of a city of 10,000, constituting one district, are enlarged, the funds of the enlarged district are charged with maintenance of the school in the whole district, and the board at its meeting next preceding the annual tax levy shall fix the amount required for school purposes.' 1 Goodwin t. Perkins, 39 Vt. 598. 'Adams t. Orowell, 40 Vt. 31. «Ha98am v. Edwards, 49 Vt. 7. « Hubbard v. Newton, B3 Vt. 348. ^Spragne t. Abbott, 58 Vt. 331. •Broek v. Brnce, ( Vt.) 10 A. 93. 'City Seattle Sch. D. v. Bd. Ci (Wash.) 88 P. 376. City Comm'rs, 260 PUBLIC SCHOOL LAW. § 235. Tax — West Virginia. — Four months' school voted for means only that year.^ A sheriff cannot pay over school taxes in his hands to his successor without order of board edu- cation.* § 236. Tax— Wisconsin. — Trustees authorized under a spe- cial act to vote a tax to be assessed by the trustees, had the power to make a valuation to levy the assessment.' A town treasurer paid to the treasurer of a school district in his town the delinquent tax, and for which the town had settled with the county. Subsequently the amount so credited to the town was charged back to and paid by it ; the town could not recover the amount from the district if the tax was in fact legal ; but this tax having been invalid, and the town treasurer not having knowledge, the town was entitled to recover the amount so paid.* Under K. S., § 776, when school taxes are voted by town they may be levied without regard to the fact that the money is to be applied to benefit of specific districts in the town." § 237. Tax exemption. — In the case of St. Mary's College V. Crowl, Treasurer, c&c, 10 Kas. 448, it was held that "Under the laws of this state all property not expressly exempted is subjected to taxation. (Gen. Stat. 1019, ch. 107, § 1.) And no property is exempt because it is used for educational purposes unless it is exclusively so used. (Const., art. 11, § 1.) Property used partially for educational purposes and partially for some other purpose is not exempt. Even property used mainly for educational purposes, but not exclusively, is not exempt. In the present case we shall not discuss separately the taxability of each article or piece of property claimed to be exempt, but shall 1 Wells V. Lincoln Bd. Ed., 20 W. Va. 157. I *Eipon v. Joint Sch. Diet., 17 WiB.'SS. sspencer D. Bd. Bd. V. Cain, 88 W. Va. 758. 'Griggs V. St. C. Co., 27 F. E. 333. » Richardson V. Sheldon, 1 Finn. (Wis.T.) 684. | TAX ESEMPTIOIS". 261 / discuss more especially the taxability of the inclosed arable and cultivated land ; for if any portion of the plaintiff's property is exempt from taxation it is certainly that portion. This prop- erty was used for at least three purposes : 1st. It was used for the purpose of teaching certain Indians agriculture ; 2d. It was used for the purpose of raising food for a large amount of live stock kept on the farm, and food for said Indians, their tutors, etc.; 3d. It was used for the purpose of raising produce to sell. The proceeds of the sales, however, were used to feed and clothe the Indians, to feed and clothe 'the employes in their training,' and to feed and clothe 'the missionaries among them.' We sup- pose it will be conceded that if the property were used exclu- sively for the purpose of teaching the Indians agriculture, it would be exempt. But even this may not be certain, for agri- culture was hardly considered a branch of education when our constitution was framed. For the purposes of this case it may also be conceded that if the property were used exclusively for teaching the Indians agriculture, and for raising food for them and the professors, and the necessary stock kept on the farm, it would still be exempt. But when it is used to raise food for stock not necessary to be kept on the farm, and to raise produce to sell, no further concessions in favor of its exemption can be made. Such use goes at least one step beyond where conces- sions can be made in favor of its exemption. It is solely the use of the property which determines whether the property is exempt or not. {Washhirn College v. Shmonee County, 8 Kas. 344.) It makes no difference who owns the property, nor who uses it. Property used exclusively for educational purposes is exempt, whoever may own it, or whoever may use it. Property not used exclusively for educational purposes, (if otherwise tax- 262 PUBLIC SCHOOL LAW. able,) is not exempt, whoever may own it, or whoever may use it. And this use must be direct and immediate^ and not indirect or remote. {OmcinnaU College v. State, 19 Ohio, 110.) If a farm be used for the purpose of raising produce to sell and get money to carry on a school, it will not be exempt. The use for educational purposes is in such a case too remote. The imme- diate or primary object for cultivating the farm in such a case is to obtain the produce ; the secondary object is to obtain the money that the produce wiU bring ; and the remote object is to aid and foster the school. The farm itself, in such a case, is not used in teaching anything, or in illustrating or explaining anything, as books, charts, apparatus, etc., are. It is not used as a necessary shelter and protection for the students, their books, apparatus, etc., as a school-house always is. And it is not used as a necessary site for a school-house, as school-house grounds always are. In fact, it answers no direct or immediate educational purpose or necessity. It is no part or portion of the school, and is not used as such. It therefore does not come within the constitutional exemption." §238. Teacher's certificate. — There need be no second examination of a teacher upon the granting of a renewal cer- tificate, the original certificate having expired by limitation.* In an action against the superintendent of schools for illegally revoking a teacher's certificate, the plaintifE is not compelled to show personal hatred or ill-will ; but if the defendant acted rashly, wickedly and wantonly in revoking the certificate, the jury may infer malice ;' and where a county superintendent maliciously withholds teacher's certificate, he is liable in dam- ages.' In an action against citizens for a conspiracy in a iDoyle V. Sch. D., 36 111. App. 653. I >KImore v. Overton, 104 Ind. 648. »LoYe V. Moore, 45 III. 18. | TEACHER'S CERTIFICATE. 263 groundless remonstrance to the school directors against ap- pointing a teacher, his having no certificate would not prevent his recovery of actual damages.* The county superintendent canceling a teacher's certificate without concurrence of the local trustees does not deprive him of compensation if he still teaches to the end of the term.' A town superintendent of common schools (N. Y.) has no right, under act of 1847, to annul a certificate given by his predecessor until at least ten days' previous notice in writing to the teacher and to the trus- tees of the district in which he is employed.' It is no defense to an action brought by the teacher against the district to re- cover his wages, that the certificate was granted without any examination having been in fact made by the town superin- tendent.* A certificate of qualification cannot be impeached in an action brought by a teacher for salary due, nor will it be in- validated by the improper introduction of testimony going to show that for the certificate in question he was not in fact ex- amined.' Where a teacher had a certificate, but was discharged for incompetency, and he sued for service, and he was asked the question, "What would 3f pounds of butter cost at 11^ cents a pound ? " this question was ruled out, as the certificate was conclusive as to his right to teach." §239. Teacher's certificate. — In Yt. the certificate of qualification by town superintendent need not contain any state- ment as to the teacher's good moral character.' Under 111. Kev. Stat., ch. 122, § 52, the certificate need not state that an exam- ination was had ; it is in the nature of a commission, and cannot be attacked collaterally." In Vt., in an action by a teacher > Vanaradale T. Laverty, 69 Pa. St. 103. s Jamison v. Senter. 66 Miss. 194. spinch V. Cleveland, 10 Barb. (N. T.) 290. ■•George v. Sell. Diet. No. 8, 20 Vt 495. «noyle V. Sch. D., 36 HI. App. 663. •Doyle T. Sch. Dist, 36 111. App. 654. 'Crosby v. Sch. Dist., 35 Vt. 623. » ■Union Sch. Dist. etc. v. Sterricker, 86 HI. 595k 264 PUBLIC SCHOOL LAW. against a district for breach of contract, it need not be averred that the plaintiflE had procured from the town superintendent a certificate of qualification, as required by Comp. Stat., ch. 20, , § 15.' In an action by a teacher against a town, proof that he was employed by the agent and the services were rendered as agreed, prmia Jhcie, entitles the plaintiff to recover; and if the town would avail themselves of the want of the certificates re- quired by the act of 1834, ch. 129, Me., they must show that fact." Although a teacher of a public school may not be entitled to recover her wages without the certificate required by the statute, yet the town alone is entitled to raise that objection ; and if money has been paid by the town to the school agent, for the teacher, he will hold it to her use, and cannot object to the want of such certificate.' The certificate of a majority of the superintending school committee of a town, produced by the school master to the agent employing him, is a valid certifi- cate, under Kev. Stat., ch. 17, although that majority did not act together in the examination.* Under Me. Kev. Stat., ch. 11, § 41, requiring the teacher's certificate to be obtained from the superintending committee of the town "where the school-house of such district is situated, or has been located, or where the school is kept," where the last vote of union district lying partly in F. and partly in C, and having a house in each town, fixed the location of the house in F., and the school was kept in F., the teacher properly obtained the certificate from the committee of F.° In a suit for money paid to teacher not having a certificate, it was a good defense that the teacher was entitled to the certifi- cate, which had been withheld by inadvertence ;' and when iDoyan V. Sch. Diet, 85 Vt Bao. I * Stevens t. Faasett, ZT Me. 268. »K,olfe V. Cooper, 20 Me. 1B4. «Brown v. ChesterviUe, BSMe. 841. »Dore y. Billings, 26 Me. 56. | "Sell. Diet. v. Brown, S5 Vt. 61. TEACHEE'S CEETIFICATE. 265 teacher had no certificate for part of the term, the board cannot 8et off the money paid during that time, in an action for com- pensation! for time when she had a certificate.' §240. Teacher's certificate. — When board of education in district in III., of 2,000 population or more, examine and employ a teacher, he can recover salary though he has not re- ceived from county superintendent his certificate, which is re- quired by another statute;' a pupil or parent cannot contest the right of teacher for want of proper certificate.' Failure to file state normal certificate until after contract for teaching has been made is no defense for services rendered after it is filed.* Mandamus will not lie by one consenting, to compel a suit on an assessor's bond for paying a salary of a teacher not qualified legally, but employed as a necessity, and the board employing being satisfied.^ School committee may employ a teacher when the teacher employed by the prudential committee fails to ob- tain a certificate and after the lapse of two months they inform the school committee that they will not engage another. (G. S., ch. 39.)' The statute is satisfied if the certificate is obtained on the evening of the first day, especially where the delay has been at the request of the superintendent ;' so if a certificate was made out at the proper time, although by accident it was not put into the teacher's hands ;' and one who at the time she signs a contract to teach has a certificate from the county super- intendent can recover, though at the time of application to the board, and date of contract, she had no certificate.' "Where a teacher taught school for five weeks before her certificate ex- pired, and six weeks afterwards without obtaining a new certifi- 1 Dodge Co. Sch. Dist. t. Estes, 13 Neb. B3. SKnemater v. Bd. Ed., (HI.) S4 N. E. 609. 'Kidder v. Chellis, 59 N. H. 473. < Smith T. Sch. Dlst.. (Mich.) 37 N. W. 567. 'State Y. Eisley, (Mich.) 37 N. W. &70. »Sch. Dist. T. Mowrv, 9 Allen (Mass.) 94. ' Pan! T. Sch. Dist., 28 Vt. 675. 'Blanchard t. Sch. Dist., 29 Vt. 433. •Sch. DlBt. V. StUley, 36 Hi. App. 133. 266 PUBLIC SCHOOL LAW. cate, held, that she might recover for the services performed both before and after the expiration of the certificate.^ The plaintiff's minor daughter contracted to teach for eleven weeks, and taught one week without a certificate ; then she obtained a certificate and taught another week, with the approbation of the committee, at which time she quit on account of unjustifia^ ble conduct of the committee ; the continuing after she had ob- tained her certificate was equivalent to making a new contract- on the same terms as the original ; not making the entries in the school register required, at the close of the school, did not prevent recovery.' § 241. Teacher's certificate. — In a suit for services, the objection that the plaintiff had no certificate as required by N. J. Eev., p. 1077, §33, comes too late if made after the evi- dence is closed ;' and the plaintiff's right to recover is not barred by the fact that he was employed by the trustees of a district afterwards consolidated with another district.' A school teacher, under the direction of the superintendent, ex- amined after she had begun the school, received an ante-dated certificate ; after teaching a few weeks she was dismissed ; she could recover her wages.* In the absence of evidence that a teacher having a certificate has been discharged for lack of qualifications, if subsequently employed in another ward and in a higher grade she is entitled to pay for her services, whether examined or not." Under Mo. Kev. Code 1855, 1430, §5^ div. 4, although the approval of the commissioner was not in- dorsed in writing on the certificate, yet where he signified his approval in words and declared the teacher competent, and iHolmanv. School DiBt., 34 Vt 270. I •Sproul V. Smith, 40 N. J. L. 314. | 425. TEACHER'S CERTIFICATE. 26T gave his sanction to the previous arrangenaent of the school^ in the presence of the trustees, the trustees could not be held liable -for the amount paid the teacher from the time of the ex- piration of his certificate.^ Notwithstanding Gen. St. Colo.,. § 3055, one who is employed by the board to teach when, as they are aware, she has no license, but who shortly afterwards procures one, may maintain an action against the board for compensation.' A teacher's certificate from the school commis- sioner is prima facie evidence of qualification, and it devolves- upon directors to prove incompetency or neglect of duty when they have dismissed him for either of such causes.' § 242. Teacher's certificate. — A contract by a common- school district to hire a teacher not having a certificate of quali- fication, is void ; and a complaint by the teacher should aver possession of the certificate.* A warrant issued to teacher who has not the certificate required by Dak. Stat.,' is void, and non- negotiable so as to cut off defense, and township is not liable for services rendered.' Where teacher failed, on examination, to obtain a renewal of certificate, and kept on teaching as ordered by a director who had no power to bind the district, he could not recover for teaching after failure.' The secretary of board of examiners, Mich., has not power, four days after teacher fails to pass at public examination, to grant such teacher a special certificate, and the teacher cannot complain of third party as- sisting at the public examination unless it is shown that was cause of failure to pass.' A contract employing a teacher who has not a certificate as provided for by the school law, is void, and is not susceptible of subsequent ratification ; and where, iBambartT. Bodeubammer, 31 Mo. 319. 2HotzT. Sch. Diet. No. 9, (f'olo. App.) 27P. 16. •Neville v. Sch. Dlrs., 36 111. 71. ^Ityan y. Dak. Co. Scb. Diet., 27 Minn. 433. 'Goose Biver Bk. v. Willow Lake Sch. Tp . (N. D.)44N. W. 10«S. *Devoe v. Sch. Diet.. ( Mich. ) 43 N. W. 1062. 'Lee V. Sch. Diet., ( Mich.) 88 N. W. 867. 268 PUBLIC SCHOOL LAW. after having taught three months, he obtained the certificate, and the directors then made a new contract with him, whereby he was to teach three months at a salary of twice the amount per month he was to receive under the first contract, both con- tracts were void.* To entitle a teacher to recover on a contract to teach, he must prove he had a certificate at time of employ- ment.'' A trustee of the owners of a building leased to the di- rectors of schools is liable for a trespass, although the school has no funds, and the teacher has not been examined for that year, if such teacher has a certificate, and has been examined on a previous occasion.' A school committee is not confined to moral character and literary qualities of a teacher in determin- ing his fitness.* In Tenn., the common-school commissioners are indictable for employing a teacher who has no examiner's certificate of his competency, as required by § 1019 of the code.' §243. Teacher's certificate. — Every teacher is required to obtain a certificate of his qualifications before he opens his school, and circumstances cannot supersede the statute, and it cannot be waived.' A certificate granted to a teacher may be anuUed by the city superintendent of common schools for the city and county of New York.' Where a town superintendent refused a certificate on the ground of moral character, and on appeal having been taken to the state superintendent it was ordered that the town superintendent examine into her literary qualifications, and if satisfied with them, that he license her, by a tender of a certificate of literary qualification, the town super- intendent has discharged his duty, moral qualification being, by appeal, left to the state superintendent ;' and from the refusal 1 Wells T. People, 71 111. 733. 2 Stevenson v. Sch. Diet., 87 111. 855; Jenness V. Sch. Dist., la Minn. 448. SKingsley v. Sch. Dirs., 2 Pa. St. 28. ■iSch. Dist. V. Mowry, 9 Allen (Mass.) 94. SRobinson v. State, 9 Coldw. (Tenn.) 181. • Goodrich v. Fairfax, 26 Vt. 116 ; Baker v.Sch. D., 12 Vt. 192; Welch v. Brown. 30 Vt. 586. 'People V. Bd. Bd., 17 Barb. (N. t.) 299. 'People T. Masters, 21 Barb. (N. Y.) 862. TEACHER'S CERTIFICATE. 269- for want of literary qualifications, no appeal lies to the state superintendent.^ One who has not a certificate of the super- intending committee, required by law, cannot recover any com- pensation for his services.' A judgment in favor of the teacher will be restrained by injunction, at a suit of any person inter- ested as a tax-payer within the district, suing in behalf of him- self and others ; a school district cannot waive the law requiring the school master to produce the certificate of the superintending committee, or to dispense with the certificate ;" and in an action by a teacher, under the act of 1857, 111., it must be alleged that the certificate of qualification was exhibited to the directors be- fore his employment ;' and the same was held under law of 1849.* Under Law of 111., 1849, a teacher must present to the school directors, before the commencement of the school, hia certificate.^ The power given board of education of Galesburg (El.) to appoint teachers, does not authorize appointment of teachers not possessing statutory qualifications.' In 111., the law prohibiting paying teachers not having certificates applies only to those districts acting under the general law.' In 111., a. school board cannot employ a teacher who has not, at that time,, the certificate required by law ;' and one who renders services, as a teacher, without the certificate required by law, cannot re- cover." Under § 28, Ind. E. S. 1876, p. 780, a contract for the employment of an unlicensed teacher is void, and is not ratified by the subsequent issuance of a license to the teacher." A County superintendent cannot sue to restrain a person from teaching, the treasurer of the town from paying him, and the 1 People V. Masters, 21 Barb. (N. T.) 25S. SBarr v. Deniston, 19 N. H. 170. 'Botkin T. Osborne, 39 ni. 101. 4 Smith V. Curry, 16 HI. 147. 'Caeey v. Baldridge, 15 ni. 65. • GaleBbnrg Ed. Bd. v. Arnold, 113 Ul. 11. 'Knensterv. Bd. Ed., 134 ni. 165. 8Scli. DirB. T. Jennings, 10 III. App. 643. "Harrison Tp. v. Conrad, 26 Ind. 337. lopntnam v. Irvington, 69 Ind. 80: Butler v. Haines, 79 Ind. 575. '0 PUBLIC SCHOOL LAW. rector from permitting the use of the school-house, because eh party has no certificate ; but residents of the district might aintain such a bill.' A certificate of a majority of the super- tending school committee as to the qualifications of a teacher, to be regarded &b prirrM fade evidence that they have per- rmed all their duty ;" but if a member has not been notified, certificate by the majority is void." A teacher cannot recover ly for teaching without the certificate of the superintending hool committee, even though all the members wantonly refuse examine him.' § 244. Teacher's certificate. — In the case of Goose Rimer ank V. Willow Lake S. Tp., 44 N. W. Eep. (N. D.) 1002, it was ild : " Every contract relating to the employment pf a teacher ho does not hold a lawful certificate of qualification, is void by e express terms of the statute, and every warrant issuied in lyment of services of such teacher is without consideration, id void. School township warrants are not negotiable instru- ents, in the sense that their negotiation will cut ofiE defenses to em existing against them in the hands of the payee. The ficers of a school township cannot estop the township by a presentation, express or implied, that the facts to authorize e issue of a lawful warrant exist. Where a contract is ex- •essly prohibited or declared void by statute, retention of the aits of such contract will not subject a municipality to liability ider the contract or on a qucmtum meruit. A person who sists a public ofiicer in depriving the public of the benefits of statutory protection designed to guard the people against unfit id incompetent teachers has no standing in court, and his as- '■nee will receive no greater consideration. . . . srkins v. Wolf, 17 Iowa, 228. | 'Jackson y. Hampden, 20 Me. 37. TEACHER'S CERTIFICATE. 271 "There is no force in the position that the defendant having received the benefit of the teacher's service, is liable. Such a doctrine would defeat the policy of the law, which is to give the people of the state the benefit of trained and competent teachers. The law recognizes only one evidence that that policy has been regarded — the certificate of qualification. If the defendant could be made liable by the mere receipt of the benefit of the services rendered, the law prohibiting the em- ployment of teachers without certificates, and declaring void all contracts made in contravention of that provision, would be, in effect, repealed, and the protection of the people against incom- petent and unfit teachers, which such statute was enacted to accomplish, would be destroyed. Where a contract is void be- cause of the express declaration of a statute, or because pro- hibited in terms, the retention by a municipality of the fruits of such a contract will not subject it to liability, either under the contract or upon a qiumtum meruit. (^Dickinson v. City of Poughkeepsie, 75 N. Y. 66 ; McBrien v. City of Grand Rapids, 22 N. W. Kep. 206 ; Thomas v. Richmond, 12 Wall. 349 ; Argenti v. San Francisco, 16 Cal. 255 ; City of Litch- field V. Ballou, Hi U. S. 190 ; 6 Sup. Ct. Kep. 820. See also Tvhe-works Co. v. City of Chamherlavn, [Dak.] 37 N. W. Eep. 762.) This is particularly true in a case like the one at bar, where no person can teach without the certificate, without being actually or legally in collusion with local officers to de- feat a wise and salutary statute, enacted as a barrier against the employment of unqualified teachers. The person who teaches without the certificate has violated the letter and spirit of the law. The wrong done is without remedy. The people who have thus had this barrier torn from about them have no re- 272 PUBLIC SCHOOL LAW. dress. Shall the wrong-doer be compensated for aiding the school township oflScers in breaking down this barrier, thus de- priving the people of the protection of this important law ? In this connection the language of the court in Thomas v. Bichr mond, 12 Wall. 349, is very applicable : 'The issuing of bills as a currency by such a corporation, without authority, is not only contrary to positive law, but, being vltra vires, is an abuse of the public franchises which have been conferred upon it, and the receiver of the bill, being chargeable with notice of the wrong, is m pari delicto with the officers, and should have no remedy, even for money had and received, against the cor- poration upon which he has aided in inflicting the wrong. The protection of public corporations against such unauthorized acts of their officers and agents is a matter of public policy, in which the whole community is concerned, and those who aid in such transactions must do so at their peril.' "In City of Litchfield v. Ballon, 114 U. S. 190, (5 Sup. Ct. Kep. 820,) the same court said : ' The money received on the bonds having been expended, with other funds raised by taxa- tion, in erecting the water works of the city, to impose the amount thereof as a lien upon these public works would be equally a violation of the constitutional prohibition as to raise against the city an implied assumpsit for money had and re- ceived. The holders of the bonds and agents of the city are particeps criminis in the act of violating that prohibition, and equity will no more raise a resulting trust in favor of the bond- holders than the law will raise an implied assumpsit against a public policy so strongly declared.' The judgment of the dis- trict court is affirmed. — All concur." § 245. Teachers' compensation. — Salaries, under the con- TEACHERS' COMPENSATION. 273 solidation act in Cal., are to be paid in the same order as other claims against the San Francisco treasury.^ A teacher engaged for a specific term, and discharged without cause, can recover compensation ; the measure of damages is ordinarily the amount of stipulated wages, but may be reduced by proof of ability to earn from other sources.' A rule that the teachers should be liable to discharge at the pleasure of the board is no defense to an action on a contract of hire for a specific term.' Where a teacher was dismissed for cause, and he took forcible possession of the school-house and continued to teach, he was not entitled to any compensation from the time of his dismissal.' Under the act of 1867, Ga., all accounts for teaching poor children are to be paid 'pro rata;^ under the act of 1852, Ga., whenever the teachers are not paid in full, the balances due are to be paid out of the taxation for the next year before the accounts of the teachers for that year.' The act of 1854, Ga., requires the treasurer of the poor-school fund in the county of M. to pay the teachers for 1851 and 1862 their accounts in full; such act does not impair any contract made under the act of 1852 ;' but promises made by the ordinary, in Ga., under a mistaken con- struction of said last-mentioned act, create no contract." In Ga. the county board of education cannot try claim for teach- er's compensation until the county commissioner has audited account.' A teacher kept a regular schedule under 111. act 1866,. certified it himself, and it was certified by one director only, the^ rest being absent ; and it was not presented to the township' treasurer before or on the day prescribed ; he was not entitled to recover by bill in chancery, but remedy is by mandamus.* 'Knox V. Woods, 8 Cal. 545. sSch. Djst. V. Hale, IS Col. 367. 8 Pierce T. Beck, 61 Ga. 413. 'King T. Barker, 28 Ga. 293. — 18 'Johnson t. The Governor, etc., 17 Qa. 1791 •Cheney v. Newton, 67 Ga. 477. 'Cotton T. Tre., 20 il. B07. 274 PUBLIC SCHOOL LAW. A teacher delivered the teacher's schedule to one of the di- rectors, who signed and retained it ; he was entitled to recover.* Mandamus is not the remedy of a teacher ; he should sue the school directors of the district, and upon a recovery enforce the special execution by attachment or mandamus.' Under the provision of 111. Eev. Stat., ch. 122, § 63, it is not lawful for the treasurer to pay the teacher or assignee before the filing of the schedule.' Section 41 of 111. law of 1849, in relation to the distribution of the school fund among teachers on first Saturday of April and October, is mandatory.* § 246. Teacher's compensation. — In an action for salary of a teacher in a township school, the complaint need not allege that the trustee had, at the beginning of the suit, sufficient school revenue for tuition to pay his claim ;" and it is no defense to action for teacher's wages under a contract, that there is no money on hand.' If the treasurer has money belonging to the district, and devoted to payment of teachers' wages, and refuses to pay it over on a proper order and demand, he is personally liable.' In Ind. a teacher contracts with reference to the pro- vision of law, that only seventy-five per cent, due him shall be paid before he makes his report.' Where sufficient tax had been collected to pay the balance due to a teacher, for which he had an order on the treasurer, and payment was refused, he might recover of the district.' On appeal to superintendent of public instruction from district-board directors, a decision that teacher was wrongfully discharged is binding on the district." Trustees failing to collect school funds as required by law, are lAdkina v. Mitchell, 67 HI. Bll. •Rodgers v. People, 68 Dl. 154. • Sell. Dirs. etc. v. Greenville Bank, 3 El. App. 349. ♦Thomas v. TrB. Schs., 16 HI. 163. •Harmony t. Moore, 80 Ind. 276. 'Harrison v. McGregor, S6 Ind. 185. 'Bdson v. Hayden, 18 Wis. 837. «0wen Sch. Tp. v. Hay, 107 Ind. 351. 'McCasky v. Sch. Diet. No. 1, 2 Greene (Iowa5 482. "Park T. Pleasant Grove S. D., 65 Iowa, 209. TEACHER'S COMPENSATION. 275 personally liable to the teacher.* The exaction of extra com- pensation by the teacher, from the parents of children, does not constitute a defense to the payment of the warrant drawn by directors." Section 11 of the act La., which requires that the warrant drawn for the salary of any teacher should be accom- panied by a statement of the number of children taught, etc., is directory only.^ The act of 1856, La., did not fix the amount to be paid to teachers in the public schools ; and where there is no contract they can recover on a qvMntum meruit.^ Under Md. act of 1872, ch. 377, sub. ch. 8, § 3, the principal of a public school is not exempt ; and if he fails to make these reports, or to perform the duties of a teacher, he cannot recover the salary agreed to be paid him for his services.* §247. Teacher's compensation. — A Boston teacher, elected annually and payable quarterly, if dismissed at end of quarter by committee, under acts 1844 and 1854, without mis- conduct on her part, cannot recover compensation for remainder of time.^ Teacher cannot recover compensation for his services until he has completed the register required by act of 1849." In Mass., the act of 1838 authorized the school committee to contract for teachers for the town and district schools, and they could bind the town to pay for them ;'' the power given to the school committee to contract with teachers, includes the power to determine their salaries ; and the city council have no con- trol except by voting to close a school after it has been kept the length of time required by law.' Payment of the teacher's wages by the town to the committee, does not discharge the town's liability to him.' Except in graded schools maintained iFerenson v. True, 3 Bush (Ky.) 255. 'Miable t. Fonmet, 13 La. Ann. 607. 'Oflut V. Bonrgeois, 16 La. Ann. 163. Clark V. Great Barrington, 11 Pick. (Mass.) ^76 PUBLIC SCHOOL LAW. by districts, towns alone are liable for support of schools, and are liable for the teacher's compensation, in Me.* A teacher employed by a de facto agent may recover compensation for his services, but not for services rendered after notice of dismis- sal by school committee." There should be no deductions for holidays from the teacher's wages,' or for closing school on ac- count of small-pox ;* and a teacher may sue district for compen- sation, although mandamus would lie to compel the treasurer to pay the warrant ;' but issuing an order knowingly to an unli- censed teacher, subjects the officer to penalty in Minn. ;° though act Miss., Mch. 16, 1884, does not relieve the county from the obligation to pay valid certificates which were not presented under the act, because they had been mislaid.' Warrants for the payment of teachers of both white and colored schools of the same district, are properly drawn upon the teachers' fund of said district, in Mo.' § 248. Teachers' compensation. — "Where teacher left on being notified that he did not give satisfaction, he cannot re- cover for the remainder of the term, his leaving being construed as voluntary on his part ;' but the neglect of parents to send their children to a given school cannot, of itself, affect the right of its teacher to compensation," Where teacher, in Neb., has his certificate to teach in another county indorsed by the super- intendent of the district, the school-district treasurer must pay him." The teacher cannot lawfully be paid until he has made a report to the superintending committee, as required by statute and the school district may maintain an action against such com- .12 1 Norton t. Sonle, 75 Me. 385. 2 Woodbury v. Enoz, 74 Me. 462. 'Sell. Diet. v. Gage, 39 Mich. 484; Halloway V. Ogden 8. D., 62 Mich. 163. *Dewey v. Alpena Sch. Diet., 43 Mich. 480. 'Martin v. Elwood, .% Minn. 309. oSch. DiBt. V. Washington Co., 31 Minn. 533. 'Douglas V. Downing, (Miss.) 9 So. 297. 8 State T. Thompson, 64 Mo. 26. "Prazier t. Sch. Diet., 24 Mo. App. 250. "Doyle V. Sch. Dist., 36 111. App. 658. " State T. Qrosvenor, 19 Neb. 494. "Moultonborough v. Tnttle, 86 N. H. (6 Fost.) 470. TEACHER'S COMPENSATION. 277, mitteeman, to recover back the money paid ; the certificate of the superintending committee that a report is made, is not con- clusive.' A teacher in N. J. is entitled to a mandamus to com- pel the trustees to pay the salary due him.' A teacher under contract with a de facto trustee can recover pay for services.' Giving a note made to a teacher for wages earned in the em- ployment of the district, is within the scope of power of trustees of a district.* Under the by-laws of the board of education of New York city, mandamus will not lie to the board of education to pay the salary of a teacher alleged to have been wrongfully dismissed ; relator's only remedy being to have his name put on the pay-roll, that his salary might be paid in the regular way.' A teacher discharged before the end of the term sued the dis- trict trustee in the county court and was non-suited ; the non-suit did not bar appeal from trustee to superintendents ; an appeal could be taken to the superintendent, under laws of 1864, and the superintendent's decision was final, and the trustee, by sul> mitting the case to the superintendent, without objection, waived a jury ;' and the trustee may be directed by the superintendent to issue a tax list and a warrant to collect sufficient to pay the claim, if he has not enough on hand." A school committee in N. C. are not personally liable on contracts made in the line of their duty, but mandamus is the remedy to compel them to give an order on the county treasurer.' §249. Teachers' compensation. — The wrongful exclu- sion of a pupil from a school by a teacher, under the direction of the directors, does not defeat the right to wages.' A town- ship clerk cannot refuse to draw order for wages, on the >MonltonboTongli T. Tattle, 2< N. H. (6 Post.) 470. SApgar T. TrB., 34 N. J. L. 308. »De WoW v. Watteraon, 38 Hnn (N. T.) 111. *Horton v. Garrison, 23 Barb. (N. T.) 176. ePeople v. Bd. Kd., 15 N. T. S. 308. • People T. Bckler, 19 Hnn (N. Y.) 609. 'Robinson y. Howard, 84 N. C. 151. estate V. Blaln, 36 OUo St. 489. 278 PUBLIC SCHOOL LAW. ground that the contract wrongfully stipulated for the exclusion of some pupils ;' nor because refusal is made by order of the township board of education.' The board of education em- ployed the plaintiff to teach a school in the district, which he did for three months without any notification from the local directors to desist; upon a refusal of the township treasurer, by order of the local directors, to pay the order given by the board for his wages, a mandamus would lie.' Mandamus is the proper remedy to compel a clerk of a school district to pay over money in his hands applicable to a warrant issued in favor of a teacher, for salary.' The board of public educar tion of the city of Philadelphia had no power to appoint a superintendent of music* Under the ordinance of councils, Mch. 4, 1861, Pa., a suit brought against the city by one of the teachers for her salary, before the adoption of scale of salaries, was prematurely brought, and could not be sustained ;' and the discretion in board of controllers of public schools in Philadelphia, as to salaries of teachers, must be exercised in subordination to the appropriating power of the councils.' County commissioners had power to approve an account of a teacher of poor children, under the act of Apr. 4, 1794:, in a township which refuses to accept the general school law.' Man- damus is the proper remedy for a teacher whose certificate is wrongfully withheld by the controllers.' , In K. I., the town committee voted to not pay certain teacher's wages ; on appeal, the commissioner of public schools decided they should be paid ; the commissioner had no authority to draw an order on the treasury, but must certify his decision to the town committee." 1 state T. Blain, 36 Ohio St. 429. 2 Case T. Wresler, 4 Ohio St. 561. •Howard v. Bamford, 3 Oreg. 565. ♦Perot y. Philadelphia, 11 Phila. (Pa.) 181. ephila. v. Johneon, 47 Pa. St. 382. •Parker v. Lancaster Co., 1 Watts & S. (Pa.) 460. 'McManters V. Sch. Cont, 7 Phila. (Pa.) 23. "Kandall v. Wetherell, 2 B. L 120. TEACHER'S COMPENSATION. 279 §260. Teacher's compensation. — By custom, in K C, school masters charge by the quarter ; the defendant's children continuing over one quarter, he is liable to pay for two entire quarters.^ The Tenn. act of 1870, as to payment of teachers by the county trustees, is not repealed by the act passed two days later." Teachers cannot draw pay from public funds unless it is a public school.* The Tex. act of 1883, allowing auditing of unpaid claims for teachers' services rendered between Sept. 1st, 1873, and Aug. 1st, 1876, is a substitute for the law in force ; and where a school voucher was audited, for which a levy has been made, and it was not presented for six mouths, it was barred — and the act is not unconstitutional.* The act of 1883, Tex., makes it the duty of the counties to pay the claims of the teachers that have been audited, and recovery may be had by assignee of such claim.' After a teacher was dismissed she offered to accept $20, and the district voted to settle with her "if it could be done for $20," but they never communicated to her any acceptance of her proposal ; the offer was not binding on the teacher.' In a suit for teacher's salary it is improper to require him upon cross-examination to answer questions pro- pounded, to test his competency, or to show that after his em- ployment a remonstrance was circulated in his district, and signed by divers persons ;' and evidence that a majority of the voters in the district were dissatisfied with the plaintiff, and plaintiff and committee contracting knew this at the time the plaintiff was employed as teacher, is inadmissible.' In Vt., a teacher did not forfeit her salary by neglect to answer the in- quiries in the school register, and to certify to the correctness of 'Keckely v. CnmminB, Harp. (S. C.) 267. •Arrington v. Cotton, B7 Tenn. 316. 'tTesery T. Laredo, 65 Tex. 406. ^Parker v. Buckner, (Tex.) 2 S. W. 746. 'Co. Caldwell v. Crocket, (Tex.) 4 S. W. 607 'Richardson v. Sch. Dist., 38 Vt. 602. 'Doyle V. Sch. Dist., 36 HI. App. 653. 'Mason v. Sch. Dist. No. 14, S) Vt. 487. 280 PUBLIC SCHOOL LAW. her record of the attendance and deportment of pupils ; but she •was liable for any loss to district which her neglect has caused.* § 251. Teachers, contract. — Under Me. act 1821, ch. 117, a school committee of three appointed by a district had no au- thority to hire a school master, that power being vested in the school agent ;^ and under the Ga. act 1881, giving mayor and council of B. power to employ teachers, the citizens cannot em- ploy against will of the officers.' Where contract does not pro- vide as to time, but the commissioners of the 16th section, Ala., agree to remunerate him with its "available funds" for one year, the inference is that he is to render service for that time and enter on his work in a reasonable time.' The trustee of a school district, disputing the legality of an adjourned school meeting at which his successor was elected, held over, and em- ployed plaintiff as teacher ; such acts were valid as those of an officer de facto!' A contract, in Wis., for teaching the district school for a term extending beyond the time when the term of office of its officers will expire, unless made contrary to a deter- mination of the district at the previous annual meeting, under Kev. St., ch. 23, § 15, is valid, subject to the power of the dis- trict at its next annual meeting, or of the same officers or their successors, to end it by determining the length of time a school shall be taught in the district, and by whom." Board of direct- ors at end of their term cannot contract for teacher for ensuing year ;' and in New Orleans a teacher cannot be employed in public schools for longer term than one year.' School direct- ors in 111. cannot employ teachers for a succeeding year with- out the annual reorganization of the board ;' and in N. C. a 1 C osby V. Sch. Diet., 35 Vt. 623. ^Piiiterson v. Bntler, 11 S. E, 399. '.Mdov v. Newfleld, 4 Me. (4 Greenl.) 44. ^Comm'rs v. Oriswell, 6 Ala. 565. <■ jiurrett v. Sayer, 12 N. T. S. 170. •Webster v. Sch. Dist., 16 Wis. 316. 'Cross V. Sch. Dirs., 24 ni. App. 191. 8 Golden v. N. 0. Sch. D., 34 La. Ann. 354 : Sch. Dirs. V. Hart, 4 III. App. 334. •Davis T. Sch. Dirs., 92 111. 293. TEACHER, CONTKACT. 281 fichool committee have no power to employ teacher beyond their term of office.* " In the case of Stffvenson v. School Di- rectors, 87 111. 265, the decision was placed upon the ground that the meeting which chose directors determined what should be taught in the schools, and that it was a necessary inference that no contract could be made until it was known what service was to be contracted for." § 252. Teacher, contract. — An answer which alleges that the persons who signed plaintiflE's contract were not duly elected and qualified school trustees, but mere usurpers, is demurrable when pleaded after a general denial, since it is only a special denial.' A contract, when signed by the teacher and one of the trustees, when the board was not in session, and afterwards approved at a special session of the board, and there signed by another trustee, is binding.' The admission of evidence con- cerning rumors in regard to the purpose of the board, and their intention not to permit plaintiff to teach, is not reversible error.' There is no law that forbids the school board to make a contract for a superintendent, for a term beginning after some members ■of the board go out of office.' A contract cannot be annulled by the subsequent action of the school town in abolishing the department in which teacher was engaged to teach.* Where trustees, with the acquiescence of the town, continue to act as such after the expiration of their term, and before their success- ors are appointed, they are officers de facto, and their contract with a teacher is binding.* Such contract cannot be assailed by subsequently-elected trustees, when it is not alleged that the teacher was a party to the fraud in effort to forestall them ;* the 1 Taylor T. Sch. C, 5 Jones (N. C.) L. 98; Stereniion t. Sch. DItb., 87 ni. 355. ^Town Milford v. Powner, 128 nid. 528. •Renbelt v. Sch. Town, 106 Ind. 480: Walt v Eay, 87 N. T. 38; Tappan v. Sch. Diet., 44 Mich. 500; Webater v. Sch. D., 18 Wis 317. <8ch. T. Milford v. Zelgler, ( Ind.) 27 N. E. 303 282 PUBLIC SCHOOL LAW. board of school trustees may bind the school town by a contract with a teacher, although the contract is not to be performed be- fore the election of ' a new board." In N. Y., a contract with teacher made by the sole trustee of a school district, extending- beyond the trustee's term of office, was valid ;' and the power of a school committee to contract with a teacher for a period longer than their own term of office, upheld.' The district- school board, Mich., need not wait for the annual meeting of district before hiring teacher for following year, though two of the members of the board go out of office at that time.* As- sumpsit lies against the trustees of a school district for the wages of a teacher employed under a contract with their prede- cessors, whether funds are in the defendant's hands or not.^ Contracts with teachers are binding on the successors of the trustees of the district." §253. Teacher, contract. — The provisions in the Mich, primary-school law, whereby the voters and the district board shall have full control of the schools during the entire school year, did not apply to graded schools and cannot affect any contract for teaching-, made by the trustees before the year opened.' The prudential school committee, chosen in March, cannot interfere with a teacher engaged by the general com- mittee of preceding year, under act of 1846, for that term.' A school district was bound by the contract of its prudential com- mittee, although it extended beyond the official year of the com- mittee, and the school district had neither authorized the prudential committee to enter into a contract extending beyond iSch. T. Milford v. Zeieler, (Ind.) 27 N. B. 303; Eeubelt v. Sch. T., 106 Ind. 478. 'Gills V. Space, (53 Barb. (N. Y.) 177; Waid V. Ray, 67 N. Y. 36. aWilscin v. Bast Bridgeport Sch. Dist., 36 Conn. 280. ♦Cleveland v. Amy, (Mich.) 50 N. W. S93. 'Williams v. Keech, 4 Hill. (N. Y.) 168. 'Silver v. Cummings. 7 Wend. (N. Y.) 181. 'Tapp n V. Oarrollton Soh. D., 44 Mich. BOO. »Sch. D. V. Morse, 8 Cash. (Mass.) 191. TEACHEK, CONTRACT. 283 the official school year, nor authorized this term of school which he was employed to teach.' Under Eev. L. Yt., § 615, a com- mittee elected in March might make contract for the ensuing school year, September to June.' Where de facto trustee con- tracts with a teacher, the election of a trustee de jure who ignores the contract, will not defeat the teacher's right to com- pensation for discharge by him.' Where statute Ala. enacts, "where but one school is supported, the commissioners shall have power to employ a teacher," etc., a teacher so employed need not allege there is but one school.* Mandamus is the remedy to restore a teacher to the position from which he has been removed wrongfully and unlawfully.* Two of three directors may contract at a meeting of which the third has had notice, and notice need not be given for regular meeting ■," and this applies to a school-district committee.' A vote directing the committee not to employ a certain teacher, was inadmissible in evidence, where the notice of the district meeting was not sufficient.' If the district neglects to act, the committee are authorized to provide rooms and employ teachers at the expense of the district ;' but if the district acts, the committee must con- form to its action.' § 254. Teacher, contract. — That the plaintiff had miscal- culated the amount due him, is not admissible evidence of in- competency." Where not waived, a teacher's contract cannot be fulfilled by procuring a substitute, however competent." In order to create a liability, under a contract provided for by the common-school law, the statutory requisitions must be complied 'Chittenden v. Waterbnry, 56 Vt. 551 ; Mason V. Sch. Dist., 20 Vt. 487; Chaplin v. Hill, 24 Vt. 528 ; Waterbnry v. Harvey, 56 Vt. 656. a Chittenden v. Waterbnry, 56 Vt. 551. • O'Neil V. Battie, ( Snp.) 15 N. T. S. 818. *Comni'ra v. Criawell, 6 Ala. 565. 'Kennedy t. Bd. Ed., 82 Cal. 483. «Sch. Dist. V. Bennett, 52 Ark. 511. ' Wilson V. Waltersville, Sch. Dist., 46 Conn. 400 8 Wilson T. Sch. Dist., 44 Conn. 157. ' Oilman y. Bassett, 33 Conn. 298. "Doyle V. Sch. Dist., 36 111. App. 653. " Sch. Dirs. V. Hudson, 88 111. 563. 284 PUBLIC SCHOOL LAW. with.* The defendant wrote : " We have had a meeting of all the citizens of the place that are interested in a female school, and all are satisfied with Miss J., and are anxious to employ her, and are resolved to make her this proposition : we will guaran- tee to her the sum of 1400 for one year," etc. The plaintiff accepted the proposition, and taught the school three months and ten days, when the parties separated by consent. The peti- tion was filed for discovery of the names of, the trustees and guarantors, and for payment ; defendant was not liable ; there was no contract shown, and the plaintiff's remedy was at law.' A teacher cannot hold a school district in N. H., liable for his wages, under a contract made with him by the prudential com- mittee.' In an action to recover subscription in aid of a com- mon-school fund, it is a good defense that the teacher admitted scholars not entitled to by law.* Employment of unlicensed teacher by trustee of school district, in N. T., is illegal." The Pa. statute of 1862, requiring names of all the directors and manner of voting for teacher to be recorded, is mandatory and must be strictly complied with, and cannot be supplied by other evidence.' The employment of teacher by committee of Dis- trict No. 3, Chowan county, N. C, after acts 1883 and 1885, was unauthorized, this district having been put in hands of trus- tees.' Where the president of a board of school directors is authorized to employ teachers with the consent of the board, and one whom he employs by written contract begins teaching, with the knowledge of each member, the consent of the mem- bers will be presumed.' The trustee of a civil township, in Ind., as such, cannot employ a teacher, an action against such town- 1 Cascade T. Lewis, 43 Fa. St. 318. iiWilie v. Price, 6 Elch. (S. C.) Bq. 91. « StebWnB T. Sch. Dlst., 18 N. H. 510. iChalmerB v. Stewart, 11 Ohio, 386. *BlandoiiT. Moaefl, 29Hun (N. Y.) 608. •Sch. Dlst. V. Mercer, (Pa.) 9 A. 64. 'Skinner v. Baleman, (N. C.) 1 8. B. 538. »Hull V. Ind. Diet., (Iowa) 46 N. W. 1053: 48 N. W. 82. TEACHER, CONTRACT. 285 ship cannot be sustained,' and a civil township was not liable on a contract made by a township trustee with a common-school teacher.' § 255. Teacher, contract. — In Mich, a teacher cannot be employed by two members of the board without the concur- rence of the third, and without any meeting of the board.' A contract with teacher, made by two members of the board, in absence of each other, and without knowledge of third, is not binding on district.* A contract made by two of three di- rectors of a district, at a time difiEerent from the time fixed for regular meetings, and of which the third director had no notice,, is not binding.* A contract between the president and secre- tary of board with teacher, is void ; Pa. Acts 1862, p. 472,, requires concurrence of the board.' Where statutory mode of contract is required to be by the board, a contract by individual members of board will not bind, and ratification will not make valid;' but the fact that the oflBcers of the district were not together when the contract was signed^ does not overcome the presumption that it had been author- ized by the board at a meeting, as required by K. S. Wis., §432.* The board of directors cannot waive the fact that; the teacher is unfit or incompetent to teach; they should dis- charge him.' Where contract with teacher was for definite time unless discontinued by directors, a discontinuance for diph*^ theria is to be deducted from the time." Section 28 of 1 Ind. Kev. Stat. 1876, p. 788, applied to the school trustees of cities. and incorporated towns, as well as to the trustees of school 1 GreeiiBbOTO v. Cook, 58 Ind. 139. SHarriBon v. McGregor, 67 Ind. 380. " Goodyear V. Sch. Dist., 17 Oreg. 617. 286 PUBLIC SCHOOL LAW. townships.' A vote to discontinue the school and to pay her ■$17.50, "for teaching in sub-district," etc., was no ratification of contract made by sub-director without authority.^ A trustee, employed as a teacher by the two others, vacates his office as trustee.' No recovery can be had on contract to teach school, made with a sub-director, in Iowa, but not approved by the president of the board, unless approval is waived, and contract ratified;* a contract with a teacher becomes binding upon a district township only when made by a sub -director and ap- proved by the president of the board, under Iowa Code, § 1753.° §256. Teacher, contract. — Contract in book, signed by •assessor and director, but not at same time, and moderator con- senting, is valid." "Where the resolution is passed at a session of the board of school trustees, it is immaterial that the trustees signed the contract at dififerent times.'' Where a township trus- tee pays teacher out of his own pocket, in good faith, and the school funds are insufficient, he may maintain an action for money so paid.' "Where one of the board signed the contract with a teacher, which was afterwards approved at a called meeting and signed by another member, it became binding ;' and where an order employing a teacher is passed at a session of the board of school trustees, it is immaterial that the trustees signed the contract at different times." In Iowa the discretion of directors to employ teacher for less than fifteen scholars will not be controlled by mandamus." A township obtaining ser- vices of a teacher under claim of authority is estopped to deny its liability." Although a contract did not comply with the ' Putnam t. Irvlngton, 69 Ind. 80. 'Herrington v. Listen Dist. Tp., 47 Iowa, 11. ' Furguson v. True, 3 Bush ( Ky.) 255. < Place V. Colfax, 68 Iowa, 573. ^Gambrell v. Lenox, 54 Iowa, 417. •' HoUoway v. Ogden, 62 Mlcli. 163. ' Sch. T. Milfordv. Zeigler, (Ind.) 87N.B. ; 8 Kiefer v. Troy, 102 Ind. 279. »Logansport v. Dykeman, 118 Ind. 15. " Sch. T. Milf ord v. Zeigler, (Ind.) 27 N.B. ; " Ananson v. Anderson, 70 Iowa, 103. "Heill T. Dist. Tp., 41 Iowa, 494. TEACHEE, CONTKACT. 287 statute requiring it to be in writing, (Iowa School Laws 1872, § 51,) the acceptance of part performance was a ratification, rendering the district liable.' "While a sub-director is author- ized to make contract with teachers, his authority is subject to the rules prescribed by board of directors, in Iowa.'' A peti- tion on teacher's contract, stating contract and certificate of qualification, is good on demurrer, and an action will lie on the same.' A school teacher, without written contract, is entitled to reasonable compensation from the district, in Kas.* Con- tract by district with teacher, reserving right to discharge him at any time he fails to give satisfaction, is valid.^ Where mod- erator of district hired her husband to teach for more than a better teacher would charge, she could not be removed as mod- erator, under primary-school law, for that reason, in Mich.' Where two or three oflBcers of a board are related to teacher, and others could have been hired for much less, this is not suf- ficient fraud to render the contract void.' § 257. Teacher, contract. — Where a contract, signed by the director of their school district, and teacher, and the moder- ator writes on it, "Approved," subscribing as moderator, it will be valid.' Where Minn, statute requires a contract with a teacher to be in writing, and where it is admitted that a majority of the trustees signed, it is proper to instruct the jury that where the necessary trustees signed, it would be a compliance with the law, and to leave the question as to whether there was a contract or not, to the jury ;" signed by a majority at different times and filed with clerk is prima facie binding." Although § 6 of Mo. Law 1865, allows the local directors to employ 1 Cook V. North McGregor, 40 Iowa, 444. 5 Potter T. Fredericksburg, 40 Iowa, 369. sHamrick v. Bd. Ed., 28 Kaa. 385. < Jones V. Sch. Dist., 8 Kas. 368. «Sch. Dist. T. Colvin, 10 Kas. 283. 'Hazen v. Akron, 48 Mich. 189. 'Dolan T. Jt. Sch. Dist., ( Wis.) 49 N.W. 960. 'Everett v. Sch. Dist., 30 Mich. S49. "McGinness v. Sch. Diet., 39 Minn. 499. 10 Armstrong v. Sch. Dist., 28 Mo. App. 169. 288 PUBLIC SCHOOL LAW. teachers, a teacher may sue the township board of education for a breach of the contract, under § 7.* Contract made by direct- ors in accordance with statute is not to be avoided by district on account of want of funds.' Where directors close the school they cannot claim teacher has forfeited his contract by not mak- ing his reports during that time." In Neb., a contract with teacher, made by director and treasurer of district, without knowledge of moderator, was valid.' A district cannot deprive the prudential committee of the power to provide board for teachers.* Where a teacher made a contract with a member of the district board, who paid her for teaching and boarded her, he could only contract on the credit of the school-money of the district and not on the credit of the district.' The authority conferred by statute upon local directors, to employ teachers, and certify the amount due them for services, cannot be con- trolled by any rule of the township board." Where, at special meeting of school board that is called for other pur- poses, a quorum is present and a unanimous vote is had to employ a teacher, this will be suflBdent, under Acts Pa. 1862.' In Pa. the board of directors may employ a teacher if not chosen by the inhabitants.' § 258. Teacher, contract. — ^A contract, in Tenn., for one year at so much per month, from Aug. 16, was held to begin at usual time for opening school and to end with usual time for closing, or when funds gave out.' In Tex., it was not intended that the county judge should approve the contracts in the com- munity system, where the trustees make contracts with the teachers ;" where county judge approves two copies of contracts 'Pnterbangh v. Tp. Bd. Kd., BS Mo. 472. sEndy t. Sch. Dist, 30 Mo. App. 113. "EnsBell T. State, 18 Neb. 68. *Sch. Dist. T. Cnrrier, 45 N. H. 573. » Wheeler v. Alton Sch. D., ( N. H.) 23 A. ' state V. Wilcox, 11 Ohio St. 388. ' Genesee Ind. S. D.t. McDonaJ d, 98 Pa. St.444. « KingBley v. Sch. Dirs., S Pa. St. 28. ' Morley v. Ponver, 10 Lea ( Tenn.) 219. locaviel v. Coleman, 72 Tex. B50. TEACHER, DISMISSAL AND DISCHARGE. 289 and retains the third, he cannot afterward claim that he in- tended to approve them qnalifiedly.' Where the school-house was burned, and no house was provided, and teacher was not discharged, etc., an action would lie for her wages for the full term f and a teacher may recover where school-house is de- stroyed by fire and no other is furnished ;' but it was held in Mo., that where teacher was hired for four months and the school-house burned down after two months had elapsed, the teacher could not recover compensation for the remainder of the time.' In Yt., the vote instructing the committee to hire a female teacher for the district, is advisory merely." Defendant cannot avail itself of its refusal' to certify that the register is re- turned, to defeat plaintiff's right of recovery for her services." E. L. Yt., p. 516, provides that the prudential committee of a school district shall " appoint and agree with a teacher to in- struct the school."' Where the school committee had left an order for $7.50 at boarding house for her services as teacher, which she took, but returned in two or three hours, saying that she did not accept it, she lost nothing by taking and returning.'' An infant may contract with a school board to teach a school.* A contract by which the board declares, " We reserve the right to close the school at any time if not satisfactory to us," is un- authorized and inoperative.' A contract made between a teacher and the school-district clerk, in the name of the district, with the consent of the director or treasurer, i& prima facie valid." §259. Teacher, dismissal and discharge. — After a teacher has been irregularly dismissed, his continuance in the 1 CaTiel T. Coleman, 72 Tex. 550. s Oashen v. Sch. Dint., 50 Vt. 30. >Sch. Dirs. V. CrewB, 83 111. App. 367. Statev. Heyward, SKich. (S. C.) 389. I s'Legrand v. Hampden Sydney CoUeee 5 I Munf. (Va.)324. 320 PUBLIC SCHOOL LAW. and the state treasurer, are all properly joined as defend- ants. . . . "The constitutional system of common schools must extend throughout the state, and must aflEord equal benefit to all the children thereof within the specified years. The general as- sembly is without authority to establish- a system of common schools which does not possess, in its entirety, these distin- guishing features. It is more than a presumption, that the term public schools was employed in the constitution in its popular meaning and sense, the system of public schools to which the people of the state had been accustomed, and as they would understand it, in adopting the constitution. As we have said in another case, the system of public schools commanded to be established, organized, and maintained, was intended to operate upon, and in favor of all the children equally, with- out special local privileges to any. {Schultes v. Eherly^ 82 Ala. 242.) . . . " The act in question not only does not purport, but negatives the idea, that the university thereby established should consti- tute a part of the system of common schools. It establishes a university, with the implied privileges and powers appertaining to such institutions of learning, and as contradistinguished from high schools, and even colleges. It is not subject to the super- vision of the superintendent of education, in whom the constitu- tion vests the supervision of the public schools. It provides for the appointment of trustees, who are empowered to elect a faculty, and such officers and agents as they may deem neces- sary ; to discharge any member of the faculty or officer or agent, at their pleasure ; to prescribe their duties, and fix their com- pensation ; and generally, to govern and control the faculty and UNIVERSITIES, COLLEGES, ETC. 321 the aniversity, ' so that the students therein may be taught in the best manner possible the things they are to live by, preferring always the English language and the industries, to an education for culture only.' The act authorizes the trustees, in the event QO suitable lands or buildings are given for the location of the aniversity, to buy not exceeding forty acres of land, and for the purpose of buying the land and erecting suitable buildings thereon, appropriates the sum of ten thousand dollars, payable on the order of the governor, in amounts and at times specified ; and also appropriates for the support and maintenance of the university the sum of seven thousand and five hundred dollars annually, to be paid to the treasurer in equal installments, on the first days of January, April, and October of every year ; and further provides that these several sums so appropriated shall be 'set apart and appropriated from the school fund for the education of the colored race.' . . . "Having reached the conclusion that the university is not a public school in the meaning of § 1 of art. 13 of the constitu- tion, and as the appropriations for its establishment are ex- pressly set apart and appropriated from the school fund for the colored race, we are forced to hold that the seventh and tenth sections of the act are unconstitutional ; and as what remains ia incapable of full execution according to the legislative intent the entire act falls." § 290. Universities, colleges, etc.— In the case of State V. Babcock, 17 Neb. 612, it was held : "The question as to their power over the university funds was before this court in Regents V. McConnell, 5 Neb. 423. In that case they brought an action against McConnell to recover the 'sum of about $3,600, moneys belonging to the regents' fund, which came into the hands of — 2t 322 PUBLIC SCHOOL LAW. the defendant as treasurer of the university, under his appoint- ment by the regency.' The opinion was written by Chief Justice Gnatt, who said (page 428): 'Under the act of 1869 the uni- versity corporation had no control over or disposition of the endowment fund, and now by the act of February 25, 1875, the legislature has deemed it proper to abolish the oflBce of treasurer of the university, and to make the state treasurer the custodian of the funds appropriated for the support and maintenance of the university, to be disbursed by him upon warrants drawn by the state auditor, in the same manner as funds appropriated for the support of other state institutions not incorporated are dis- bursed. Hence, by this latter act, the custody and control of these funds are taken from the corporation and placed in the custody of the state treasurer for disbursement, and under the settled rule of law, in respect to public corporations of this kind, the legislature had the undoubted authority to take these funds from the custody of the corporation and divest it of any cor- porate power over them ; and having done so, we think it clear that the regents as such corporation have no authority in law to bring or maintain this action.' The same question was again before the court in State v. Ziedtke, 9 Neb. 468, the opinion being written by the present chief justice, and it was held in effect that without an appropriation by the legislature 'no such funds or any other funds once in the state treasury can be drawn out,' and because there was no appropriation from the regents' fund, the court refused to compel the auditor to draw a warrant thereon." § 291. Universities, colleges, etc.— In the case of Zigget et al. V. Ladd et al., (Ore.) 21 Pac. Kep. 133, it was held : "A college was incorporated under articles, one of which stated its VOTERS. 323 object to be 'to acquire aud hold property in trust for the church, and to endow, build up and maintain an institution for educational purposes, and to confer . . . degrees, etc., usual in colleges,' to be controlled by the trustees and their successors, who were to be chosen by the church : '■Provided, That said college shall be a strictly literary institution.' An act of the legislature gave certain privileges to the college, on the condition of its teaching agriculture. The college accepted the proposition, thus virtually becoming the agricultural college of the state. Land was conveyed to the college, 'to be used by said college as an agricultural farm in connection and for the purpose of the agricultural college,' with ^ conditional limi- tation over in case the premises should cease to be used for that purpose. Held, that under its charter the college had the power to take and hold land for collegiate purposes entirely independent of any benefit to the church, and therefore the church had no interest whatever in the land mentioned, which the trustees had full power, so far as the church was concerned, to convey to the regents of the agricultural college." § 292. Vaccination, constitution. — "An act to encourage and provide for a general vaccination in the state of California," is constitutional, although the title refers to "general" and body of act to scholars of public schools.' § 293. Voters. — In Kas. a woman may vote for school-dis- trict treasurer,* but cannot vote for state superintendent or county superintendent.' In JST. J. aliens have no right to vote at a meeting of district, to alter the district, pursuant to law of 1851.* In N. T. where a charge for teacher's wages in a district, for the teaching of a son, was included in the rate-bill against father, I Abeel v. Clark, 84 Cal. 226. 1 « Winans v. WilliamB, 6 Kas 227 « Wheeler v. Brady, 15 Kas. 28. | * State v. Deshler, 25 N. J. L. ( 1 i)ntch.) 177. 324 PUBLIC SCHOOL LAW. and paid by son, a resident of the district, and authorized to vote at town meetings of the town in which such district was situated, such payment qualified the son to vote at the district meetings.^ In Vt. it is not a necessary qualification of a voter or office-holder in a town or school district, that he be a free- man.^ A widow cannot vote at meeting in Yt. where her property was listed to the estate of husband. (K. L., § 2644.)' Where fraudulent voting is charged at a district meeting, and new vote is taken, and diflferent result declared by the chair- man, the last will be sustained.* § 294. Warrants. — In Ind. a school commissioner is not authorized to pay interest collected by him on money of a con- gressional township, except on a draft of the township trustees ;* and if he has paid the money to a person not authorized to re- ceive it, still, if be is ready to pay the trustees' draft when pre- sented, his duty will be discharged.' Payments for repairs on school -house by district officers are presumed to have been authorized by the district." A township treasurer cannot pay a warrant in excess of the funds in his hands due that township and be allowed a credit for the excess out of the funds belong- ing to any other township.' A county treasurer may refuse to honor warrants given by officials for salaries when there is want of authority to issue the warrants.' In N. J. the town- ship collector is not responsible for the application of the money paid out on proper orders ;' but where officers contract for book, signing and receipting for the same personally, they are individually liable although they issued a warrant for pay- ment." Where sub-contractor obtains an order from the district iCrawford v. Wilson, 4 Barb. (N. T.) 504. sWoodcock V. Bolster, 35 Vt. 632. •Sch. Dist. V. Town, 22 A. 570. < State T. Hntcliins, (Neb.) 50 N. W. 165. 'State V. Wright, 8 Blaokf. (Ind.) 65. 'Brock T. Brnce, ( Vt.) 10 A. 93. 'State V. Cook, 72 Mo. 496. * Slate V. Bateman, 96 N. C. 5. •Zimmerman v. Mathe, (N. J.) 7 A. 674. "Western P. v. Bachman S. D., 51 N. W. 214. WARRANT. 325 after contractor abandons the work, and sues on such order, he can show that more than that amount was due the contractor from the district at the time of giving the order/ In Kas. it is the duty of a director of a school district to sign the orders when presented to him for his signature. He has no discretion in the matter, and may be compelled to sign a proper warrant for a teacher by mandamus." § 295. Warrant. — A school order was issued to a teacher in a sub-district; before its payment the several sub-districts of the township were organized into independent districts ; an action could not lie against the independent district,' but recov- ery could be had thereon of all the independent districts united, and they should apportion their liabilities.' Under Iowa stat- ute, an action can be maintained against a school district upon proper order on its treasurer ; and the payee is not restricted to mandamus as his sole remedy.* A complaint on a warrant for apparatus need not anticipate the defense.' The act author- izing board of trustees University of California to draw money does not require an appropriation or a controller's warrant; they draw money on their warrant indorsed by the governor." School-district orders drawn by the oflScer and accepted by the treasurer, and indorsed "Not paid, for want of funds," are sub- ject to the same defense against an indorsee as against the payee.' The assignee of an order issued in excess of the con- stitutional limitation is in no better position than the assignor.' A school township may execute a valid promissory note for any debt contracted for the benefit of its property ; an assignee >La Febre v. Bd. Ed. Superior, (Wis.) 61 N. W. 958. rPaulk V. McCarthy, 42 Kae. 895. 'Kpoxville Kational Bank v. Wasliington, 40 Iowa, 612. * Cross V. Dayton, 154 Iowa, 28. 'Jefferson School Tp. y. Litton, 116 Ind 467. •Cal. 0ni. T. January, 66 Cal. 507. ' Sch. Diat. v. Stough, 4 Neb. 357. «Nat. St. Bk. of Mt. Pleasant t. Ind. Sch Dist, 38 Iowa, 4»0. 326 PUBLIC SCHOOL LAW. takes it subject to all defenses.* A school order carries notice to every person becoming its holder of its validity, and he must at his peril ascertain what defenses can be interposed.* Where a school-district board contracted for a school-house, and issued orders before any work was done, never having been author- ized by a vote, and the house was not erected, the district was not liable to an indorsee.' § 296. Warrants. — Payment by treasurer of school district of orders drawn by teacher, held to be good offset in a suit on school warrant to teacher, assigned to 0., who had notice.' Where duplicate warrants are issued for those lost, the statute of limitation will run from date of original and not of issue of duplicates.' A warrant issued to settle dispute over contract for school-house ground is not without consideration though the ground has been conveyed to others by payee, if the district is in peaceable possession.' Warrant is not binding on district, because never properly allowed, never executed at any regular meeting, and only allowed by one legal member of the board.' In 111. the board of school directors had no power to make acceptances of orders or bills of exchange, so as to bind the school district and create a right of action thereon against them.' A township trustee has no power to borrow money for the school township ; but for money borrowed and actually used in a legitimate way, the township may be held liable." Orders on the treasurer of a school district, directing him to pay certain judgments, issued under Code Iowa, § 1787, are not evidences of debt independent of the judgments on which they are based ; 1 Sheffield Sch. Tp. v. AndresB, 56 Ind. 157. "Newell V. Sch. Dirs., 68 111. 514; Cap. Bk. v. Sch. Dist., (N. D.) 48 N. W. 363. •Sch. Dist. v. Stough, 4 Neb. 357. schools, except in such counties as have adopted uniformity of text-books as provided in chapter 104, Session Laws of 1891. In such counties the county board of education selects the text-books. All persons giving instruc- tion in the public schools of the state governed by the school laws of 1891, except specialists mentioned in section 13 of chap- ter 2, are required to hold a certificate of qualification, either from the state or county superintendent. All children between six and twenty years are of legal school age. School boards are required to cooperate with teachers in the government and 388 SYNOPSES OF SCHOOL LAWS. discipline of the schqols, and may make proper rules and regu- lations for the same. They may temporarily expel from school any pupil for insubordination and disobedience. County super- intendents exercise a direct supervision over the schools within their jurisdiction, except in towns of more than one thousand inhabitants. The county superintendent is the organ of com- munication between school officers and the state superintendent of public instruction, whose supervision is for the most part ad- visory. The state superintendent has appellate jurisdiction over cases determined by the county superintendent. TENNESSEE. (Compiled by Hon. W. E. Gabbett, State Superintendent.) System: State superintendent, county superintendent, dis- trict school directors. — State Superintendent appointed by the governor, confirmed by the senate. Duties are : To collect and dispense information ; to inspect ; to supervise the admin- istration of schools; prepare forms and blanks; have printed school laws ; to appoint agents to examine the schools in the county; require county superintendent to report; to prescribe the mode of examining and licensing teachers, and their quali- fications; preserve documents; report to the comptroller the scholastic population; and report to the governor. — County Superintendent is elected by the county court biennially; may be removed for misconduct or inefficiency, charges hav- ing been made in writing. Has supervision of schools in the county ; visits teachers and district directors, to promote their interests, to suggest changes in text-books, and to see that di- rectors make reports ; to perform such duties in regard to ex- amination of teachers and issuing certificates to them as are required of him by the state superintendent ; to report to the county trustee the scholastic population ; to make annual report ; to keep record. — District Directors: Three elected in each district. Duties : To explain and enforce the laws and regula- tions; employ teachers, and dismiss them for incompetency, TEXAS. 389 improper conduct, or inattention ; to suspend or dismiss pupils when the prosperity and efficiency of the school make it neces- sary ; to use the school fund apportioned ; to see that the cen- sus is taken ; to hold regular meetings as prescribed and special meetings when called by the chairman or by any one of the members ; to keep separate white and colored schools ; to con- trol public-school property. No state or county oflBcer can be interested in a school contract. — Contracts with teachers must 1)6 in writing. — Teacher, for cause, may suspend pupil from attendance on school until the case is decided by the board of school directors, which shall be with as little delay as possible. State board of education controls normal schools ; has no other powers. Cities, incorporated towns, and municipal corporations of the class called taxing districts, have power to establish boards of education, and to establish and maintain graded high schools. TEXAS. ( (Compiled by Hon. J. M. Cablislb, State Superintendent.) Districts: One hundred forty-five counties have school dis. tricts ; the commissioners' court fixes the boundaries. Change by majority vote of each district affected by the change. Citi- zens meet on the first Saturday in June and elect three trustees, who must be able to read and write. Notices are sent out by the commissioners' court as for other elections. Seventy-five counties have no fixed districts. They are called community counties. The citizens of each community petition the county superintendent each year for a school, and that certain named persons be appointed trustees. The patrons of any school are not limited as to territory. There is no continued organization. — Powers of District Trustees : They contract with teachers, determine the number of schools in the district, the location of each, and when schools shall open and close ; they manage the schools, subject to the regulations of the county and state super- intendent ; they approve all vouchers ; they are not allowed to create deficiency debts; they can dismiss teachers, but the 390 SYNOPSES OF SCHOOL LAWS. teachers so dismissed may appeal to the county and state super- intendents ; they may employ assistant teachers. In cities, towns, and taxing districts, the trustees have increased powers as to the general management of the schools, and are not limited as to the salaries of teachers. — Contracts, Supplies, War- rants : The trustees contract with teachers, subject to the limita- tion as to salaries and certificates fixed by law and the approval of the county superintendent. The contracts of cities, towns^ and taxing districts are not required to be approved by the county superintendent. They buy all supplies, make repairs, and have school-houses built. They cannot, under the law, create deficiency debts for teachers' salaries or other purposes. All warrants must be approved by the county superintendent, and his permission must be obtained before warrants for sup- plies, repairs, or buildings, are drawn. — Teacher cannot con- tract until he has a valid certificate. In the rural schools and in the non-taxing towns salaries are limited to the grade of the certificate held — third grade $30, second grade $50, first grade $75. They may receive tuition collected from pupils over and under school age, and from those who attend from other districts, or this may go for extending the school term. — Teachers' Certificates: Each county has an examining board — three teachers with first-grade certificates; questions are furnished by the state superintendent. Examinations are held quarterly. These certificates are good only in the county in which they are issued. A third-grade certificate is good for one year, a second-grade for one or two years, according to the grade made, a first-grade good for one, two or three years, ac- cording to the grade made. A summer normal institute is held in each senatorial district each year. First- and second-grade certificates are issued, good for two years. Questions are pre- pared by the state superintendent, and graded by a state board appointed by him. State certificates are granted once a year on specified subjects, papers being graded by a state board. Life certificates are granted to B. S. and A. B. graduates of first- VERMONT. 391 class colleges, provided each candidate has taught five years in Texas. — Pupil — Punishment — Rules : The rules are left to local trustees. A pupil may be suspended for the remainder of any school year on account of incorrigible conduct. — State Superintendent: He may issue directions in all cases wherein the law makes no provisions, or when hardships or delays will result without such rules. He is the executive officer of the state in all- educational matters. He has power to withhold the compensation of teachers and school officers until the required reports are made. He submits forms for reports, hears appeals from the rulings and decisions of the county superintendents, and acts as secretary of the state board of education. — County Superintendent: He has the general supervision of all the schools in his county ; he visits all the schools, approves all vouchers against the school fund, and makes a report to the state superintendent. VERMONT. System: Superintendent of education, town superintendent, towns, districts ; superintendent to have general supervision ; shall hold teachers' institute in each county during his biennial term ; shall visit, lecture, advise. Graduate normal school hold- ing ten-years' certificate, teaching 200 weeks, may obtain a re- newal good until revoked. Graduate of highest course of normal school in another state may obtain certificate to teach in any county. Towns may be organized into districts and may be di- vided into districts, or several towns may unite and form a dis- trict. — District at Annual Meeting elect a moderator, clerk, collector, treasurer, one or three auditors, and a prudential com- mittee of one or three persons, and may elect the collector of town taxes. — Prudential Committee employ teacher, remove him when necessary, and may adopt measures not in conflict with town superintendent. Prudential committee, when not prohibited by vote, may permit use of house for religious or other purposes. Schools may be maintained under the town sys- tem. Town central school system for advanced pupils may be 392 SYNOPSES OF SCHOOL LAWS. adopted. Town system may be abolished. School age is five to eighteen years. Compulsory education is required. — Text- Books may be changed every fifth year. Any town or district may purchase and hold text-books for use in its schools if it so votes in a meeting warned for that purpose. The county su- pervisor and county board of education are abolislied, and town superintendents restored. The state superintendent and gov- ernor shall appoint in each county an Examiner of Teachers, and fill vacancies. Examiners to consult with town superin- tendents and hold suitable number. of examinations of teachers in spring and autumn ; may employ suitable person to examine ; shall issue certificates on examination papers and report of per- son conducting examination ; if examiner is unable to issue cer- tificate, state superintendent may. No person to teach without certificate ; exception as to principal of highest department in graded schools ; teachers to be not less than seventeen years of age. Three grades of certificates to be issued by examiner: first grade to one teaching forty weeks, with examination papers of grade required by state superintendent, good for five years in any town in the state ; second grade to one who has taught twelve weeks, and whose examination papers are of grade re- quired by state superintendent, and good for two years in any town in the state ; third grade limited to a particular school and not to exceed one year. Examiner may be removed by state superintendent and governor for cause. — Superintendent of Education shall prepare questions for examination and blanks for teachers' certificates, and fix the standard required. — Town Superintendents may issue permits to teach a particular school for a single term, not to be renewed more than three times to anyone. Town superintendent of each town shall have power to dismiss any teacher who is incompetent. Nothing in the above shall interfere with existing arrangements of such towns as may be acting under the town system of schools ; and the chairman of the school directors shall perform the duties of the town superintendent. School districts hold annual meeting on the last Tuesday of March. VIRGINIA. 393 VIE6INIA. (Compiled by Hon. John E. Massey, State Superintendent.) Each county is subdivided into school districts ; three trus- tees for each school district constitute district school board ; district trustees of a county constitute county school board. Each district board elects from its members a chairman and a clerk. — Duties of District School Boards : Explain and en- force school laws, rules, regulations, and observe same ; employ and dismiss teachers ; suspend or dismiss pupils ; decide who may receive text-books free (refers to indigent pupils) ; see that school census is taken ; hold regular meetings ; call meeting of people for consultation in regard to school interests of districts ; to make estimates of school funds ; manage and control school property of district; make reports to county superintendent; to visit schools, etc. — District Boards make contracts (writ- ten) with teachers, purchase supplies, and issue warrants in payment of teachers' salaries and incidental and other expenses. — Under the constitution, the state board of education provides for uniformity of Text-Books. The state board prescribes a list of books from which county and city school boards select. (State board is composed, of the governor, superintendent pub- lic instruction, and attorney-general.) — Teachers elected by ■district boards ; must hold certificate issued by superintendent of county or city in wliich they purpose teaching ; elected by district boards from list licensed by county or city superin- tendent ; must enter into written contract with district board. Schools free to all persons between the ages of five and twenty- one years residing within district; white and colored pupils taught in separate schools. — State Superintendent — Du- ties : Chief executive of school system ; see "that school laws are faithfully executed ; use all proper means to promote a de- sire and appreciation of education among the people ; determine true intent and meaning of the school laws and regulations, €tc. ; prepare blank forms, registers, etc. ; require reports ; in- spect schools ; decide certain appeals ; file decisions and official 394 SYNOPSES OF SCHOOL LAWS. papers ; apportion state school funds ; submit annual report to- board of education, etc. — Duties of County and City Super- intendents: Explain school system; sub -apportion school funds ; examine teachers and grant certificates ; promote effi- ciency of teachers ; assist in organizing district boards ; visit and examine schools ; decide appeals and complaints ; admin- ister oaths and take testimony in matters relating to public schools ; require reports from district clerks, etc. ; keep records of official acts; make annual report to superintendent public instruction, etc. — County and City Treasurers collect and disburse school funds. All school funds are paid out on war- rants of district school boards. State school funds are appor- tioned on basis of school population. WASHINGTON. (Compiled by Hon. K. B. Bbtan, State Superintendent.) System: State superintendent of public instruction, state board of education, county superintendents of common schools,, board of directors, district clerk for each district. — State Su» perintendent shall have general supervision over all matters, pertaining to the common schools ; shall report to the governor biennially, prepare forms, travel and visit the different counties^ cause to be printed the common-school laws; shall be ex officio' president of the board of education ; shall biennially call a con- vention of county superintendents ; apportion state school fund ; shall require a report from state and private schools ; shall keep a directory of school officers and teachers ; shall file all records and papers, decide points of law submitted by county superin- tendents, or on appeal from the county superintendents — and his decision is final unless set aside by" a court of competent jurisdiction; may employ clerk.— State Board of Educa- tion: Four persons appointed by the governor, with the super- intendent of public instruction, shall constitute the state board of education. They shall adopt uniform series of Text-Books once in five years; may reject proposals, (publisher must give WASHINGTON. 395 bond); shall prepare a course of study ; use a seal. They shall sit as a board of examiners, and grant state certificates and life diplomas. — State Certificates shall be granted to such as shall satisfy the board that they have taught twenty-seven months, nine months in the public schools of the state, and must pass a satisfactory examination in the branches required, or file a certified copy of a diplona from some state normal school, or of a state or territoral certificate from any state or territory the requirements to obtain which shall not have been less than those required by this state. State certificates are valid for five years, and may be renewed or may be revoked by the board. Life diplomas are granted to such as have taught successfully ten years, not less than one of which shall have been in the common schools of this state. They may be re- voked for cause. The board must prepare questions for county examinations. — County Superintendent shall have general supervision of the county, visit schools, enforce rules and regu- lations and course of study adopted by the state board, keep record, administer oaths, preserve manuscripts of examination ; teachers may appeal to the state superintendent. County super- intendent makes annual report, keeps transcript of boundaries, shall endeavor to harmonize boundaries, may appoint directors and district clerks to fill vacancies and for new districts, appor- tion school funds. — Teachers' Certificates are : First grade five years, second grade two years, third grade one year. Board of examiners may issue certificates without examination to gradu- ates of state normal schools, or to holders of state certificates or life diplomas from other states. — Board of Directors for school district, three in number. They shall have power to employ and discharge teachers and employes ; shall enforce rules and regu- lations of the superintendent of public instruction and state board ; shall provide supplies ; rent, repair, furnish and insure, build or remove school-houses ; purchase or sell real estate when directed by vote of district ; may hold title to property for dis- trict ; may suspend pupil for cause ; shall exclude immoral or 396 SYNOPSES OF SCHOOL LAWS. sectarian books ; may authorize use of school for other purposes. Appeal may be taken from their decisions to county superin- tendent. — District Clerk: Elected in each district. He shall keep records, take census, note attendance at schools, exclude Indians and Chinese, note defective youth, report names of ■children, enrollment, teachers' wages, text-books used, etc., etc. — Text-Books not to be changed in less than five years. — Complusory attendance is required. Party abusing teacher ■or disturbing school or school meeting is liable to punishment. WEST VIEGINLi.. System: State board of education, state superintendent, county superintendent, school districts, district trustees, board ■of education of district.— Board of Education may determine number of teachers, and salaries. — Teachers: Teachers' certif- icate — first grade not less than $25 per month, second grade not less than $22 per month, third grade not less, than $18 per month. — Board of Education of a district or independent district is a corporation, and succeeds to the rights of former township and district boards ; may prosecute suits ; is liable for the claims of predecessors ; shall receive and hold property. Board of education appoints secretary. Board of education determines and locates schools, changes boundaries. Appeal is taken to county superintendent. Teacher must have temperate habits and good morals. Effects of alcohol and narcotics are to be taught. Teacher may be removed for incompetency, neglect of duty, intemperance, profanity, cruelty, or immorality. Trustees may exclude pupils having diseases ; may suspend or expel pupils disorderly, refractory, indecent, or immoral ; but all the trustees must have had notice, and two must concur, and this is subject to revision by the board of education. County Board of Examiners: Composed of county superintendent and two experienced teachers. All applicants for teachers must be examined. First-grade certificate, average 90 per cent.- not less than 75 on any one branch; good for four years. WISCONSIN. 397- Second-grade, average 80 per cent.; not less than 70 on any- one branch ; good for two years. Third-grade, general average- of 70 ; not lower than 60 on any one branch. — State Board of Examiners can grant certificates to graduates of state nor- mal schbol or state university. (First class is twelve years, and second six years.) — Text-Books adopted by state, furnished pupils for cash. Te be enforced in any school district, when, the board of education concur. WISCONSIN. (Compiled by Hon. O. E. Wells, State Superintendent) School Districts are formed and altered by town boards.. Every district is deemed duly organized when any two of the officers elected at the first meeting consent to serve. The time for holding the annual meeting is fixed by statute, and occurs on the first Monday in July. Special district meetings may be called by the clerk, upon the petition of any five legal voters of the district. Six days' notice is required for a district meeting.. — The District Board represents the district in all business. transactions, and exercises a general control over the property of the district. The board is composed of a clerk, director, and treasurer. No act is valid unless voted at a meeting of the- board. The clerk keeps all records, takes the census annually,, and makes all reports. The director countersigns all orders,, and represents the district in actions by and against it. The- treasurer is the custodian of the district's funds, and pays out the same only on the order of the clerk, countersigned by the director. The board only has power to bind the district by col- tract. All necessary supplies are furnished by the board. — Text-Books may be purchased by the district and loaned to. pupils, if the legal voters so decide at the annual meeting. Oth- erwise the pupils furnish the books. The board determines the- text-books to be used. The board makes all contracts for the- services of teachers. Only duly qualified teachei's can enter into contracts to teach public schools. Certificates grante.d. by the; 398 SYNOPSES OF SCHOOL LAWS. proper authority, and diplomas of Dormal schools, state univer- sity, and colleges, located within the state, when countersigned by the state superintendent, are the only evidence of the legal qualification of teachers. The contract is required to be in writing, and a copy of the certificate must be attached thereto. The schools are free to all children between the ages of four and twenty years. Kesidents of the district between the ages of twenty and thirty years may be admitted by the board, free of charge. The board has power to make all needful rules for the government of schools, to suspend or expel pupils who persist- ently refuse to obey the rules established. — The State Super- intendent has general supervision over the public schools of the state. He prescribes courses of study for high schools, ex- amines and determines all appeals, apportions the income of the school fund, and is a member of the board of regents of the normal schools and state university. The county superintendent examines and licenses teachers, visits schools, conducts insti- tutes, and advises teachers and school boards in all matters re- lating to schools. WYOMING. (Compiled by Hon. Stephen T. Farwell, State Superintendent.) System: State superintendent, county superintendent, school w. Warrants — Building 35 Supplies 335, 324^ 328 Washington — Laws 394 Tax 259 West Virginia — Laws 396 Tax 260 Wisconsin — Laws 397 Tax 2601 Women — Officers 328 Voters 329 Wyoming laws 398. KF Jj-119 T2lj- Author Vol. Taylor, Irwin. - - Title Public school law of the U.Sc.opy as administered by the courts. Date Borrower's Name ■<■%!