New York (State). Superintendent of Common Schools.

Judicial decisions of the State Superintendent of Common Schools, State Superintendent of Public Instruction, State Commissioner of Education, from 1822 to 1913 online

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Hon. John T. Norton, attorney for respondent

Draper, Commissioner

On May 24, 1907, Elias P. Mann, mayor of the city of Troy, preferred
charges against Edwin S. Harris, superintendent of schools of said city. The
board of education gave a hearing on such charges and thereafter dismissed the
same. On September 4, 1907, Mayor I\Iann instituted this proceeding to review



JUDICIAL decisions: appeals 13

the action of the board of education in dismissing such charges. Superintend-
ent Harris, a party in interest in such proceeding, raised the question of juris-
diction of the Commissioner of Education to entertain such appeal On October
2, 1907, I gave a hearing upon the question of my jurisdiction to hear such appeal
and heard argument of counsel for the respective parties to this proceeding.
At the close of such hearing I decided that the statutes made it my duty to hear
and decide such appeal. On October 9, 1907, an alternative writ of prohibition
was obtained from ?ilr Justice Betts by Superintendent Harris restraining me
from hearing or deciding such appeal. Such writ was returnable at Kingston
Xovember 16, 1907. Proper return was made and argument heard on that
date on a motion to quash such writ. On February 25, 1908, Justice Betts
rendered a decision holding that the Commissioner of Education did have the
legal authority to hear and determine such appeal and dismissing the writ of
prohibition.

The object sought by this appeal was the removal of Superintendent Harris.
During the latter part of January Mr Harris resigned the office of superintend-
ent of schools of the city of Troy. It appears unnecessary therefore to give
this proceeding further consideration and on motion of Mr Wellington, attorney
for appellant, the appeal is hereby dismissed.



Edmund Whittier against the inhabitants of school district no. 11 in the town of

Ogden.

An appeal to the Superintendent will not be entertained when the point at issue has been

settled by an adjudication upon the same case in a court of competent jurisdiction.
Decided June 23, 1826

Flagg, Superintendent

This was an appeal from the proceedings of a meeting of the inhabitants
of school district no. 11 in the town of Ogden, at which a tax of $250 was voted
to build a schoolhouse. The facts are fully set forth in the decision of tke
Superintendent.

It is alleged that the vote imposing the tax was carried by the admission
on the part of the moderator of the illegal votes of William Hill and Alsen
Smith.

The appellant has presented a number of affidavits to show that Hill and
Smith, in the opinion of those who testify, were not legal voters. The affidavits
set forth generally that the persons testifying have no knowledge that Hill and
Smith were legal voters, and from their situation and circumstances do not
believe they were.

On the other side, the record of proceedings before a magistrate is pro-
duced and duly authenticated, by which it is shown that Hill and Smith were
prosecuted for having voted, without being entitled to vote by law, and that on



14 THE UNIVERSITY OF THE STATE OF NEW YORK

the trial of Lhe cause it appeared that they were legal voters at the time of the
meeting, from the proceedings of which the appeal is brought. In addition to
this, Smith and Hill testify that they were at the time of the meeting worth
$50 in taxable property.

The Superintendent feels bound to recognize the decision of the court as
having settled the point that Hill and Smith were legal voters. This being the
only point at issue, it is ordered that the appeal in this case be dismissed.



3875

Frank J. Alverson v. Michael Joy, jr, trustee of school district no. 14, town
of Springwater, county of Livingston.

The courts having acquired jurisdiction of the subject matter of an appeal through an

action brought thereon by the appellant, the appeal will not be entertained.
Decided April 22, 1S90

Draper, Superintendent

The appellant, on the 15th day of October last, was employed by the
respondent to teach the common school in said district for the period of sixteen
weeks. No agreement was made between the appellant and the respondent on
the subject of janitor work, or the care of the schoolhouse. The appellant
alleges that upon assuming the charge of the school, he found that no arrange-
ment had been made for building fires and cleaning the school building; that he
applied to the trustee who assured the appellant that he would attend to the
matter at once. This, however, he neglected to do, and the appellant cared for
the fires and cleaned the schoolhouse ; that the appellant then engaged a boy who
assisted in those services for a period of five weeks, for which assistance the boy
charged $3, which the respondent refused to pay. Thereafter, the appellant con-
tinued to care for the schoolhouse, sweeping the same and building fires until
the close of his term. The appellant claims for such services the sum of $15.
and for the sen-ices of the boy the further sum of $3.

The respondent admits that there was no agreement with the appellant
relative to the janitor work, denies that he ever agreed to arrange for having
this work done, and avers that it was the custom of the district for the teacher
to perform this work. It appears further, that before taking this appeal the
appellant brought an action against the respondent before a justice of the peace
in said county for the value of the identical services claimed by this appeal.

The fact that an action had been coinmenced, and that the appellant had
sought in the courts the same remedy he now seeks by this appeal, makes a
decision by me improper, if not unnecessary. It is a well-established rule that,
when the courts have acquired jurisdiction of a matter in controversy over which
this Department has concurrent jurisdiction, an appeal will not be entertained.
It is unnecessary, therefore, to look into the merits of this appeal.

The appeal is overruled.



JUDICIAL decisions: appeals 15



3754



In the matter of tl.e appeal of Irving Holcomb v. school district no. 17, of the
town of Hancock in the county of Delaware.

Appeals to the Department will not be. sustained when the papers submitted are so very
defectively prepared, and so poorly arranged as to render it altogether impossible to
gain any intelligent understanding from them.

Decided January 19, 1889

Draper, Superintendent

Several appeals are brought before the Department by the appellant above
named, all of which involve the right of the respondent to tax certain parcels of
land owned by the appellant and described by him as lots nos. 5, 6, 7, 16, 17, 18,
26, 27, 28, 36, 37, 38, 46, 47, 48, 56, 57, 58, lying in the Spooner tract. These
lots all lie in district no. 17, but the appellant claims that they are owned and
occupied by him, and that they lie in one body, and that as his residence is in
district no. 12 of the town of Hancock, the lots referred to should be taxed in
that district.

The papers submitted by the appellant are numerous, and are very defect-
ively prepared and so poorly arranged as to render it altogether impossible to
determine in which case he desires each to be considered. Indeed, it is difticult to
understand after the most earnest efforts, what the purpose of the several sepa-
rate appeals may be. There is no map worthy of consideration submitted.

I shall not undertake to finally determine upon these papers the question as
to whether the lots referred to are properly taxable in school district no. 12 or
no. 17, but have concluded to discuss the appeals and permit the taxes now levied
to be collected, for the following reasons :

1 Because of the defective papers and insufficient map.

2 Because it is shown that the property referred to lies bodily within dis-
trict no. 17, and is described as separate lots.

3 Because it is shown that it has been taxed in that district for many years.

4 Because it appears that the appeals were longer delayed than they should
have been ; in one case at least, the proceedings have gone so far as a levy and
sale under execution by the district collector.

In view of the foregoing, the several appeals are dismissed without preju-
dice to the right of the appellant to raise the question as to the right of district
no. 17 to ta.x this property at any future time.



4169

In the matter of the appeal of Seymour C. Bishop and others from proceedings
of a special school meeting of district no. i, town of Fairfield, Herkimer
county.

To sustain an appeal to this Department, the appellant must show that he is aggrieved,
that is, injured, by the action or decision of which he complains. There should be some
real grievance, some positive and serious injury sustained to justify a resort by appeal



l6 THE UNIVERSITY OF THE STATE OF NEW YORK

to this Department for redress. Where there is no proof that the appellant or any
qualified voter of the district has sustained any damage or injury, or that the educational
interests of the district have sustained damage, the appeal will be dismissed.
Decided March 9, 1893

P. H. McEvoy, attorney for respondent-

Crocker, Superintendent

On or about December i, 1892, the trustee of district no. i, town of Fair-
field, Herkimer county, removed from said district, thereby creating a vacancy
in the office of trustee in said district. The clerk of said district issued a notice,
stating the fact of the vacancy in the office of trustee, and calling a special meet-
ing of said district to be held at the schoolhouse in said district on December 27,
1892, at 7 o'clock p. m., for the purpose of electing a trustee to fill said office.
That said clerk posted said notice for seven full days prior to said December
27, 1892, in seven conspicuous places in said district, but did not serve any other
notice of said meeting. That on said December 27, 1892, said special meeting
was held and one Simon Eustace was elected trustee to fill said vacancy. That
said Eustace accepted said office and entered upon the discharge of the duties
thereof, contracted for a teacher and a school is being conducted in said district.
From the proceedings of said special meeting this appeal is taken.

The appeal states that the appellant was not served with a notice of said
special meeting and had no knowledge of said meeting, and upon information
and belief avers that Stephen Comstock, Charles Rands and Philo Hoover, resi-
dents of, and legal voters in, said district, were not notified of said meeting and
had no knowledge thereof. The affidavit of Comstock only is presented in sup-
port of this allegation, and his affidavit is to the fact that he (Comstock) had no
notice or knowledge of the meeting.

Section 7 of title 7 of the Consolidated School Act of 1S64 provides " The
proceedings of no neighborhood or district meeting, annual or special, shall be
held illegal for want of due notice to all the persons qualified to vote thereat,
unless it shall appear that the omission to give such notice was wilful and
fraudulent."

No wilful or fraudulent intent on the part of the clerk in the service of the
notice of said special meeting is alleged or shown ; but he seems to have acted
according to such knowledge as he had upon the subject, believing his action to
be legal and proper. There is a complete failure on the part of the appellant to
show that he, or any one, has been injured by the alleged irregularity in the
service of the notice of said special meeting, and that the results of the meeting
would, under any circumstances, have been different.

No person can sustain an appeal unless he is aggrieved, that is, injured, by
the action or decision of which he complains. There should be some real griev-
ance, some positive and serious injury sustained, to justify a resort by appeal
to this Department for redress. There is no proof that the appellant, or any



JUDICIAL decisions: appeals 17

qualified voter of the district, has sustained any damage or injury, or that the
educational interests of the district have sustained damage.
Tlie appeal herein is dismissed.



3611

In the matter of the appeal of Octave N. Bonnefond, from certain proceedings
of the annual school meeting held in district no. 23, town of Hancock, Dela-
ware county, August 31, 18S6.

Where a former trustee is charged, after he has ceased to be a school officer, witli wrong-
fully retaining money of the district, the State Superintendent is without jurisdiction
over the person charged. In such case, redress can be obtained only through the courts.

Decided June 20, 1887

Draper, Superintendent

This is an appeal by a resident and taxpayer of school district no. 23, town
of Hancock, Delaware county, from the proceedings of the annual school meet-
ing held in said district August 31, 1S86.

The particular proceeding of the meeting objected to by appellant was the
vote given to accept the report of the retiring trustee, which contained an item
of eleven dollars, paid by said retiring trustee to his counsel for his costs and
disbursements in preparing an appeal from the proceedings of the annual meet-
ing, at which one Thomas Swope was declared elected trustee, and immediately
thereafter entered upon the performance of the duties of such office. The appel-
lant avers that said retiring trustee appropriated eleven dollars for such expense
without a vote of a district meeting authorizing it, or the determination of a
county judge after an appeal from a refusal of a district meeting to so authorize
the expenditure; that at the time the appeal was taken, said retiring trustee was
not a school officer, and was not authorized by a vote of a district meeting to
prosecute such appeal.

The present trustee answering said appeal, alleges that said appeal was
decided in favor of said retiring trustee, who was the appellant therein ; that at
the last annual meeting the retiring trustee presented his annual report, and,
after request by some voters, presented a receipt for eleven dollars from his
attorneys for such services, after which the meeting approved and adopted the
report.

I shall not express an opinion as to the legality of the retiring trustee's
action, or the action of the district meeting in accepting and approving the same.

The former trustee having ceased to be a. school officer at the meeting in
question, this Department has no jurisdiction over him. H he has retained
moneys illegally, the statute points out the manner of recovering the same by
civil and criminal proceedings in the courts. The amount involved is small and
the appellant's tax therefor is scarcely noticeable, being ten or twelve cents.

Having no power to enforce a decision of this appeal, if one should be made,
I dismiss the same.



l8 THE UNIVERSITY OF THE STATE OF NEW YORK

3995

In the matter of the appeal of E. R. Fuher v. James M. Shultz and Henry
Wheeler, as trustees of school district no. 8, towns of Bath, Wheeler and
Avoca, county of Sleuijcn.

Appeals will not be entertained where the allegations are vague and indefinite, and legal

and comprehensive proof is not furnished.
Decided September 7, 1891

Draper, Superintendent

By this appeal the removal of the respondents from the offices held by them,
as trustees, is sought.

The respondents are charged generally with converting district funds to
their own use ; with receiving pay from the district for services personally ren-
dered; with giving orders upon the collector when there were no funds in his
hands; with using public money for repairs without a vote of a district meeting
authorizing such repairs ; with being discourteous to their associate trustees, and
with refusing to respect the expressed wish of the voters in the matter of
employing a teacher, and finally, " with many minor illegal acts and irregularities
too numerous to mention."

An answer has been interposed in which some of the allegations of the
complaint are flatly denied. Others are admitted and an explanation attempted,
and countercharges of irregularities made against the appellant during the time
he was a trustee of the district.

I am satisfied that the affairs of the district are in a chaotic state. If the
respondents have given district orders upon the collector or supervisor when
there was no district or public money in their hands, they are guilty of a misde-
meanor and are amenable to punishment therefor. If they have appropriated
district money to their own use, they are guilty of a felony. If they have
become individually interested in contracts with the district, they are guilty of
a misdemeanor, and if found guilty of either of the offenses, they should be
punished and removed from office.

But I have not sufficient evidence before me upon which a conviction could
be had. A majority of the board of trustees at a regularly called meeting of
the board, could legally employ a duly licensed teacher, even though a majority
of the patrons of the school and taxpayers of the district were dissatisfied with
such selection. I have received numerous letters and sworn statements upon
each side relating to the charges and counter charges, of which no proof is fur-
nished showing service of copies upon the other side, which I am, in consequence
of the failure to show due service, unable to use upon the consideration of this
case.

From the correspondence, it would seem that light upon some of the charges
has been discovered since the appeal was prepared.

The allegations of the appellant are too vague and obscure.



JUDICIAL decisions: appeals 19

I have concluded to dismiss the appeal, without prejudice to the right of the
appellant to renew the same, when the charges can be more intelligently and
definitely stated and more comprehensive and legal proofs offered.



3601

In the matter of the appeal of Edward Thompson v. George L. Johnson, as
trustee of joint school district no. 14, towns of Nassau, Stephentown and
New Lebanon, counties of Rensselaer and Columbia.

An appeal taken four months after the performance of the act complained of, when no

sufficient excuse for the delay is given, will be dismissed.
Decided May 28, 1887

Draper, Superintendent

This is an appeal by a resident and taxpayer of joint school district no. 14.
towns of Nassau, Stephentown and New Lebanon, counties of Rensselaer and
Columbia, from the action of the trustee of said district in issuing a tax list to
collect $193.20.

The tax list was issued on the 4th day of October 1886. It is alleged by the
appellant that the district meeting authorized a tax of only $150 and that the
trustee has added thereto $43.20, which was unauthorized.

The trustee, who appears as respondent, alleges that the sum of $150 was
for the current expenses of the school year, and that there existed a deficiency
for teachers' wages of $43.20, which it was necessary to raise. It is also alleged
that the appeal was not taken until four months had elapsed after the return of
the warrant by the collector, and that the appellant had paid his tax under said
tax list and the warrant thereto attached.

In view of the facts, which are undisputed, that the tax list and warrant
were delivered to the collector in October last and the tax collected of every
taxpayer but one, and that the appeal was not taken until February 22, 1887, I
am compelled to dismiss the appeal under the rules.

,\ppeals must be taken within thirty days from the time of the act com-
plained of, or some satisfactory excuse must be given for the delay. None has
been given.



5008

In the matter of the appeal of The Ilartwood Club v. Frank L. IMuller, as

trustee of school district 5. Forestburgh, Sullivan county.
An appeal from a school district tax list must be brought by the party aggrieved immediately

upon being apprised of the issuance of such tax list. A delay in appealing until after

the tax is paid, or its collection enforced, will be fatal.
Decided May 31, 1902

William H. Crane, attorney for appellant
George H. Smith, attorney for respondent



20 THE UNIVERSITY OF THE STATE OF XEW YORK

Skinner, Superintendent

This is an appeal from the action of the trustees of school district 5, Forest-
burgh, Sullivan county, in assessing in the school year 1900-1 the sum of $54.50
for school taxes upon the property of the appellant, and also assessing in the
school year 1901-2 upon such property the sum of $60.45 ^or school taxes.

The appeal herein was filed in this Department April 9, 1902, and the
answer thereto was filed May 7, 1902.

The following facts are established by the pleadings filed herein :

The appellant herein, The Hartwood Club, is a domestic corporation of
the State of New York, incorporated in pursuance of chapter 267 of the Laws
of 1S75, and the several acts amendatory thereof and supplementary thereto, and
was organized in the year 1890 for the purpose of owning and maintaining a
game and iish preserve and a summer home for its members, and became the
owner, and still owns, a large tract of land in great lots 17, 18, 19 and 20 in the
first division of Minisink patent, which tract is a continuous body, and lies
mostly in the town of Forestburgh, Sullivan county, and partly in the town of
Deer Park, Orange county, State of New York.

The clubhouse, barns, cottages and important improvements owned by the
appellant are located on lot 17 and in joint school district 6, aforesaid, and the
agent of the appellant resides upon said tract of land and is in occupation of
the same, but lives in a dwelling located on lot 17, in said district 6, and the
lands in lots 18, 19 and 20 are entirely without buildings thereon, and unoccu-
pied except by the said agent of the appellant, as aforesaid.

In the year 1900, upon the assessment roll of the town of Forestburgh, all
the said lands of the appellant were assessed as sixty-five acres improved, at a
valuation of $105 per acre; 2783 acres unimproved, at a valuation of $1.50 per
acre; making a total of 2848 acres, at a total valuation of $11,000. In said year
1900 the assessors of the town of Forestburgh, in an apportionment made by
them, filed with the clerk of said town, apportioned the value of the property
of the appellant for school purposes at the sum of $5000. The trustee of school
district 5, in the tax list issued by him for the school year 1900-1, assessed the
appellant $54.50 upon its property valued at $5000, which sum the appellant
paid, under protest, to the collector of said district January iS, 1901.

In the year 1901 the property of the appellant was assessed upon the town
roll of Forestburgh at $11,500, and the town assessors of 1901 filed with the
town clerk an apportionment of the value of the property of the appellant for
school purposes in school district 5 at the sum of S5250. The trustee of school
district 5, in the tax list issued by him for the school year 1901-2, assessed the
appellant $60.45 upon its property, valued at $5250, which sum the appellant
paid, under protest, to the collector of the district September 30, 1901.

The appellant claims that the apportionment so made by the assessors of
the town of Forestburgh was null and void ; that the assessments so made upon
the tax rolls of school district 5 were irregular and without warrant of law;
that the taxes so levied in pursuance of such assessments were without juris-



JUDICIAL decisions: appeals 21

diction of the trustee, and 'that the moneys collected thereupon should be
returned to the appellant.

This Department has uniformly held that an appeal from a tax list, on what-
ever grounds, must be brought before the payment of the tax, or the collection
of the tax ; that such appeals must be brought by the party considering himself
aggrieved immediately upon becoming apprised of the existence of such tax
list. A delay in appealing until the tax is paid or its collection enforced will
be fatal.

The rules of practice relative to appeals taken to me provide that an appeal
should be taken within thirty days after the making of the decision or the per-
formance of the act complained of, or within that time after the knowledge of the
cause of complaint came to the appellant, or some satisfactory excuse must be
rendered for the delay.

The first act complained of by the appellant was performed in the year
1900, and the second act complained of was performed in the year 1901. No
satisfactory excuse is given by the appellant for the delay in bringing the appeal
herein. The appellant having paid the taxes assessed upon its property, I am
powerless to afford any relief.

The appeal herein is dismissed.



3628

In the matter of appeal of Abbie I\I. Armstrong v. the trustees of school district



Online LibraryNew York (State). Superintendent of Common SchoolsJudicial decisions of the State Superintendent of Common Schools, State Superintendent of Public Instruction, State Commissioner of Education, from 1822 to 1913 → online text (page 2 of 188)