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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other so very slight as in this case. There is no pretense that competent proof
was presented to the supervisors, outside of their inspection, to establish the fact.
It is a material fact, moreover, that the assessment rolls of Middleburgh, the
town favored by the majority of the supervisors, for the year 18S8, show a not
inconsiderable reduction in values over the year 1887.

Taking all the circumstances together, I am unable to find any sufficient
ground for the supervisors finding that the valuations fixed by the respective
town assessors were not substantially just, as compared with each other. If
there was not, then they had nothing farther to do. If their determination of
that fact can not be upheld, then their subsequent proceedings must fall to the
ground.

The appeal is sustained, and until the making of new assessment rolls, the
trustees of the district will use the values fixed in the last assessment rolls of
the towns after revision, in levying school taxes.



292 THE UNIVERSITY OF THE STATE OF NEW YORK

4358

In the matter of the appeal of C. R. Bowen of school district no. 6, Almond and
Hornellsville, v. Nelson Ayers, Dwight Bardeen and Thomas Burrows, as
assessors of town of Hornellsville, Steuben county.

When town assessors, under the provisions of chapter 694 of the Laws of 1867 and the
amendments thereof, apportion the valuation of property of any railroad, telegraph,
telephone and pipe line company as appears on the assessment roll of the town among
the several school districts in the town, make such apportionment upon a diiiferent rule
or basis than that specified in said chapter, an appeal to the State Superintendent of
Public Instruction may be taken, and he has jurisdiction of such assessors, and may
set aside their action and direct a new apportionment to be made by them in the
manner directed in said chapter. When, however, said assessors proceed within the
provisions of said chapter, their acts are judicial.

Decided July 9, 1895

Near & Rathbun, attorneys for respondents

Skinner, Superintendent

The above-named appellant, as a qualified voter in school district no. 6,
Almond and riornellsville, appeals from the assessment and decision of the
above-named respondents as assessors of the town of Hornellsville, made in
September 1894, in apportioning the valuation of the property of the New York,
Lake Erie and Western Railroad as it appeared on the last assessment roll of
the town of Hornellsville, in school district no. 6, Almond and Hornellsville,
situated in said district in said town of Hornellsville, in the sum of $7000, under
the provisions of section i, of chapter 694, of the Laws of 1867, as amended by
section i, of chapter 414, Laws of 1884, upon the grounds, as alleged in the
appeal, that said respondents as such assessors did not give, in such apportion-
ment, to said school district no. 6, its proper portion according to the proportion
that the value of said property of said railroad in each of school districts lying
in the town of Hornellsville bears to the value of the whole thereof, in said town,
as required by section i, of said chapter 694, Laws of 1867, and the amendments
thereof, but that said assessors made such apportioninent upon the establishment
by them of a unit of value of said railroad at a certain sum per rod, and appor-
tioned the valuation of said railroad in said town as it appeared upon their town
assessment roll, among the several school districts in said town, including Said
district no. 6, Almond and Hornellsville, in accordance with the number of rods
in length of said railroad in said school districts respectively at the unit of
value per rod as so establislied by them ; that is, in effect, that the amount or
assessed value of the property of said railroad within said town, should be
regarded as a unit, and that said school district no. 6, Almond and Hornellsville,
is only entitled to that proportion of such assessed value which the length of
the railroad in that part of said district situate in the town of Hornellsville bears
to the total length of the said railroad in said town; the theory of the assessors
being that any rod or mile of said railroad in the town of Hornellsville was
equal in value to any other rod or mile thereof.



JUDICIAL DECISIONS : EQUALIZATION OF VALUES 293

The appeal herein was filed on October 9, 1S94. An answer was received
October 16, 1894, and not being properly verified was returned to respondents
for proper verification. On October 27th, a reply of the appellant to said answer
was received. On March 8, 1895, upon taking up the appeal herein for examina-
tion and decision, no answer was found and the respondents were written to
inquiring what had become of said answer, and it was ascertained that it was
lost, and respondents had permission to file an answer in place of the one lost,
which they did on March 23, 1S95. On April 12, 1895, the appellant filed a
reply to said answer, and on June 25th additional affidavits in support of the
answer were filed. The only papers which I can consider in deciding this appeal
are the appeal, answer received March 23, 1S95, the reply thereto received April
12, 1895, and the additional affidavits of respondents received June 25, 1895.
The answer filed October 16, 1894, was never returned to me by respondents.
The reply of the appellant to the lost answer can not be considered.

It appears from the papers presented to me that the respondents in making
up the assessment roll of the town of Hornellsville in August 1S94, assessed
and valued the property of said New York, Lake Erie and Western Railroad
within the town of Hornellsville at the aggregate sum of $175,000; that on Sep-
tember 15, 1894, said respondents filed in the office of the town clerk of Hor-
nellsville a certificate of apportionment of the valuation of the property of the
several railroad, telegraph, telephone and water companies, as appeared on the
assessment list or roll of said town of Hornellsville for the year 1894, among
the several school districts of said town in which any portion of said property
is situated, and that from said certificate it appears that the apportionment made
by said assessors of the property of the said New York, Lake Erie and Western
Railroad, as aforesaid, upon said assessment roll of said town to said school
district no. 6, Almond and Hornellsville, for that portion of said railroad situate
in said district, was the sum of $7000.

Aside from the statements contained in the appeal the appellant has not
furnished any aflidavits or other proof sustaining the allegations made by him
as to the methods adopted by said assessors in making the apportionment of
valuation of said New York, Lake Erie and Western Railroad to said school
district no. 6.

The respondents in their answer deny the most of the allegations contained
in the appeal, and they deny that they regard the amount of railroad in the
town as a unit and give each district only that proportion of the assessment
which the length of the track in the district bears to the total length of the road
in the town ; they deny that they have admitted to the appellant or any other
person that the apportionment appealed from is not based upon the actual value
of the road, but upon the length of it. The respondents allege that in appor-
tioning the valuation of said railroad as appeared on the assessment roll of said
town of Hornellsville in 1894, among the several school districts of said town
in which any portion of said railroad property was situate, they gave to each of
said districts including said district no. 6, their proper portion according to the



294 THE UNIVERSITY OF THE STATE OF NEW YORK

proportion that the value of the property in each of said districts bears to the
vahie of the whole of said railroad property in said town.

The appellant alleged that the respondents did not apportion the property
of the New York, Lake Erie and Western Railroad as valued and assessed on
the assessment roll of 1894, among the school districts in said town, in accord-
ance with the provisions of section i, chapter 694, of the Laws of 1867. The
respondents explicitly deny said allegations of the appellant, and specifically aver
that such apportionment was made strictly in accordance with the provisions
of the law as above cited. The onus is upon the appellant to sustain his appeal
by a preponderance of proof, and in this he has failed.

The Department has held that when town assessors, under the provisions
of section i, chapter 694, Laws of 1867, make the apportionment to school dis-
tricts referred to therein upon a different rule or basis than that specified therein,
that upon appeal to the State Superintendent of Public Instruction from such
action and decision he has jurisdiction of said assessors, and may set aside their
action and direct a new apportionment to be made by them in the manner
directed in said section i ; that the acts of town assessors proceeding within the
said chapter 694 are judicial ; the conclusive character of their act, however, is
only while they confine themselves within the statute. In the appeal lierein the
appellant has failed to show that the respondents, in making the apportionment,
did not confine themselves within the statute, but went outside of it and acted
upon a rule or method adopted by them, ignoring the provisions of said statute.

In my opinion the appeal herein must be dismissed.

Appeal dismissed.



LIBRARY

Decided September 17, 1839

Spencer, Superintendent

That part of the district Hhrary purchased with money raised by tax upon
the district may be sold.



Trustees may exchange old library books for new ones.
Decided April 20, 1S54

Randall, Deputy Superintendent

Trustees of districts may legally exchange old books belonging to the dis-
trict library for new, paying the difference, if any, in price from the library
money.



In regard to exchanging library books.
Decided September 8, 1S54

Rice, Superintendent

No objection might be raised, if a district so determine by unanimous vote,
to the exchanging of books in a library for others more appropriate to the wants
of the people.



That part of district library which was purchased by a tax on property of district belongs
to district, and may be disposed of by its voters as they shall direct. But that part
bought with public money belongs to the State, and the district can not sell it.

Decided November 23, 1S65

Rice, Superintendent

That part of the district library which had been purchased by a tax upon
the property of the district belongs unqualifiedly to the district, and may be
disposed of by the voters thereof as they may see fit to direct. But in that which
has been purchased with the public money apportioned to the district it has only
a qualified property. This portion of the library really belongs to the State, and
the district is the bailee and not the owner of it. As such bailee it has no power
to sell or otherwise dispose of the library.

I295I



MEETINGS

5151

In the matter of the appeal of Clinton Mudge and Glen Stone from proceedings
of school meeting held in and for school district no. 9, town of Lima,
Livingston county.

In conducting school district meetings a wide latitude must be accorded officers in the

enforcement of parliamentary rules.
A refusal or neglect on the part of the trustee to call a special meeting of the voters of a

district as required under subdivision 4 of section 13 of title 5 of the Consolidated

School Law is a wilful violation of the school law.
When a schoolhouse has been regularly condemned by the school commissioner the district

has not the legal right to vote a tax for repairs or equipments of any character to such

building.
The expenses incurred by a trustee in his wilful determination to evade the provisions of

the law are not a legitimate charge upon the district and a meeting of the district can

not legally authorize the payment of the bills therefor.
A trustee is barred by the Penal Code from making a contract with his minor son who is

not emancipated, to act as janitor.
Decided November 17, 1904

Albert H. Steams, attorney for appellants
George W. Atwell, attorney for respondent

Draper, Conun'issioner

The appellants request the Department to declare illegal the proceedings of
the annual school meeting of school district no. 9, town of Lima, held on the
second day of August 1904, and especially to declare illegal the action of such
meeting in voting certain appropriations which will hereafter be specifically
enumerated and considered.

It is alleged by the appellants that the school meeting was disorderly and
that the chairman of the meeting was arbitrary and unfair in his rulings and
that such meeting was not conducted in the manner provided by the Consoli-
dated School Law and in accordance with the usual parliamentary practices of
such bodies.

Patrick Hendrick, the sole trustee, by direction of a special meeting of said
district, has filed an answer to this appeal. He states in his answer that the
meeting was held in the town hall in said district and that such hall has a seat-
ing capacity for not more than 150 persons, but that more than 250 persons
were in attendance at the meeting. Lie also claims that the meeting was as
orderly as could be expected under the conditions, and that such meeting was
regularly and legally conducted. In proof of this a certified copy of the pro-
ceedings of such meeting is offered.

1:951



JUDICIAL decisions: meetings 297

It is clearly true that the meeting was somewhat chsorderly, that many
irregularities occurred, and that parliamentary practices were not carefully
observed. In conducting school district meetings a wide latitude must be accorded
officers in the enforcement of parliamentary rules. The appellants have failed
to satisfy me that the disorder or irregularities were sufficiently grave to war-
rant the setting aside of all the proceedings of the meeting on the groimd that
material rights of electors were denied or that the proceedings do not reflect the
will of the majority of the voters attempting to participate.

The annual meeting in question voted appropriations for the following pur-
poses : $500 for heating apparatus, $93.50 for professional services to George \V.
Atwell, $20 to School Commissioner McNinch, $165.80 for professional services
to George VV. Atwell. $53.04 to reimburse Trustee Hendrick, $54 to Martin
Hendrick for janitor services.

On the 21 St of March 1904, Scott L. McNinch, the school commissioner
having jurisdiction over school district no. 9, town of Lima, regularly issued an
order condemning the schoolhouse in said school district and providing that such
order should take effect June i, 1904. No appeal from such order of the school
commissioner has been brought. In issuing such order the school commissioner
showed that the total resident population of children between 5 and 18 years of
age was 191 and that the number of resident children between the ages of 8 and
16, or those children coming within the provisions of the compulsory education
law was 130. Such order of the school commissioner also showed that the school-
house in such district had seating capacity for only 60 pupils and that such build-
ing was unlit for use and not worth repairing. Although the order of the school
commissioner was issued March 31, 1904, it did not take effect until June i, 1904,
thus allowing the school district ample time to make the necessary arrangements
for the erection of a new building.

Under subdivision 4 of section 13. title 5 of the Consolidated .School Law,
it was the duty of Trustee Hendrick, immediately upon receiving the order of
School Commissioner McNinch, condemning the schoolhouse of that district, to
call a special meeting of the legal voters of the district to consider the question
of building a new schoolhouse. If the district failed or refused to vote the neces-
sary tax to build such schoolhouse within thirty days from the date of such meet-
ing, it was then the duty of said Trustee Hendrick to contract for the building of
such schoolhouse and to levy a Uix for the same. A refusal or negelect on his part
to call a meeting of the voters of the district for such purpose is a wilful violation
of the school law. As the school building of the district was regularly condemned
by the school commissioner, such district had not the power to vote a tax for
repairs or equipments of any character to such building. The action of the annual
meeting of such district in voting $500 for a system of heating was not within
the power of such district and was, therefore, illegal.

The said annual meeting held in 1904 voted to pay the Atwell bill of $93.50.
This bill was for professional services of said Atwell in defending appeal no.
5049 before the Department of Public Instruction and known as the Bates appeal.



298 THE UXIVEKSITV OF THE STATE OF NEW YORK

The district at a special meeting held June 9, 1903, authorized the payment of
this bill, but Warren I. Johnson brought appeal no. 5140 to the Department of
Public Instruction to set aside the action of the district in voting to pav such
bill. The State Superintendent of Public Instruction, in a decision rendered
March 30, 1904, sustained such appeal. It is claimed by the respondents in the
appeal under consideration that the State Superintendent of Public Instruction
sustained the Johnson appeal on the technical ground that the vote authorizing
the payment of the Atwell bill of $93.50 was at a special meeting of the district
called for another purpose and that the notice of such special meeting did not
state that one of the questions to come before the meeting was the consideration
of the Atwell bill. This is true, but it is also true that in his opinion on such
Johnson appeal the State Superintendent of Public Instruction expressly held,
as pointed out in appellant's brief : " Mr Atwell, who is employed by ^Ir Hen-
drick to answer the Bates appeal, was the attorney for Trustee Sylvester in the
appeal of Ferris and others and when employed by Hendrick knew that the acts
of Plendrick appealed from were contrary to the decisions of the Department and
that Hendrick had no valid or legal defense to such appeal." " In my opinion
Mr Atwell has no legal claim against school district no. 9, town of Lima, for any
services performed by him for Hendrick in the appeal of Alfred K. Bates. Such
claim is for services performed for Hendrick personally, Hendrick knowing that
the acts performed by him as trustee were in violation of the rulings and decisions
of this Department."

The decision of the State Department on that question was " final and con-
clusive and not subject to question or review in any place or court whatever,"
under subdivision 7 of section i, title 15 of the Consolidated School Law. The
district, therefore, had no legal power to authorize the payment of such bill at
its annual meeting in 1904.

The special meeting of June 9, 1903, also authorized the payment of the
McNinch bill of $20. The Johnson appeal also requested the Department of
Public Instruction to set aside the action of the meeting in authorizing the pay-
ment of such bill and the State Superintendent of Public Instruction, in his
decision of March 30, 1904, did set aside such action of the district meeting and
in so doing held that the McNinch bill was not a proper charge against the school
district. The district, therefore, had no legal power to authorize the payment
of the McNinch bill of $20 at its annual meeting in 1904.

A change in the administration of this Department has taken place since the
decision in the Johnson appeal was rendered. In view of such fact, I have care-
fully examined the pleadings in that appeal and am satisfied that the decision
tlierein is based on sound legal principles and on a wise administration of school
district aft'airs.

The Atwell bill of $165.80 is for professional services in three cases, namely :
$50 for defending the Johnson appeal, $88 for defending the Miner appeal, and
$27.80 for services rendered in an action entitled " Supreme Court, Nora
O'Connor v. Patrick Hendrick as Trustee etc."



JUDICIAL decisions: meetings 299

Tliis Department has held that the Atwell bill in the Bates appeal was not
a proper charge against the district. Atwell's defense in the Johnson appeal was
to establish the claim that his bill in the Bates appeal was a proper charge against
the district. If Atwell's claim in the Bates appeal was not legally chargeable to
the district, his bill for services in an unsuccessful endeavor to give validity to
such claim is certainly not chargeable to the district.

The Miner appeal for which Atwell claims $88 became necessary because
of the action of Trustee Hendrick in refusing to comply with certain decisions
and orders of the State Superintendent of Public Instruction. The conditions,
therefore, under which Atwell rendered services in the Miner appeal are similar
to those of the Bates appeal and his bill for such services is not a proper and
legal claim against the district. If the bills of Atwell for services in the Bates
and Miner appeals are not a valid claim against the district, then the bill for his
services in the " O'Connor v. Hendrick " case in the Supreme Court is not a
claim chargeable to the district. The services rendered in this case were in
defense of the wrongful and illegal acts of Trustee Hendrick.

It was the persistent and intentional refusal of Trustee Hendrick to comply
with what he knew to be the school law of this State and withwhat he knew to
be the orders and decisions of the Department which led to bring the Bates, the
Johnson, and the Miner appeals and subsequently to the O'Connor v. Hendrick
case in the Supreme Court. The expenses incurred by him in his wilful detei-
mination to evade the provisions of the law are not a legitimate charge upon the
district and the action of the animal meeting in authorizing the payment of the
Atwell bill of .$165.80 was, therefore, illegal. It also follows that the district
meeting had not the legal power to vote to reimburse Trustee Hendrick to the
amount of $53.04 for costs rendered by the Appellate Division against Hendrick
in the appeal of the motion to intervene by Miner and others.

The said annual meeting also voted to pay a bill of $54 to Martin Hendrick
for services as janitor and for taking care of the furnace. Martin Hendrick is
the minor son of Trustee Hendrick. Section 473 of the Penal Code prohibits a
trustee of a school district from being directly or indirectly interested in any
contract made by him as trustee. It is clear that he is interested in a contract with
his minor son. Trustee Hendrick claims that such son has been emancipated. It
is a well-settled principle of law that emancipation is a question of fact to be
determined from circumstances and from the conduct of interested parties. It
can not be presumed but must be established by positive proof. In my opinion
the respondent has not produced sufficient evidence to establish an emancipation.
He was, therefore, barred by the Penal Code from making such contract with his
minor son and under such circumstances the bill of $54 to Martin Hendrick is
not legally chargeable to said district and the annual meeting could not authorize
its payment.

The appellants also request that the action of the said annual meeting in
authorizing Hendrick to employ counsel to defend the appeal of Killips v. Hen-
drick be set aside. It is agreed by the appellants and the respondents that the



300 THE UXIVERSITY OF THE STATE OF NEW YORK

motion on tlie question was adopted by a viva voce vote. Subdivision l8 of
section 14, title 7 of the Consolidated School Law provides that all propositions
at school district meetings involving the expenditure of money or authorizing
the levy of a tax, the vote thereon shall be by ballot or by taking and recording
the ayes and noes of the qualified voters present and voting at such meetings. A
motion to employ counsel to defend an appeal involves an expenditure of money
and could not legally be adopted by a viva voce vote.

This district has the numerical and financial strength to maintain a good
school provided its forces were wisely and harmoniously directed. It is to be
regretted that such is not the case.

I decide, That the annual school meeting of district no. 9, town of Lima,
county of Livingston, did not possess legal authority to authorize the expenditure
of $500 for instailin.g a system of heating in the condemned schoolhouse of such
school district, and that such aimual meeting did not possess legal power to vote



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 37 of 188)