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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prevent a bond issue those favoring a division of the present district would
institute proceedings for the erection of a new district or to be transferred to
an adjoining district. Vacating the action of the meeting in question would not
enable appellants to accomplish the result desired. These bonds have already
been sold and the purchasers of such bonds have an interest and claim which
they could undoubtedly enforce in the courts. If valid reasons existed for
preventing the district from issuing bonds appellants should have filed a petition
for an order restraining the trustees of the district from issuing such bonds.

A petition for this relief was not filed.

The necessity of a new schoolhouse is not denied. The proceedings appealed
from appear to have been proper and legal in every respect. There does not
appear to be any good cause which demands action from this Department.

The appeal herein is dismissed.



5i38

In the matter of the appeal of certain residents of union free school district
no. I, town of Hadley, Saratoga county, and town of Luzerne, Warren
county, from the decision of a meeting of the electors of said district in
selecting a schoolhouse site.

This Department has uniforml}' refused to interfere with the action of a district meeting
legally and regularly taken unless it is clearly shown that such action is detrimental to
educational interests or imposes a hardship upon a resident of the district requiring
relief through the action of this Department.

Decided June 13, 1905

William T. ]\Toore, attorney for appellants
Frank Gick, attorney for respondents

Draper, Cominissioner

At a special meeting of union free school district no. i, towns of Hadley
and Luzerne, regularly held on the 26th day of September 1904, the voters of
such district legally designated a new site for the schoolhouse. Such site is
known as the Riverview site.

This appeal is brought for the purpose of setting aside the action of the
district in selecting such site. Rule 5 of the Rules of Practice Relating to



JUDICIAL decisions: meetings 317

Appeals to (he Comniissioner of Education pro\ides, " Such original appeal
and all papers etc. 'annexed thereto with proof of service of copies, as required
by rules 3 and 4, must be sent to the Education Department within thirty days
after the ma]<ing of the decision or the performance of the act complained of
or within that time after the knowledge of the cause of complaint came to the
appellant, or some satisfactory excuse must be rendered in the appeal for the
delay." The acts herein complained of occurred nearly nine months ago. Appel-
lants have had knowledge of such acts since their occurrence. No excuse is
given for failing to bring this appeal within the time prescribed by the rule
above quoted. This itself is sufficient ground for dismissing the appeal. See
decision of this Department rendered March 3, 1905, in Henderson v. the Board
of Education of New York City.

The grounds on which appellants ask that the action of tliis district in
selecting the site in que.-tion be set aside are that such site is unsafe for school
purposes and that the price paid is exorbitant. The burden of proof on these
questions rests upon the appellants. They must sustain affirmatively their allega-
tions in this respect. This they have failed to do. This Department has
uniformly refused to interfere with the action of a district meeting legally and
regularly taken unless it is clearly shown that such action is detrimental to
educational interests or imposes a hardsliip upon a resident of the district requir-
ing relief through the action of this Department. These conditions are not shown
to exist in this case.

The appeal herein is dismissed.



5208

In the matter of the appeal of William Hulse et al. from the action of the annual

meeting of school district no. i, town of Islip, Suft'olk county, in the election

of trustees and in increasing the number of members of the board of

education.

An annual meeting will be set aside when the proceedings are characterized by confusion

and irregularities.
An annual meeting of a union free school district whose boundaries do not coincide with
the boundaries of an incorporated village or city can not change the number of its
trustees unless the notice of such meeting states that the proposition to change the
immber of trustees will be voted upon at such meeting.
Decided October 24, 1905

W. H. Robbins, attorney for appellants
Ackerley & Miles, attorneys for respondent

Draper, Commissioner

School district no. i of the town of Islip, Suffolk county, is a union free
school district whose boundaries do not coincide with the boundaries of an



3l8 THE UNIVERSITY OF THE STATE OF NEW YORK

incorporated village or city. Section 31 of title 8 of the Consolidated School
Law of 1894 as amended by chapter 463 of the Laws of 1903 provides that the
number of trustees in a union free school district whose boundaries do not
coincide with those of an incorporated village or city shall not be changed unless
notice is given in the notice of the annual meeting that the proposition to change
the number of trustees will be presented to the annual meeting for consideration.
The pleadings herein show that the notice of the annual meeting did not contain
any notice whatever of a proposition to be presented to such meeting to change
the number of trustees. The annual meeting could not, therefore, legally increase
the number of trustees in this district. It appears, however, that such action was
taken at the annual meeting of the district on August i, 1905, and the number
of trustees increased from five to nine. This action being illegal the election of
four additional members was void.

It appears that the term of office of Dr E. S. Moore expired at the time of
the annual meeting. The chair announced that nominations were in order to
fill this vacancy. Arthur Dominy was placed in nomination but before other
nominations were made Mr Dominy moved that the number of members on the
board be increased from five to nine. This motion was then considered and
adopted. Three other nominations for trustee for a term of three years were
then made as follows : W. A. Hulse, J. M. Howell and L. G. Homan. The
chair announced that each voter could vote for three trustees for three years. It
was not determined by the meeting that any one of these four nominees should
be regarded as being the successor of Doctor Moore.

It is to be presumed that one trustee was chosen to succeed Doctor Moore
and two to fill additional offices created by the action of the annual meeting in vot-
ing to increase the number of trustees. It is not shown that those at the meeting
generally regarded Mr Dominy as being the trustee chosen to succeed Doctor
Moore. There does appear much doubt that such was the understanding. It is
also impossible to determine which one of these nominees would have been
chosen had there been but one trustee to be elected.

The meeting then proceeded to nominations for trustees for two years.
.Several nominations were made. The four members of the board of education
whose terms had not expired then presented their resignations. These resigna-
tions were accepted. Three trustees were elected for two years and three for
one year. It does not clearly appear which of these trustees were chosen to fill
the additional offices created or which were chosen to fill the vacancies caused by
the resignation of the four members whose terms had not expired.

It is contended by respondents that the Consolidated School Law distributed
by the State Superintendent of Public Instruction in 1903 does not contain
the amendment to section 31, title 8 of the Consolidated School Law made by
chapter 463 of the Laws of 1903, requiring that notice shall be given of the
intention to bring a proposition to increase the number of members on a board
of education before the annual meeting. It is alleged that the board of educa-
tion relied upon that law as distributed by the former Department of Public



JUDICIAL decisions: meetings 319

Instruction for their guidance and that failure to give such notice should not
therefore vitiate the proceedings of the annual meeting. This contention is not
well founded. Neither the ignorance of the provisions of law on the part of a
board of education nor the negligence or carelessness of Department officials is
sufficient to excuse a school district meeting from fulfilling the requirements of
the law. If the district meeting could be regarded as excusable from the law
requiring the notice in question, other irregularities and illegal procedure occurred
in the conduct of the annual meeting sufficient to warrant an order from this
Department to vacate the proceedings of such meeting. Section 31 of title 8 of
the Consolidated School Law, since its enactment in 1894, has provided that the
vote authorizing an increase in the number of members on a board of education
in a union free school district of this class shall be by taking and recording the
ayes and noes. The proceedings of the annual meeting of this district do not
show that the vote on such proposition was taken by this method. Such pro-
ceedings show such vote to have been taken by ballot which was not a compliance
with the provisions of law (See decision no. 4465 of the State Superintendent
of Public Instruction, also, decision no. 4487). The same section of law also
provides that when a district meeting shall elect such additional number it shall
divide such number into three several classes, the first to hold office for one year,
the second two years and the third three years. No such action was taken at this
meeting. This is also sufficient ground for setting aside the election in question.
(See decisions above cited.)

The whole proceeding is characterized by confusion and irregularity. This
is due to the illegal action of the meeting in voting to increase the number of
trustees. The inhabitants of this district are entitled to have a board of trustees
chosen in accordance with the provisions of law by a majority of the legal voters
of the district. It is necessary to set aside the action of the annual meeting in
voting to increase the number of trustees and in electing four additional trus-
tees. Since it is not clearly shown which of the trustees elected at the annual
meeting were elected to fill these additional places created and which to fill
vacancies, it appears for the interest of all concerned to set aside the entire
election and direct the district to hold a special election for the purpose of elect-
ing five trustees. This action will also afford the voters of the district an oppor-
tunity to elect in a legal manner an entire new board of education.

I decide. That the election of all trustees chosen at such meeting was illegal
and therefore void ; that under the provisions of the Consolidated School Law
and the decisions of this Department the trustees of a district or the members
of a board of education hold office until their successors are legally elected or
appointed ; that as the election in question was illegal it operates as though an
election had not been held and the trustees of the district at the time of the
annual meeting are hold-over trustees except such as have resigned ; and that
as all of such trustees or members of the board of education, except Dr E. S.
Moore, resigned, the said Dr E. S. Moore is at the present time the only legal



3-20 THE UXIVERSITY OF THE STATE OF NEW YORK

trustee or member of the board of education of said school district no. i, town
of Islip, Sufi'olk county.

The appeal herein is sustained.

It is ordered, That all proceedings taken at the annual meeting of union
free school district no. I, town of Islip, Suffolk county, held August i, 1905,
in relation to increasing the number of members of the board of education
of said district be, and the same are, hereby vacated; that all proceedings of
said annual meeting by which Arthur Dominy, John M. Howell, Leander G.
Homan, William S. Downs, Fred C. Hendrickson, George W. Abrams, Clarence
A. Wicks, George C. White and William H. \'ail are alleged to have been
elected trustees or members of the board of education of said district be, and
the same are, hereby vacated.

It is further ordered. That Dr E. S. ]\Ioore, a trustee of said district, shall
without unnecessary delay and in accordance with the provisions of section lo,
title 8 of the Consolidated School Law, call a special meeting to elect one trustee
for the remainder of the current school year and the ensuing two school years
to fill a vacancy caused by the expiration of the term of office of Dr E. S. Moore,
and to elect two trustees for the remainder of the current school year and the
ensuing school year to fill the two vacancies caused by the resignations of the
two trustees whose terms would not have regularly expired until the annual
meeting of 1907, and to elect two trustees for the remainder of the current
school year to fill the two vacancies caused by the resignations of the two
trustees whose terms would not have regularly expired until the annual meeting
of 1906.



3910

In the matter of the appeal of John Van Buren, from the proceedings of the
annual school meeting, held in district no. 12, of the town of Vohiey,
county of Oswego.
A chairman of a district meeting, if he is a qualified voter, is entitled to vote when a
liallot is taken upon any question before the meeting. He has no right to vote after
the result has been ascertained, for the purpose of breaking a tie vote.
Decided September 23, 1890

Mead, Stranahan & Spencer, attorneys for appellant
Piper & Rice, attorneys for respondent

Draper, Superintendent

At the annual school election for trustee, held in district no. 12, of the
town of Volney, Oswego county, the voting was by ballot. There were two
candidates voted for. The ballot resulted in a tie vote whereupon the chair-
man voted for one of the candidates, the respondent herein, and declared him
elected. From this result this appeal is taken. The chairman of the meeting, if
he was a qualified elector of the district, was entitled to one vote upon the



JUDICIAL decisions: meetings 321

question, but that vote should have been cast when the vote was being received,
and before the poll was closed, the ballots counted, and the result ascertained.
Whether he voted at that time, and then again, to break the tie, does not appear,
but in any event, his ballot or vote after the result was ascertained, was
improper. It follows that there was no choice of trustee.

The appeal is sustained. The district clerk will forthwith give notice of
a special meeting to be held for the selection of a trustee.



3909

In the matter of the appeal of DeEtte Adsit from the proceedings of the annual
school meeting, held in school district no. 5. towns of Hanover and Sheridan,
county of Chautauqua.

The Department must not be expected to grant relief to persons who, through their own
neglect or indifference, do not attend school meetings until long after the hour
designated.

Decided September 22, 1890

Draper, Superintendent

Appeal from the proceedings of the annual meeting, held August 5th. last, in
school district no. 5, of the towns of Hanover and Sheridan in the county of
Chautauqua.

The appellant alleges that the custom in the district has been to hold the
annual meeting at 8 o'clock p. m. ; that on this occasion the meeting was held
at about 7 o'clock, in consequence of which but three voters were in attendance,
and at which the respondent was chosen trustee, with the several other officers.
Some evidence is presented of persons intending to be present at the meeting,
that the meeting was held before 7.30 o'clock.

The respondent shows by the affidavit of all three of the persons who
participated in the meeting that the organization was not perfected until nearly
8 o'clock, and the meeting was not concluded until after that hour. It does not
appear that notice of the meeting was given. The law designates the hour, 7.30
o'clock p. m. Each side of the controversy presents a commimication signed
by about an equal number of alleged voters favoring one side or the other, the
respondent, with those who actually attended the meeting, showing the greatest
number.

But this informal way of testing the question is not at all concluding. If
I were convinced that any undue haste characterized the meeting, and it occurred
before the legal hour of meeting, I should sustain the appeal, but such does not
seem to be the fact.

Electors who do present themselves at school meetings upon time are not
expected to be subjected to unnecessary delay to accommodate persons who are
II



322 THE UNIVEKSITY OF THE STATE OF NEW YORK

SO dilatory or indifferent as to attend meetings more than a half hour after the
designated time. Such persons come to the Department and expect relief for
their own neglect. I do not fell warr.nnted in granting it.
I'he appeal is overruled.



3908

In the matter of the appeal of John R. Archihald and others v. school district no.
4, in the town of Portville, in the county of Cattaraugus.

Failure to give public notice of the time and place for holding the annual school meeting

would not vitiate the proceedings of the meeting.
Decided September 18, 1S90

Draper, Superintendent

This appeal is brought to set aside the action of the last annual school meet-
ing, on the ground of irregularity in proceedings. It is alleged that there was no
suflicient notice given of the meeting, and that votes were cast for trustee and
collector by persons who were not entitled to vote, and that the person elected
collector of the district was riot eligible to the office.

As it was the annual school meeting, failure to give notice would not vitiate
its proceedings. I have examined the papers, and find that the allegation that
persons voted who were not entitled to vote, is not well sustained. It was
alleged that eight persons not qualified to vote participated in the election of
trustee. This certainly was not the fact. It is not shown that enough illegal
votes were cast to change the result. It is admitted that the collector who was
elected was not eligible to the oflice. There is not enough in the case to justify
me in sustaining the appeal. It is dismissed.



3905

In the matter of the appeal of W. A. Cleveland v. the trustees of district no. 3,
Middletown and Southfield, in the county of Richmond.

Refusal of trustees to call a special meeting when requested, sustained, when it is made
to appear that the trustees are acting in good faith, and no apparent benefit would
come to the district by such meeting.

Decided September 5, 1890

Draper, Superintendent

A new schoolhouse is now in process of erection in the above-named dis-
trict. The appellant is a builder by occupation, and with other builders sub-
mitted proposals in July last for the construction of such building. He was not
the lowest bidder and the contract was awarded to another. Since that time he
has raised objections to the size and character of the school building to be



JUDICIAL decisions: meetings 323

erected, and has demanded that a special meeting of the district be held to
consider the matter. This appeal is from the refusal of the trustees to call a
special meeting.

This Department will ordinaril)' require trustees to call a special meeting in
a school district, where there seems to be any general desire for such a meet-
ing. Even where a respectable minority in the district makes known a desire
for a special meeting it should be accorded, unless circumstances are such as
to justify the belief that the persons demanding a meeting are not altogether
disinterested or well disposed. It is true that the appellant in this case, with
several others, requested that a meeting be called. Some of those who joined
with him in this request have since withdrawn their request. At the annual
school meeting, held August 6th, the appellant made a statement to the meeting,
setting forth his complaint for grievances, but no action was taken. I have
carefully examined the records of the proceedings of the trustees touching the
work in hand. It seems to me that they have proceeded with due deliberation
and much caution. The plans of the building were submitted to no less than
six builders who presented proposals. Time was taken for investigating the
business qualifications and financial standing! of the lowest bidder. When
satisfied of his responsibility the contract was awarded to the lowest bidder. I
am unable to see why the trustees have not exercised every care in the discharge
of their duties. The building is now in process of erection, except that a stay
of proceedings, granted on the 4th day of August last, was granted. I find no
sufficient ground for further interrupting the work of the trustees. Indeed, there
would seem to be every reason why it should be facilitated. The appeal is dis-
missed and the stay of proceedings heretofore granted is revoked and set aside.



3855

George E. Soper v. John JI. Smith, sole trustee of school district no. 5, of the
town of Smithtown, county of Suffolk.

Appeal from the neglect or refusal of a trustee to call a special meeting of the electors
of the district for the purpose of considering the advisabihty of building a new school-
house, and, if deemed necessary, to consider a change of site upon request of a large
number of inhabitants. No reason for such neglect or refusal appearing, appeal sus-
tained, and district clerk ordered to give notice for meeting, as requested.

Decided February 8, 1890

Draper, Superintendent

This is an appeal by a resident elector of school district no. 5, of the town
of Smithtown in the county of Suffolk, from the refusal of the trustee of said
district to call a special district meeting upon the request of a large number of
the inhabitants of said district, for the purpose of considering the advisability
of building a new schoolhouse, and, if deemed necessary, to consider a change
of site. The request, a copy of which I find among the apjjellant's papers, was



324 THE UNIVERSITY OF THE STATE OF NEW YORK

served upon the trustee on the i6th day of September 1889. This appeal was
taken by service of a copy of the same upon the trustee of said district on the
6th day of December 1889, and although sufficient time has elapsed for the
trustee to answer the same, no answer has been received.

I must, therefore, conclude that the grounds of appeal are truly stated, and
that a special meeting of the inhabitants should have been called as prayed
for by the petitioners. The appeal is sustained and the district clerk of district
no. 5, of the town of Smithtown in the county of Suffolk, is hereby directed
to give notice of a special meeting of the electors of the district, to consider the
questions proposed in the petition above referred to within ten days from the
service of a copy of this decision upon him.



4327

In the matter of the appeal of Reuben Britten from proceedings of special
meeting held on October 9, 1894, in school district no. 10, town of Still-
water, Saratoga county.

This Department, when asked to set aside proceedings of school meethigs, will always
inquire into the bonce fides thereof. Were the things done, such as it was proper to do
at said meeting? Has any one been misled, imposed upon or wronged? If mistakes
and irregularities have occurred, will the greater hardship be imposed upon individuals
by setting aside or sustaining such acts? Notices of special meetings in common school
districts, unless any such district at its annual meeting shall, by resolution, prescribe
some other method, is by reading said notice in the hearing of each inhabitant of the
district qualified to vote at its meetings or in case of his or her absence from home, by
leaving a copy thereof or so much thereof as relates to the time, place and object of
the meeting, at the place of his or her abode at least five days before the day of the
meeting. No district meeting shall be hcUl illegal for want of a due notice to all
persons qualified to vote thereat unless it shall appear that the omission to give such
notice was wilful and fraudulent.

Decided February 21, 1895

J. F. Terry, attorney for appellant

George B. Lawrence, attorney for respondent

Crooker, Superintendent

The above-named appellant appeals from the proceedings of a special meet-
ing held on October 9, 1894, in school district no. 10, town of Stillwater, Sara-
toga county, upon the grounds in substance: That the notice of said meeting



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 40 of 188)