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the withdrawal of some of the inhabitants.

The appellant desires that the proceedings of the meeting held after
the motion to adjourn was made, be decljired void.

The motion to dissolve the district was entirely out of order, as it
was upon a question over which the district had no control. A motion



DIGEST OP DECISIONS. 43

to adjourn cannot be put to vote until it is seconded. The chairman
was therefore correct in refusing to put to vote either of these motions.

A motion put to vote by any other person than the chairman of the
meeting, is void.

The appeal is dismissed, and the proceedings of the meeting con-
firmed.

Per Morgan, December 22, 1848. •

If the trustees of a school district refuse to levy a tax, in pursuance of chap. 214,
of Laws of 18J7, to pay costs of school district officers, who have sued or
hoen sued in the discharge of their official duties, tiiis depaptment cannot
interfe e.

The proper remedy is an application to the supreme court for a mandamus.

The tnistces of District No. 7, De Kalb and Canton, refuse to levy a
tax of $115.73, as directed by chap. 214, Laws of 1847, to remunerate
the appellants for costs and expenses incurred by them as former
trustees of the district.

An appeal is taken to this department.

The superintendent is of opinion that this appeal cannot be enter-
tained. The proper remedy of the appellants under the act referred to
is by application to the supreme court for a mandamus.
Per Morgan, January 4, 1850.

A notice priven by the district clerk for a meetinij is legal, though the directions
of tlie trustees to the clerk to give such uotice were verbal.

A special meeting was held in District No. 5, Lisbon, St. Lawrence
county, December 30, 1848, pursuant to a notice given by the clerk for
the purpose, and the site of the school-house was voted to be changed.

The appellants object to the proceedings of the meeting,

Because the notices of the meeting by the district clerk were upon
the verbal direction of the trustees.

If the district clerk gives the proper notices for a special meeting the
proceedings of that meeting will not be held to be illegal, although the
trustees may have given the clerk only a verbal direction to give the
notices.

The proceedings of the meeting therefore are legal and regular.

Appeal dismissed.

Per Morgan, March 6, 1849.

The clerk of a district has no power to authorize any person to give notices for
a district, or to do any other act.

The trustees of District No. 14, Lockport, called a special meeting, to
be held on the 22d day of March, 1849, and directed the clerk of the
district to give the proper notices.

Most of the notices were given by a son of the clerk. The meeting
held in pursuance of such notice is alleged to be illegal.



44 DIGEST OF DECISIONS.

It is the duty of the district clerk to give all notices for school
meetings in his district, and in case of his refusal or of a vacancy in
the office of clerk, a trustee may give them.

But the clerk of the district has no power to authorize any other
person to give the notices or to perform any other duties of his office.
The town superintendent only can, in certain cases, authorize any
inhabitant of the district to give notices of special meetings.

The appeal is sustained, and the proceedings of the meeting are
declared illegal and void.

Per Morgan, April 7, 1849.



When the trustees make any change in the valuation of property, differing from
the valuation, as appears by the assessment roll, they should give twenty
days' notice of the changes they have made to the inhabitants of the district
affected thereby.

The appellant in this case represents that on or about the 2d of
March last, a tax was voted for the support of schools at a special
meeting called and held in District No. 1, under the provisions of the
new school law ; and that the trustees, in apportioning the tax thus
voted, altered the valuations of the taxable property of the district from
the assessment roll of the town in several instances specified by the
appellant, and among others, in his own case, without giving the notices
prescribed by law, in consequence of which a larger sum has been
assessed to him and others than was equitable and just.

The trustees in their answer, do not deny the charge that a departure
from the last assessment roll of the town, was made by them in ascer-
taining the valuation of the taxable property referred to, without giving
the notice prescribed by law, but claim that the valuations put by them
on such property were substantially correct, and in accordance with the
standard adopted by the assessor.

The superintendent is of opinion that the defense thus set up by the
trustees, is invalid and untenable. The law specifically requires that
in all cases where the valuations of taxable property cannot be ascer-
tained from the last assessment roll of the town, the trustees shall
ascertain the same from the best means of information within their
power, giving notice to all persons interested, and proceeding in the
same way that town assessors are required to proceed in the firet
instance. Unless therefore this requisition is strictly complied with,
the assessment thus made by the trustees is illegal and invalid, what-
ever may be the standard of valuation adopted by them, or whether
such valuations are just and equitable or not.

The persons interested in such alteration were entitled to notice in
the mode prescribed by law, and to an opportunity of appearing before
the trustees, and claiming a reduction of their assessments as so ascer-
tained ; and they may legally avail themselves of the omission to give
such notice, either to resist the collection of the tax thus illegally
imposed, or to bring an appeal to this department for such redress as



DIGEST OF DECISIONS. 45

may be in its power to afFord. The tax list being void in part, is void
throughout.

It is accordingly hereby ordered that the tax list made out by the
trustees of District No. 1, in the town of Fowler, in pursuance of the
vote ot the special meeting held in said district be and the same is
hereby set aside, and the trustees are directed, and required within thirty
days from the date hereof to make out a new tax list in accordance with
law, and to deliver the same with their warrant annexed, to the collec-
tor of the district for collection, refunding if required any amount here-
tofore illegally collected.

Per Morgan, June 4, 1850.

A resident of a district is not responsible for the tuition of a non-resident pupil
who simply boards with the former, unless the trustees notify him at the
commencement of the school that he will be held responsible for the tuition.

In this case the appellant represents that the trustees have charged
him eighty-two cents for the tuition of Erastus Hibbard, the son of a
non-resident of the district, and who was a mere boarder in his house ;
and he alleges in express terms, that he did not send him to the school
nor engage to pay his tuition, and that he had no control or jurisdiction
over him. No answer has been put in by the trustees, although a copy
of the appeal duly verified was served upon one of their number on the
28th of April last. The statement of the appellatit therefore must be
taken to be true, and under such circumstances he cannot be regarded
as legally liable for the tuition of the boy. If the trustees had design-
ed to hold him responsible, it was their duty to have apprized him of
the fact at the commencement of the term. Not having done so they
must look to the father of the boy.

It is therefore ordered that the trustees strike from the rate bill the
charge against the appellant for the tuition of Erastus Hibbard.
Per Morgan, May 18, 1849.

A person elected as a librarian of a school district cannot be displaced except by
a direct procedure on the part of some competent legal authority, on infor-
mation in the nature of " quo warranto," or on appeal from the election, even
though the incumbent be an infant.

This was an appeal originally brought to the county superintendent
of Saratoga, from the refusal of the trustees to deliver over to the charge
of the appellant the library of the district, he having been chosen unani-
mously as librarian at the annual meeting of the district, on the first
Monday in October last. In their answer to the appeal the trustees place
their refusal upon the ground that the appellant is a minor and could not
therefore execute a valid bond for the preservation and safe-keeping of
the books belonging to the district library. The county superintendent
very properly overruled this defense, holding that the appellant though
ineligible must be recognized as the librarian '■'■ de facto" of the district
so far a* the public and thii-d persons are concerned and that his right to



46 DIGEST OF DECISIONS.

the office coald not Be tried in this indirect way. No principle of law is
better settled than that the actual incumbent of an office holding under
color of a legal election or appointment can be displaced only by a
direct procedure on the part of some competent legal authority on in-
formation in the nature of a quo warranto or otherwise ; and that his
acts so far as the public are concerned, will be recognized as valid and
legal to all intents and purposes while he continues to execute the office
under claim of title. In this case the appellant was unanimously elected
librarian of the district, notwithstanding his admitted ineligibility, and
it does not rest with the trustees to deprive him of the office in this in-
direct mode. They might have appealed from such election, placing
their appeal expressly upon the ground of his ineligibility, and the
county superintendent might have set aside the election and ordered a
new meeting to fill the vacancy. But not having resorted to this remedy,
they cannot refuse to deliver over to him the library of the district on
the ground of such ineligibility ; nor are they warranted in assuming
that the property of the district will be unsafe in his hands on the
ground of his want of responsibility. They may remove him from office
whenever he willfully disobeys their directions in any matter relative to
the preservation of the books and appurtenances of the library or for
any willful neglect of duty, &c., &c. But they cannot refuse to recog-
nize him as the legally elected librarian of the district.

They are therefore hereby directed to deliver the library of the dis-
trict into his hands, and the decision of the county superintendent is
hereby affirmed.

Per Young, January 20, 1845.

It is a rule of this department, that all acts of school district officers will be
regarded as regular, unless duly appealed from.

This appeal is brought from the proceedings of a special meeting
held in District No. 9, Preble and Scott, August 5, 1848, for the pur-
pose of receiving the report of Elam Dunbar, as trustee of said district,
the said Dunbar having resigned his office in December, 1847.

It is immaterial whether the meeting of August 5, 1848, which
received and accepted the report of Mr. Dunbar, was regular or not.
His report and the complaints made against him were of acts previous
to the meeting of December, 1847, at which he resigned, and at which
his report should have been made and accepted.

It is a rule of this department, that all acts and proceeding of school
officers will be regarded regular, unless duly appealed from. Whatever
therefore may have been the neglect of duty of Mr. Dunbar, while in
office, provided he has not rendered himself liable by squandering or
losing moneys belonging to the district, he will be regarded as having
discharged his duties faithfully.

Appeal dismissed.

Per Morgan, January 24, 1849.



DIGEST OF DECISIONS. 47

Where a trustee is elected to the office of supervisor, the term of his trusteeship
is in no wise affected thereby.

In October, 1846, Matthew Brown was chosen trustee of District
No. 11, Bethel, for a full term of three years. In the spring of 1848,
he was elected supervisor of the town. It being supposed that his
office of trustee became vacant by accepting the office of supervisor,
Mr. Thomas C. Horton was elected to fill the supposed vacancy in
October, 1848i

The law which existed previous to the time the present law took
eifect, prohibited the supervisor of a town from holding the office of
trustee. The present law, however, does not contain such a prohibition.
The election of Mr. Brown did not therefore aifect his tenure of the
office of trustee. He is the legal trustee, and the election of Mr. Horton
in his stead was irregular.

Per Morgan, April 10, 1849.

This department will, on proper application, direct an increased proportion of
the public monej- to be applied to reduce the rate bill, to be made out at
the close of the term, where the inhabitants or any considerable portion of
them withdraw their support from a teacher duly qualified, without good
cause.

The principle has been repeatedly recognized by this department,
that when the inhabitants of a school district or any considerable por-
tion of them withdraw their support from a teacher duly employed by
the trustees, and suitably qualified, without any justifiable cause, leaving
those who continue to send to the school, to defray the principal burden
of the expense, an increased proportion of the public money, appli-
cable to the pa3anent of teachers' wages, will, on a proper application,
be directed to be applied in diminution of such expense, on the rate
bill to be made out at the close of the term. In this case several of
the inhabitants withdrew their children from the school, and sent them
to a private school established in the neighborhood, for no other reason,
so far as appears from the testimony, than that arising from the price
contracted by the trustees to be paid for the teacher's services, which was
6l4 per month. It is in evidence that iie held a certificate of qualification
in due form ', that he sustained a good examination and taught a good
school ; and in the absence of any well founded objection to the charac-
ter or qualifications of the teacher, it was incumbent upon the inhabi-
tants to sustain the school during the term for which he was employed.
Two-thirds of the children usually in attendance were withdrawnfrom the
school, and the rate bills as to those who continued to send were exorbi-
tantly increased, and justice and equity require that the superintendent
should relieve them from this hardship.

The decision of the county superintendent, directing five-sixths of
the public money to be applied to the support of the winter school, is
accordingly hereby affirmed, and the appeal dismissed.

Per N. S. Benton, October 15, 1845.



48 DIGEST OF DECISIONS.

Trustees in the absence of express directions from the district, may, in their dis-
cretion, apply the public money for the support of schools as they may deem
proper, but when they apply more than (f ) two-thirds thereof for the sup-
port of the winter school, the Superintendent of Public Instruction will
interfere.

It seems that the trustees applied more than two-thirds of the public
money for the support of the winter school in 1846, leaving the balance
for the summer school. In the absence of any express direction on the
part of the district, the trustees have a legal right in their discretion to
apply the public money as they may deem proper, which discretion will
always be controlled by the department, when those officers apply more
than two-thirds of the public money to the winter schools, leaving the
balance for the summer schools. The act which should have been
appealed from, was the payment of nearly all the public money towards
the support of the winter school in 1846. The trustees having tha
strict legal right to do as they have, and no legal steps having been
taken to correct it (more than thirty days having elapsed before the
bringing of the appeal), as a legal consequence they are bound to make
out their rate bill in accordance with their former acts, that is, apply
the residue of the public money to the summer school, and make out
their rate bill for the balance.

Per N. S. Benton, April 8, 1847.

Thfe public money apportioned for o'lle year cannot be applied to the payment of
teachers' wages of a previous year, except when a term embraces a portion
of two years, in which case the public money of either year may be applied
indiscriminately to that term.

The appellees (two of the trustees) gave an order upon the tpwli
superintendent of Hoosick for $10 to be paid out of the apportion-
ment of public money for 1849, in favor of the teacher for the summer
term of 1848. The public money apportioned for one year cannot be
applied to the expenses of a previous year,,, ejccept when the term
embraces a portion of two years ; in whichjoase the public money of either
year may be applied indiscriminately to that term.

The trustees could not legally 'apply any of the apportionment for
1849, to the payment of the'teacher of the summer of 1848.

The appeal is sustained.

, ' Per Morgan, April 3, 1849.

Trustee? have no power to provide by the same rate bill, for the compensation of
teachers for different terms of instruction.

This appeal presents the question whether the wages of the same
teacher, employed for different terms, but at the Same rate of conipen-
s.ition can be legally included in the same rate bill, treating the two
periods as one term, and assessing the balance of the teacher's wages
after applying a portion of the public money thereto, upon the inhabi-
tants sending to school.



DIGEST OF DECISIONS. 49

Superintendent Dix held, in a similar case, that it was wholly inad-
missible to provide by the same rate bill for the compensation of two
teachers for different terms of instruction. ( See Common School Deci-^
sions, p. 165.) This decision is in strict accordance with the letter
and spirit of the schodl act, and conformable to principles of equity.
No rule of legal or equitable right calls for or can sanction the imposition
of a tax or burthen upon any individual school district inhabitant unless
he shall have voluntarily placed himself in a condition to have that
burthen or tax imposed according to the express terms of the law, under
which the school district officers act.

, Per Morgan, July 22, 1849.

A rate bill cannot be legally made out for any otber purpose than teachers' wages
and for fuel.

The trustees of District No. 6, Cameron, hired a teacher in the winter
of .1847-8 for three months. He. taught about two months, when he
discontinued his school which was not opened again during the winter.
The teacher was paid twenty dollars of public money, the balajice re-
maining unpaid. Sometime in November, 1848, the trustees made out
a rate bill for the. amount remaining unpaid, and included in it a tax for
fuel, and also a tax for sundries, amounting to $3.00.

It is objected that the tax of $3.00 cannot legally be included in a
rate bill. The objection is well taken. A rate bill can be made out for
no other purpose than for teachers' wages, and for ■ &el. The trustees
could not, therefere, legally include the tax of $3.00 in the rate bill.
Per Morgan, March 5, 1849.

An inhabitant cannot gain a residence in another district by taking a portion of
his family with himself thereto, so as to send his children to school therein.

The following statement of facts is submitted by the parties :

Barclay Miller owns a farm in District No. 5, upon which he lived
till the spring of 1847, when he removed to another farm in District
No. 12, leaving his son in the occupancy of the farm in No. 5.

On or about the 25th of November, 1848, a district school was com-
menced in No. 5, to which Mr. Barclay Miller sent part of his children.
Upon the representation of the teacher that the school was already too
large, the trustees directed him to dismiss Mr. Miller's children from
school.

Whereupon Mr. Miller came with his children and a part of his fur-
niture to his son's house in No. 5, leaving his wife at his "house in No.
12. His son went to the farm in No. 12, but left his wife at the house
in No. 5. Mr. Barclay Miller has, since this arrangement, sometimes •
lodged at his house in No. 12, and his son has also occasionally lodged
at the house in No. 5. Barclay Miller took with him to No. 5, his '
horses and milch cows, but had stock on both farms, and has since killed '
his hogs at the house in No. 12, and there packed the pork.

Under this statement of facts Barclay Miller cannot claim to be a
resident of District No. 5. The trustees have power to dismiss hi.s

rDioKST.] 7



50 DIGEST OF DECISIONS.

children from the school, or if they permit them to attend, they are nol
entitled to share in the public money of the district, nor can they be
lawfully enumerated, as children residing in the district. Mr. Miller is
a resident of No. 12, and his children must be there enumerated.
Per Morgan, January 11, 1849.

AVhere .the inhabitants at a district meeting direct tlie trustees to do an act which
they are authorized by law to direct, as the removal of a school-house, the
trustees may levy a tax to defray the expense, without a vote of the district.

The inhabitants of District No. 11, town of Wilna, voted a new site
for the school-house, and directed the trustees to move the house by
a "bee."

The trustees made a " bee," but there not being much of a " turn out"
on the part of the inhabitants, they were only able to get the school-
house into the highway. ■ Foreseeing the difficulty attending the removal
by such means, and not receiving the requisite aid, the trustees moved
the school-house to the site selected at an expense of $25.00

A special meeting was called on the 4th Decepaber, 1847, without
stating the object of it in the notices, at which a tax was voted to meet
the expenses of the trustees. Only four legal voters were present at the
meeting.

The vote directing the trustees to move the house by a " bee" was
void, as they could have no authority over voluntary aid, and could not
depend upon it as a means of moving the school-house.

When the inhabitants of a district direct the trustees to perform a
wort where expenses are to be incurred, the trustees are authorized to
raise the amount thereof, by tax, without a vote of the district. In this
case the trustees would necessarily incur an expense in moving the
school-house, which is chargeable to the district and can be collected by
tax the same as if it were voted. (SchoolLaws, No. 134.) And although
the vote of December 4, 1847, to raise the tax was illegal on account
of the want of proper notice, the levying of the tax was legal on the
ground that the trustees possessed the requisite power, without a vote
. of the district to raise the tax.

The appeal is dismissed.

Per A. Q. Johnson, Dept. Snpt., August 3, 1848.

In the alteration or formation of school districts, out of territory lying in two or
more towns, the order making the same must show that the town superin-
tendents of the respective towns united in making the order.

It appears from the papers transmitted to the department in this case
by the county superintendent, that the order for the transfer of Mr.
Safford from Joint District, No. 6, in Essex and Westport, to District
No. 8, of the former town, was made by the town superintendent of
Essex alone, without the presence and concurrence of the superintend-
ent of Westport.



DIGEST OF DECISIONS. 61

It is true that it is alleged by the superintendent of Essex, in his
answer to the appeal, that the alteration was made with the " concur-
rence of the town superintendent of Westport," but the order, a copy
of which is appended to the appeal, purports to be made by the super-
intendent of Essex alone, and no reference whatever is made to the
superintendent of Westport, and by the uniform decisions of the depart-
ment, no alteration of a district can be legally made, except by the
action of a joint board, consisting of the requisite authority of the
several towns, from parts of which such joint district is composed.
Neither the previous nor subsequent concurrence, formally or informally,
of the representatives of either town to such alteration, can Supply the
defect arising from their absence at the time of making the order.
They must meet and constitute a board, otherwise the proceedings are
void.

This objection appearing in this case upon the papers, must be
regarded as fatal to the validity of the order appealed from, and the
decision of the county superintendent must be reversed.



Online LibraryNew York (State)Code of public instruction of the state of New-York : prepared and published by order of the Legislature under the direction of the Superintendent of Public Instruction → online text (page 6 of 39)