In the Matter of the Appeal of CHARLES H. BLACKET and Others from the Refusal of the Board of Education of the Town of Marlborough to Transfer Certain Pupils to the Marlborough High School

Case No. 425

(Decided May 13, 1918)

Transferring pupils who have not completed the eighth grade work to schools outside of the town.

The board of education of the town of Marlborough has refused the application made by Charles H. Blacket and several other residents of that town for the transfer of their children for instruction in the school maintained in the Marlborough union free school district, which is not under the jurisdiction of said respondent board. None of the children sought to be transferred have completed the work of the eighth grade or have passed the examinations prerequisite for academic recognition. Held, that while the interests of the children are in all cases to be considered it cannot be said that as a matter of law the board of education is bound to transfer children who have not completed the eighth grade to be instructed elsewhere at the expense of the township, unless it is shown beyond question that convenience of instruction requires such transfer. Also held, that the appellants have failed to show sufficient facts to authorize such transfer. Appeal dismissed.

FINEGAN, Acting Commissioner.- Charles H. Blacket and several other residents of the town of Marlborough have made application to the board of education of said town to transfer their children for instruction in the school maintained in the Marlborough union free school district which is not under the jurisdiction of said town board of education. The papers submitted by the appellants are very informal and allege in substance that on October 3, 1917, the town board of education met and decided not to pay the tuition of pupils in other schools who were not of full academic grade. It appears that in the case

of each of the appellants the pupils whose transfer was requested have not completed the work given in the grades and have not passed the examinations entitling them to be recognized as academic pupils. The respondent board of education has voted

to provide academic instruction for all pupils of academic grade. Therefore, the question for determination is as to the propriety of the transfer of such pupils for instruction at the expense of the town, under the provisions of section 342 of the Township Law, upon the ground that the pupils can be more conveniently instructed in the Marlborough high school than in the schools. of their own district. While the exact distance from the residence of the pupils to the schoolhouse in the district in which they live and also from their residences to the Marlborough high school is not definitely stated, it appears that the residences of nearly all of the children are much nearer the schoolhouse in their own district than the schoolhouse in the Marlborough union free school district. The transfer requested seems not to have been urged so much upon the ground of accessibility to the Marlborough high school as upon the ground of better facilities for instruction. The answer discloses that the school in each of the common school districts under the control of the town board of education is maintained with one or more competent teachers in charge, capable of instructing the children in all grade subjects. The statute evidently contemplates that the board of education shall exercise its discretion in transferring pupils upon the ground of greater convenience to the pupils. While the interests. of the children are in all cases to be considered, it cannot be said that as matter of law the board of education is bound to transfer children who have not completed the work of the eighth grade to be instructed elsewhere at the expense of the township, unless it is shown beyond question that convenience of instruction requires such transfer. The appellants have failed to show sufficient facts to authorize me to require the transfer of these pupils.

The appeal is dismissed.

In the Matter of the Appeal of Mary Edwards CHURCH Relative to Payment of Teacher's Wages

Case No. 426

(Decided May 13, 1918)

A teacher cannot be allowed pay for the days during which her own action results in the closing of her school.

The appellant was employed as the teacher in district No. 4, town of Greenwood, by the district superintendent, acting for the board of education. On Monday, October 15, 1917, the teacher was directed to close the school for the balance of the week. The appellant, however, failed to open the school until October 29, 1917. The present appeal is as to whether she is entitled to receive pay for the days during which she failed to teach not covered by the order of the superintendent. Held, that the appellant's failure to teach for the week commencing October 22, 1917, was the result of her own voluntary act and that she is not entitled to her salary for such week. Recommendation made that the allowance already offered to and refused by appellant be retendered to her by the board. Appeal dismissed.

Crayton L. Earley, attorney for appellant.

Wm. G. Kellogg, attorney for respondent.

FINEGAN, Acting Commissioner.- The appellant alleges in her petition that in May, 1917, the trustee of District No. 4, town of Greenwood, entered into an oral contract with her to teach school in said district for the term of eighteen weeks at a salary of twelve dollars and fifty cents per week, beginning September 4, 1917, which appears to have been confirmed in writing by the trustee of the district. The memorandum confirming the oral contract recites that the appellant was hired by him for the term and at the salary above stated "with no vacation for potato digging." The respondent board of education of the town of Greenwood ratified the contract and recognized the appellant as a teacher in accordance with its terms.

It is alleged by the appellant that school was ordered closed by the district superintendent, acting for the board of education, during a period of eight regular school days in the month of October, 1917, against the protest of the appellant, and that the board has refused to pay her for this period. The respondent board states in their answer that the school was closed by their direction from October sixteenth to October nineteenth, inclusive. The board recognizes that under the contract it was not relieved from paying the teacher her salary for this period and offered to the appellant the sum of nine dollars and ninety cents in payment for such days, which she refused to accept.

It appears from the affidavits of the clerk of the board of education and the district superintendent which are filed in answer to the appeal that school was not closed during the week beginning October twenty-second at the direction of the board of education, but was closed because of the refusal of the appellant to continue school during said week. No reply has been filed by the appellant controverting these positive averments contained in the affidavits referred to. The district superintendent states that the direction which he gave to the appellant on Monday, October fifteenth, was that she should "close school for the balance of the week;" that appellant then stated that when the board got ready to open school again they could get another teacher, that she was through. The superintendent thereafter wrote to the appellant that she must complete her contract and that she had better go back and open school, which she did on October twenty-ninth. The contention of the respondents, therefore, is that they are not responsible for the closing of the school for the week commencing October 22, 1917, but that the appellant's failure to teach for this period was because of her own voluntary act, and that on this account the appellant is not entitled to her salary for such week. The facts disclosed justify this contention.

The respondent board has tendered to the appellant the amount due her as salary for the four days that the school was closed by their direction, less the deduction on account of the teachers'

retirement fund. The amount so tendered is all that the appellant is entitled to receive. It is suggested that the board again tender her the amount to which she is entitled.

The appeal is dismissed.

In the Matter of the Appeal from an Order Changing the Boundary Lines of Districts Nos. 3 and 6, Town of Roseboom, Otsego County

Case No. 428

(Decided May 13, 1918)

Provisions as to alteration of the boundaries of a school district under section 123 of the Education Law by a district superintendent.

The petitioners herein are residents and taxpayers of district No. 6, town of Roseboom, and they ask that certain farmlands in the towns of Roseboom and Cherry Valley be included within the territorial limits of district No. 6, town of Roseboom, so as to leave that district as it was before the transferring of the said farms to district No. 3, town of Roseboom. The owners of the farms in question have failed to answer the allegations of the petition although copies thereof have been served upon them, and have failed to object to the alteration of the boundaries of the district. Held, that the proceeding is one within the provisions of sections 123, 124 and 125 inclusive of the Education Law, and that it will be necessary for the appellants to apply to the superintendent of districts Nos. 3 and 6 so that the boundaries of district No. 6 may be re-established as prior to the transfer of the said farms. Appeal dismissed.

Elmer C. Smith, attorney for appellant.

FINEGAN, Acting Commissioner.-On April 18, 1916, District Superintendent Harrison Cossaart made an order dissolving District No. 6, town of Roseboom, and District No. 7, town of Cherry Valley, and annexing the territory of each of said districts to District No. 5, town of Cherry Valley. Thereafter an appeal was taken from that portion of the order which dissolved District No. 6, town of Roseboom, and annexed its territory to District No. 5, town of Cherry Valley. This appeal was sus