The Clerk of school district No. 9 in the town of New-Haven, ex parte.

A new district being formed, a notice to each inhabitant of the time and place for the first meeting is sufficient.

This was an application from the clerk of school district No. 9 in the town of New-Haven, for the direction of the Superintendent in respect to a notice given in the manner explained in the subjoined opinion.

By A. C. FLAGG, December 6, 1826. In warning a school meeting in the first organization of the district, a person liable to pay taxes notified the inhabitants that they were set off into a district, and of the time and place of the meeting. This in my opinion was a sufficient notice. The 13th section of the act of 1819* says the commissioners shall give a written notice to some inhabitant liable to pay taxes, "describing such district," &c. It is necessary for the person notifying the inhabitants to have the district described, in order that he may know whom to notify. The inhabitant notified of the school meeting has no necessity for knowing who else is notified. The notice is to him as an individual. The same section defines the extent of this notice to individuals by saying when the person is absent from home, he is to be warned by leaving at his place of abode a copy of the commissioners' notice, "or of so much thereof as relates to the time and place of such meeting." This is clear and conclusive. It could not be necessary that a personal notice should be more full and particular than is required for a notice left in the absence of the person notified.

Josiah Hilton and others against the inhabitants of school district No. 3 in the town of Erwin.

A person taking up his residence in a school district, becomes by that act a voter, if he has the requisite qualifications.

If in balloting for district officers the number of ballots exceeds the number of voters, a second balloting should take place.

This was an appeal by Josiah Hilton and others, inhabitants of school district No. 3 in the town of Erwin, from the

*Sec. 55, page 477, vol. 1, R. S. In the case of King vs. Grout, 7 Wendell, 341, decided in 1831, the Supreme Court held that it was not indispensably necessary to insert the boundaries of the district in a notice given by commissioners of common schools for a meeting for the election of officers in school district No. 1 in the town of Ogden under circumstances somewhat similar to those which occurred in school district No. 9 above reported; though it is supposed that the notice in the case decided by the Supreme Court was given in consequence of a re-organization of the school district, and when there was no competent authority existing within it to call a special district meeting.

proceedings of an annual meeting in said district, at which officers for the ensuing year were chosen. The objections, upon the ground of which the interposition of the Superintendent was sought, were;

1st. That one person voted at the meeting who had come into the district a short time before, and who had not the amount of property necessary to entitle him to vote;

2nd. That in counting the ballots, they were found to be one more in number than the persons present.

By A. C. FLAGG, February 22, 1827. If the person who is alleged by the appellants not to have been entitled to vote, had actually taken up his residence in the district, and had the property required by law, he was a voter, although he might have been there only a week. If he was not a taxable inhabitant, he might have been prosecuted for the penalty, provided by law, before a magistrate, before whom access to all the facts could be had. The testimony before the Superintendent is too vague in reference to this point to justify an interference with the proceedings on that ground.

It appears that there was one more ballot than there were persons present at the meeting. The most satisfactory proceeding in such a case would have been to have ballotted over again; and this ought to have been done. A double ballot being put in, however, does not destroy an election. When the ballots and poll-lists do not agree, (in general elections,) the excess of ballots are drawn before they are opened; but the election or the votes of the town are not vitiated by a disagreement between the poll-list and the ballots. It is stated in the affidavit of the moderator that the persons declared elected, had a majority after deducting the ballot alluded to.

Under all the circumstances of this case, it is decided that the officers chosen in district No. 2 in the town of Erwin, at the annual meeting, from the proceedings of which relief is sought, are the legal officers of said district, and that the appeal be dismissed.

The Trustees of school district No. 14 in the town of Cazenovia, ex parte.

If the district clerk refuses to give notice of a meeting of the inhabitants, the notice may be given by the trustees.

If the collector refuses to give a bond, his office becomes vacated, and the trustees may make a new appointment.

This was an application from the trustees of school district No. 14 in the town of Cazenovia, for the direction of the Superintendent with respect to the following cases:

1st. The district clerk when required by them to give notice of a meeting of the inhabitants, refused to act.

2nd. The collector of the district, on receiving a warrant for the collection of a tax, declined giving a bond for the faithful discharge of his duties.

By A. C. FLAGG, March 12, 1827. By the proviso to the 20th section of the act of 1819, the trustees are authorized to call special meetings. By the 23d section* it is made the duty of the clerk to notify such meetings whenever they shall be called by the trustees; and in case of the absence or incapacity of the clerk, the trustees themselves may (and it is declared their duty to) give notice to the inhabitants of the district of a special meeting. If the clerk refused to notify the meeting, then it might be done by the trustees or one of them. Even for a want of notice to a part of the inhabitants, a meeting shall not be deemed illegal, unless the omission to give such notice was wilful or designed, (see last clause of the proviso to the 20th section, act of 1819.4)

By the 24th section of the school act, the trustees can require a bond from the collector, "and in case of his refusal or neglect to execute and deliver such bond within such time, not less than ten days, as shall be allowed to him for that purpose by the trustees, his office of collector shall thereby be vacated, and thereupon it shall and may be lawful for the said trustees, or the major part of them, to appoint any other person residing in their district to supply such office so vacated."§

(ANONYMOUS.)

If the commissioners of common schools know a district report to be erroneous, the public money may be withheld, and the case submitted to the Superintendent.

By A. C. FLAGG, March 16, 1827. If the trustees of a school district make a false report, they are liable to a fine of twenty-five dollars, under the 28th section of the school act. Commissioners of common schools cannot actually know a report to be erroneous, unless they have positive proof of the fact. If such proof were to be presented to them, they might withhold the public money until the facts could be presented to the Superintendent for his decision.

*Sub. 2, sec. 74, page 480, Sub. 2, sec. 75, page 481, vol. 1, R. S. § Sec. 107, page 487, vol. 1, R. S.

vol. 1, R. S.

Sec. 63, page 478, vol. 1, R. S. || Sec. 96, page 485, vol. 1, R. S.

The Trustees of school district No. 6 in the town of Canajoharie, ex parte.

A tax may be levied in a school district to build a wood-house and necessary.

This was an application to the Superintendent to decide "whether a school district is authorized to raise money by tax to build a wood-house and such other appendages as common decency requires should be attached to a school-house?"

By A. C. FLAGG, May 5, 1827. The 20th section of the act of 1819 gives authority to the taxable inhabitants of school districts to vote such a tax as a majority of them shall deem sufficient to procure a school-house, and to furnish it with “necessary fuel and appendages."* Both the conveniences referred to in the case presented to me are to be regarded as necessary appendages to a school-house, and the inhabitants of the district have an undoubted right to provide them.

The Town Clerk of the town of De Ruyter, ex parte. The proceeds of lands set apart for the support of the common schools in a particular town, must be applied exclusively for the benefit of the inhabitants of the town to which the lands belong.

This was an application for the direction of the Superintendent with regard to the disposition to be made of the rent of a school lot belonging to the town of Fabius, in Onondaga county, a portion of the rent having been apportioned to a school district lying partly in that town and partly in the town of De Ruyter, Madison county, which had no local fund yielding an annual income. The question submitted to the Superintendent was, whether the amount so apportioned to the joint district was to be regarded as a common fund, to be applied for the benefit of the entire district, or whether it was to be applied exclusively for the benefit of the inhabitants of that part of the district lying within the boundaries of the town of Fabius.

By A. C. FLAGG, May 5, 1827. The third section of the act relative to the school lands passed March 23, 1798, provides that the money arising from those lands "shall be applied to the use of schools or support of the gospel, in the original townships as surveyed, in which such lots shall be situated, and for no other purpose." This law has a special application to the funds derived from the school lands, and is a warrant for the mode of distribution adopted in your district. Where a district is formed partly from a town having this local fund, and partly from a town having none, the only way of carrying the act of 1798 in

*Sub. 5, sec. 61, page 478, vol. 1, R. S.

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to effect is for the trustees to make out separate assessments for the residue of the teacher's wages, if any, and in graduating the assessment, to give credit to the inhabitants of Fabius to the amount derived from their local fund, as has been done. In cases where an inequality exists in towns out of which double districts were formed, by reason of fines or by raising double the amount of school money in one town and not in the other, &c., the amount received should be considered a common fund for the use of all the inhabitants of the district. Suppose also that by the neglect of the commissioners the public money is withheld from one town. Still the trustees of a double district would pay the money received from the other town to the teacher, and all the inhabitants of the district would share alike. The exception is made in cases which fall under the act of 1798. Some districts are formed with neighborhoods in other states, and in such cases the trustees of course have to make out two assessments for teacher's wages, as you have done. Where a district is formed from two towns or counties, the officers may be located in any part of the district. County and town lines, so far as relates to the district, have no influence: the district lines are alone material in what relates to the organization and government of the district. Where districts are formed with other states, the law has specially provided, that one trustee at least shall be chosen in the part of the district lying in this state, (sec. 27*) for the reason that the other part of the district is beyond the jurisdiction of the state.

(ANONYMOUS.)

The real estate of ministers of the gospel is exempt from taxation to a certain amount, only when occupied by them.

By A. C. FLAGG, July 7, 1827. By the 3rd section of the actt for the assessment and collection of taxes, the real estate of a minister of the gospel is exempt from taxation to a certain extent, "if occupied by him." In the case of Clark Kenyon, jun., as I understand from your letter, he is the tenant of the minister, and the occupant, and therefore liable to be taxed for the farm.

Sec. 95, page 485, vol. 1, R. S. † Sub. 8, sec. 4, page 388, vol. 1, R. S.