year 1834, district No. 2 was annexed to No. 8, and after their union the balance so retained was adjudged to belong to the former. The question proposed was whether it could be applied exclusively for the benefit of the individuals formerly belonging to that district, or whether the whole united district should participate in its application.

By JOHN A. DIx, March 9, 1835. The propriety of paying over to the trustees of late district No. 2 the small balance of public money in your hands which was appropriated to that district, must, it seems to me, depend on a single circumstance. The district is now united to another. If the money is paid to the trustees of late district No. 2, have they authority to make a lawful disposition of it? Certainly not, unless they are bound, as former trustees of the district, to pay the wages of a qualified teacher, under a contract which has been fulfilled on his part. If they employed a teacher, and he is entitled to a balance for teaching, and has received a certificate from the inspectors in the town, then the public money ought to be paid to the trustees for the discharge of that balance, as far as it will go. But if there is no such balance due, the money should be paid to the trustees of district No. 8, and appropriated to the benefit of the whole district. There is no law by which the moneys derived from the common school fund can be applied to the benefit of a part of a school district, and it is only as an independent district that the inhabitants of No. 2 could be exclusively benefited by the money. From the moment, therefore, that they were united to another district the public money belonging to No. 2 became applicable to the benefit of the united district, to be expended as the law directs, unless there was a balance due a qualified teacher in No. 2. In that case the inhabitants of No. 2 might be exclusively benefited by the application of the balance in your hands to the discharge of the debt.

Francis Clarke, against the Trustees of joint school district No. 12 in the towns of Shelby and Ridgeway.

Trustees, in making out a tax list, are bound to know who are and who are not taxable inhabitants of the district.

The last assessment roll of the town is the proper guide to trustees in making out a tax list as to the valuation of property, but not as to ownership.

The appellant was an inhabitant of that part of joint school district No. 12 in the towns of Shelby and Ridgeway which was included within the boundaries of the latter town. On the 1st of September, 1834, he disposed of his stock in trade, and removed with his family, on the 19th of October ensuing, to the city

of New-York, with the intention of making it his place of resi dence. On the 16th of December he returned to Ridgeway to clo e his unsettled business, and remained there nine days, and he again returned to Ridgeway in February for a few days. On the 27th of January a tax was laid in district No. 12 to build a school-house, and he was included in the tax list as an inhabitant of the district. The questions proposed were, whether he could be taxed as such on his personal property, and whether he could be taxed for several lots of land in the district, which he had sold since the last assessment roll of the town was made out?

By JOHN A. Dix, March 10, 1835. This is a case submitted by Francis Clarke and the trustees of joint district No. 12 in the towns of Shelby and Ridgeway, in relation to the assessment of the former to pay a tax for building a school-house in said district.

The statement contained in the affidavit of Francis Clarke, which affidavit is referred to in the statement signed by him and the trustees, and is not disputed by the latter, is conclusive as to the fact that he was not, at the time the tax list was made out, a resident of the district. So far, therefore, as the assessment of his personal property is concerned, he was not lawfully included in the tax list, which could only embrace "the taxable inhabitants residing in the district at the time of making out the list." He might be included in it as a non-resident owner of property, and was therefore justly taxable for all the cleared and cultivated lots of which he was the owner at the time the tax list was made out.

The trustees were bound to know who were and who were not taxable inhabitants of the district, and they were also bound to know who were and who were not owners of property within the district. The last assessment roll of the town was their proper guide only as to the valuation of the property, and not as to the ownership. Mr. Clarke swears that he was at the time the tax was made out the owner of lots No. 15, 16 and 83 only, and that the valuation of said lots, according to the last assessment roll of the town, was $1500. On those lots an exemption is not claimed.

It is hereby decided, that Mr. Clarke be released from the tax on all his personal property, and that he be taxed on $1500, the value of the real estate possessed by him at the time the tax list was made out. The circumstances connected with the removal of Mr. Clarke were such that a difference of opinion with regard to his residence might well be entertained, and as the trustees have acted in good faith, it is further ordered that they be, and they are hereby authorized to assess upon the owners of

lots No. 25, 33, 42, 77, 272, 274 and 275, so much of Mr. Clarke's tax as was assessed to him on account of those lots, and to reassess the deficiency upon the whole taxable property of the district.*

The Clerk of school district No. 23 in the town of Orleans, ex parte.

If an alteration is made in a school-district, without the consent of the trustees, and without the knowledge of the parties interested, an appeal to the Superintendent will be allowed after three months.

In this case it was alleged that the commissioners of common schools had made an alteration in school district No. 23, and given a notice to one of the trustees, who was desirous that the alteration should take place, and who concealed his knowledge of it from his associate trustees and from the parties immediately interested, until after the expiration of three months.

By JOHN A. DIx, March 12, 1835. The question submitted to me is, whether an appeal will be allowed where a new district has been formed by the commissioners of common schools, and a notice in writing read to one of the trustees of a district, from which such new district has been partly taken, and the trustee, to whom the notice was so read, refused or neglected to give notice to the other trustees of the district until after the expiration of three months, and neither the inhabitants, nor the two trustees last referred to, had any knowledge that such alteration was contemplated.

In such a case I should certainly allow an appeal. The parties interested should be apprized of the proposed alteration; and if notice has not been given, or if the person to whom it is given, has intentionally withheld it from others, who would have availed themselves of it to resist the measure in contemplation,

* In the case of Easton and others vs. Calendar, 11 Wendell 90, the Supreme Court held that the trustees of a school district were not answerable as trespassers in omitting to insert the names of all the taxable inhabitants in a tax list, the omission being an error in judgment, and there being no evidence of bad faith. The court also said, "The plaintiff below was not without his remedy, 1 R. S. 487, § 110, 111, and the amendment of the law, 20th April, 1830, provides that any person conceiving himself aggrieved in consequence of any decision made by the trustees of any district, in paying any teacher, or concerning any other matter, under the present title, (which includes the whole of the school act,) may appeal to the Superintendent of Common Schools, whose decision shall be final. This provision was intended for what it practically is, a cheap and expeditious mode of settling most, if not all of the difficulties and disputes arising in the course of the execution of the law. A common law certiorari would no doubt lie from this court, to the trustees to bring up and correct any erroneous proceeding not concluded by an adjudication of the Superintendent, or in a case where his powers were inadequate to give the relief to which the party was entitled."

and the latter have no knowledge of it, I should deem it due to every consideration of equity to allow the parties aggrieved to come in and show cause why the proceeding complained of should be set aside.

(ANONYMOUS.)

A tax cannot be voted to buy a record book for a school district. (But see note.) In voting a tax to purchase a site, a sufficient sum may be included to pay for recording the deed.

By JOHN A. DIx, March 18, 1835. No authority is given by the statute to the inhabitants of a school district to vote a tax to buy a record book for the use of the district.* The intention was that such a book should be provided, but it was not included in the enumeration of the objects for which a tax may be voted.

When a tax is voted to purchase a site for a school-house, a sufficient sum may be included in it to pay for recording the deed: for this is necessary to perfect the title, and it is, therefore a part of the expense of procuring the site.

The Commissioners of Common Schools of the town of Norwich, ex parte.

The funds arising from the gospel and school lots belonging to the twenty townships on the Unadilla river are to be applied exclusively to the benefit of the inhabitants of such townships.

None but inhabitants of the township can participate in the election of a town agent, or in directing the application to be made of the funds arising from the gospel and school lots.

In this case the direction of the Superintendent was requested as to the proper course to be pursued, the inhabitants of township No. 15, one of the twenty townships on the Unadilla river, and constituting part of the town of Norwich, having failed to elect an agent for said township, in the manner required by law.He was also desired to state in what manner the proceeds of the funds arising from the gospel and school lots were to be applied.

By JOHN A. DIx, March 26, 1835. The gospel and school lots belonging to the twenty townships on the Unadilla river, were set apart for the benefit of the inhabitants of those townships. The act of 13th April, 1819, Laws of N. Y. 42d session, chapter 224, makes a special provision for the management and appropriation of the funds derived from the lots be

*

By an act passed the 22d April, 1837, the inhabitants of school districts are authorized to vote a tax for the purpose of purchasing a book to record their proceedings. This provision was made to remedy the defect in the law, to which the above decision refers.

longing to the 10th and 15th townships. This act was not revised; see page 655, 3 R. S. but continues in full force. By the fourth section of the act the interest arising from the moneys derived from the sale of lots belonging to either of the townships is to be applied to the support of common schools "in such manner as the inhabitants of such township" or a majority of them shall direct.

The second and third sections of the act, direct the manner of proceeding in the appointment of a town agent. The inhabitants of the 10th township are required to meet annually (until the township shall be erected into a separate town) on the first Tuesday of June, and elect an agent for said township.There is no authority to proceed in any other manner, nor would any proceedings in contravention of these provisions have any validity whatever. The 4th title of chap. 15, part 1, R. S. has no application to this case. By the note of the Revisers at the bottom of page 499, 1 R. S. it appears that this title was compiled from laws which had no reference to the townships in question, as may be seen by an examination of those laws. It will, therefore, be the duty of the inhabitants of the 10th township to meet on the 1st Tuesday of June next, elect an agent, and vote what disposition shall be made of the interest arising from the sale of lots belonging to said township.

The inhabitants of the 15th township should have met on the day of the annual town meeting for the town of Norwich, separate and apart from the other inhabitants of that town, elected an agent, and voted what application should be made of the interest arising from the sale of the lots belonging to the 15th township. If they have not done so, I see no alternative but for the agent elected last year to hold over and apply the moneys, which may come into his hands, as he did last year. The directions of the inhabitants as to the application of the moneys, whenever those directions are given in the manner specified in the act of 13th April, 1819, are binding and must be carried into effect. But none but the inhabitants of the township (not the inhabitants of the town of which the township is a part) can participate in the proceedings.

The Trustees of a separate neighborhood in the town of Southport, ex parte.

Children residing in other states when attending schools in separate neighborhoods within this state cannot share the public moneys.

In this case children from the state of Pennsylvania had attended school in a separate neighborhood in the state of NewYork, and the question proposed was whether the children so