2d. That the house owned and occupied by the district as a schoolhonse, was not sold and the avails applied in diminution of the tax for building a new house.

tax

This point, in the judgment of the superintendent, is well taken. The payers of the district had a right to the avails of the sales of the old house in diminution of their tax, for building the new one; and in the absence of any direction of the district on the subject, it was the duty of the trustees to have sold the house and applied the proceeds to the reduction of the aggregate amount voted by the district for the purchase of the site and the building of the house. For aught that appears to the contrary, the sum that might have been realized on the sale might have swelled the entire appropriation for building the house to a sum exceeding $400, and thereby rendered the certificate of the town superintendent necessary.

Upon the whole the superintendent sees no sufficient reason for disturbing the proceedings in this case, further than to direct the trustees, forthwith to dispose of the house formerly belonging to the district, on the best terms they can procure and to apply the avails in reduction of the aggregate amount of the tax for purchasing the site and building the house. For this purpose the further collection of the tax list heretofore made out will be suspended, and the amount collected refunded and a new tax list and warrant made out for the amount remaining after the application of the avails of the sale of the old house in accordance with law.

Per Young, January 24, 1844.

Trustees should always exercise a liberal discretion in exempting indigent persons from the payment of teachers' wages.

The appellant, Henry Pulver, complains that the trustees of District No. 9, Redhook and Milan, have not exempted him from the payment of teachers' wages, which he claims they should have done on account of his indigent circumstances.

It appears that said Pulver has a family of four children, that he is in poor health, and has no means of supporting himself and family except by his feeble exertions as a day laborer which afford a scanty supply.

Trustees should always exercise a liberal discretion in exempting indigent persons from the payment of teachers' wages. Poverty should never be an excuse for depriving any children in a district of the privileges of the school.

The trustees of said district are therefore hereby required to exempt Henry Pulver from the payment of teachers' wages in the rate bill which is now in the collector's hands, and to make his proportion of the rate bill a charge upon the district.

Per Morgan, November 28, 1848.

A school district has no authority by law, and this department will not permit the inhabitants, to give a perpetual lease for the site of a school-house. The district should have the fee simple before building.

The trustees of District No. 5, in the city of Troy, called a special meeting of the district to be held on the 29th of February, 1848. This meeting was organized and adjourned to the 27th of March following. At the adjourned meeting, a resolution which had been introduced at the previous meeting and laid on the table for future action was called up. The resolution was amended, and as amended adopted unanimously. The resolution adopted read as follows:

"Resolved, That the trustees of School District No. 5, of the city of Troy, be directed by and with the consent of the school commissioners of the city of Troy, to lease from Messrs. Marshall, Belding and Christie, lots Nos. 14, 15 and 16, on the north side of Christie-street, in the 5th ward of the city of Troy, at a yearly rent not exceeding the sum of $34 per annum with the privilege of buying off said rent at seven per cent within ten years from date."

The contemplated lease was for the site of a school-house.

The only question necessary to be considered is this:

Can a school district lease or purchase a site for a school-house in the manner contemplated in the resolution before mentioned?

By the 4th and 5th clauses of § 62, chap. 480, Laws of 1847, the inhabitants of a district have power to designate a site for a district schoolhouse, and to lay such tax on the taxable property of the district as the meeting shall deem sufficient to purchase or lease a suitable site for a school-house, and to build, hire or purchase such school-house and to keep in repair and furnish the same with the necessary fuel and appendages, and § 82 authorizes the trustees to carry such vote into effect.

The word lease used here must be interpreted to mean a lease for a limited term, one, two or three years, of a lot of land and building to be used by the district till such time as a suitable site can be procured in fee, or the conveyance of a lot of land to the district to be the property of the district so long as it shall be occupied for a school-house

site.

Under the new constitution no agricultural land can be leased, for a longer period than twelve years, and although individuals in cities may still lease building lots for longer terms or in perpetuity, it is certainly desirable that land to be used as the site of a school-house should be free from any and every incumbrance.

The statute confers no authority upon a school district to purchase land and give a mortgage or any other security for the consideration money. In the section authorizing the inhabitants to lease, authority is given to raise a tax for that purpose. It cannot be, therefore, that the authority to lease gives the inhabitants the privilege of voting that such a contract shall be entered into as will entail a perpetual debt upon the district and put the people to the necessity of raising a tax to pay the rent every year throughout all coming time. It has heretofore been

held that the district could not purchase a site and give a mortgage for the purchase money, one-half to be paid in five years, the balance in ten years. This department has also repeatedly held that districts could not be permitted to buy a site and erect a school-house upon land incum

bered by mortgage.

No good reason can be given against permitting the district to give a mortgage for the purchase money of a site, which will not bear with equal force against permitting them to enter into a contract, by which the site of the school may be subjected to a perpetual incumbrance. If a mortgage is given, the interest must be paid annually, and the principal within some specified time. If a perpetual lease is given, the interest of the stipulated value of the land must be paid annually, but the principal cannot be paid at all except at the option of the lessor. The fact that the principal cannot be demanded. is not a sufficient reply to the objection, for the real difficulty is that the lien and incumbrance can only be removed with the consent of persons claiming the lien.

What is this contract as contemplated in the resolution? It is just this. The lots are assumed to be worth about $487. The present owners say that the district may have an unconditional title in fee conveyed to them at any time in ten years, on the payment of that sum and the interest annually, at 7 per cent. But if the $487 is not paid within ten years, then the owners may demand $500 or a $1000, or just such sum as they may think proper.

A mortgage may be foreclosed, if interest and principal, or either, are not punctually paid, and the premises sold, but in that case the proceeds, after paying the debt and costs, are refunded to the mortgagor.

If rent is not punctually paid, the landlord may reënter and take possession of the premises leased, together with all the improvements, aud may have judgment for costs.

If, therefore, any incumbrance upon a school-house site is allowable, a mortgage would be preferable to a perpetual lease.

The appeal is therefore sustained, and the resolution adopted by the meeting of the 27th March aforesaid is set aside and declared null and void. If the district need a new school-house, the site for it must be purchased, and a tax levied to pay for it.

Per Morgan, July 6, 1848.

In designating a site for a school-house, the description should be by metes and bounds, and the quantity of land should be stated, that every inhabitant of the district may be able to vote intelligently.

At a special meeting held in District No. 6, Lansing, March 1, 1849, resolutions were passed to change the site of the school-house "to the first corner north of the road, on a piece of land owned by Mary Dickerson;" to raise a tax to purchase the new site, and also a tax of $300 to build a school-house, &c.

The notices for this meeting having been deficient and improperly given, another special meeting was called, to be held March 15, 1849.

At this last meeting, a resolution was passed confirming the proceedings of the meeting of the 1st of March.

The principal point in the case is, that the site was not sufficiently designated.

The resolution to move the site "to the first corner north on the road," is too vague and indefinite, and cannot be regarded in law. It does not state whether the trustees are authorized to purchase one-half acre or five acres on the corner, nor is the description of the land given sufficient to give an idea of its location.

In designating a site for a school-house, the description should be by metes and bounds, and the quantity of land should be given, that every inhabitant of the district may be able to vote intelligently.

Per Morgan, April 18, 1849.

When the trustees have contracted, to locate the school-house on any particular place upon the site, in the absence of any instructions from the district, this department will not interfere.

The trustees located a school-house a few feet less than four rods from the south line of their lot which is bounded on the highway. The appellants and a majority of the district desired to leave full four rods in front. The trustees, however, in the absence of any explicit instructions or direction from the district, agreed upon the present location and entered into a contract with a builder who had commenced his work prior to any instructions from the district. The trustees having gone on, for aught that appears to the contrary, in good faith in the location of the house prior to any expression of the wishes of the district, and having entered into contracts and incurred liabilities in the prosecution of the work, it is deemed unwise and inexpedient to subject the district to the expense which must be incurred by a change in the location. The appeal is dismissed.

Per A. G. Johnson, Dept. Supt., August 30, 1819.

A majority of voters at a school district meeting may empower the trustees to purchase additional territory adjoining the school-house site, for the purpose of enlarging their grounds for school purposes. It is not a case of removal

of site.

The only question involved in this appeal is whether the purchase of an additional quantity of land adjoining that on which the former schoolhouse of the district had been erected, and which was burned down, rendering it necessary for the district to build a new one, and the rebuilding of the district school-house wholly or in part upon the new ground thus purchased, is such an act as requires the assent of two-thirds of the voters present at a district meeting called specially for the purpose under the provisions of § 1, No. 85, of the Laws relating to common schools. I do not doubt the legal right of a majority of the voters in any district meeting duly convened, to lay a tax upon their district to purchase ground additional to and adjoining a site already owned by the

district, if such ground be suitable for the purpose of the existing site, and the school, such as play ground for the children, wood-house or other appendages. Nor could the certificate of the town superintendent be necessary to render such an act legal any more than for building a wood-house, or repairing the school-house. The district, as I understand the case, owned no more ground than was covered by the buildings. Now what were the acts which the law intended to prohibit the mere majority from doing after a site had been purchased and a schoolhonse built or purchased for the district while the same remained unaltered?

Certainly not to prevent the purchase of more ground immediately adjoining, if necessary, nor the erection of additional buildings thereon, if the exigencies of the district required it for the accommodation of the school, or even the erection of a new house should it be necessary.

These are acts which, in my judgment it is perfectly competent for the majority of the inhabitants of the district to perform, when assembled in a school district meeting. I cannot hold this to be such a change of site as comes within the provisions of the section above mentioned.

Per N. S. Benton, July 10, 1846.

The department will annul the certificate of a teacher for cruel and unreasonable discipline in the government of a school.

Mr. Bly was employed as a teacher in District No. 7, Amity, by the trustees, on the 4th of December last, and soon afterwards commenced his school, under a certificate of qualification, granted by the town superintendent. From the statement of the respondents, in answer to the appeal, it appears "that much dissatisfaction prevailed in the district, on account of the severe, not to say outrageous manner pursued by the teacher in punishing the scholars.' And on a visitation of the school on the day above referred to by the town and county superintendents, but twenty-eight out of fifty-eight children on the teacher's list were present. "The great part of the absentees, Bly acknowledged, had been driven from the school in consequence of his severity, &c. He also remarked to us, that if he could get rid of a few more, he thought he could govern the rest.'

The respondents further state, during the examination "the greatest confusion, insubordination and anarchy continued;" that the teacher was informed at the close, and after the children had left, in the most kind and friendly manner that some method better calculated to preserve order in his school must be adopted, and he was advised to "address his pupils in a spirit of kindness, &c.," at which he evinced great anger, announced his intention "to adopt and persist in his own course, and to receive dictation from no man." The superintendents then informed him, that in their judgment the indiscriminate use of the rod was improper, that the "insubordinate conduct of his pupils was in a measure owing to his indiscriminate and severe use not of a rod, but of a bush about three-quarters of an inch in diameter, and three