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bers of their school, on the application and responsibility of one of the inhabitants of their own district, they can only make out an equal assessment, according to the scholars sent, upon all the tax paying inhabitants in the same district.

In future, as there is no law in favor of the admission of scholars from another state, the trustees ought not to admit them, unless upon such conditions as will protect most scrupulously the interests of residents of the district.

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

On the division of a town and the formation of a new one, the commissioners of common schools of the new town cannot disturb the organization of a school district lying partly in both, without the concurrence of the commissioners of the other.

Inhabitants of school districts have not power to alter the boundaries of their districts.

Commissioners of common schools are not authorized to change the site of a district school-house, although their consent to such change is necessary in some

cases.

This was an application from the commissioners of common schools of the town of Burns for the decision of the Superintendent upon their own proceedings in relation to school district No. 1, lying partly in that town and partly in the adjoining town of Dansville. By an act passed the 17th March, 1826, a part of the town of Ossian was set off and erected into a new town by the name of Burns. By this division, school district No. 1, lying partly in the town of Ossian and partly in the town of Dansville, became a part of the town of Burns and Dansville, all the territory of the district belonging to the town of Ossian being included in the bounds of the new town. Soon after the division, the commissioners of common schools of the new town met, together with the inhabitants of school district No. 1, for the purpose of re-organizing the district. The commissioners resolved that the connexion with Dansville should be dissolved; and at a subsequent meeting of the inhabitants of the district, it was declared by a resolution to that effect, that four persons residing in Dansville, and formerly constituting a part of that district, were no longer members of it. The commissioners of the town of Burns at the same time selected a new site for the district school-house.

By A. C. FLAGG, August 14, 1826. It seems that district No. 1 was originally formed from parts of Dansville and Ossian, (now Burns,) and your inquiry is, "had not the new town of Burns a right to form themselves into districts without reference to the town of Dansville?" No. District No. 1 was originally formed by the concurrence of a major part of the commissioners of Dansville and Ossian; and it is necessary to have a concur

rence of the same authority to dissolve as to form a district. Burns stands in the same relation to district No. 1 that Ossian did, and its commissioners could not dissolve the connexion with Dansville without giving notice to the commissioners of that town. If the commissioners refused or neglected to attend, then the commissioners of Burns might have proceeded to dissolve the connexion, as provided by the 6th section of the amendment to the school act of 1822.*

The vote in relation to admitting or excluding the four persons in Dansville is of no consequence. The district could not vote away their rights, and if they were not legal members of the district, a vote could not make them so. The 12th section

of the act of 1819,† gives to the commissioners the sole power of forming, as well as altering and regulating school districts; but in this case the district meeting usurped that authority, when they determined to vote four members out of the district.

"Were the acts of the commissioners legal as to fixing the site of the school-house, contrary to the voice of the district?"

The 20th section of the act of 1819; authorizes the inhabitants of the district, or a majority of such of them as shall be present at any district meeting legally convened, to fix on the site of the school-house. A majority can designate the site; but after it is fixed, and a house built, even a majority of a regular meeting cannot remove the site, without a certificate from a major part of the commissioners that such removal is necessary and proper. The proviso to the 20th sections is designed to give the commissioners a negative upon the district vote under a particular state of things. They (the commissioners) have no authority to change the site of a school-house; they can assent to the change or object to it. The commissioners ought not to interfere in changing the site of a school-house, unless requested by a vote of the district and on such request, which would be an expression of the wishes of a majority, the commissioners are to determine whether it is necessary and proper to have the change take place."

* Sec. 65, page 479, 1 vol. R. S.

Sub. 1, sec. 20, page 470, 1 vol. R. S.

Sec. 61, page 478, 1 vol. R. S.

Act of 17 Feb., 1831, chap. 44.

The law in relation to the removal of school-houses and change of their sites, has been amended in several important respects since this decision was pronounced, (see sec. 70 in the appendix to this volume,) though the principles of the decision, so far as the right of commissioners of common schools to change the site of a school-house is concerned, are unaltered by subsequent legislation.

A. B., an inhabitant of school district No. 7 in the town of Schoharie, ex parte.

In making out rate-bills to provide for the payment of teachers' wages, inhabitants of school districts can only be charged for so much time as their children have actually attended school.

Superintendent cannot interfere with proceedings before justices of the peace; but his opinion will be given with a view to the amicable adjustment of controversies.

This was an application to the Superintendent for his opinion upon a statement of facts contained therein,

By A. C. FLAGG, September 9, 1826. Your letter of the 8th states that a person who sent his children to a school in district No. 7 in Schoharie for two months and a half, was charged by the trustees in the warrant issued according to a vote of the district meeting for teachers' wages, with six months' tuition. On the state of facts presented in your letter, the trustees were wrong. The 26th section, to which you refer, authorizes the trustees "to ascertain and settle by examination of the returns or school lists of their teacher by him for that purpose to be kept, and certified on oath to be just and true, the number of days for which each person not exonerated shall be liable to pay for instruction," and to make out a rate-bill accordingly. For what purpose is the teacher required to keep a list, and the trustees to examine that list, unless for the purpose of ascertaining from it the number of days which each person has sent to school, and to charge them in proportion to the number of days actually sent? The trustees under the authority given them to tain and settle," are not to do it arbitrarily, but according to fair principles "by examination of the school lists." There could be no justice in charging a person for 100 days, who had sent only 50; and it would be extremely oppressive if trustees could arbitrarily charge a man with six months schooling, if he commenced sending and stopped after two months.

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The demand of the bill at the time of withdrawing the scholars is of no consequence. The trustees could not make out the bill until the expiration of the school. But when they did make it out they should have taxed the individual only for the number of days during which he actually sent to school.

You say that a suit has been commenced, and that my opinion will prevent litigation, &c. With this view it is given. There is no appeal, as you are doubtless aware, from a suit at law to the Superintendent; and I am reluctant to give opinions in a case where a suit is pending. At all events, opinions thus given ought not to influence the case before the magistrates. If the parties can agree to take their cause out of court, and submit all the facts, I will cheerfully decide the case.

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*Sub. 12, sec. 76, page 482, 1st vol. R. S.

The Trustees of school district No. 1 in the town of Middlefield against the Commissioners of Common Schools of said town.

The acts of an officer de facto are valid, so far as the public and third persons are concerned.

This was an appeal from the trustees of school district No. 1 in the town of Middlefield, from the proceedings of the commissioners of common schools of said town in setting off certain inhabitants to other districts. The ground of objection taken by the appellants was that one of the two commissioners by whom the alteration was made, did not file his acceptance of the office of commissioner until after the expiration of 15 days from his election, and until after the performance of the official act from which the appeal was brought

By A. C. FLAGG, October 3, 1826. The principle involved in this application has been decided by the supreme court in the case of the People vs. Collins, 7th Johnson's Reports, page 549. In that case the court say, "The allegation is not material that the commissioners had not caused their oath of office to be filed in the town clerk's office. If the commissioners of highways acted without taking the oath required by law, they were liable to a penalty; or the town upon their default, might have proceeded to a new choice of commissioners. But if the town did not, the subsequent acts of the commissioners as such, were valid as far as the rights of third persons and of the public were concerned in them."

(ANONYMOUS.)

Persons leasing specific portions of a lot are to be taxed for so much as they lease. The agent or servant of the owner must reside on the lot in order to subject such owner to taxation.

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By A. C. FLAGG, October 18, 1826. "A. owns a farm in district No. 24 of 200 acres, about 100 improved: he resides in No. 3: he leases two small lots and houses, and improves the remainder himself and by his hired men living with him."

1. The houses and lots leased should be assessed to the occupants; as they lease specific portions of the same, they are tenants; and Mr. Hawley in his exposition of the 25th section, p. 33, school act, says in relation to making non-residents of the district taxable therein, that "it does not apply to landlords who have tenants thereon." If the tenant ought not to pay, he has his redress upon the landlord by the 32d section of the act of 1819.*

Sec. 83, page 483, vol. 1 R. S.

2. If A. "improves and occupies by his agent or servant" the remainder of the farm, then he should be taxed for it; and by the 25th section the valuation is to be taken from the then last assessment roll of the town; in which valuation the wood-land is of course included.

Mr. Yates, in the 13th decision, p. 37, has decided that a nonresident, although he may cultivate a farm himself, cannot be taxed unless the farm is occupied at the time by his agent or servant. By this occupancy he probably meant a residence on the lot. In this case there has not been such an occupancy as would render the owner liable to taxation for the remainder of the farm; and if the tenants have leases for specific parts of the farm, they can be assessed only for such parts as are covered by their leases.

Asa Philips against the Trustees of school district No. 2 in the town of Granby.

Rule of taxation applied to a particular case.

This case was submitted by the parties.

By A. C. FLAGG, November 22, 1826. In the case submitted by Asa Philips and the trustees of school district No. 2, Granby, Oswego county, it appears that the said Philips owns twofifths of lot No 75 in Granby, on which are two houses, which are occupied by two men who are employed by Mr. Philips as sawyers in mills of his adjoining the premises, Mr. Philips residing in another town and county. The 25th section of the act of 1819* provides that every person owning or holding any real estate lying within such district, who shall improve and occupy the same by his agent or servant, shall be taken and considered a taxable inhabitant of such district, &c. Where a family resides upon a lot, it is to be presumed that there are scholars to enjoy the benefits of a school, and the residence of a family on the lot is such an occupancy as to justify taxation. If the individual hires the premises, and is in the character of a tenant, then he is to be taxed personally; but in this case Mr. Philips states that he employs these men as sawyers. It is therefore decided that the trustees are correct in assessing Mr. Philips for his interest in lot No. 75, in school district No. 2, Granby.

*Sec. 77, page 482, vol. 1, R. S.

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