April 18, 1815, should be repealed from the first day of July' then next ensuing; and that all acts done under the provisions of the laws referred to, until the 1st of July should be and continue thereafter good. The alteration in district No. 6, to which exception is at this late day taken, for want of evidence of the consent of, or notice to, the trustees, was made on the 9th of June, 1819, under the act of April 15, 1814; and by the 11th section of this act commissioners of common schools had power to alter school districts in their respective towns, between the 10th of April and the 10th of June in each year, without the consent of the trustees, and without any notice to them. There was, therefore, a strict compliance with the requirements of the law in this respect, so far as the facts are disclosed. The consent of the trustees of joint district No. 6 to the alteration which was made by the commissioners of the town of Barrington on the 5th of January, 1833, could not give the latter jurisdiction, The law has prescribed the manner in which a joint district shall be altered. Each town of which the district is a part is concerned in its preservation, and it is only with the consent of the commissioners of common schools of each town that its boundaries can be enlarged or diminished, excepting where the commissioners of one town refuse or neglect to meet the commissioners of the other, when their attendance has been required. The trustees could not, by consenting to the alteration, enable the commissioners of Barrington to act alone, and thus divest the commissioners of Tyrone of the right which the law gives them, of passing judgment upon the proposed measure. Nor will it be presumed that such was the intention of the trustees. On the contrary, the only legitimate presumption which can arise from the facts is, that the trustees intended to consent to the alteration when it should be made according to the requirements of the law. Under whatever aspect the case is considered the Superintendent sees no reason for coming to a conclusion different from that at which he arrived on his first examination of it. Joint district No. 6 has now the same boundaries which it possessed at the time, (previous to the 5th January, 1833,) when the commissioners of Barrington undertook to alter it. That district is entitled to receive, according to the principles of the Superintendent's decision contained in the order of the 12th June, 1834, out of the public moneys apportioned to the town of Barrington the sums which were allotted in 1834 and 1835 to district No. 8, on account of the children residing in that part of joint district No. 6 which lies in the town of Barrington, and which the Superintendent has declared to belong to the latter district. The Superintendent has no authority by law to enforce the execution of his own or ders and decisions. The commissioners of common schools, as public officers, are amenable to the authority of the supreme court, which would, on showing sufficient cause, grant a mandamus requiring them to comply with the directions of the Superintendent, and allow an attachment against them to issue in case of refusal. Having exhausted his powers, the Superintendent can only refer the trustees of joint district No. 6 to that tribunal for relief, in case the commissioners refuse to carry his order into execution, with the assurance that any aid which it is in his power to lend will be freely afforded in the prosecution of the necessary remedies. (ANONYMOUS.) Trustees are sole judges of the ability of a person to pay his school bills. By JOHN A. DIX, June 22, 1835. The trustees of school districts are the sole judges of the ability of the persons residing within their respective districts to pay their school bills. With regard to residents there is no power to prosecute. The warrant annexed to the tax list or rate bill may be renewed with respect to residents, and with respect to non-residents a prosecution may be commenced by the trustees, if they refuse to pay, and no goods and chattels can be found within the district on which to levy or distrain. A resident cannot be prosecuted. The only remedy against him is by distress and sale of his goods and chattels. Rate bills as well as tax lists are now collected by distraining, where the party assessed does not pay voluntarily. A court would not, on a prosecution for a tax or a tuition bill allow the party to prove his inability to pay. If the trustees have exempted him from the payment, it is a complete defence. But if they have not so exempted him the court would be bound, on showing the debt, to give judgment against him for the amount. His inability to pay is a matter to be tried by the execution of the warrant, or the execution on a judgment rendered by a court. If he has no goods and chattels, of which a levy or distress can be made, the matter is ended. If he has, he is clearly not unable to pay, and this is a question a court cannot determine in anticipation of such a test. The trustees might so determine it, and when they have done so, by refusing to exempt him, the test must be by the warrant, or by execution where a judgment is obtained in a suit brought by the trustees. The Trustees of school district No. 20 in the town of New-Paltz, against the Commissioners of Common Schools of said town. The bad management of the affairs of a district is not a sufficient reason for setting off an inhabitant. A district ought not to be altered for the temporary convenience of an individual. The facts of this case are given in the Superintendent's order. By JOHN A. DIx, June 24, 1835. The Superintendent of Common Schools has examined the appeal of the trustees of school district No. 20 in the town of New-Paltz, from the proceedings of the commissioners of common schools of said town, in setting off Josiah Dubois from said district to district No. 14, on the 31st day of March last. The Superintendent has also examined the answer of the commissioners to said appeal, and the accompanying affidavit of Josiah Dubois, setting forth his reasons for desiring to be annexed to district No. 14. The principal reasons assigned by Mr. Dubois for desiring to be set off from No. 20 are; 1st, That the affairs of the district are badly managed; and 2d, That the school-house in No. 14 is near the New-Paltz academy, and that as he sends his elder children to the academy, it is more convenient to send his younger children with them to the school-house referred to than to send them into No. 20. The first of these reasons is wholly inadmissible as a ground for setting off a single inhabitant to another district. If the affairs of a school district are improperly managed, the true remedy is to elect new trustees, and confide the trust to abler or more faithful hands. If a school-house has an inconvenient position, the site should be altered in the mode prescribed by law. But it is manifest that if individuals may be set off from one district to another for such causes, there would be no assurance that any district would retain its organization from year to year. The second reason, though it has more weight, is not, in the opinion of the Superintendent, sufficient to warrant a change in the boundaries of a school district. The condition of Mr. Dubois' family is accidental, and can be but temporary. The time will come, and it may be near at hand, when his older children will have completed their education and his younger children be old enough to attend the academy. If this were now the case, he would have no interest in being set off from district No. 20. If he were to remove from his present residence, and an inhabitant were to succeed him with children too young to be sent to the academy, the latter would undoubtedly desire to continue in No. 20, as the school-house is much nearer than that of district No. 14. The organization of school districts should not be disturb od for light or temporary causes. As population increases and settlement extends, alterations in their boundaries frequently become necessary. But a single individual ought not to be set off from one district to another for his temporary accommodation, excepting in cases where the condition of the two districts to be affected by the change concurs in demanding it. Let us see whether this case comes within the class of exceptions referred to. District No. 20 has a taxable property of $48,641, and 63 children between 5 and 16 years of age. If Mr. Dubois should be set off to district No. 14 from No. 20, the latter will be reduced to 59 children between the ages referred to, and to a taxable property of $42,491, and the former will have 71 children and $102,526 of taxable property. Although both districts would, after the alteration, be capable of maintaining a respectable school, the circumstances of the case are not, in the opinion of the Superintendent, so strong as to warrant a change, which is on its face unequal as between the two districts. The Superintendent regrets that he is compelled to differ with the commissioners of common schools in the view he has taken of this case. But, after conceding to them the advantage of a more familiar acquaintance with the local condition of the districts and the parties interested in the matter submitted to him, he cannot, consistently with the principles which have governed his decisions in like cases, confirm their proceedings. He has no doubt that they have acted in obedience to the suggestions of duty, and under the conviction that Mr. Dubois might be accommodated without prejudice to the just rights of district No. 20. But after giving to every case presented to him the best examination of which he is capable, he is bound, like themselves, to act in accordance with his own convictions of duty. The proceedings referred to are set aside, and Mr. Josiah Dubois is restored to district No. 20. The Commissioners of Common Schools of the town of Cohocton, ex parte. Trustees are bound to send or deliver their annual reports to the town clerk. Quere? Whether two commissioners can make a valid apportionment of the school moneys? An apportionment of the school moneys after the time prescribed by law is good. In this case the trustees of a school district handed the annual report to one of the commissioners of common schools, who neglected to attend the meeting for the apportionment of the public moneys. The moneys were apportioned by two of the commissioners, and the report of the district referred to being in the hands of the absent commissioner, no money was allotted to the district. The opinion of the Superintendent as to the legality of these proceedings was solicited. By JOHN A. DIx, June 30, 1835. It is the duty of the trustees of school districts to deliver their annual reports to the town clerk, (sec. 92, page 484, 1 R. S.) who is, by the provisions of sub. 1, of sec. 43, page 474, 1 R. S. authorized, and indeed bound as a matter of duty, to "receive and keep all reports made to the commissioners from the trustees of school districts," &c. The mere delivery of a report to one of the commissioners would not, I should think, make him legally liable for any loss which might result to a district from a failure or omission on his part to present it at the meeting of the commissioners, on the first Tuesday of April, for the apportionment of the public moneys. The trustees themselves are in default for putting it into his hands; they should deliver it to the town clerk, and in order to make the commissioner, with whom it is left, responsible, it would be necessary to show a special undertaking on his part to have it presented to the commissioners at their meeting to distribute the public moneys. The question whether two of the commissioners of common schools, without the attendance or consent of the third, can legally apportion the public moneys is a delicate one, and may fairly give rise to a difference of opinion. If the third commissioner has notice of the meeting and his attendance is required, and from any unavoidable circumstance he is unable to attend, or if he absolutely refuses to attend, I think an apportionment by the other two having knowledge of the facts, would be valid.* It seems to me, however, that it is useless to raise this question in the present case. The moneys have been apportioned, and probably for the most part expended by this time. To agitate the question of authority to make the apportionment can, clearly, answer no purpose of justice or equity. An apportionment may, under certain circumstances, be made after the first Tuesday of April. The specification of time is not intended to limit the exercise of the authority of the commisssioners. The statute is directory to them; but if the apportionment from any cause is not made on the day specified, it may be made subsequently, and the proceeding will be deemed valid. * See a case decided 23d July, 1835, next page. 17 |