By JOHN A. Dix, October 28, 1835. I have examined the statement of facts presented by you in pursuance of a vote at the annual meeting for the year 1835, in school district No. 9 in the town of Fabius, with a view to a decision of the questions submitted to me. I cannot comply with your request to return the statement. It must be preserved in my office, in conformity with a rule adopted by my predecessor, and invariably adhered to by me, with respect to all communications to which answers are given.

The mode in which the trustees undertook to provide for the payment of the fuel consumed in your school district last winter, was altogether illegal, and it should not be attempted again. The amount due for that object might have been included in the rate bill, if, on being called on, the inhabitants had not provided it, but the proportion to be paid by each inhabitant of the district should have been determined by the number of days his children were sent to school, and not by the amount of his taxable property. This is the mode prescribed by law, and there can be no excuse for departing from it.

There is but one way in which the fuel provided last winter, can now be paid for, and that is by the collection of the tax voted on the 13th June last. I consider the proceedings of that meeting legal. The notice for a special meeting should specify all the objects of the meeting; but the omission to set them forth does not render the proceedings absolutely void, although it affords a ground of application to the Superintendent of Common Schools to set them aside, on showing surprise on the part of any of the inhabitants. If the omission was intentional, the propriety of his interposition will be still more apparent. But no such allegations are made in this case.

The appeal to the commissioners of common schools was altogether unauthorized by law. The Superintendent is the only tribunal to which an appeal from the proceedings of school district meetings will lie.

It appears that a tax levied on the taxable property of the district now, will subject two inhabitants, who have recently moved into it, to an imposition from which in equity they should be exempt. But this inconvenience cannot be obviated. The fuel cannot now be paid for by a rate bill; and if it could, equity would not be done, as some who ought to contribute to that object have removed out of the district, to say nothing of the manner in which the teacher's lists were made out. The trustees, as the representatives of the district, are answerable for the amount of the fuel; they may be sued; the amount recovered against them would, by the Revised Statutes, be allowed in their official accounts; and if they had no funds belonging to the district

out of which they could indemnify themselves for the amount paid by them, the legislature would doubtless direct it to be levied on the taxable property of the inhabitants. Thus the result would be the same.

The inhabitants may, if they please, make up the amount now due for fuel by voluntarily contributing what each one fairly owes. If they refuse, the tax must be levied on the taxable property of the district. The tax list was not made out within one month, but there is good cause for the omission in the appeal, which, though misdirected, must, as was supposed, be deemed to operate as a stay of proceedings.

If you provide fuel hereafter, as you have done heretofore, there may or may not be difficulty, according to circumstances. The established usage in the district, if it be a substantial, is not a rigid, compliance with the law. The vote of the inhabitants at the annual meeting, proposes to dispense with that provision of the statute which requires the trustees to call on each inhabitant for his quota of fuel. It is certainly not binding on the trustees, nor does such a vote authorize them to proceed in any other manner than that which is pointed out by the law. They may still make the call, and strictly it is their duty to do so. If they neglect it, and any inhabitant should refuse to pay his proportion of the amount due for fuel, I doubt whether the collection could be enforced against him. It certainly could not, unless his consent to the proceeding could be shown. In departing from the course prescribed by the statute, the successful execution of a trust becomes dependent on the acquiescence of others; and when a public agent undertakes to enforce an authority, he should be careful that he has himself taken all the steps enjoined on him by the statute, which confers the authority so to be enforced. The object in giving notices to each inhabitant of the quota of fuel to be provided by him, is to enable him to furnish it in kind, if he chooses, and (unless a tax is voted,) the right to collect the amount in money does not exist until that option has been presented to him in the mode indicated by the statute. You will perceive, therefore, that you will be liable to difficulty whenever an inhabitant thinks proper to create it, by refusing to pay for his fuel, and shelters himself under the irregular proceeding on the part of the trustees; for the vote of the inhabitants of a district cannot render legal a departure from the mode of procedure prescribed by law. So long as all acquiesce in a course which is certainly the most convenient, and may be altogether unobjectionable on the score of equity, no trouble is to be apprehended; but if any one chooses to contest the legality of the proceeding, the trustees will be involved in dif

ficulty. The only course, therefore, which is safe, under all circumstances, is the one pointed out by the law.

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

Non-residents are taxable for lands used as pastures.

The facts of this case are stated in the Superintendent's opinion. By JOHN A. Dix, October 29, 1835. Mr. C. lives in the town of Ridgeway, and owns a farm there, pays taxes, &c, but owns a piece of land in the town of Yates, which he occupies for pasturing, ploughing, &c. separate and distinct from his farm. He has no house, servant or agent upon it, but whatever is done upon it he does himself. The question is; Has the school district in the town of Yates, in which said piece of land lies, a legal right to tax it for building a school-house?

Answer. There is no doubt about it. The owner may be taxed for so much of it as is cleared and cultivated; and the Superintendent has always held that a piece of cleared ground used for pasturing, was of that class of lands for which a non-resident owner may be taxed.

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

When a school district is dissolved, the value of the school-house and other property ought to be distributed among the inhabitants according to their taxable property

In this case a school district was annulled and set off to other districts, all of which were furnished with school-houses. The question submitted was, in what manner the school-house and appendages belonging to the district so annulled should be dis posed of?

By JOHN A. Dix, October 29, 1835. No provision has been made by law for the case about to occur in your school district. But, where a district is dissolved by the commissioners of common schools and the inhabitants are set off to other districts, the proceeds of the property belonging to the former ought to be dis tributed among the inhabitants according to their taxable property. It is the taxable property of the district that has provided the school-house, &c. and the proceeds of the sale should revert to the source from which it was derived. All the taxable inhabitants would of course participate in the distribution in ratio of their respective possessions. It may seem unjust, at first glance that those who have moved into the district since the schoolhouse was built, should receive any portion of its value; but it

is possible that they may have paid an increased price for property in the district on account of the school privileges, and the rule will probably prove as equitable as any other that can be adopted. To all taxes levied for common school purposes in the districts, to which they are now set off, they will contribute in the ratio of their property, and for this reason also the rule of distribution seems reasonable. It is manifestly impracticable to seek out all who have contributed to the erection of the house, whether they remain in or have removed from the district, and restore to each his just quota of the value of the property.

(ANONYMOUS.)

If an annual meeting is regularly called and attended by only four persons who, without organizing, agree to meet again in a week, the second meeting is not valid.

If an annual meeting is regularly called and attended by four persons, who organize, and without transacting any other business adjourn for a week, the proceedings are valid and the annual election may be held at the adjourned meeting.

Schools must be kept in the district school-house, excepting in extraordinary

cases.

By JOHN A. Dix. October 30, 1835. A statement of the cases submitted to me is herewith annexed with my opinion. 1. At an annual meeting legally notified by the district clerk, four persons only attended. The clerk was absent, and the meeting was not regularly organized, no moderator being appointed. The four who were present agreed to hold the annual meeting in one week from that time. The taxable inhabitants, or a major part of them, met at the time agreed on, organized the meeting and elected their district officers, with the exception of a collector. The question submitted is, whether the last meeting was legal?

Answer. It was not. Nor was the annual meeting legal. The latter was not organized, nor were there any proceedings whatever which were authorized or which could be made a matter of record. The agreement of a few individuals, assembled without any form of organization, to hold a meeting at a subsequent time, could not give validity to it as an adjourned meeting; and as the latter was held in pursuance of that agreement, the proceedings were altogether void and without effect.

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2. At an annual meeting legally notified by the district clerk, persons only attended. . The clerk was absent. The meeting was organized by appointing a moderator and a clerk pro tempore. No further business was done, but the meeting was adjourned for one week from that time without having the proceedings of the meeting recorded. A major part of the inhabitants met in pursuance of the adjournment and elected their district officers,

with the exception of a collector. The question submitted is, whether this meeting was legal?

Answer. Yes. The annual meeting being regularly called and organized, the persons present had a right to adjourn to another day. The inhabitants of a school district may exercise this right whenever they are lawfully assembled at any district meeting. The adjournment being legal, the second meeting held in pursuance of it, was also legal, so far as respects the right to hold it. District officers must be elected at the annual meeting, but the second meeting must be deemed a continuation of the annual meeting, an adjournment having been voted in consequence of the small number of persons present, in order to procure a fair expression of the wishes of the district. The omission on the part of the proper officer to put the proceedings of the first meeting on record does not affect the validity of those proceedings. It is a delinqueney for which the responsible persons are highly censurable; but their negligence cannot be allowed to prejudice the interests of the district.

3. Can a public school be supported in such a manner as to obtain the public money in any place, excepting the schoolhouse in said district, when a majority of the district vote for it?

Answer. This must depend on circumstances. A school cannot be kept in any other place than the district school-house, excepting for the most urgent reasons. Cases may occur in which it is not only proper, but necessary, to select another house temporarily; but they are certainly rare, and when they do occur, the place where the school is to be kept must be designated by vote of the inhabitants.

(ANONYMOUS.)

If a school district is altered, the site of the school-house may be changed, by a majority of votes, and without the consent of the commissioners of common schools.

By JOHN A. Dix, November 3, 1835. If, after a schoolhouse has been built or purchased, the district is altered, the site may be changed and the school-house removed by a majority of the voters present, and without the consent of the commissioners of common schools.

By reference to sub. 4, sec. 61, page 478, 1 R. S. you will observe that the power "to designate a site for the district schoolhouse" is unlimited, excepting by the first part of the section, which is applicable to all its subdivisions: and by subdivision 6, of the same section, the power "to repeal, alter and modify" proceedings is given.

The provisions of the act of Feb. 17, 1831, are restrictions on the exercise of these powers: but these provisions are all applica