(ANONYMOUS.)

A commissioner of common schools may be a trustee of a school district.

By JOHN A. Dix, May 19, 1837. A commissioner of common schools may be a trustee of a school district; that is, there is no legal disqualification. At the same time, it is better that no one individual should hold both offices, as questions may arise in which there may be conflicting interests to adjust between the commissioners and trustees. At all events, a proper feeling of delicacy would seem to suggest, in such a case, that the individual should resign one office or the other.

The Trustees of school district No. 4 in the town of Sharon, ex parte.

If the inhabitants of a school district authorize the trustees to select a site for a school-house, it is not a legal site until subsequently fixed by a vote of the inhabitants.

The inhabitants of a school district cannot authorize the trustees to borrow money.

If part of a resolution passed by the inhabitants of a school district is void, the whole resolution is vitiated.

If at an annual meeting a vote is passed in relation to the erection of a schoolhouse or the choice of a site, and a special meeting is subsequently called under a notice to reconsider the proceedings of the annual meeting, it is a sufficient designation of the object of the meeting to justify the inhabitants in rescinding or modifying such vote.

This was an application to the Superintendent for his opinion with regard to certain proceedings in school district No. 4 in the town of Sharon. The facts of the case are stated in his opinion.

By JOHN A. Dix, May 29, 1837. On the 3d day of April last, at an annual meeting held in school district No. 4 in the town of Sharon, a vote was taken to build a stone school-house, the site to be selected by the trustees between two points designated in the resolution. It was also voted at the same time that the trustees should borrow $125 for the purpose of procuring materials for the building

At a subsequent day, the trustees having met to receive proposals for building, it was, on reflection, deemed advisable to call a special meeting of the inhabitants of the district for the purpose of reconsidering the former proceedings. A meeting was accordingly called on the 3d of May inst. for the purpose of taking "into consideration the propriety of reconsidering the proceedings of the annual meeting, and such other business" as the inhabitants should find necessary. Due notice was given to every inhabitant entitled to vote, and the meeting was held, fourfifths of the whole number of inhabitants being present. On

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reconsidering the proceedings of the annual meeting, it was unanimously resolved that the school-house should be built of wood instead of stone, and a tax of $250 was voted for the pose.

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The proceedings of the annual meeting in relation to building a school-house are void, for the following reasons: 1st. The inhabitants of the district must designate the site for the schoolhouse themselves; they cannot leave the choice to the trustees or to any other persons. 2d. The inhabitants of a school district cannot authorize the trustees to borrow money. No part of the proceedings was authorized by law, excepting so much as relates to the materials of which the house was to be built. By the statement presented to me, it would appear that the vote authorizing the trustees to fix the site for the school-house was part of the same resolution which prescribed the nature of the materials to be used. The whole resolution must therefore fall, as that part of it which is void vitiates the residue; but if that part which relates to the materials could be sustained, it would make no difference, as the vote at the subsequent meeting annulled it.

The proceedings of the meeting on the 3d of May are valid. The only question which can possibly arise is, whether the notice was sufficient? On this point I entertain no doubt. The law does not prescribe that the object of a special meeting shall be stated in the notice. This duty is enjoined by the Superintendent in the directions and forms of proceedings furnished by him, and he will require in all cases that it shall be performed in good faith. The notice for the meeting on the 3d May, set forth that the object was to reconsider "the proceedings of the annual meeting." The proceedings referred to were a matter of notoriety, and it is not alleged that any one has been taken by surprise in rescinding them, so far as the school house is directed to be built of wood instead of stone. Indeed, it is manifest from the great proportion of the inhabitants who attended the meeting, and from the unanimity which distinguished it, that the voice of the district has been fairly and clearly expressed. To attempt to overthrow the proceedings upon grounds merely technical, is, to say the least, ungracious, and can lead to no good result. But even the want of technical regularity is not shown. The notice is a substantial compliance with the forms and direc tions prescribed by the Superintendent; and the object of the notice, to apprize each inhabitant of the business proposed to be acted on, seems to have been fully attained. The trustees should proceed to collect the tax.

At the last meeting no vote was taken in relation to the site. As has already been stated, it must be designated by the inhabitants, although such designation need not necessarily precede

the collection of the tax. At the same time, the most unexceptionable course of proceeding in all cases, is to designate the site first, and then vote the tax to purchase it and build the schoolhouse.

The trustees may, if they choose, examine the ground between the two points mentioned in the resolution passed on the 3d of April, but such examination can only be for the purpose of giving their advice to the inhabitants at a future meeting with regard to a proper place for a site for the district school-house. This proceeding can have no force whatever, so far as the choice of the site is concerned. To make the selection legal, the inhabitants must give a direct vote upon it, and fix the spot on which the school-house is to stand.

The Trustees of school district No. 8 in the town of Kingsbury, against the Commissioners of Common Schools of said town.

If a school district formed nine months before the first of January, is unable to pro cure a suitable room for keeping school, and cannot succeed in building a school-house in time to have a school kept three months by a qualified teacher, the Superintendent will, on application to him, allow such district a portion of the public moneys, if the time during which the inhabitants have contributed to the support of a school by a qualified teacher in the new district, and in the district from which it was taken, equal to three months.

This was an appeal to the Superintendent by the trustees of school district No. 8 in the town of Kingsbury, under circumstances which are fully explained in the Superintendent's order.

By JOHN A. Dix, May 29, 1837. On the 28th day of March, 1836, school district No. 8 in the town of Kingsbury, was divided, and school district No. 15 was formed from a part of it. The latter district was organized by the appointment of officers on the 11th of April ensuing. On the 2d of May a site for a school-house was selected, and arrangements were soon afterwards made for building the house; but the difficulty of procuring labor and materials at that season of the year was such that the house was not completed until the last of November. In consequence of this difficulty, and the impossibility of hiring a building for a school-house, an agreement was entered into with district No. 8, and the inhabitants of No. 15 continued through the summer to send their children to the school in that district. On the 1st of December ensuing, the school-house in No. 15 being completed, a school was commenced by a qualified teacher, and continued to the end of the year. The school in No. 8, to which the inhabitants of No. 15 had sent their children during two months and a half of the summer term, was also kept by a qualified teacher, so that they had, for more than

three months, during the year 1836, and subsequently to their separation from No. 8, contributed to the support of a school kept by a qualified teacher. School district No. 8 had also, during the year 1836, a school kept by a qualified teacher for the full period of three months.

The facts above stated were substantially presented by the annual report of district No. 15 to the commissioners of common schools, who refused, in apportioning the school moneys for the present year, to allow any portion of them to No. 15. From this decision the trustees of district No. 15 appeal. A copy of the appeal, with the proper notice, has been served on the commissioners, and as they do not answer, the Superintendent infers that they are willing to submit the case for his decision upon the facts stated by the appellants.

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By the act of April 21, 1831, where "a school district shall have been formed at such time previous to the first of January as not to have allowed a reasonable time to have kept a school therein for the term of three months," it becomes entitled to a share of the public moneys, if it is formed out of a district in which a school shall have been kept three months by a qualified teacher. School district No. 15 was formed in the month of March, 1836. It had, therefore, more than nine months before the expiration of the year for keeping such a school. This was certainly a reasonable time, and the commissioners of common schools were right in refusing to apportion to it a share of the school moneys. The only question for them to decide was, whether the district had a reasonable time before the 1st of January to keep a school three months? And this question being decided in the affirmative, they could not allow it any portion of the public money..

But there are circumstances in this case which, though they could not be taken into consideration by the commissioners for the purpose of varying the plain requirements of the law, may be properly addressed to the Superintendent, with a view to such an interposition on his part as to save, if possible, the equitable rights of the district.

The object of the provision of the act of 1831, above quoted, was to secure to districts formed at so late a period of the year as not to have afforded sufficient time to have a school kept in them by a qualified teacher for the period of three months before the first of January ensuing, on which day the annual reports of the school districts must be dated, a participation in the distribution of the school moneys to be made on the basis of those reports. With this provision was connected another which was intended to put such districts on the footing of all others in the state; that they should not receive any share of the school moneys unless

they were taken from districts in which schools had been kept three months by a qualified teacher, during the year preceding the first of January. This is a fundamental provision of the common school system, and is deemed indispensable to maintain its efficiency. As has been already seen, district No. 15 had substantially fulfilled this requirement. Not only had district No. 8 from which it was taken, supported for three months previous to the first of January a school kept by a qualified teacher, but the inhabitants of No. 15 had contributed to the maintenance of such a school for more than three months. The design of the law had, in this respect, therefore, been accomplished.

It is true that district No. 15 had a reasonable time before the first of January to have a school kept within it three months; and but for strong reasons the Superintendent would not deem himself at liberty to interpose. These reasons consist in the inability of the district to procure a proper building for keeping school while the school-house was in a course of construction, and the difficulty of procuring labor and materials to complete the house before the last of November. The inhabitants did all in their power, under the circumstances, to carry into execution the requirements of the law. They entered into an arrangement with the district from which they were taken, and provided their children, at the school in that district, with the instruction which the law enjoins. If there had been any laches on their part; and if they had not contributed to the support of a school kept by a qualified teacher, so as to make up the legal term of instruction, the Superintendent would not interpose. But as the inhabitants of the district have acted in good faith, and have substantially carried into effect the requirements of the law; and as they were prevented by causes not within their control from complying literally with these requirements:

It is hereby ordered, that the commissioners of common schools of the town of Kingsbury pay to the trustees of school district No. 15 in said town, out of the school moneys next to be distributed, such sum as that district would have been entitled to receive for the present year, if a school had been kept therein three months during the year 1836 by a qualified teacher.

The Trustees of school district No.

of Batavia, ex parte.

in the town

If an inhabitant removes from a district before the end of one month after a tax is voted, and before the tax list is delivered to the collector, he cannot be included in it, the tax list not being complete until the end of the month, if it remains in the hands of the trustees.

In this case a tenant in the occupation of a farm in a school district in the town of Batavia removed from the district after a