tax was voted, but before the tax list was put into the nands of the collector; but it did not appear distinctly from the statement presented to the Superintendent, whether one month had elapsed after the tax was voted and before the tenant removed. By JOHN A. Dix, June 13, 1837. If the tenant referred to in your letter was a taxable inhabitant of the district at the time the tax list was made out, he should have been included in it, and if he removed subsequently, he would be liable for the amount of the tax assessed to him. The only question is, when was the tax list made out? I think the tax list must be considered incomplete, if it remains in the hands of the trustees, until the last day of the month allowed them for making it out; and if an inhabitant removes from the district before that day he cannot be included in it. If they deliver it to the collector at the end of fifteen or twenty days, it is beyond their control, and they cannot recall it for the purpose of making alterations, though mere errors discovered after that time may be corrected. But if the tax list remains in their hands until the twenty-ninth day after the tax was voted, they may and should make it conform to the condition of the district in respect to its taxable inhabitants on that day. After the expiration of the month they can make no alteration in it, though it may not have been delivered to the collector. The Trustees of school district No. in the town of Ovid, ex parte. When a new district is formed, if the commissioners of common schools neglect to issue a notice for the first district meeting, within twenty days, they may issue it at a subsequent time. a notice is issued for the first district meeting in a new district, formed without the consent of the trustees of the district or districts from which it was taken, and the time fixed for such meeting is within three months after service of notice on such trustees of the alteration made in their districts, the notice issued for such first district meeting is void, and the commissioners may issue another at a subsequent time. the notice for the first district meeting in a new district is not void, but merely defective in form, application may be inade to the Superintendent to amend it. This was an application for the opinion of the Superintendent in a case in which a new district had been formed in the town of Ovid, and in the organization of which a doubt had arisen as to the effect of a notice appointing the first district meeting before the expiration of three months after notice in writing to the trustees of the districts from which such new district was taken, said trustees not having consented to the alterations made in their respective districts. By JOHN A. Dix, June 29, 1837. By 1 R. S. sec. 55, page 477, the commissioners of common schools are required, whenever a school district is formed by them, to prepare a notice in writing within twenty days thereafter, describing such district and appointing a time and place for the first district meeting, and to deliver such notice to a taxable inhabitant of the district. By 1 R. S. sec. 22, page 471, it is provided that "no alteration of any school district, made without the consent of the trustees thereof, shall take effect until three months after notice in writing shall be given by the commissioners to some one or more of such trustees." These two provisions must, if possible, be so construed that both may stand; and in this there is no difficulty. If an alteration is made in one or more existing districts, without the consent of trustess, it cannot take effect until three months after notice in writing to the trustees, &c. The formation of a new district necessarily involves an alteration of existing districts, excepting those uncommon cases in which school districts are formed out of territory previously unsettled, and for want of inhabitants not included within the boundaries of any district. In these cases the commissioners may issue their notice for the first district meeting, which may be held after the expiration of six days, if the notice is immediately served. But if a new district is formed out of territory included in existing districts, so as to alter the latter, and the trustees do not consent to such alteration, it cannot take effect until three months after notice in writing, &c. In the application of this rule the Superintendent has decided that no act touching the organization of the new district is valid if done before the expiration of the three months, so that an election before that time has expired would be void for want of authority. Notwithstanding this decision the commissioners should issue their notice for the first district meeting within twenty days after the district is formed; but the time appointed for the meeting must be at some period subsequent to the expiration of three months after notice in writing to the trustees of the district or districts from which it is taken. It is hardly necessary to say, that if the trustees of the altered districts consent, the new district may organize immediately, in the same manner as though it had been formed out of territory not previously attached to any district. The provisions above quoted with regard to the notice to be given by the commissioners may be violated in three modes. 1. The commissioners may neglect to issue their notice within twenty days: 2. They may issue it within twenty days, and appoint the time for the first district meeting before the expiration of three months: 3. They may issue a notice which is in some matter of form defective. 1. If the commissioners do not issue any notice within twenty days they may perform the duty at a subsequent time, as the provision of law requiring them to do it within that time is directory only; and if the duty is neglected it should be subsequently performed, so that third persons may sustain no injury. This is the general rule of law, where the authority of the officer is not intended to be limited by the specification of time, and it appears to me to be applicable to this case. 2. If the notice for the first meeting in the new district is issued within twenty days, and the time appointed for the meeting is within three months, and the trustees have not consented to the alteration, the notice is void. It appoints a day in violation of an express prohibition of the statute. It is, in contemplation of law, no notice at all; and the commissioners may issue another, precisely as though they had issued none. 3. If the notice does not on its face show a direct violation of the statute, but is defective in some matter of form, application may be made to the Superintendent for authority to amend it. Having issued an order which is not void, the commisioners cannot issue another without being empowered to do so by the proper authority; although they may doubtless rescind their order for the formation of the new district and commence anew, LAWS RELATING TO COMMON SCHOOLS, AND THE FORMS AND REGULATIONS PRESCRIBED FOR THEIR GOVERNMENT. In [This edition of the Statutes relating to Common Schools, is in conformity to an edition of the Revised Statutes of the state, with the amendments thereto, recently published by the Revisers. Some of the sections have double numbers. In every such case, the last number refers to the original edition of the Revised Statutes. the annexed Forms and Regulations, the numbers of the sections as given in the present edition are referred to; but the foregoing Decisions of the Superintendent refer to the numbers of the sections in the original edition. The Decisions also refer to the pages of the original edition of the Revised Statutes, which are shown by the figuers, with asterisks annexed, on the margins of the following pages.] |