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in their power and which may be required of them relative to their School accounts, the party refusing shall be guilty of a misdemeanor, and upon prosecution by either of the Auditors, or any rate-payer, be punished by fine or imprisonment, as provided by the one hundred and fortieth section of the said Upper Canada [Consolidated] Common School Act.

New School Site to be authorized by Special Meeting.

30. No steps shall be taken by the trustees of any school section for procuring a school site on which to erect a new school house, or for changing the site of an established school house, without calling a special meeting of the [assessed] freeholders and householders of their section to consider the matter.t

Differences between Trustees and People to be referred to

And in case of a difference as to the site of a school house between the majority of the trustees and a majority of the [assessed] freeholders

* See the sixth section of the School Law Amendment Act of 1860, page 22. The Local Superintendent may call this meeting if desired, see page 19.

Decisions of the Courts in regard to School Sites.

In selecting a Site, Trustees cannot act without consulting their constituents. 1. The Court of Queen's Bench has decided that the Trustees cannot, without any reference to the [assessed] freeholders and householders of the section, determine upon a site for the school house, and impose a rate to meet the expense of its purchase.-Orr v. Ranney et al, No. 15 Westminster. 12 Q. B. R. 377.

2. The Court of Chancery has decided that the three arbitrators must meet to determine the question of site. At any lawful meeting of the arbitrators, a majority of them shall finally decide the matter.-In re John Sweetman et al, No. 10 To


3. Arbitration, before award made, may be superseded by mutual concur


Chief Justice Robinson thus laid down the law on this subject:-As a general rule, we take it that where two parties have a difference upon any matter of business, and refer it to arbitration, they may afterwards agree upon the matter on which they had differed, and so may render it unnecessary that any award should be made. By the common law either party might, before the award made, revoke the submission.-There have been restrictions lately placed by statute upon this right of one party to revoke without the concurrence of the other, but it would be most unreasonable and inconvenient to hold that both the parties may not come to a settlement of their dispute, and so dispense with the necessity for the arbitrators proceeding.-Chief Justice Robinson, in re Vance vs. King, et al, No. 1 Hallowell. 21 Q. B. R., 187.

4. First arbitration in regard to a School Site cannot be set aside by a subsequent Special Meeting.

The Court of Common Pleas has decided the following case: When a meeting was held to change the site of a school house, and arbitrators appointed, who met and decided the question, but their decision was not acted upon; subsequently another meeting was called, and their decision and proceedings were acted upon, and the site changed. Held, that the proceedings were irregular, and that the trustees had not authority to change the site of the school house without the sanc

and householders at such special meeting, each party shall choose an arbitrator, and the local superintendent, or in case of his inability to

tion of a special meeting of the [assessed] freeholders and householders, and that the second meeting had no authority to alter the determination previously made. -Williams v. Trustees, No. 8, Plympton. 7 C. P. R. 559.

5. Replevin-Arbitration in regard to school site-Blanks filled in after execution -Award rendered invalid thereby.

The Court of Common Pleas decided the following case: Replevin-Two defendants avowed [i. e. maintained and justified the act done by them]; the third pleaded the convening of a special meeting of the freeholders and householders of a certain school section to procure a school site, when it was agreed to procure a certain piece of ground and erect a school house thereon, which was done. That plaintiff was a resident freeholder when the meeting was held and when his goods were seized, and was assessed $80 for building said school house, &c. The plaintiff pleaded that the meeting above set forth was null and void, because, before the said meeting another had been convened according to law, when a difference of opinion existed between a majority of the freeholders and householders as to choosing a school site, and arbitrators were appointed, who decided upon a certain site, which decision remains in force, and the defendants in contravention thereof wrongfully purchased the site mentioned in their plea, and wrongfully distrained, &c. Upon demurrer, Held, that the second meeting pleaded by the defendants was a violation of the provisions of the statute, and that the plaintiff was entitled to judgment. The arbitrators to whom a reference in this cause was made under the school act executed an award, the description of the lot not being fully inserted, but a blank being left therefor, which was afterwards filled in and the word lot altered into gore. Held, that the award was insufficient. Held, also, that school trustees who executed a warrant as such trustees under the seal of the trustee corporation were not personally responsible.-Ryland v. King et al., No. 1, Hallowell. [See decision of the Queen's Bench below, in effect reversing this one. 12 C. P.R. 198. For definition of the word "replevy," see page 34.

6. similar case decided by the Court of Queen's Bench.

Replevin against two school trustees and one King, a bailiff, for a horse. Defendants pleaded, 1. That they did not take; and 2, an avowry, setting out in substance that on the 30th of October, 1858, a special meeting of the freeholders and householders of the section had been duly called to procure a school site and erect a school house thereon, at which it was agreed to procure a certain site named: that this was procured and the school house built: that the plaintiff was duly assessed for a sum specified: that the trustees by their warrant commanded King to collect it; and that after demand and default made he seized the horee. The plaintiff pleaded to the avowry, 1st, de injuriâ; and, 2nd, as to the justification by the

As the word "shall" is here imperative, it is the duty of the majority of the trustees to appoint one arbitrator and of the majority of the ratepayers present at the meeting to appoint another. Should the trustees refuse to appoint an arbitrator, they fail to give the legal evidence required in this section of the act, of a difference of opinion between them and a majority of the ratepayers as to a choice of the school site, and may, by mandamus, be compelled to obey the law. Should the majority of the ratepayers present refuse to comply with the law and appoint their arbitrator, they also fail to give legal evidence of a difference of opinion between them and the trustees. As they cannot, like the trustees, be compelled to obey the law, their neglect to appoint ar arbitrator would be legal evidence that no difference of opinion existed between them and the trustees in regard to the site, and would justify the trustees in legally assuming that no such difference actually existed. The courts of law would not uphold any proceeding designed or having a tendency to obstruct the legitimate working of the statute.

attend, any person appointed by him to act on his behalf, shall be a third arbitrator, and such three arbitrators, or a majority of them, shall finally decide the matter.

[304. The School Amendment Act of 1860 further enacts: 15. Arbitrators appoint ed under the authority of the Upper Canada Consolidated Common School Act, and Local Superintendents, engaged in investigating and deciding upon school complaints and disputes, shall be entitled to the same remuneration per diem for the time thus employed as are members of the Municipal Council of their county for their attendance at Council Meetings;* Provided always, that the parties concerned in such disputes shall pay all the expenses incurred in them, according to the award or decision of the Arbitrators and Local Superintendents respectively.]

trustees, that the meeting was void, because before it took place a special meeting of the freeholders was duly held to procure a school site, at which a majority of the trustees differed from a majority of those present with regard to the site, in consequence of which the freeholders and householders, the trustees, and local superintendent, each appointed an arbitrator to decide the question; that the arbitrators determined upon a site specified, different from that mentioned in the avowry, which award remained in force, and that the trustees, contrary to this decision, wrongfully purchased the site mentioned in the avowry. The defendants replied that there was no such award. As to the issue taken upon the first plea of the defendants, it appeared that the horse was seized by King under a warrant. signed by two trustees, commencing: "We, the undersigned trustees of school. section," &c., and sealed with the corporate, seal. Held, that the trustees were liable personally, not in their corporate capacities only. With regard to the second and third issues, raised by the plea of de injurid to the avowry, and replication denying the award, the evidence showed that in 1857 the inhabitants were divided as to the choice of a school site, and an award was made but not acted upon: that in 1858 the same difference existed, and one of the trustees also differed from his co-trustees: that in March the two trustees, defendants, obtained a conveyance of half an acre, part of lot 15. and in May a meeting was held at which arbitrators were named and an award made; but the inhabitants being still dissatisfied another meeting was held in July, when the arbitrators mentioned in the plea to the avowry were chosen. In the meantime the building was commenced upon the land conveyed. On the 4th of September an award was drawn up [in which a blank was left for a description of the site.] On the 30th of October, 1858, a meeting was held, having been regularly called by the two trustees, to settle the question finally, and a resolution passed adopting [as the site] the land conveyed. In April, 1859, the two trustees, defendants, met, the third being absent from the country, and resolved upon the rate, which was inserted by the clerk in the roll, and the warrant was issued to King, who seized the plaintiff's horse. The plaintiff, after that, set about getting the award of September, 1858, which was afterwards filled up by two of the arbitrators, who stated that it had been left blank because they did not know the precise description of Landon's land. Held, that upon the second issue raised by plaintiff, defendants were entitled to succeed, for the evidence sustained the avowry. And that upon the third issue raised by the plaintiff they were also entitled to the verdict, for there was in fact no award made, and even as it was altered after execution the description was too uncertain. Ryland v. The same defendants, in the Court of Common Pleas, commented upon. [See page 46] Held, that under the circumstances proved, the reference did not.

The two hundred and sixty-ninth section of the Municipal Institutions Act, provides that "The council of every township and county, may pass by-laws for paying the members of the council for their attendance in council, at a rate not exceeding one dollar and fifty cents per diem."

Trustees personally responsible for Moneys lost.

31. The trustees of each school section shall be personally responsible for the amount of any school moneys forfeited by or lost to such school section in consequence of their neglect of duty during their continuance in office ;* and the amount thus forfeited or lost shall be collected and applied in the manner provided by the twenty-first section of this Act, page 16.+


All the Sections of a Township may be United, and a Township Board Elected.

32. In case a majority of the resident [assessed] freeholders and householders of each section, at public meeting for that purpose, separately called by the trustees of each such section, express a desire that local school sections should be abolished, and that all their schools should be conducted under one system and one management, like the schools in cities and towns, the municipal council of such township shall comply with the request so expressed, by passing a by-law to give effect thereto;§ in which event all the common schools of such township shall be managed by one board of five trustees, one of which trustees shall be chosen in and for each ward, if the town

make the subsequent meeting illegal. Held, also, upon demurrer, that the avowry was good, the omission of any averment essential to the validity of the rate being cured by the second plea of the plaintiff to it, which relied wholly upon the award: that the second plea of the plaintiff was bad, for not shewing that before the award the trustees and inhabitants had not duly selected the site built upon, as they might do notwithstanding the reference; and that the replication to it denying the award was a good answer.- Vance v. King, et al, No. 1, Hallowell. 21 Q. B. R. 187.

*See also the twentieth clause of the twenty-seventh section of this Act, pages 41 and 42; also the decision of the Court of Common Pleas, given in a note to the eighty-sixth section.

While Trustees are thus made personally responsible for refusal to exercise their corporate powers, and while the acts of a majority are binding upon the Corporation, yet no majority of the trustees can act without notifying their colleague or colleagues, and giving him or them an opportunity of joining in, or dissenting from their acts. See the seventh section of the School Act for 1860, on page 20, and also note to the twentieth clause of the twenty-seventh section of the Consolidated Common School Act, page 41.

In case of such a union in a city, town, or village, see page 59; and also the "Manual for Grammar and Common Schools in Cities, Towns, and Villages," &c.

§ i.e. Being satisfied that due notice has been given to all parties concerned⚫ The alteration does not, however, take effect until the 25th of December next after having been made.

ship be divided into wards, and if not so divided, then the whole number of such trustees shall be chosen in and for the whole township, and the election of such trustees shall be held at the time and in the manner prescribed in the third, seventh, eighth, and twentysecond sections of this Act [pages 8, 9, 10, and 17]; and such trustees shall be a corporation, under the name of " The Board of School Trustees of the Township of, in the County of· * and shall be invested with the same powers, and be subject to the same obligations, as trustees in cities and towns, by the seventy-ninth section of this Act [pages 69-75.]


Assessors to value Lands situated in each Section.

33. Whenever the lands or property of any individual or company are situated within the limits of two or more school sections, each assessor appointed by any municipality, shall assess and return on his roll,† separately, the parts of such lands or property, according to the divisions of the school sections within the limits of which such lands or property may be situate; but every undivided occupied lot, or part of a lot, § shall only be liable to be assessed for school purposes in the school section where the occupant resides [i.é. has a legal domicile or place of business.]

* See definition of trustees' corporate powers, où page 19.

This roll being the sole guide of the trustees, which they must follow in each case, and under all circumstances, the provisions of this section should be carefully complied with on the part of the assessor. See note (g) to trustees' form of warrant, on page 34; and also note to the twelfth clause of the twentyseventh section of this Act, page 37.

In order to enable the township assessor to make a correct roll, so far as it relates to the several school sections, the forty-ninth section of this Act requires the township clerk to make a school-map of the township, to which the assessor and trustees may have access. See page 61.

§ A "lot," as here spoken of, must be held to contain two hundred acres, more or less, according to the original survey, and to be owned or occupied by a single individual or company. "Part of a lot," is part of these original two hundred acres, owned or occupied by a single individual or company. If two or more such parts of a lot should become, at any future time, the property of a single owner, they must then be held to form but one lot in the sense of the Act.

An undivided Lot must be in the same Municipality.-Municipal Boundaries divide Lots.

The Court of Queen's Bench has decided the following case: Certain property, through which ran a municipal division-line between a town and a township, was assessed by the trustees of a school section in the township, according to the value of that portion of it lying in their section and outside the town. The owner refused to pay, and was sued by the trustees as a non-resident, in accordance with the provisions of the school law. The Judge of the Division Court decided against the trustees, on the ground that the [thirty third] section of the Upper Canada Consolidated Common School Act referred to undivided lots within different municipalities, as well as within one municipality. The Chief Superintendent appealed the case, and it was held by the court that the trustees acted rightly, they being guided by the assessment-roll of their municipality; and that the proviso referred to applies only to the case of an undivided property extend


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