The inhabitants of joint school district No. 15, lying partly in the town of Warwick, and partly in the town of Goshen, against the Commissioners of Common Schools of said towns.

In altering school districts lying partly in two or more towns, a majority of the commissioners of each town must concur.

This was an appeal from the proceedings of the commissioners of common schools of the towns of Warwick and Goshen, in dividing school district No. 15, with the consent of only one of the commissioners of the former town.

By A. C. FLAGG, November 13, 1827. In this case it is contended that the division of No. 15 is invalid, for the reason that it was a district formed from parts of Goshen and Warwick, and that a major part of the commissioners of each town did not assent to the division of the old district No. 15. It appears by the affidavit of H. M. Hopkins, one of the commissioners of Goshen, that Mr. Shepherd, one of the commissioners of Warwick, dissented from the division, and "contended that the law required the consent of a majority of the commissioners of both towns, (to wit, two,) which opinion was overruled, and he, the said Shepherd, although opposed to the division, signed the proceedings," &c.

William Shepherd, the above named commissioner, testifies, "that from the site and location of the said district, he is entirely of the opinion that it ought not to be divided, and that he signed the proceedings under the representation that his withholding his name could make no difference, if the construction of the law by the other commissioners was right; although contrary to his deliberate and decided opinion at the time." It appears also that only one of the commissioners of Warwick was in favor of the division, and that he and the three commissioners of Goshen constituted the body which voted that they had a right to act for the two towns. No district can be formed or altered without the assent of two at least of the commissioners of the town in which the district is situated. In the formation of double districts, the commissioners represent their respective towns; and the rights of those whom they represent cannot be voted away by commissioners who represent the inhabitants of another town. The law does not authorize the question to be settled by a joint ballot of the commissioners of two or more towns. The law says, "Whenever it may be convenient and necessary to form a district out of two or more adjoining towns, it shall and may be lawful for the commissioners aforesaid, or the major part of them, from each of such adjoining towns, to

form such district, and to alter and regulate the same."* It is clear from the language of this act, that the assent of a major part of the commissioners of each town interested is requisite to form or alter a district. It is satisfactorily proved that although Mr. Shepherd signed the proceedings, he did not consent to the division of the district, and this fact is shown by the witnesses of both parties. The resolution which was adopted, that three commissioners from Goshen and one from Warwick, had a right to alter the district, seems to show that Mr. Shepherd did not consent; and hence the resolution to alter it without his con

sent.

It is therefore decided that the proceedings of the commissioners, in dividing district No. 15, be annulled.

(ANONYMOUS.)

If a farm lies partly in two school districts, it is to be taxed in the district in which the occupant resides.

By A. C. FLAGG, December 10, 1827. By looking at the 25th section of the school act of 1819, page 17, you will see that it is made the duty of trustees to assess "all the taxable inhabitants residing in such district, according and in proportion to the valuations of the taxable property which shall be owned or possessed by them within such district, or which being intersected by the boundaries of such district, shall be so owned or possessed by them partly in such district and partly in any adjoining district.Ӡ

The principle is, that where a line between two districts runs through a man's farm, he shall be taxed for the whole of his farm in the district where his house stands or where he resides. On this point the law above quoted is clear, and such has been the construction given to it.

The same principle governs in the town assessments, as you may see by the 8th section of the act of 1823, which provides that "where the line between two towns divides any occupied lot or farm, the same shall be taxed in the town where the ccupant lives, provided he or she lives on the lot."

(ANONYMOUS.)

Conditional certificates of qualification cannot be given to teachers. By A. C. FLAGG, December 16, 1827. The school act does not recognize conditional certificates to be given to teachers.

*Sec. 21, page 471, vol. 1, R. S.

† Sec. 76, page 482, vol. 1, R. S.

Sec. 4, page 389, vol. 1, R. S.

While a feeling very properly prevails to extend the benefits of the school money to those districts the least able to support a school, it is important that inspectors should do all in their power to elevate the standard of instruction in the common schools. Much is left to their sound discretion, and much depends on a rigid discharge of their duties. I cannot authorize any relaxation of the mode of giving certificates; the law does not justify it.

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

Children in poor-houses are not to be included in the annual reports of school districts.

This was an application for the direction of the Superintendent with respect to an apportionment of school moneys to dia trict No. 3 in the town of Milton, the trustees having included in their annual report all the children in the county poor-house, which was situated within the boundaries of the district.

By A. C. FLAGG, April 26, 1828. The 21 children belonging to the poor-house ought not to be numbered for the purpose of drawing money into the district where the poor-house happens to be located. A deduction from the number of children reported by district No. 3 must be made accordingly.*

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

The proceeds of the school fund of the town of Fabius must be applied by the trustees of the fund as the inhabitants may direct.

But trustees of school districts must apply such proceeds to the payment of qualified teachers.

This was an application for the direction of the Superintendent with regard to the appropriation and expenditure of the proceeds of the local school fund of the town of Fabius.

By A. C. FLAGG, July 12, 1828. The 24th section of the new act, p. 8, expressly provides that no moneys shall be paid to a district unless a teacher duly qualified has been employed for three months at least, "and that all moneys received from the commissioners during that year [as appears by the report] have been applied to the payment of the compensation of such teacher,” see also form for the commissioners' report. You must certify that "the money has been expended in paying teachers

*By the 6th section of the act of 25th April, 1831, it is provided that it shall not be lawful for the trustees of any school district to include in their annual returns the names of any children who are supported at a county poorbouse."

duly appoir ted and approved in all respects according to law." The trustees are not allowed to pay the public money to a teacher unless he is qualified as the law requires. The fourth section of the act of 1813, chap. 100, p. 157, session laws, provides that the proceeds of the school lot in Fabius shall be applied by the trustees of the fund in such manner as the town meeting shall under the law direct. If this money is paid over to the commissioners of common schools they must apply it as they do the other moneys which come into their hands for the use of schools, to the payment of the wages of qualified teachers. And so with the trustees of the district, if it is paid to them. The town by a vote might possibly through the trustees of the town fund, vary the application. But if a vote is passed to pay it to the district trustees, they must be guided in its application by the provisions of the law under which their office is created, and in which their duties are prescribed. But it is not probable that your town has or will pass a vote to apply the local school fund to the payment of the wages of teachers who are not qualified according to law. The Trustees of school district No. 4 in the town of Hounsfield, ex parte.

Private property cannot be taken for a site for a school-house without the consent of the owner.

This was a case in which the title to the site of the schoolhouse in district No. 4 in the town of Hounsfield, proved defective, and the owner of the land threatened to re-enter.

By A. C. FLAGG, October 15, 1828. It appears by your letter, that the district has no title to the fee of the land, nor a lease for the site of the school-house. You are therefore in the power of the person who owns the premises on which the schoolhouse stands. The district has no power over individual property in obtaining a site for a school-house; if they fix a site and the title fails, they must seek a site where the land can be procured. You are in the situation of a district without any site for a school-house, unless you can procure the fee or a lease of the land on which your house stands. Your best course is to compromise this question with the owner of the farm, who if he is a reasonable man will do what is just in the premises. If the trustees can procure the land, or hire it, then the site is well enough. If they cannot, the district can vote a site elsewhere. The prohibition against changing the site of a school-house does not apply to a case of this nature.

The Trustees of school district No. 5 in the town of Pompey, ex parte.

A non-resident owner is taxable for land occupied by an agent: but not if occupied by a tenant: and if it is unoccupied, he is taxable for so much only as is cleared and cultivated.

This was a case in which a person living out of the boundaries of district No. 5 in the town of Pompey, owned a lot of land within that district, the lot being occupied, but not by him.

By A. C. FLAGG, November 19, 1828. If the non-resident owner of the 250 acres of land in your district has an agent living on the premises, then the owner of the land can be taxed for it under sec. 77, as occupying it by his agent. If the person living on the premises rents the land as tenant, then he, the tenant, is liable to be taxed for the premises, that is for the whole lot. When a lot is not occupied by an agent or servant, then the owner, if a non-resident, is to be taxed for such parts only as are "actually cleared and cultivated," under sec. 78.*

The Trustees of school district No. 1 in the town of Jamestown, ex parte.

Trustees of school districts may renew a warrant to collect a tax, whether issued by themselves or their predecessors.

If a district meeting votes to renew a warrant and collect a tax, the trustees may regard it as an original vote to raise the amount specified, and issue a new warrant for its collection.

Taxes can only be voted by the inhabitants of school districts for the objects enumerated by law.

On the 19th May, 1827, the inhabitants of school district No. 1 in the town of Jamestown, voted a tax of ten dollars "to defray contingent and other expenses, at the discretion of the trustees." The tax-list was made out with a warrant annexed, and delivered by the trustees to the collector for collection; but through the neglect of the latter, no part of the amount was collected. On the 15th November, 1828, the inhabitants of the district voted that the warrant for collecting a tax of ten dollars "for defraying necessary expenses at the discretion of the trustees," as voted at a district meeting on the 19th of May, 1827, be renewed, and put into the hands of the collector to be collected forthwith. The trustees of the district, doubting whether the old

* The principle of this decision is fully sustained by the construction of the law by the Supreme Court in the case of Dubois vs. Thorne and others, 7 Wendell, 518, in which a lessee of a non-resident owner was held liable for a tax for part of a lot, and two sub-tenants for the parts occupied by them. The court said that "the mere ownership of the property, without occupation by himself, his agent or servant," was not sufficient to charge the non-resident owner with the tax.