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tendent; and their action shall be final unless duly appealed from. The compensation of the supervisor and town clerk, when thus as-* soeiated, shall be the same as that of the Town Superintendent." The various remarks under this head will therefore be applicable as well to the action of the town supervisor, superintendent and clerk, when associated together by virtue of this provision, as to that of the Town Superintendent alone; although for the sake of brevity and simplicity the latter only is referred to.
It is proper, however, in this connection to advert to the general duties of the town clerk, in his capacity as clerk to the Town Superintendent, independently of the provision above cited. By the 32d section of the school act (No. 00) he is required "to receive and keep all reports made to the Town Superintendent from the trustees of school districts,^and all the books and papers belonging to the Town Superintendent when required, and to file them in his office; to receive all his estimates and apportionments of school money, and to record the same in a book to be kept for that purpose; and to notify the Town Superintendent, upon receiving notice from the county clerk, that he has not made his annual report, for the purpose of making such report."
Consent of Trustees, and Notice of Alteration.
By the 45th section of the school act (No. 71) 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 Town Superintendent, to someone or more of such trustees. Nor shall any alteration or regulation of an organized school district be made to take effect between the first day of December in any one year, and the first day of May following."
As the principal portion of the inhabited territory of the state has already been sub-divided into school districts, every formation of a new district will, to a greater or less extent, involve some alteration in districts previously existing. The consent of a majority of the trustees, therefore, of each district affected by such alteration, or a written notice thereof, to some one of such trustees, is in all cases indispensable to the validity of the proceeding. In the absence of such consent, the order of the Town Superintendent is, to use a legal phrase, inchoate, or in abeyance, until the expiration of three months after service of the notice required by law; and the districts to be affected by the proposed alteration remain, for all district purposes, in their original condition, the same as though no action whatever had been had.
All alterations made between the first day of December in any year, and the first day of May ensuing, should specify on their face that they are to take effect on or after the first day of May,and if after at what time.
The law has not prescribed any specific time within which the notice of the alteration must be given, where the consent of'trus-.' tees has been withheld; but it is obviously proper that such notice should be given at the time of the alteration, or as soon thereafter as may be practicable. A notice at any subsequent period would undoubtedly, however, be valid, and would amount to a republication of the order of the Town Superintendent; and at the expiration of three months from the service of such notice, the alteration would take effect. The consent of the trustees, when given, would appear from the record of the alteration, but in the absence of such proof, it may be established by other testimony. Whenever any portion of the inhabitants or territory of one district is annexed to another existing district, the consent of a majority of the trustees of each district must be procured, or the notice required by law must be given.
The consent of trustees to a proposed alteration in their district may be given either verbally or in writing; and it has even been held that their presence at the time of alteration, with full knowledge of the fact of such alteration, amounts, in the absence of any objection on their part, to a consent.— Com. School Dec. 59.
Persons attached to a district without the consent of trustees, may be transferred to another district at any time prior to the expiration of three months, and such new transfer amounts to a virtual abandonment of the original order.
The consent of trustees to an alteration in their district must in all cases have reference to the specific alteration proposed, and can not be general and unlimited.— Com. School Dec. 30.
The provision requiring the consent of trustees to detach persons from their district, and holding them three months without such consent, was made for the benefit and protection of the trustees, to whose injury the alteration might operate. For instance, trustees might have made contracts and incurred responsibilities which would operate oppressively, if some of the most wealthy were detached before they had time to collect the tax. And to carry this intention into effect, the act should be benignly and favorably construed for the protection of the trustees.—Id.
When the supervisor and town clerk are associated with the Town Superintendent in the formation or alteration of any district, a majority of the Board may make the requisite order.
Notice for the organization of a new District.
Whenever any school district is formed in any town, it is the duty of the Town Superintendent, within twenty days thereafter, to prepare a notice in writing, 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, who is bound to notify every other inhabitant of the district, qualified to vote at district meetings, by reading the notice in the hearing of each such inhabitant, or in case of his absence from home, by leaving a copy thereof, or of so much thereof as relates to the time and place of such meeting, at the place of his abode, at least six days before the time of the meeting. In case such notice shall not be given, or the inhabitants of a district shall refuse or neglect to assemble or form a district meeting, when so notified; or in case any such district, having been formed and organized in pursuance of such notice, shall afterwards be dissolved, so that no competent authority shall exist therein, to call a special district meeting in the manner hereinafter provided; such notice must be renewed by the Town Superintendent, and served in the manner above described.—54—56. (Nos. 76—78.)
The notice here required to be served on each voter in the district by the inhabitant to whom the Town Superintendent delivers the notice prepared by him, need not contain the description of the district referred to in the 54ih section. It is sufficient if it specify the time, place, and general object of the meeting. "It is necessary for the person notifying the inhabitants to have the district described, that he may know whom to notify. The inhabitant notified has no necessity for knowing who else is notified. The notice is to him as an individual. The same section defines the extent of this notice to individuals by saying, when the person is absent from home, he is to be warned by leaving at his place of abode a copy of the notice, or of so much thereof as relates to the time and place of meeting. This is clear and conclusive. It could not be necessary that a personal notice should be more full and particular than is required of a notice left in the absence of the person notified."—Per Flagg, SupH. Com. School Dec. 18.
If in consequence of the refusal of the trustees of the district or districts, from which a new district is formed, to consent to the proposed alteration, such new district cannot go into operation until after the expiration of three months from the service of notice of such alteration, the notice for the first meeting must be deferred until the expiration of such time; or at least must specify a day subsequent thereto for the holding of such meeting.
Where a meeting has been held and officers chosen under a notice given by the Town Superintendent, in the mode prescribed by law, a second notice for such organization cannot be given under the pretence that the proceedings of such first meeting were invalid or irregular.—Com. School Dec. 176.
On the formation of a new district, if notice for the first district meeting is not given within twenty days, it may be given subsequent to the expiration of that period: the provision requiring the notice to be given within that time being directory merely.—Id.358.
By § 50 of the school act, as amended by chap. 382, Laws of 1849, it is provided that "when two or more districts shall be consolidated into one, the new district shall succeed to all the rightsof property possessed by the districts of which it shall be composed, and when a district is annulled and portions thereof are annexed to other districts, the property of the district so annulled shall be sold by the town superintendent of the town in which the school house is located, at public auction to the highest bidder 10
therefor, after at least five days public notice by notices posted in three or more public places in said town, one of which shall be within the district so annulled, and the proceeds of such sale shall be first applied so far as requisite, to the payment of any just debts due from the district so annulled, and the residue thereof shall be apportioned among the taxable inhabitants of the district so annulled in the ratio of their several assessments upon the last corrected assessment roll of the town or towns with which such district is located."
Where there are any moneys in the hands of the officers of a district that is or may be annulled, or belonging to such district, the Town Superintendent of common schools of the town may demand, sue for, and recover the same, in their name of office, and is required to apportion the same equitably between the districts to which the several portions of such annulled district may have been annexed, to beheld and enjoyed as district property.—-Id. § b% (No. 74.)
The former provisions of law, authorizing the sale and apportionment of district property whenever a new district was formed from one or more districts possessed of a school house or other property, has been repealed: and no such sale or apportionment can take place except in the case of a dissolved district, as above specified.
Formation or alteration of Joint Districts.
By § 44, (No. 70) of the school act, it is provided that "whenever it may be necessary or convenient to form a district out of two or more adjoining towns, the Town Superintendents of each of such adjoining towns or the major part of them may form, regulate and alter such districts."
In accordance with the spirit of this provision, and of the adjudications under it, it is conceived that the assent of the Town Superintendent, either singly, or if the supervisors or town clerk are associated with him, of a majority of the officers of each of the towns from which a joint district is partly composed, is essential to the validity of any order forming or altering such joint district. In the formation of joint districts, the Town Superintendents, &c., represent their respective towns, and the rights of those whom they represent cannot be voted away by officers representing the inhabitants of another town. The principle has been settled by the decisions of Messrs. Flagg, Dix and Young, Superintendents, against the dissenting opinion of Mr. Spencer, that the law does not authorize the question of the formation or alteration of a joint district, to be settled by a joint ballot of the officers representing the several towns, from parts of which it is, or is proposed to be, composed. See Com. School Dec, 23, 174,
The moment a single district becomes joint, the action of the proper officers of all the towns of which it is a part is indispensable to give validity to any alteration in its boundaries; and such alteration, whether its effect is to change a joint to a single district, or to continue the joint district, can be made only by the concurrence of the representatives of each of the towns interested. This construction is in entire accordance with the whole tenor of the Superintendent's decision; and if it is not clear from the language of § 44 that such is the true meaning of that section, alldoubt on this point will be dispelled by reference to § 46, which provides for the case of a refusal on the part of the proper officers of one town to act with those of another, for the purpose of altering a joint district." Per DixSup'i. Com. School Dec. 174; modified in conformity to the existing provisions of law in reference to the proper officers to form, regulate and alter districts. At pages 248 and 253 of the same volume, the same principle is again distinctly recognized and enforced by the same Superintendent. "The consent of the trustees of a joint district to an alteration does not authorize the proper officers of one town to make it without the concurrence of those of the others of which it may be composed. Each town of which the district is a part, is concerned in its preservation, and it is only with the consent of the official authority of each town that its boundaries can be enlarged or diminished, excepting when the proper officers of one town refuse or neglect to meet those of the others when their attendance has been required."
By § 46, fNo. 72) above alluded to, it is provided that where the Town Superintendent of common schools of any town shall require in writing the attendance of the proper officers of any other town or towns, at a joint meeting, for the purpose of altering a school district formed from their respective towns, and a major part of the officers notified shall refuse or neglect to attend, those in attendance may, by a majority of votes, call a special district meeting of such district, for the purpose of deciding on such proposed alteration; and the decision of such meeting shall be as valid as if made by the proper authority of all the towns interested; but shall extend no further than to dissolve the district formed from such towns. The effect of such a dissolution would be to cause the inhabitants and territory of each of the towns from parts of which the joint district had been composed, to revert under the separate jurisdiction of the proper officers of the respective towns, who might make such disposition of them as they should deem most expedient and proper.
Single districts are frequently transformed into joint districts by operation of law, on the division of towns and counties, or the alteration of their boundaries. A district intersected by the line of division between a new town and the town from which it was taken, becomes a joint district, and is thereafter subject to the pri&~ %iples and provisions of law applicable to joint districts.