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ions. And if it was misapplied before there was a reasonable opportunity to control it, he would not be responsible.
2. When by any positive act, direction or agreement, of one joint trustee, the money is paid over and comes to the hands of the others, when it might and should have been otherwise controlled or secured by both, then each will be chargeable for the whole.
There is great difficulty in applying this rule to the case of krustees of common schools. The money for distribution cannot be in the hands of more than one; there are ordinarily no means of insuring a control over it by all, by depositing it in a bank or other place of security, and there is no authority by which any two trustees could require the third to give security for its faithful disbursement. One has as much right to its custody as another. The simple fact, therefore, that public money has been received by one and misapplied, cannot in itself render the others liable. It would seem therefore, that there should be some act of omission or commission on the part of the others to render them liable for the misconduct of their associate ; and here the following rule seems better adapted to the case:
3. If one trustee wrongfully suffer the other to detain the trust money a long time in his own hands without security, or should lend it to him on his simple note, or should join with the other in lending it on sufficient security, in all such cases he would be held liable for any loss. Of course, a trustee who has connived at or been privy to an embezzlement of the trust money would be liable. And if it be mutually agreed between them that one shall have the exclusive management of one part of the trust property, and the other of another part, both would be liable for the acts of each.
Considering the equal rights and powers of each trustee, that the law has made no provision for requiring security from them, and the gross injustice of making an officer responsible for the misconduct of an associate over whom he has no control, they Ought not to be held liable for each other's acts unless there be some evidence of participation or connivance, like those specified in the third class of cases above mentioned.
By section 108, of title 4, chap. 8, part 3, Rev, Stat., p. 476, vol. 2, 1st edition, ($ 112, p. 390, 2d edition, vol. 2,] it is provided that in suits against trustees of school districts, and other officers, 6 the debt, damages or costs recovered against them, shall be collected in the same manner as against individuals; and the amount 80 collected shall be allowed to them in their official accounts." It is presumed that this provision does not relate to actions for personal delinquences, but to those only which arise out of an official duty. As the recoveries are to be "allowed them in their accounts," it is implied that they may retain the amount of monies in their hands, and set off the sums recovered. But this cannot apply to the public school moneys, as those moneys are appropriated by law to specific purposes, and cannot be diverted to any other,
By § 146, of the act of 1847, (No. 169,) it is provided that." in any suit which shall hereafter be commenced against Town Superintendents of common schools, or officers of school districts, for any act performed by virtue of, or under color of, their offices, or for any refusal or omission to perform any duty enjoined by law, and which might have been the subject of an appeal to the Superintendent, no costs shall be allowed to the plaintiff in cases where the court shall certify that it appeared on the trial of the cause that the defendants acted in good faith. But this provision shall not extend to suits for penalties, nor to suits or proceedings to enforce the decisions of the Superintendent.”
By § 1, of chap. 172, laws of 1847, as amended by chap. 388, laws of 1849, it is provided that “whenever a suit shall have been commenced, or shall hereafter be commenced against the trustees of a school district, in consequence of acts by them performed in pursuance of and by the direction of such district, for any act performed by virtue of, or under color of their office, and such suit shall have been finally determined, or whenever after the final determination of any suit commenced by or against any trustees or other officers of a school district, a majority of the taxable inhabitants of any school district shall so determine, it shall be the duty of the trustees to ascertain in the manner hereinafter described, the actual amount of all costs, charges and expenses paid by such. officer, and to cause the same to be assessed upon and collected of the taxable inhabitants of said district, in the same manner as other taxes of said district are by law assessed and collected, and when so collected to pay the same over to the officer, by virtue of this act, entitled to receive the same; but this provision shall not extend to suits for penalties, nor suits or proceedings to enforce the decision of the superintendent.
By § 2. “Whenever any person mentioned in the first section of this act shall have paid any costs, charges or expenses as mentioned in said first section, he shall make out an account of such charges, costs and expenses so paid by him, giving the items thereof, and verify the same by his oath or affirmation; he shall serve a copy of said account so sworn to, upon the trustees of the district against which such claim shall be made, together with a notice in writing that on a certain day therein specified, he will present such account to the board of supervisors of the county in which such school district shall be situated, for settlement at some legal meeting of such board; and it shall be the duty of the officer upon whom such copy, account and notice shall be served, to attend at the time and place in such notice specified, to protect the rights and interests of such district upon such settlement.
$ 3. “Upon the appearance of the parties, or upon due proof of service of the notice and copy of account mentioned in the second section of this-act, if the said board shall be of opinion that such account or any portion thereof ought justly to be paid to the claimant, such board máy by an order to be made by a majority of all
the members elected to the same, and to be entered in its minutes, require such account or such part thereof as such board shall be of opinion ought justly to be paid to the claimant, by such district to be so paid; but no portion of such account shall be so ordered to be paid which shall appear to the said board to have arisen from the wilful neglect or misconduct of the claimant. The account, with the oath of the party claiming the same, shall be prima facie evidence of the correctness thereof. The board may adjourn the hearing from time to time as justice shall seem to require.
§ 4. “It shall be the duty of the trustees of any school district, within thirty days after service of a copy of such order upon them to cause the same to be entered at length in the book of records of said district, and to issue to the collector of said district a warrant for the collection of the amount so directed to be paid, in the same manner and with the like force and effect as upon a tax voted by said district.”
It will be perceived that two classes of cases are here alluded to. 1st. Where suits have been brought against trustees, in consequence of the performance of any official act by them, and such süits shall have been finally determined ; in which case, the trustees may at once make out their account of costs, charges and expenses, verify the same, and present it to the Board of Supervisors, without any action on the part of the district; or they may, in their discretion, procure a vote of the district to that effect : and 2d, When suits have been brought by or against any trustees, or other officers of a school district, and such suits shall have been finally determined ; in which case, (with the exception of suits brought against trustees, as above referred to,) a vote of the district is necessary to authorize an account of the costs, charges and expenses, to be made out, as provided by the second section, and laid before the Board of Supervisors. In both cases, no tax can be levied on the district for the amount of such costs, charges and expenses, except on the order of the Board of Supervisors, as specified in the third section.
IX. MISCELLANEOUS PROVISIONS APPLICABLE TO TRUSTEES.
1. SCHOOLS FOR COLORED CHILDREN.
By $ 147, of the act of 1847, (No. 179,) a school for colored children may be established in any district, with the approbation of the Town Superintendent, which is to be under the charge of the trustees of the district in which such school is established. Trustees, in their annual reports, are also required particularly to specify the number of such children over four and under twenty-one years of age attending such school from different districts, naming such districts respectively, and the number from each attending for six months, and instructed by a duly qualified teacher, which report is to form the basis of an apportionment to such' school, by the Town Superintendent, of a share of the public money Full and explicit instructions to Town Superintendents and trustees, and the necessary forms for reports in relation to these schools, will be found under the appropriate heads.
The provisions contained in this section are more particularly applicable to those cities and large villages where no special logal provisions have been made for the instruction of colored children. The means provided, are, it is true, altogether insufficient to meet the expense which must necessarily be incurred in the organization of these schools; and inasmuch as the class of community for whose special benefit they are intended is generally unable to contribute to such expense in any considerable degree, the object in view can seldom be fully attained, but through the efforts of charitable and benevolent individuals in the several districts from which the colored schools are composed. These efforts have hitherto been paralyzed by the absence of any legal power to effect the necessary organization ; and the provision now made, was doubtless intended to supply that defect, and to furnish a nucleus around which the benevolent exertions of the friends of education and humanity might be concentrated. If, however, in any of the country districts, a colored school can be organized and efficiently kept up for the requisite length of time, it is hoped no efforts will be spared to carry into effect the provisions of the section. Colored children are entitled equally with all others, to the privileges and advantages of the district school: and wherever they can be grouped together in a separate school, under the charge of a competent teacher, they will be far more likely to derive the full benefits of such instruction as may be best adapted to their circumstances and condition, while at the same time, the disadvantages inseparable from their attendance at the district school, will be avoided.
By Chap. 228 of the laws of 1845, (Nos. 174-178,) it is provided that no person shall wilfully disturb, interrupt or disquiet any assemblage of persons met at any school district, with the assent of the trustees of the school district, for the purpose of receiving instruction in any of the branches of education usually taught in the common schools of this state, or in the science of music. Whoever shall violate the provisions of the foregoing section, may be tried before any justice of the peace of the county, or any mayor, alderman, recorder, or other magistrate of any city where the offence shall be committed ; and upon conviction, shall forfeit a sum not exceeding twenty-five dollars, for the use and benefit of the school district in which such offence shall be committed. It shall be the duty of the trustees of any school district in which any such offence shall be committed, to prosecute such offender before any officer having cognizance of such offence. If any person convicted of the offence herein probibited, shall not immediately pay the penalty incurred, with the costs of conviction, or give security, to the satisfaction of the officer before whom such conviction shall be had, for the payment of the said penalty and costs within twenty days thereafter, he shall be committed by warrant to the common jail of the county, until the same be paid, or for such term, not exceeding thirty days, as shall be specified in such warrant. It shall and may be lawful for any person who may be complained of for a violation of the provisions of this act, to demand of such magistrate that he may be tried by a jury. Upon such demand, it shall be the duty of such officer to issue a venire to the proper officer, commanding him to summon the same number of jurors, and in the same manner, and the said court shall proceed to empannel a jury for the trial of said cause, in the same manner and subject to all the rules and regulations prescribed in the act providing for the trials by jury in courts of special sessions."
2. BOND TO BE REQUIRED OF THE COLLECTOR. Trustees are authorized by § 103, (No. 126,) to require of the collector of their district, before delivering to him any warrant for the collection of moneys, a bond with one or more sureties conditioned for the faithful performance of the duties devolved upon him as such collector.
It is strongly recommended to trustees to exact of the collector, the bond authorized under this section of the school law, before any warrant is placed in his hands. This practice will be attended with very little trouble, and will secure the district from all loss, and the trustees themselves from personal liability, in many instances. It will also secure the prompt collection of taxes and promote system and regularity in the financial affairs of the district.
Form of a Bond to be given by aTM District Collector. Know all men by these presents, that we, A. B. and C. D., (the collector and his surety,) are held and firmly bound to E. F. and G. H. &c., trustees of school district number in the town of in the sum of (here insert a sum double the amount to be collected,) to be paid to the said E. F., G. H., &c., trustees as aforesaid, or to the survivor or survivors of them, or their successors; to the which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated this day of 18 &c.
Whereas the above bounden A. B. has been chosen (or appointed, as the case may be,) collector of the above mentioned school district number in the town of
in conformity to the statutes relating to common schools ; now, therefore, the condition of this obligation is such that if he the said A.' B. shall well and truly collect and pay over all moneys received by him as such collector and shall in all respects duly and faithfully execute all the duties of his office as collector of such district, then this obligation shall be void, otherwise to be in full force and virtue. Signed, sealed and delivered, in the presence of
A. B. (L. S.
C. D. (L. S.