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trustees, or either of them, at the time of rendering the account, shall immediately be paid to some one or more of their successors in office. Every trustee who shall refuse or neglect to render such account, or to pay over any balance so found in his hands, shall, for each offence, forfeit the sum of twenty-five dollars. It shall be the duty of his successors in office to prosecute, without delay, in their name of office, for the recovery of such forfeiture; and the moneys recovered shall be applied by them to the use and benefit of their district schools. Such suecessors shall also have the same remedies for the recovery of any unpaid balance in the hands of a former trustee, or his representatives, as are given to the Town Superintendent of common schools against a former Superintendent and his representatives: and the moneys recovered shall be applied by them to the use of their district, in the same manner as if they had been paid without suit. All bonds or securities taken by the trustees from the collector of their district, shall, on the expiration of their office, be delivered over by them to their successors in office."
I. SUITS BY AND AGAINST TRUSTEES.
1. SUITS BY TRUSTEES.
By Ø 4, of chap. 44, Laws of 1831, (No. 88,) trustees are authorized to sue for and recover the moneys. due upon any security taken by them, or their predecessors in office, on the sale of the school-house and site of their district, in the cases provided for by that section, with interest and costs.
By $ 87, R. S. (No. 126,) the trustees are authorized to sue for and recover the value of, or amount paid for, the proportion of fuel which any inhabitant of the district shall neglect to provide, on notice, together with costs of suit.
By $ 89, (No. 133,) trustees are authorized to prosecute for the amount due on a tax list or rate-bill, against nonresidents of their district, where no goods or chattels can .be found in the district whereon to levy.
By $ 90, (No, 135,) they are directed, in case the moneys apportioned to their district are withheld by the Town Superintendent, to prosecute for the recovery thereof, with interest, or to pursue such other remedy for the recovery thereof, as is or shall be given by law. This provision, it is supposed, is applicable only to cases of illegal detention in the hands of the Town Superintendent, of money apportioned to a district, and not to the withholding of such money in consequence of the discovery of some illegality or informality in the reports from the districts. Where the right of the district to its share is incontestible, and the amount is still with held for any reason, the trustees are directed to prosecute, and the proper remedy in such a case, would be an action of assumpsit for money had and received to the use of the district or teacher against such Town Superintendent.
By $ 101, (No. 151,) trustees are directed to prosecute their predecessors for the recovery of the forfeiture of twenty-five dollars, incurred by a refusal or neglect to account, or to pay over any balance due from them, on the expiration of their term of office, and to apply the money recovered to the use and benefit of their school ; and by $ 102, (No. 152,) in connection with Ø 40, (No. 48,) they are authorized to prosecute for any unpaid balance in the hands of a former trustee, or his representatives, and directed to apply the amount recovered to the use of the district, in the same manner as if it had been paid without suit.
By $ 109, (No. 159,) they are also authorized to prosecute for the recovery, with interest and costs, of all forfeitures incurred by a collector, and unpaid balances in his hands, and to apply the moneys recovered in the same manner as if paid without suit.
By $ 9, of the act of 1841, (No. 73,) trustees are to prosecute for the recovery of the fine of ten dollars, with costs of suit, imposed upon any inhabitant voting at any school district meeting without being qualified.
2. SUITS AGAINST TRUSTEES. It is conceived that an essential service may be rendered to officers connected with common schools, by informing them of some general principles to show the extent of their liability to suits by individuals.
Officers required by law to exercise their judgments are
not answerable for mistakes of law, or mere errors of judgment, without any fraud or malice. Jenkins vs. Waldron, 11th Johnson's Reports, 114.
A public officer who is required by law to act in certain cases, according to his judgment or opinion, and subject to penalties for his neglect, is not liable to a party for an omission arising from a mistake, or want of skill, if acting in good faith. Seaman vs. Patten, 2d Caine's Re ports, 312.
But an officer entrusted by the common law or by stat: ute is liable to an action for negligence in the performance of his trust, or for fraud or neglect in the execution of his office. Jenner vs. Joliffe, 9 John. Rep. 331.
And an officer who commands an act to be done by issuing a warrant or other process, if he act without jurisdiction of the subject matter, or of the person, is liable as a trespasser. Horton vs. Auchmordy, 7 Wendell, 200. But if he have jurisdiction, errors in judgment do not subject him to an action.
Mere irregularities in proceedings will not render an officer, having discretionary powers, or acting as a judge, liable to a civil suit. There is a large class of cases, in which the remedy is only by plea to the proceedings or by writ of error.- See Butler vs. Potter, 17 Johns. 145, and Griffin vs. Mitchell, 2 Cowen's Rep. 548.
The collector or other officer who executes process, has peculiar prolection. He is protected, although the court or officer issuing such process, have not, in fact, jurisdiction of the case ; if on the face of the process it appears that such court or officer had jurisdiction of the subject matter, and nothing appears in such process to apprise the officer but that there was jurisdiction of the person of the party affected by the process.—Savacool vs. Boughton, .5 Wendell's Reports, 170.
A contract made by all the trustees, and signed by two, is binding; and where a contract is signed, or a warrant issued, by two trustees, the presence of the third will be presumed until the contrary be shown. Two trustees can contract against the will of the third, if he was duly noti. fied of a meeting of the trustees, or was consulted and refused to act. - Mckoy vs. Courtree, 9 Wen. 17.
Where a district votes a tax to purchase a new site and
build a school-house thereon, where the consent of the Town Superintendent had not been obtained for a change of the site, (the district not being an altered one,) the trustees are liable in trespass for making out a tax list and issuing a warrant for the collection of such tax; on the ground that the district had no authority to vote such tax.- Baker vs. Freeman, 9 Wendell, 36.
Trustees are not liable as trespassers for omitting to insert the names of all the taxable inhabitants in the tax list, where there is no evidence of bad faith on their part. -Easton vs. Calendar, 11 Wendell, 90.
Subordinate tribunals are not liable as trespassers for acts done growing out of an error of judgment.—Ib.
Trustees are liable in trespass for making out their tax list upon any other basis than the last assessment roll of the town, after it has been reviewed and finally settled by the assessors.-Alexander vs. Hoyt, 7 Wend. 89.
Inhabitants of a district must vote a precise and definite sum as a tax for building a school-house, or any other purpose, and trustees will not be authorized to issue their warrant to levy a tax under a general vote.-Robinson vs. Dodge, 18 Johns. 351.
Trustees in office are liable on the contracts of their predecessors for the employment of teachers, personally, because they have the means of indemnifying themselves, and those who made the contract are not liable after the expiration of their term of office.-Silver vs. Cumming, 7 Wendell, 181.
The court intimate a distinction between those cases where the trustees are not to act unless money is previ ously raised, and those where it is to be collected subsequent to the performance of the work. In the first class of cases they are not to incur responsibilities beyond the means in their possession; they render themselves personally responsible, and their successors' are not holden. The first class of cases would seem to include those only which are specified in sub. 5, of $ 75, (No. 103,) and those in which blank books, maps, globes, black boards, and other school apparatus may be procured by means of a previous tax. In these cases successors are supposed not to be liable, unless money comes into their hands for the purpose.
In all other cases, it is supposed successors are liable on the contracts of their predecessors.
It is quite important to trustees to know that the decisions of this department have been, uniformly, that their costs in any suit cannot be paid by a vote of the district to levy a tax for that purpose; as the only purposes for which a tax can be voted are specified in the statutes, and this is not among them.
Questions respecting the liability of trustees for their joint acts, and for the acts of each other, are .frequently presented. It becomes proper to state the grounds. and limits of their responsibility in this respect, that they may be better enabled to guard against its consequences.
The object being to secure fidelity to the trust and to prevent negligence and fraud, the rules which govern in the cases of executors, guardians and other private truste ees, must be applicable to officers holding a similar fiduciary relation to the public, and therefore the principles which have been settled in those cases by the courts, will be the guide in determining the extent of the liability of trustees.
The general rule, as laid down by an eminent jurist, (Story on Equity Jurisprudence,) and sustained by the adjudged cases, is, that joint trustees are responsible only for their own acts, and not for the acts of each other, unless they have made some agreement by which they have expressly agreed to be bound for each other; or have, by their voluntary co-operation or connivance, ena. bled the other to accomplish an object in violation of the trust. This rule is exemplified in the following cases :
1. Where money has been received jointly, all are in general liable for its application, and a joint receipt is presumptive evidence of the fact that it came to the hands of all; but either may show that his joining in the receipt was formal or necessary, and that the whole of the money was in fact received by his companions. 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