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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 trustees 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 se. curity, or should lend it to him on his simple note, or should join with the other in lending it on insufficient se. curity, 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 li. able. And if it be mutually agreed between them tha! 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, “the debt, damages or costs ren covered against them, shall be collected in the same manner as against individuals; and the amount so collected shall be allowed to them in their official accounts.” It is presumed that this provision does not relate to actions for personal delinquencies, 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 moneys 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 can not be diverted to any other.
By $ 33, of the act of 1841, (No. 167,) “ 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 deci. sions of the Superintendent."
IX. MISCELLANEOUS PROVISIONS APPLICABLE TO TRUSTEES.
1. SCHOOLS FOR COLORED CHILDREN. By 15, of the act of 1941, (No. 168,) 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 five and under sixteen years of age attending such school from different districts, naming such districts respectively, and the number from each attending for four 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 legal 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 chil dren 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.
2. BOND TO BE REQUIRED OF THE COLLECTOR.
Trustees are authorized by $ 106, (No. 156,) to require of the collector of their district, before delivering to him any warrant for the collection of moneys, to execute a bond to them, in their coporate name, with one or more sureties, to be approved by one or more of their number, in double the amount to be collected, conditioned for the due and faithful execution of the duties of his office: and in case any collector shall not execute such bond within the time allowed him by the trustees for that purpose, which shall not be less than ten days, his office is vacated, and the trustees are authorized to appoint any other person residing in the district as collector in his place.
It is strongly recommended to trustees to exact of the collector, the bond required to be given by hin, under the 106th section of the school law, whenever 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 rate-bills, and promote system and regularity in the financial affairs of the district.
Form of a Bond to be given by a 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 stat. utes 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 the moneys assessed upon the taxable inhabi. tants of said district, in a rate-bill or tax list, (as the case may be,] dated the day of and this day received by the said col. lector, which assessment amounts to a total sum of
dollars and cents, and shall in all respects duly and faithfully execute the said warrant, and 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, ?
A. B. [L. 8,] in the presence of
C. D. (L. 8.]