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the trustees can “inquire into and ascertain the same from the best evidence in their power." Sec. 25, act of April 12, 1819.*

Where there is a known error in the town assessment, the trustees may correct it in the district assessment. For instance; if a resident of the district should purchase or sell a lot after the town assessment had been made, the trustees would be required to vary the district assessment accordingly. But where there is no change in the property of the individual, and the valuation is a matter of opinion merely, the trustees must be guided by the assessment roll of the town, even though in their judgwent a farm be worth more or less than the estimate put upon it by the town assessors.

Edmund Whittier against the inhabitants of school

district No. 11 in the town of Ogden. An appeal to the Superintendent will not be entertained when the point at issue

has been settled by an adjudication upon the same case in a court of competent jurisdiction.

This was an appeal from the proceedings of a meeting of the inhabitants of school district No. 11 in the town of Ogden, at which a tax of $250 was voted to build a school-house. The facts are fully set forth in the decision of the Superintendent.

By A. C. FLAGG, June 23, 1826. It is alleged that the vote imposing the tax was carried by the admission on the part of the moderator of the illegal votes of William Hill and Alsen Smith,

The appellant has presented a number of affidavits to show that Hill and Smith, in the opinion of those who testify, were not legal voters. The affidavits set forth generally that the persons testifying have no knowledge that Hill and Smith were legal voters, and from their situation and circumstances do not believe they were.

On the other side, the record of proceedings before a magistrate is produced and duly authenticated, by which it is shown that Hill and Smith were prosecuted for having voted, without being entitled to vote by law, and that on the trial of the cause it appeared that they were legal voters at the time of the meeting, from the proceedings of which the appeal is brought. In addition to this, Smith and Hill testify that they were at the time of the meeting worth fifty dollars in taxable property.

The Superintendent feels bound to recognize the decision of the court as having settled the point that Hill and Smith were legal voters. This being the only point at issue, it is ordered, that the appeal in this case be dismissed.

• Sec. 79 and 80, pages 482 and 483, vol. 1, R. S.

Zeno Allen and others against the Trustees of school

district No. 1 in the town of Hounsfield. If the children residing in a school district are too numerous to be instructed in one school, the trustees may hire one or more additional teachers and the necessary rooms for the accommodation of the additional schools, when authorized by a vote of the inhabitants; but the compensation of the teachers must be provided for in the same manner as though only one instructer had been

employed. The daily opinions of the Superintendent, given in reply to abstract questions and ex parte representations, are not to be classed among those decisions which the law declares to be final.

This appeal was brought from the decision of the majority of the trustees of school district No. 1 in the town of Hounsfield, under the following circumstances :

The inhabitants of the district, which was composed of the village of Sackett's Harbor, finding the number of children too great for one school, and disagreeing as to the division of the district, voted, at a meeting held on the 8th of January, 1824, that the trustees should employ one or more additional teachers, and hire separate rooms for them, and voted a tax to pay the rent. They also voted that the public money should be divided among the teachers in proportion to the number of scholars taught in each school. These proceedings were sent to the Superintendent, (John V. N. Yates) who sanctioned and confirmed them, and ordered them, together with his approval, to be recorded in the town clerk's books..

In the fall of 1824, the trustees hired two teachers and a room for the additional school, and gave the inhabitants permission to send to either, as they might choose. The result was that the number of scholars in one of the schools was nearly double the number in the other. This circumstance gave rise to a difference of opinion among the trustees: two of them were in favor, of applying the public money equally to the compensation of the teachers, and assessing the balance on the patrons of the schools in proportion to the number of days sent to either or both. The other trustee objected to that mode of compensating the teachers, and obtained an opinion from the Superintendent in favor of his own, which was in conformity to the vote of the inhabitants of the district on the 8th Jan. 1824. Being overruled by a majority of the trustees, an appeal was brought in the spring of 1826, from the determination of the latter to provide for the payment of the wages of the two teachers without regard to the number of scholars taught by each.

By A. C. FLAGG, June 20, 1826. In whatever light this question is taken, I conceive that district No. 1 must be considered one district under the control of one set of trustees, and that all the rules for the government of distinct districts are applicable to this. The law in providing for the distribution of the

public money, recognizes certain geographical divisions ; such as counties, towns and districts. In the 5th section of the act of 1819,* the Superintendent is required “ to apportion the said sum of money among the several counties of this state, and the several shares of such counties among the several towns and cities thereof," in the ratio of the population “of such counties and towns or cities.” The 15th section requires the commissioners to apportion the public money received by them “according and in proportion to the number of children between 5 and 15," &c.t . And the 26th section, taken in connexion with the 25th, provides that the trustees shall “ agree with and employ all teachers to be employed" in the district; and to pay the wages of such teachers out of the moneys which shall come into their hands," &c., and “the residue of the wages of such teachers shall be collected by the trustees" by a tax which is to be assessed upon the inhabitants of the district, “according to the number of days for which each” person shall be liable to pay for instruction, &c. Mr. Hawley, who drafted the law of 1819, in his exposition of this part of the act, says: “ All who reside in the district, and attend the school, as they may of common right, must necessarily participate equally in the benefit of the public money; for as it must be applied to the payment of teachers' wages generally, without reference to any particular scholars, it will reduce the amount which would otherwise be payable by each employer, alike to all. If a district be formed out of two or more adjoining towns, and the trustees receive money from each town, they must nevertheless consider it as one common fund, and apply it for the benefit of all alike, in the same manner as if they were one entire district in one town." • In authorizing the Superintendent, the commissioners and the trustees to apportion and distribute the public money, the law recognizes the principle of graduating the apportionment according to the population and number of scholars, and equally among the different individuals of the same district.

It is the duty of the trustees to “ employ all teachers” and to furnish such an amount of tuition as the necessities of the district require; and they are bound to furnish to each individual of the same district tuition at the same rate. Three teachers were hired and the trustees assured the inhabitants that the price of tuition should be alike to all. But by applying the rule contended for in this case, a person who has sent six children to Shepard would have to pay $14.46, while a person sending the same number to Chaplin would have to pay only $4.08; and

* Sec. 3, page 467, vol. 1, R. S., as amended by the act of April 20, 1880, chap. 320 of the laws of that year, sec. 5 and 6.

† Sub, 6 of sec. 20, page 470, vol. 1, R. S.
| Sub, 7 and 8 of sec, 75, page 481, vol. 1, R. S.

all in the same district. There is no authority in the law for such an unequal distribution, and I conceive that it is irreconcilable with the principles of equity. What equivalent is given to the patrons of Shepard's school to warrant this great disproportion in the assessment ? None, which is entitled to consideration. The patrons of the small school are not formed into a separate district by their own request, and designated by name as belonging to one school, nor are they bounded by the designation of certain geographical lines on account of any local accommodation to their children. But the taxable strength of their sub-district is to be settled by chance; subject to be affected by the inclination or caprice of others. They continued in good faith in the school, as requested by the trustees, relying upon the assurance that the charge for tuition would be alike upon all the members of district No. 1. Their neighbors changed to the other schools, and thus left the parents of thirty scholars, who had no volition in the case, to pay as much for tuition as the parents of a hundred scholars; and all this under the authority of the same trustees. This view of the subject is forcibly illustrated by the fact that soine members of the district actually sent to all three of the schools. And here it might be well to enquire what rule the trustees should adopt in making out the assessment against a person who should have sent to all the schools: Should it be 87 mills per day for the time sent to Chaplin; 2 cents for the time sent to Everett; and 3 cents for the time sent to Shepard ? In this way, they might require a different scale of assessment for almost every person in the district.

As to the vote of the district it is only necessary to say that a tax voted by a district meeting must be an equal tax, according to property, upon all the inhabitants of the district. The resolution passed in Jan., 1824, contemplated a division of the public money according to the number of scholars taught in each school." It was expected, no doubt, by the meeting, that the schools would be equally attended, and consequently the money equally apportioned. It is not to be inferred from the terms of this resolution that the meeting could have contemplated an inequality in the distribution of the public money or in the apportionment of the tax. This inequality was caused by those who disregarded the efforts of the trustees in their attempt to equalize the schools. But the present trustees are protected by a subsequent vote of a meeting, which is, “ That the teachers' wages. be paid by a tax on the scholar, after the public money is expended." This was a vote taken at a meeting of the whole district; it must have had reference to all the inhabitants of that district taken collectively, and to the aggregate amount of tuition required for district No. 1. In collecting the teachers' wages "by a tax on the scholar," it was the obvious duty of the

trustees to assess each person according to the number of scholars sent by him; that is, in proportion to the amount of tuition which had been received by his children, having relation to all the other inhabitants of the district. It could not have had reference to the number of scholars which might by chance be sent to one or the other of the three schools.

The opinion given by the Superintendent to the trustees of 1824, could only apply to that special case. It could not be considered permanent in its character, on the ground that it was the Superintendent's construction of the school act; for a different rule is established in that act in regard to taxes and distributing the public money in districts. And the appellants cannot claim an adherence to its principles as a decision under the 7th section of the act of 1822. That act provides that persons aggrieved by decisions of the trustees, &c., may appeal to the Superintendent," whose decision thereon shall be final.The fact of establishing a tribunal from which there is no appeal, does not consequently give the Superintendent unlimited jurisdiction. So far from this it ought to be an admonition to exercise this authority with great caution and circumspection, and not until after a hearing of both parties, and an examination of all the facts in the case. In this case, the opinion of the Superintendent appears to have been given on an ex parte representation, and must be considered merely advisory, and applicable to that special case, based upon the representations made. It is only in cases of appeal that the decisions of the Superintendent are declared by the law to be final; and in such cases the law pre-supposes that there will be a hearing of both sides and a full investigation of the rights of both parties, preparato. ry to making such decision. The daily opinions of the Superintendent given in reply to abstract questions and ex parte representations, cannot be classed among those decisions alluded to in the act of 1822, and which are declared to be final. It would be unjust to allow the opinions thus given, in reply to abstract questions, to affect the rights of individuals beyond the cases in which they were specially given.

Jf it is contended that those who sent to the large school relied upon the order of the Superintendent, it might be asked in what respect they have injustice done them? According to the decision of a major part of the trustees, they are called upon to pay only an equal proportion of the expense of the tuition which was requisite for the first district. Is this a hardship? What entitles them to exemption? The only reason urged by the appellants is, that their children suffered the inconvenience of attending a crowded school. But this was a matter of choice with themselves; and if they sent an unreasonable number of scholars to the school, against the wishes of the trustees, they cannot expect to take advantage of their own wrong.

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