specified in the notice, and the meeting has adjourned, have no right to call for a reorganization, and much less right to organize a new meeting. Per Spencer, May 5, 1841.

When the district has given no direction, and the trustees have already appropriated the public money to a particular term of school, the district has no further control over the disposition of it. In the absence of any specific directions by the district the trustees can apply the money as they may deem best for the interests of the schools.

Per Spencer, June 15, 1841..

When a site has been designated and a tax raised for building a school-house, a building committee may be appointed by the meeting. But contracts are to be made and money to be paid out by the trustees, and the building committee must be regarded as the agents of the trustees, to carry out the direction of the meeting. As agents of the trustees, the latter will be responsible for the fulfillment of their contracts up to the amount of the tax.

Per Spencer, June 19, 1841.

The acts of trustees, defacto, holding office under color of an election, subsequently declared void and set aside, are valid, and binding upon their successors.

Samuel S. Lord and John S. Panlow, were elected trustees of District No. 6, Lincklaen, at a meeting which was, on appeal, decided to be illegal, and the proceedings thereat void.

Before the decision, however, the trustees had contracted to build a school-house, in accordance with the proceedings of the meeting at which they were elected, and had hired a teacher for the winter school, and agreed to pay him $24 of the public money, and had levied and partly collected a tax of $50, voted by said meeting toward building the school-house.

Their successors refused to fulfill their contracts, and they appealed. Held, that until the decision declaring void the proceedings of the meeting that elected them, they were to all intents and purposes the legal officers of the district, so far as the public and third persons were concerned. They acted in their official and not in their individual capacity, for the district and not for themselves. The collection of the tax assessed by them could not be resisted; all their contracts made within their official jurisdiction were legal and binding. They were competent to transact all the business of the district. Their successors, under the decision, succeeded not merely to all their rights, but also to all their legal liabilities, and were bound to execute all their contracts entered into while acting under color of a legal election.

Per Spencer, June 25, 1841.

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If commissioners withhold assent to raise a tax larger than $400, their refusal is subject to review upon appeal.

The inhabitants of the village of Cuba had been united in one district by the consolidation of two others. They had been offered a site for a school-house, in a central and commodious location, upon the sole con sideration that they should erect upon it a house worth $800. They unanimously voted to accept the site and raise the tax, and applied to the school commissioners for consent to levy that sum. Consent was refused on the ground that the consolidation of the districts would be the means of breaking up the select school hitherto maintained in the district, and further that the inhabitants were unable to bear the increased burdens of such an organization.

The commissioners have a discretionary power to grant, or refuse their consent. But in this case it was not wisely exercised. They were bound to have a stronger interest in the improvement of the common schools, than in the welfare of a private select school. The inhabitants, who ought to understand their own interests, and know their pecuniary resources, had unanimously resolved to raise the tax, and shoulder the burden of the new organization. The commissioners ought not to assume that they had overestimated their ability.

The majority of the inhabitants of a district, may consist of persons destitute themselves of pecuniary resources, and desirous to avail themselves of the property of the minority to build an unnecessarily costly school-house for the district. The check, which the commissioners possess, to abuses like this, is wise and salutary, and that check was undoubtedly conferred, with a view to the possible happening of cases of this description.

The discretion exercised in this case, like that of granting or refusing a certificate to a teacher, is the subject of appeal. The authority of the superintendent upon appeal, extends to all matters arising under the school laws. His decisions have been treated as conclusive by the courts, and acquiesced in by the legislature and the people.

The commissioners were ordered to give their consent to the tax of $800.

Per Spencer, July 19, 1841.

Subsequently the same case came up a second time, on the refusal of the commissioners to obey the order of the superintendent. The previous decision was sustained and enforced in an elaborate opinion, from which we take the portions treating of discretionary powers, and the appellant jurisdiction of the school department.

The discretion of public officers is a legal one, to be governed by sound principles, and not by the capricious whim of the individual, and the instances are frequent, where courts of law regulate and direct the exercise of discretionary power by officers, where third persons have an interest in such exercise. The only discretion which courts do not undertake to control, is that which, according to Justice Sutherland, 5 Wendell, 125, 'is not and cannot be governed by any fixed principles

and rules. Few matters would seem more susceptible of the application of fixed rules, than the size of a school-house, necessary to accommodate properly a given number of children, the amount of money required for its construction, and the ability of a district to raise a given sum. So that even upon any of the ordinary processes of law, this would be a case where the discretionary power of commissioners could be regulated and controlled. But when we consider that a tribunal has been erected for the express purpose of supervising all the officers engaged in the administration of the common school system; that there is scarcely an act to be performed by them, which does not involve more or less discretion, and that an appeal is given from all these acts in the most comprehensive terms; we see at once that the rules which would govern legal proceedings on common law process, are not the proper guides, and that we must recur to broader and more enlarged principles.

"The word appeal comes from the civil law, and its nature and office is to substitute the appellate tribunal for that whose acts are examined; and if the case be one involving discretion, then the appeal invokes that very discretion in the superior, in the same manner and to the same extent that it was possessed by the inferior. 'The cause is in the appellate court' say the supreme court of the United States, in 1 Wheaton 112 as if it were in the inferior court."

"The great majority of cases decided in this department are those involving more or less discretionary power.

"The statute itself enumerates many cases that are entirely of a discretionary character. The decisions of district school meetings upon any subject upon which they are competent to act, such as the designation of the site of a school-house, the amount of money to be raised by tax, and the omission to levy taxes, involve large discretion, but are nevertheless subject to appeal by the express words of the law. The formation and alteration of school districts, must be guided by a sound judgment upon various facts and circumstances, such as the number of children, the amount of taxable property, the extent of territory, and the convenience of the inhabitants. Some fixed rules may be applied, but in many cases, the decision must depend on general ideas of the propriety and fitness of things.

'Among cases not enumerated, and which fall within the fourth subdivision of the section conferring the right of appeal, the following are of daily occurrence, viz: The granting, or refusing a license to a teacher; the valuations of school-houses, or other property on the formation of new districts; the refusal of trustees to call special meetings, to employ teachers, or to keep the schools open, and the employment and dismissal of teachers; the government of the school, the admittance, and expulsion of scholars, &c. Indeed it would be difficult to specify a single act which any officer concerned in the administration of the system may perform, that has not been the subject of appeal.

"The present case presents less opportunity for the exercise of discretion than many of those above enumerated. The expense of a schoolhouse must depend upon its size and materials. Its size, the number

of rooms, and the proper conveniences, will depend upon the number of children in the district of the proper age to occupy it. The only other element for consideration, is the ability of the district, a fact easily ascertained from the assessment roll. There is, therefore, nothing in the nature of the decision to be made, to prevent its being reviewed and examined upon fixed and settled principles.

"So far as our laws afford any analogy in cases of appeal, there does not appear to be any distinction between discretionary and other cases. Thus appeals to county judges from commissioners of highways, respecting the opening, altering and discontinuing of highways, necessarily involve that discretion which depends on private judgment.

"Upon the most mature deliberation then, I cannot doubt that the granting or refusing of a certificate, that a larger sum than $400 should be raised for building a school-house, is necessarily the subject of an appeal to the superintendent. And as in all cases of appeal, the statute declares his opinion to be 'final,' there must be some mode of giving it effect. In the present case, the commissioners decline obedience to the order, directing them to grant the required certificate. From that refusal, an appeal has been made, and the commissioners have answered. The whole system must be very defective, if there be no power to have an act performed, which the competent tribunal has determined to be legal and proper. Perhaps the appellants may enforce the order of the superintendent, by an application to the supreme court for a mandamus.

But if there be a more direct, simple and less expensive remedy, I am bound to pursue the policy of the statute, in erecting this tribunal, by furnishing it. I think there is. It is a universal principle, recognized in England and in this country, that the court to which a writ of error, or an appeal is brought, is bound to render the judgment which the inferior tribunal should have rendered. Upon this principle this department may authorize the inhabitants of the district, at a lawful meeting, to raise the additional sum necessary for building a new school-house, that being the judgment or decision, which, in the opinion of the superintendent, the commissioners should have made. I find an order of my immediate predecessor, founded on this principle, and analagous to the one proposed to be made on this appeal, in the case of the trustees of school District No. 30, in Johnstown, in Common School Decisions, page 161. The inhabitants of the district had authorized the trustees to make such repairs to the school-house as they should think necessary and proper, and in pursuance of such authority they had contracted with a workman to make the repairs, and agreed to pay him $30. But the district refused to vote more than $25. On appeal, the superintendent, Mr. Dix held that the district was bound to indemnify the trustees; and he ordered that the trustees should make out a tax list for the whole amount, and collect it.”

In pursuance of this opinion the district was authorized to raise a tax of $400, over and above the $400 which the district could otherwise raise, and the trustees were empowered to levy and collect it.

Per Spencer, September 18, 1841,

Where a teacher is improperly dismissed, he is entitled to full wages for the period named in the contract.

A. B. Braley had been employed to teach school in District No. 1, in the town of Carroll, for four months, at $13 per month. After he had taught two and a half months, some of the inhabitants withdrew their children for fear the rate bill would be too large. For various causes, others followed their example, until the school dwindled down to two or three scholars, when the trustees ordered him to quit, about three weeks before the expiration of his term, upon the understanding that he should complete it if called upon.

A special meeting, subsequently held, passed a vote to pay the teacher for the time actually employed, and no longer. The trustees refused to pay him for the full time and he appealed. He had performed, or been at all times ready to perform the contract on his part, he was duly qualified, his school had been visited by the town and county authorities and approved by them. The vote of the district could not affect the rights of the parties. The trustees were bound to fulfill the contract, and to make out a rate bill.

Per Young, March 19, 1842.

The inhabitants legally assembled at any district meeting may vote to raise a tax for any purpose authorized by law.

In case of vacancy two or even one, trustee may do any official act.

The expense of investigating a title is a part of the expense of a site, and may be legally included in a tax.

At a meeting held in District No. 3, Williamsburgh, on the third day of December, 1852, a tax of $5985.56, was voted, and among the items making up the aggregate, were $50 for investigating the title to the site, $20 for hiring a room, and $10 for furnishing fuel for a colored school and $601.81 for exemptions of indigent children and $3.75 for a tax book.

It was on appeal, objected that these items were illegal, and improperly included in the tax. It was, also, in the first instance, objected that the meeting was called by but two trustees, there being a vacancy, and but two in office at the time.

On these points the superintendent says:

When a vacancy exists in the office of trustee, the remaining trustees are expressly authorized by law to call a meeting of the inhabitants to fill such vacancy, and the inhabitants when legally assembled at any annual, or special meeting have power to raise a tax for the various purposes recognized by law. There is no doubt that two, or even one, trustee may legally do any official act during the actual existence of a vacancy in the office of their, or his colleagues.

It has been held that the expense of recording of a deed, may be included in a tax for purchasing a site, inasmuch as it is necessary to perfect the title. On the same principle, the expense of investigating the title, is a necessary part of the expense of procuring a site.