School District No. 1 v. Sanborn

Bell, J. The claims of the plaintiffs, out of which this action for penalties grows, have no foundation in justice. It is a claim to apply for the benefit of those who remain inhabitants of school district No. 1, the whole tax collected of the inhabitants of No. 1, and of the new district No. 4, which was severed from No. 1, a few days before or after the tax was assessed, and before any part had been expended for the common benefit. The general principle in relation to the application of school money is, that each district is entitled to the benefit of the money raised from the inhabitants of it, for the support of its schools. This is the equitable rule; yet if by the statute the plaintiffs are entitled to the advantage they claim, it must be allowed them. Chapter 72 of the Revised Statutes prescribes the duties of the selectmen in relation to this subject. Section 1 directs the selectmen to assess a school tax, &c. Section 4 provides that the selectmen shall assign to each district a proportion of the money thus assessed, according to the valuation of the district for the year, and shall pay over the same to the prudential committee of the district. And by section 5, if the selectmen of any town shall neglect to assess, or assign, or pay over the school money as aforesaid, they shall forfeit and pay for each neglect a sum equal to that so neglected to be assessed, or assigned, or paid over, &c. By the theory of the plaintiffs, this power of the selectmen is to be exercised at once, and all power of theirs over the subject is at an end, and nothing remains for them to do but to pay over the money agreeably to such assignment ; and they rely on the direction of the collector’s warrant to pay to school district No. 1 $88,12, as establishing the fact of an assignment to them of that sum, and, consequently, their title to the money. But we conceive that as the assignment is to be made, not according to any discretion of the selectmen, but upon the valuation of the'district for the year, the title of the district does not depend upon [39] the assignment of the selectmen, and is not affected by it. Neither do we understand that there is any limitation or restriction in this statute, which confines the exercise of the power to make such assignment to a single point of time, or to a single decision. The policy of the law clearly is, that the taxes collected from each district shall be applied for the benefit of the inhabitants of that district, in maintaining their schools. To cany out this policy, where districts are divided, (and they are liable to be divided at.any moment, at the pleasure of the town,) it is necessary that the selectmen should have the power, and be subject to the duty, of assigning the school money among districts, newly constituted or changed, according to the valuations of the inhabitants of the several districts at the time the assignment is to be made. If the assignment is to be made between two districts, newly constituted out of one old district before any part of it has been expended for the common benefit upon the schools, the whole money is to be divided. If a part of the money which belongs to the old district, has been expended, or, which is the same thing, has been applied to the common benefit of the entire district in supporting the schools, then only the residue of the money is to be divided. Upon this principle, all the inhabitants of each district continue to receive the benefit of the money they have themselves paid, in the education of their own families. "We have been able, after careful consideration, to discover nothing in the statute which in any way conflicts with this construction. And every chance of injustice and wrong is obviated by regarding the authority of the selectmen, as we do regard it, as a continuing power, to be exercised toties quoties, whenever any change in the district shall render it necessary to give to each tax payer the benefit of his own school money in the district in which he lives. Our opinion upon this point supersedes the necessity of inquiring into any of the numerous questions raised by the [40] case, except that relating to the setting off of the new district. If that is void, the defence of course fails. The first vote passed by the town for this purpose, was at a meeting, March 9, 1847. Two objections are taken to the proceeding. First, that the record states that the moderator “took the oath of office,” which, it is objected, does not show that he took the oath of office prescribed by law. The cases cited by the plantiff support his objection; Proprietors of Cardigan v. Page, 6 N. H. Rep. 184; Blake v. Sturtevant, 12 N. H. Rep. 567; though if the question were new, we might hesitate in coming to that conclusion. But this objection is sufficiently met by the last case, where the familiar principle is recognized, that in cases between third persons, it- is enough to show that the party is' an acting officer. The second seems to be, that the description of the new district was insufficient. The line of division is described as beginning at a point in the north line of the district, and extending to the south line of the district; — and the vote was, that all of the old district east of that line should be district No. 4. There seems to us to be nothing in this exception, and it does not seem to be insisted upon. A second vote was passed, June 14,1847, establishing this district. To this proceeding we have discovered no objection. The case would not be changed if we regarded this vote as the real setting off of the new district, since, though there was a school kept a few days previous, it does' not appear that it was taught by a qualified teacher, so that any part of the moneys raised in the district could be lawfully applied to its support. The plaintiff having failed to sustain his cause of action, according to the agreement' of the parties the verdict must be set aside, and there must be Judgment for the defendants.