Appeal of Roach — 65 N.Y.S. 653

Majority

p. 653

(31 Misc. Rep. 590.)

Appeal of ROACH.

(Rensselaer County Court.

May, 1900.)

Headnote

School Meeting—Trustees—Proceedings before the Superintendent of Public Instruction—Costs—Levy of Tax—County Judge—Jurisdiction.

Consol. School Law, tit. 15, §§„ 4-8, give the county judge power to review the action of school districts in refusing to allow the costs and expenses of a school officer in any action by or against the district, where application therefor is made by such officer under oath. These sections are under the heading, “Costs in Proceedings Other than Appeals to the Superintendent of Public Instruction.” Held, that the county judge has no power to audit and direct payment of costs and expenses in an appeal to the superintendent of public instruction prosecuted for the purpose of determining whether the applicant was elected to the office of school trustee in a certain district.

Application by John Roach to the county judge of Rensselaer county to compel district Ho. 6 to levy a tax for certain costs.

Application denied.

p. 654

Nelson Webster, for application.

Thomas E. Finegan, for school district No. 6.

This is an application on behalf of John Roach to-the county judge of Rensselaer county to compel district No. 6 of the town of Stephentown to levy a tax for his costs on an appeal to the superintendent of public instruction, under sections 5, 6, art. 1, tit. 15, Consol. School Law. On August 1, .1898, the annual school meeting was held at the school house in district No. 6, at- Stephen-town, N. Y. At said school meeting an election was held for the-office of school trustee for the ensuing year, and the said John Roach was declared elected. On or about September 9, 1898, Joseph A. Russell and others brought an appeal from the election of said Roach,, and from the proceedings of said school meeting, to the superintendent of public instruction of the state of New York, by the service of a notice of appeal, asking that the election of John Roach as trustee of said district be declared null and void. Such proceedings were thereafter had that the superintendent of public instruction made his decision of such matter, in which he decided that said John Roach was not duly elected trustee of said school district, which decision and order were duly filed with the district clerk of said district. Upon this appeal to the superintendent of public instruction, Roach employed Nelson Webster as his attorney to defend his right and the right of the school district in the matter, and in the course of this employment Mr. Webster prepared the papers required under the rules of the department of public instruction to argue the matter before the superintendent of public instruction. A bill of $15 was-presented by Mr. Webster to Mr. Roach for the services Webster rendered, and paid by the latter. At the annual school meeting of the district, held August 1, 1899, this account was presented, under section 5, art. 1, tit. 15, Consol. School Act, in order that the voters of the district might cause the same to be collected out of the taxable property of said district. The meeting refused to, vote such tax. Thereupon the said Roach gave notice of his intention to have his account adjusted by the county judge, pursuant to the provisions of sections 6, 7, and 8 of that article.

The only question on this hearing is whether or not the county judge has power on such an application, under said sections, to audit such an account, and to raise, the amount thereby directed to be paid by tax imposed upon the district. After a careful examination of the statute, I am of the opinion that the county judge has no such power. The language of the statute itself seems to be conclusive to that effect. The heading of the article must be taken as a part of the article, and the body of the article must be construed in reference to the heading. The heading of the article reads as follows:

“Title XV. Miscellaneous Provisions.

“Article I.

“Of loss of school moneys apportioned; of forfeiture by school officers by reason of neglect to sue for penalties; of costs in suits which might have been the subjects of appeal to the superintendent of public instruction; of costs in "suits, actions and proceedings other than appeals to the superintendent of public instruction.”

p. 655

The subject-matter of the article seems to be distributed among these different subject headings: “Loss oi school moneys apportioned,” characterizes section 1; “of forfeiture by school officers by reason of neglect to sue for penalties,” section 2; “of costs in suits which might have been the subjects of appeal to the superintendent of public instruction,” section 3; “of costs in suits, actions and proceedings other than appeals to the superintendent of public instruction,” characterizes and qualifies sections 4, 5, 6, 7, and 8. It will thus be seen that this article has nothing to do with costs and expenses incurred in prosecuting an appeal before the superintendent of public instruction, and therefore it cannot be made the basis of this application. It would seem that if, by any possibility, this were a case where the expenses incurred by the respondent, situated as this one is, could be imposed upon a school district through the medium of a tax levy, it would have to be by virtue of subdivision 19, § 14, art. 1, tit. 7, which provides:

“The inhabitants entitled to vote when duly assembled in any district meeting, shall have power by a majority of the votes of those present * * * to vote a tax to replace money of the district lost or embezzled by district officers and to pay the reasonable expenses incurred by district officers in defending suits or appeals brought against them for official acts, or in prosecuting suits or appeals by direction of the district against other parties.”

Perhaps, on failure to allow the account, if proper, an appeal might be had to the superintendent of public. instruction, under title 15 of that act, and his decision would be conclusive on the district. The application must therefore be denied, without costs.

Application denied, without costs.