Hewett v. Miller , 21 Vt. 402 ( 1849 )

The opinion of the court was delivered by

Royce, Ch. J.

The whole authority for assigning the territory in any town to different school districts resides with the town itself, .except .when a district is to be formed of territory and inhabitants belonging to adjoining towns. Such a district can only be formed by .the concurrent votes of those towns. The case is also contemplated by statute, where a town would set some of its inhabitants to an existing district in an adjoining town. In that case the consent of such district is required. The present defence involves the effect of this latter proceeding.

It appears, that on the 4th day of March, 1828, the town of Pom-fret voted to annex certain persons, including the person or persons then living on the lands since occupied by the plaintiff, to school district No. 11 in Barnard. And we do not find it necessary to decide, whether the proper evidence was given of the consent of that district, — nor whether the rights and liabilities of the persons named in the vote would regularly devolve upon those, who succeeded them in the occupation of the lands, which they occupied at the time of the vote. For, conceding all that the defendant claims upon these points, we still think the justification has failed.

A vote merely professing to transfer particular persons from one district to another, in the same town, of to compose a district of persons, without mention of territorial limits, has no effect to change the relations of such persons, and is wholly inoperative. Gray v. Sheldon, 8 Vt. 402. Pierce v. Carpenter, 10 Vt. 480. But it must be admitted, as a necessary construction of the statutes on this subject, that, to most if not all practical purposes, the persons thus set to a foreign district become members of that district. They not only share in the privileges of the district, but their lists help to form the basis of taxation there, and they are thus made to participate in the burdens of the district. And, to effect these objects, the corporate jurisdiction of the district is extended to embrace such persons, and to embrace all such property of theirs, as could ordinarily have been taxed for the support of schools in the particular district, or territory, inhabited by them. But the legislature would seem to have studiously forborne to say, that a district of one town should ever be considered, in a territorial sense, as extending into another town. For in the statute of 1827, as also in the Revised Statutes, ch. 18, sec. 6, the vote of the town is expressly limited to individual persons, though all school districts are at the same time required to be defined by geographical descriptions. And, indeed, it would appear by the report of a committee in 1838, that the territory inhabited by the persons named in the vote of March, 1828, had all the time constituted a district (No. 16) in the town of Pomfret,

How, then, is the arrangement between the town of Pomfret and the district in Barnard to be considered? As against the district it cannot be regarded as a compact, absolutely and perpetually binding ; because they were liable at any time to be deprived,’ by the action of their own town, of the power to execute it. Their territory might be distributed to other districts, and even their corporate existence destroyed. And as the obligation on the part of the district could not be absolute and permanent, it is but just to conclude, that the town of Pomfret incurred no such obligation. There is no occasion to remark, that this conclusion detracts nothing from the ordinary powers of school districts to bind themselves by contract. If this arrangement ought to be deemed a contract, it was necessarily contingent as to the time of its duration, and, originating in a purpose to promote the public interest at the time, it must have been expected to end, whenever that interest should require it to be terminated. I should rather be disposed, however, to view it in the light of mere license and temporary consent on both sides, and therefore subject to be revoked or annulled by either party.

We consider the case as being widely different from that of a district originally formed by the concurrent votes of adjoining towns. There the parties have ample and equal power to contract, and neither party should be allowed to abrogate the contract, while the other is willing to abide by it. Such a proceeding may also be regarded as a mutual renunciation, by the towns, of the right to exercise any farther districting power over the portions of territory and inhabitants, which are contributed in the formation of such a district. And hence, upon either ground, the obvious propriety of invoking some power from without, as the board of three justices, to dissolve the connection. It is insisted, that the same proceeding was requisite in this instance. But without a strained construction of the statute of 1828, and of the Revised Statutes, ch. IS, sec. 21, 22, they cannot be made applicable to such a case. The union, which the board of justices are authorized to dissolve, is the union, which was created in the formation of the district; and, consequently, to dissolve that union is nothing less than to dissolve the district. In the latter statute it is accordingly enacted, in express terms, that “ if, in the opinion of such justices, it shall be expedient to dissolve such district, they shall order the same to be dissolved,” &c. And that this is the result contemplated also appears very clearly from the duty, enjoined upon the justices, to make distribution of the property of the district among the individuals who had been members of it. But the act of disconnecting certain individuals from a district, which was formed and organized before their union with it, and is to remain so after the separation, would surely be no dissolution of the district; nor would it furnish any more occasion for distributing the district property, than would exist in any case of transferring individuals from one district to another.

In our opinion, the transfer of persons to the Barnard district, in 1828, should be treated as but a temporary and defeasible arrangement, which did not deprive the town of Pomfret of the power to act, in the way of forming or altering their school districts, upon the territory occupied by those persons. And we therefore conclude, that when, in 1842, the plaintiff, with his property, was included within the new district No. 15 in Pomfret, he ceased, for every purpose, to be a member of the district in Barnard, and was no longer liable to taxation in that district.

Judgment of county court affirmed.