When jury disagrees.

Adjournments three months.

not to exceed

Proceedings in case property is encumbered.

How money deposited with county treasurer may be drawn.

(112) § 4738. SEC. 11. In case the jury hereinbefore provided for shall not agree, another jury may be summoned in the same manner, and the same proceedings may be had, except that no further notice of the proceedings shall be necessary; but instead of such notice, the judge, commissioner, or justice may adjourn the proceedings to such time as he shall think reasonable, not exceeding thirty days, and shall make the process to summon a jury returnable at such time and place as the said proceedings shall be adjourned to. Such proceedings may be adjourned from time to time by the said judge, or commissioner, or justice, on the application of either party, and for good cause, to be shown by the party applying for such adjournment, unless the other party shall consent to such adjournment; but such adjournments shall not in all exceed three months.

(113) § 4739. SEC. 12. In case the said schoolhouse site, or land required to enlarge the same, is encumbered by mortgage, levy, tax sale, or otherwise, as aforesaid, the mortgagee, or other parties claiming to be interested in said title shall severally be made a party to the procedure as aforesaid, and shall be authorized upon the filing of the certificate of the jury in the circuit court of said county, to appear before the circuit judge and make proof relative to their proportionate claims to the said site, or the compensation to be made therefor, as determined by said jury. And the said circuit judge shall, by decree, settle their several claims in accordance with the rights of the parties respectively, and may divide the sum awarded by said jury between the claimants as in his judgment will be equitable and right, rendering against said district a separate judgment for each of the amounts so awarded.

Am. 1903, Act 182.

(114) § 4740. SEC. 13. The circuit judge, judge of probate, or circuit court commissioner of any county where any money has been deposited with the county treasurer of such county, as herein before provided, shall, upon the written application of any person or persons entitled to such money, and upon receiving satisfactory evidence of the right of such applicant to the money thus deposited, make an order, directing the county treasurer to pay the money thus deposited with him to said applicant; and it shall be the duty of such county treasurer, on the presentation of such order, with the receipt of the person named therein, indorsed on said order and duly acknowledged, in the same manner as conveyances of real estate are required to be acknowledged, to pay the same; and such order, with the receipt of the applicant or person in whose favor the same shall be drawn, shall, in all courts and places, be presumptive evidence in favor of such county treasurer, to exonerate him from all liability to any person or persons for said money thus paid by him.

etc., on

(115) § 4741. SEC. 14. Circuit judges, circuit court Compensation commissioners, and justices of the peace, for any services of officers, rendered under the provisions of this act, shall be entitled to proceedings. the same fees and compensation as for similar services in other special proceedings. Jurors, constables, and sheriffs shall be entitled to the same fees as for like services in civil cases in the circuit court.

etc., unable

finish pro

(116) § 4742. SEC. 15. In case any circuit judge, cir- When judge, cuit court commissioner, or justice of the peace, who shall to attend, issue a summons or venire for a jury, shall be unable to another may attend to any of the subsequent proceedings in such case, any ceedings. other circuit court commissioner or justice of the peace may attend and finish said proceedings.

CHAPTER IX.

APPEALS FROM ACTION OF TOWNSHIP BOARD.

taken from

board.

who to

(117) § 4743. SECTION 1. Whenever any five or more Appeal, how tax paying electors having taxable property within school district shall feel themselves aggrieved by any action, township order or decision of the township board or joint boards with reference to the formation or any division or consolidation of said school district, they may, at any time within sixty days from the time of such action on the part of said board, appeal from such action, order or decision of said board to the county commissioner of schools and a circuit court commissioner of the county in which such school district is situated. The county commissioner of schools and circuit court com- Board of missioner shall constitute a board of appeals for all such appeals, cases and shall be entitled to the usual fees provided by constitute. statute for circuit, court commissioner. When an appeal shall be filed with the board of appeals herein provided for, said board shall serve notice on the clerk of the township board or the clerks of the joint boards who have made the decision appealed from, and said clerk or clerks shall notify the several members of such board of such appeal. The notice to Notice to the clerk and township board shall state the day and hour township when such appeal will be heard, and it shall be the duty of to state. said board of appeals to review, confirm, set aside or amend the action, order or decision of the township board or boards thus appealed from; or if in its opinion the appeal is frivolous or without sufficient cause it may summarily dismiss the

same.

Am. 1909, Act 31.

ACTION OF INSPECTORS: The board of inspectors act in the exercise of a public discretionary power in creating or changing districts, which can be reviewed, if at all, only by some direct appellate process which operates upon the proceedings themselves to affirm, reverse or change them.-Clement v. Everest, 29/19.

When it seems an appeal

APPEAL: School Dist. v. Wilcox, 48/404. could not be taken.-Sch. Dist. v. Sch. Dist., 63/57-8. CERTIORARI: The issuance of a writ of certiorari being largely discretionary, and not permissible to accomplish a palpable injustice, a writ issued

clerk, what

Appellants to file written statement.

Bond,

amount of.

Township board, when to file tran

script of proceedings, etc.

to review the setting aside of the organization of a school district out of the territory of two others will be dismissed when each of the three districts as so organized would be financially unable to support a school without imposing upon the residents a greater burden than they are able to bear. -Silver v. Hamilton Township Board, 146/393.

(118) 4744. SEC. 2. Said appellants shall, before taking such appeal, make out and file with the board of appeals a written statement, to be signed by said appellants, setting forth in general terms the action, order or decision of the township board with respect to which the appellants feel themselves aggrieved, and their demand for an appeal therefrom to the board of appeals, and shall also cause to be executed and signed by one of their number, and by two good and sufficient sureties to be approved by the board of appeals, a bond to the people of the state of Michigan in the penal sum of two hundred dollars, conditioned for the due prosecution of said appeal before said board, and also in case of the dismissal of said appeal as frivolous by said board for the payment by said appellants of all costs occasioned by reason of said appeal.

Am. Id.

BOND: The statute is positive in requiring the bond to be approved and it cannot be dispensed with.-Clement v. Everest, 29/21. The appeal is not complete without such approval.-Id.

(119) 4745. § SEC. 3. Upon the filing of such appeal papers and bond with the said board of appeals and after notice by the board of appeals to the township board from whose decision appeal is taken, said township board shall within ten days thereafter make out and file with the said board of appeals a full and complete transcript of all its proceedings, actions, orders or decisions with reference to which the appeal is taken and of its records of the same; also said bond and appeal papers and all petitions and remonstrances, if any, with reference to the matters appealed from, and upon the filing of the same with said board of appeals the said board shall be deemed to be in possession of the case, and if the return be deemed by it insufficient the board may order a further and more complete return by said township board, and when such return shall by it be deemed sufficient it shall proceed with the consideration of the appeal at such time or times, within ten days after such return in such manner and under such affirmation, amendment or reversal of the action, order or decision of the township board appealed from, as in its judgment shall seem to be just and right; or if it deem the appeal to be frivolous it may summarily dismiss the same.

Am. Id.

(120)

CHAPTER X.

GRADED SCHOOL DISTRICTS.

education,

§ 4746. SECTION 1. Any school district contain- Graded school district, oring more than one hundred children between the ages of five ganization of. and twenty years, may, by a majority vote of the qualified voters present at any annual or special meeting, organize as a graded school district. The intention to submit the question of the organization of a graded school district shall be expressed in the notice of such annual or special meeting. When such change in the organization of the district shall Board of have been voted, the voters at such annual or special meet-election, ing shall proceed immediately to elect by ballot a board of term, etc. education of five members, one member for the term of one year, two for the term of two years and two for a term of three years, and annually thereafter a successor or successors to the member or members whose term of office shall expire. Any qualified voter in such district whose name appears Eligibility. upon the assessment roll at the time of such election and who is the owner in his own right of the property so assessed, shall be eligible to election or appointment to the office of member of the board of education. In the election of Majority members of the board of education and all other school officers, the person receiving a majority of all the votes shall be declared elected: Provided, That all graded school districts Proviso. organized prior to the year nineteen hundred seven shall operate after the passage of this act under the provisions of this act without reorganization: And Provided also, That in Proviso. all such districts the members of the board of education hereafter elected shall be elected under the provisions of this act.

Am. 1907, Act 247.

Simpkins v. Ward, 45/562.

CUSTODY OF RECORDS: The proceedings provided by statute, sections 9843-9851 C. L., (chap. 39, judicature act of 1915), to compel delivery of books and papers by a public officer to his successor, are not adapted to a determination of the rights of contestants to any office, but are merely appropriate for ascertaining whether a petitioner is prima facie such an officer as entitles him to possession of the books and papers of the office. After an adjudication of this question by a court of competent jurisdiction the defeated party can not review the judgment by certiorari and thereby defeat the object of the statute, but must resort to quo warranto or other proceedings appropriate to try title to an office.-Murta v. Carr, 140/606.

GRADED SCHOOL DISTRICTS: The wisdom of the graded-school-district act was vindicated in Stuart v. Sch. Dist., 30/69, and its validity determined.-Keweenaw Ass'n v. Sch. Dist., 98/439. It is competent under the constitution to provide by taxation for free instruction in the higher departments of education, in union and high schools.-Stuart v. Sch. Dist., 30/69. Union and graded schools, whether organized under the general law or created by special enactment are subject to the general primary school law, except as otherwise provided in the law creating them. People v. Detroit Board of Education, 18/411; Keweenaw Ass'n v. Sch. Dist., 98/442. ALL OTHER OFFICERS: The term "all other school officers" includes the director, moderator and assessor of primary school districts, there being no others to whom it could refer, as the trustees are the only officers to be elected in graded school districts.-Cleveland v. Amy, 88/377.

LEGISLATIVE PROVISIONS: The constitution does not require an absolute uniformity in school districts throughout the state and the legislature has not so construed the constitutional provisions. Uniformity has not been kept up; graded schools have been established; boundaries of districts changed and fixed by the legislature; and the qualifications of electors at school meetings have been fixed, limiting the classes entitled to vote and providing exceptional methods of electing officers. The mayor of Grand Rapids is made a trustee and ex officio a member of the board of education;

vote.

Acceptance of office.

Organization of board.

Vacancies.

Bond of treasurer.

Township board or

city council may appoint officers of board.

and being a trustee he is eligible to the office of president of the board. The president of the board has the veto power. The mayor of Alpena is president of the board, and the trustees elected constitute the board, and exercise all the powers and perform the duties of trustees. The mayor of Detroit, as ex officio member of the board of education, has the veto power, and this provision is constitutional.-Pingree v. Board of Education, 99/ 407-9. It is no new thing for the legislature to fix the boundaries of school districts. It is done by the charter of nearly every city or village in the state, and some of them go so far as to provide exceptional methods of electing officers and limiting the classes entitled to vote (citing Mudge v. Jones, 59/165).-Keweenaw Ass'n v. Sch. Dist., 98 / 441. And in Perrizo v. Kesler, 93/280, an act providing for the organization of school districts from entire townships was held valid.-Id. 442.

(121) § 4747. SEC. 2. Within ten days after his election, each member shall file with the secretary of the board an acceptance of the office to which he has been elected, accompanied by an affidavit setting forth the fact of eligibility as described in section one of this chapter. The board of education shall annually, and within fifteen days after the annual meeting, or within fifteen days after the organization under this act, elect from its own number a president, a secretary and a treasurer, and for cause may remove the same from such offices and may appoint others of their number in such places, and these officers shall perform the duties prescribed by the general school law for the moderator, director and treasurer of the district, except as hereinafter provided. The board of education shall have power to fill any vacancy that may occur in its number until the next annual meeting, and if three vacancies occur at the same time a special meeting of the district shall be called to elect members of the board to fill such places. Within thirty days after his appointment, the treasurer of the board shall file with the secretary an official bond in such an amount and form as may be determined by said board. Said bond may be either personal or of some surety company authorized to do business in this state, and it shall be given for a sum not less than the greatest amount of money that the treasurer may have in his possession or under his control at any time. during his term of office, as near as the same can be determined. When a personal bond is given it shall be signed by not less than two sureties, each of whom shall justify under oath to the full amount of the bond. If a surety bond is required and purchased, it may be at the expense of the district. Whenever, in any case, the board of education shall fail or neglect to elect the officers of the board named in this section within fifteen days next after the annual meeting, or after the organization of the district, the township board or the common council of any city within which said district is located shall appoint the said officers from the members of the board.

Am. 1901, Act 165; 1907, Act 247; 1913, Act 241.

VACANCIES-COSTS: The minority of a school board have no authority to commence an action in its name, and, if they do so, they will be individually responsible for the costs.-Johnston v. Mitchell, 120 / 589.