The New York herald., 1851-08-19

eeed to make new spportionment. Its omiS
sion to do 50 cannot prejudice the relatou. Thu
| ueienoants relation TO these moneys II thai
VI trustee, and 1t is a rule in equity that
40 sct OF the trustee shall prejudice the csstHs
| gM trust, for, were it otherwise, then il would
pe IN the power of trustees. by delaying, or
refusing TO do their duty, inuIiously to affect the
r1gn.s o, osnersTCraises Digest, title IL, Trust,
Judgment, entitled 20 their share of the moneys un
der the control of the defendant on the 7th March.
iois as well as OF that which came under its con-
troll in lS49 and 1850, an anterior to the Commence
ment of this action. The only remaining question
undisposed offs to ascertain the basis u pom which
the distribution is to be made. By the general Law
of the State the school moneys to be apportoned
by the state Superintendent among the several
towns and cities of the State according to the ratio
of their population, respectively, compared with
the population ofthe whole State according to the
last preceding census.-l Rev. Stat, ABB, Sec 3.
Andthe moneys thus apportoned and received from
the State, together with those raised in the town,
are to be apportioned by the Town Superintendent
among the several school districts parts of DISTRICTS
and separate neighborhoods, within the town, in
proportion to the number of children residing in
each over age of five and under that of sixteen
years, as the same shall have appeared from the
latest annual reports of their respective trustees
then, we have the only two modes Of distri-
button recognized by the common school laws;
one py the state amongst towns and cities,
amongst Of saa one y
nelgnoorhoods based upon the number of children
within certain ages The method adopted secures
tne most exact equality among all the districts ofthe
State and that is all that is desired The city Of
Brooklyn is single school district under the charge
Of single Board Of Trustees, with a large NUM-
ber Of common schools within its borders, amongst
winch the schools OF the orphan asylum societies
are to be enumerated 1t is quite plain that the
mode provided by law for distributing the school
moneys amongst the several districts Of a town, af-
fords no guide to the Board of Education for the
mn VnnYi uyh hAh thnu fn alya
the moneys under their control amongstthe common
schools, and the schools of the orphan asylum so-
ciety. In respect to the ordinary schools the law
wisely vests the Board Of Education with some
measure of discretionary power, but in respe,t to
the schools OF the a. um societies there is no room
for the exercise of any discretion for the share of the
moneysis made to depend upon the number Of or
phan children, between the ages of fou and sixteen
year. who nave been under their charge and instr oct
ed by them during the past year. If the share Of
the asyl lum societies in the school moneys il
to be estimated by the proportion which the
number Of children under their charge, of the
given age and instructed by them, bears to the
whole number Of children between the ages
OF hve and sixteen years within the limits of tho
city OF Brooklyn, they will not obtain anything like
just proportion of the fund, because il cannot be
safely asserted that more than moiety of the
children, between the ages prescribed by law, at
tend constantly and regularly at the public schools.
z, lS4S, wants certainty and perspicuity; but IL
effect be given to the plain intent of the legislature
in passing the law, | cannot do otherwise than ad-
judge that the REALTORS entitled to take such
proportion OF the school moneys as will BE- equal to
the proportion which the average number of orphan
children, between the ages Of four and sixteen
years, under their charge and instructed by them
during the year preceding the time or times of the
distribution, bears to the average number of child
ren, between the ages Of FIVE and sixteen, who have
attended the other common schools of the city, dur
ing the same period of time, added to the number
OF children, upon which the orphan asylum socie-
n N yp hare Of
moneys. Judgment must be given for the relators,
tina! percmptory writ of mandamus issue in each
OF those cases, comm anding the defendants to psy
over to the relatcrs their share of the school mo
amounts to be astertained by reference
to the peadings, and in conformity with the prin-
ciples stated in this opinion.