This is a certiorari to bring up proceedings before the county judge of Allegany county, had under title 13, of chapter 555 of the. laws of 1864; which chapter is entitled “ An act to revise and consolidate the general acts relating to public instruction.”
The return shows that the relator, being sole trustee of school district Ho. 7, in the town of Granger, in said county, prosecuted one George Hall, a pupil in the said school, for the penalty imposed by the 3d section of said title, for disturbing the school. (Laws of 1864, p. 1285.) What the grounds, or result of the said prosecution were, do not appear, otherwise than as it is to be inferred from the items of costs claimed by the relator, that the complaint was dismissed, or the defendant had a judgment in his favor. It does not appear, that the relator was instructed by any district meeting to bring the action in question, so as to make the costs and expenses a charge upon the district, under the 7th section of said title. The 8th section of the title provides, that whenever any such trustee, &c., shall have brought or defended any such action, without any resolution of the district meeting, and shall present to a regular meeting of the inhabitants of the district an account of the costs, charges and expenses paid by him, or them, with the items verified, and a majority of the voters shall so direct, it shall be the duty of *233the trustees to cause the same to be assessed, &e. (Id. p. 1287.) The 9th section provides for an appeal to the. county judge in case the inhabitants of the district refuse to direct the trustees to levy a tax for the payment of such costs, charges and expenses. (Ib.)
[Fourth Department, General Term, at Rochester, September 4,1871.The relator, it would seem, presented his account for the costs and expenses paid by him, in the action referred to, to a regular school district meeting, which refused to vote a tax to reimburse him for such expenses, and thereupon the relator appealed to the county judge. The county judge refused to entertain the appeal, upon the ground that the facts did not present a case within sections 8 and 9 of the said title, and that he had no jurisdiction to entertain the said appeal. This decision of the county judge was clearly correct. The action, for the expenses of which the relator claimed reimbursement, was an action for a penalty. The expenses of actions commenced or defended by the trustees without a previous resolution of the district, and for which expenses, notwithstanding the want of such previous resolution, an assessment may be made upon the district by a vote of the inhabitants at a district meeting, or on appeal from their refusal to the county judge under sections 9 and 10 of title 13, do not embrace suits for penalties, which are expressly excluded from the operation of section 8. And it is only cases arising under section 8, which the county judge may review on appeal taken and heard as provided in sections 9 and 10.
As we think the county judge was clearly right, we express no opinion as to whether the writ of certiorari would reach the case if we had been of the opinion that he had committed an error.
The writ of certiorari in this case should be quashed, with costs to be paid by the relator.
Mullin, P. J., and Johnson and Talcott, Justices.]