
    Jonathan Mendell & others vs. Inhabitants of Marion & another.
    The Sts. of 1849, c. 206, and 1861, c. 303, forbidding the redistricting of towns into school districts oftener than once in ten years do not prevent towns from abolishing all school districts.
    A town which has abolished school districts may purchase the school-houses belonging to the districts, assume all liabilities outstanding against the same, and refund the money paid as school district taxes since such abolition.
    Petition in equity to restrain the town of Marion and its treasurer from paying money in accordance with a vote of the town. The case was heard and reserved for the full court by Hoar, J., upon the petition and answer, which disclosed the following facts:
    The town of Marion was incorporated by St. 1852, c. 225, and was afterwards divided into five school districts. On the 25th of April 1853 the town was again divided into five other districts, with different boundaries. On the 2d of April 1855 the town voted to abolish the school district system and all school districts. On the 14th of April 1856 the town passed a vote to divide the town into three school districts, which was declared illegal by this court at October term 1858. Blankinship v. Hadley, 11 Gray, 431. On the 27th of August 1859 the town voted to purchase two new school-houses in the town, “ and that the town treasurer assume, if practicable, immediately, all the liabilities outstanding against said school-houses, and shall be authorized to receive a deed of the premises from the building committees of said school-houses, and that the town treasurer be directed to refund, with interest thereon, to the persons who have paid the same, all moneys paid into the town treasury as school district taxes that have been assessed as such and collected since the year 1855.”
    The petitioners contended that the votes of April 2d 1855 and August 27th 1859 were illegal and void.
    
      C. I. Reed, for the petitioners.
    
      B. Sanford, for the respondents.
   Bigelow, C. J.

It was determined by this court in Blankinship v. Hadley, 11 Gray, 431, that the town of Marion was not legally divided into school districts by the vote passed in the year 1856. By the previous action of the town, at a meeting held April 2d 1855, the school districts then existing were abolished ; the authority of the town to do this is clearly implied by the provisions of the Sts. of 1850, c. 286, and 1852, c. 199. There is no ground for the position that the prohibition in the Sts. of 1849, c. 206, and 1851, c. 303, to redistrict a town oftener than once in ten years, operates as a restraint on the power of the town to abolish all districts. An authority to destroy or annul cannot be held to be impaired or affected by a restraint imposed only on a power to recreate or rearrange.

There was no illegality or irregularity in the vote of the town authorizing the purchase of the two district school-houses. It was competent for the town to raise money for that purpose, and to expend it in such manner as they might deem expedient and proper. Rev. Sts. c. 23, § 24. The provision in the St. of 1850, c. 286, § 1, authorizing towns to take possession of district school-houses, was intended to confer special authority to act in a particular way, but was not designed to restrict them from purchasing school-houses in any other legal manner.

Petition dismissed.  