sum for the service agreed upon, or pay twice for the same service; justice and not sympathy, being the only ground upon which the Board can appropriate money.

The portion of the Solicitor's opinion which appears to have misled many members of the Board, is that wherein he says: "Whether the salary of the teacher should be suspended or applied to the payment of a substitute during temporary sickness or inability to discharge his duties, is a question not of law, but of fact and propriety, to be determined by the judg ment and discretion of the Committee. It is undoubtedly competent for the Committee to determine whether there shall be such a suspension, under such circumstances, in the case of the teachers of the Public Schools." Here are two separate powers which, in the opinion of the Solicitor, the Board has the right to exercise. First, To suspend the salary of the teacher during temporary sickness or inability. This right the Board has never, we believe, resorted to, as the salary in such cases always continues and is paid to the teacher. The second power is, to apply the salary, under similar circumstances, to the payment of a substitute. This power the Board has exercised, so far as to say what portion of the salary of the teacher shall be paid to the substitute, though not in full, as the teacher is still allowed to retain a part of his salary. But even though the Board should exercise the right to suspend the salary of the teacher, and with it to employ another teacher, or to apply it, in whole or in part, to paying a substitute, or to continue the salary of the teacher, and oblige him to pay the substitute, which is the present arrangement, this is all, according to this opinion, which the Board has the right to do. Nowhere, even by implication, does it say, that the Board has the right to pay the teacher and the substitute besides, or to pay the teacher twice for the same service, as is proposed by the order under consideration. It certainly cannot be claimed that the right to pay the salary of a substitute, in addition to that of the teacher, in case of temporary sick

ness, can be deduced from the right to suspend the salary of the teacher; nor that it springs from, or is connected with, the right to apply the salary of the teacher to the payment of the substitute; and yet these comprise, according to the Solicitor's opinion, all the right of discretionary judgment which the Board can exercise in such cases.

This view is further strengthened, by applying to the case now before the Board, the questions which, as they are answered in the negative or the affirmative, must, in the opinion of the Solicitor, determine our action upon any given case of this character. "Is the allowance proposed an act of simple justice." No! it is an act of benevolence. Is it "an equivalent due to the teacher for services rendered to the City, or sacrifices made in its behalf?" No! for the Board has already paid for those services and sacrifices. On the other hand, is not this allowance called for "by a desire to relieve the teacher, in whole or in part, from some misfortune for which the City is not and ought not to be responsible?" Most certainly it is. Your Committee cannot see how these inquiries, applied to the case under consideration, can produce any different answers from those which we have given; and being by a careful reconsideration of the whole subject, strengthened in our previous opinions, having also what we consider to be a full endorsement of our views by the legal adviser of the Board, we cannot without a degree of tergiversation which we could not palliate or excuse, report otherwise than adversely upon the order now before the Board. We therefore unanimously recommend that the accompanying order be not adopted.

For the Committee,

HENRY A. DRAKE, Chairman.

CITY SOLICITOR'S OPINION.

CITY SOLICITOR'S OFFICE,

Boston, Feb. 3, 1857.

SIR-I have had under consideration the subject matter of the order of the School Committee of the 6th of January, by which my opinion is requested as to the legal right and power of the Committee to grant to any teacher in the employment of the City, an allowance for the expenses of a substitute in case of illness of the teacher, in any case.

The question proposed to me does not admit of an unqualified answer, either in the affirmative or the negative. There are cases, undoubtedly, in which the Committee would be justified in making an allowance to a teacher, of a sum beyond the stipulated salary; and other cases in which an allowance would not be justified. I will, therefore, indicate the principles by which I think the Committee should be governed in this respect.

The powers and duties of the Committee are in the nature of those of a trustee. They have ends to be accomplished, not for their own benefit, but for the benefit of others; and the means by which those ends are to be accomplished, belong not to the Committee, but to the public. The Committee are thus a middle party, using and administering the funds committed to their charge, strictly for purposes of the trust, and

for no other purpose. They are not bound to be unjustly severe on the one hand, and may not do acts of generosity on the other. They may be just, but they may not give gratuities.

If the Committee having contracted with a teacher for his services for a stipulated sum, should afterwards become satisfied that the contract was unequal and onerous upon the teacher, they are undoubtedly at liberty to relieve the hardship, by adding to the stipulated salary of the teacher; but if the teacher has met with accident or misfortune which appeals to the sympathy and liberality of the humane and benevolent, such appeal cannot be responded to by the Committee.

Whether the salary of the teacher should be suspended, or applied to the payment of a substitute, during temporary sickness, or inability to discharge his duties, is a question not of law but of fact and propriety, to be determined by the judgment and discretion of the Committee. In some departments of government-municipal, state, and national—I believe it is not usual to suspend the salary of the officers and employees, in case of sickness or other temporary inability; in others it is usual. It is undoubtedly competent for the Committee to determine whether there shall be such a suspension, under such circumstances, in the case of teachers of the Public Schools.

From these principles it will be readily seen that, in my judgment, each case contemplated by the order under consideration must be determined upon its own merits; that when an allowance is proposed, the question to be answered is—is the allowance proposed an act of simple justice, to be made as an equivalent due to the teacher for services rendered to the City, or sacrifices made in its behalf; or is it not called for by these considerations, but by a desire to relieve the teacher, in whole or in part, from some misfortune, for which the City is not and ought not to be responsible?

As this question shall be answered, in the affirmative or negative, by the Committee themselves-for they are the judges in the case-so should they grant or withhold the proposed allowance.

I have the honor to be,

Very respectfully,

Your obedient servant,

J. P. HEALY.

Hon. A. H. RICE, Pres't School Committee.