ted,

27

propriations, 45, 46, 47 Forms to be furnished by auditor, Expenditures of commissioners limited, 48 Books, stationary, &c. how furnished, 49 Penalties on officers failing to discharge duties,

45

50

27

Appropriation to educate poor girls, 51

27, 28

27, 28, 29

Their annual and extra meetings,

Board of commissioners how constitu

Treasurer of school commissioners,
His duties,

Bond and security required, how sua-
ble,

Act of March 3, 1819-January 1, 1820. R. C. ch. 33.

1. § 1. All escheats, confiscations, forfeitures, and all personal property accruing to the commonwealth as derelict, and having no rightful owner, which have accrued since the second day of February one thousand eight hundred and ten, and which shall hereafter accrue to the commonwealth, be, and the same are hereby appropriated to the encouragement of learning; and that all militia fines and the arrears thereof, due to the commonwealth on the eleventh day of February one thousand eight hundred and eleven, and thenceforth accruing, or to accrue, (except so much of such militia fines as have been, are, or may be otherwise appropriated,) be also, and the same are hereby appropriated to the encouragement of learning.

2. § 2. All fines and pecuniary penalties, imposed by any act of assembly, or declared by the common law, and recoverable under the laws of this commonwealth, (except militia fines,) shall, from and after the eleventh day of February one thousand eight hundred and eleven, be held to have accrued, and shall hereafter accrue to the commonwealth, be paid into the public treasury, and be also appropriated to the encouragement of learning: Provided nevertheless, That nothing in this act contained, shall be construed to affect the rights of informers, or of persons prosecuting popular or qui tam actions, or of individuals suing for penalties appropriated by law to the party injured: Provided, That in all cases where, by law, any fine or penalty, either wholly or in part, is given to the informer, or to any person who will sue for the same,

Act of March 3, 1819—January 1, 1820. R. C. ch. 33.

it shall be lawful for the commonwealth, at any time before a prosecution or suit shall have been bona fide commenced and duly prosecuted by such informer or person entitled to sue, to sue for and recover such fine or penalty, by bill, plaint or information, presentment or indictment, as the case may require, in any court of record within this commonwealth, having jurisdiction thereof; and every fine or penalty so recovered shall be also appropriated to the encou ragement of learning.

3. 3. The auditor of public accounts shall be and he is hereby required to open an account, to be designated the Literary fund, to which he shall carry every payment made, or to be made, on account of any of the said escheats, confiscations, forfeitures, fines and penalties, herein above appropriated to the encouragement of learning, which have accrued, or may hereafter accrue, to the commonwealth. [There shall be appointed annually, by joint [vote] of both houses of the general assembly, an officer, to be denominated the second auditor, whose duty it shall be to keep distinct accounts of the receipts and disbursements of the Literary fund, &c. He shall draw all warrants authorizing the treasurer to receive moneys on account of [the Literary fund, &c.] after the amount shall have been adjusted by the other auditor, when by law he is authorized to adjust the same, and audit all claims properly chargeable on [the said fund] and issue warrants to the persons entitled thereto. Act of Feb. 24, 1823, Ses. Acts 1822-3, c. 45, § 2; Sup. R. C. c. 351, § 2, p. 434.]

4. § 4. This act shall in no case change the mode of proceeding for the recovery of any of the subjects herein mentioned and appropriated, but they may be prosecuted in the same manner as if this act had not been passed.

5. § 5. When any person shall die intestate as to his goods and chattels, or any part thereof, and, after the payment of funeral charges, debts and just expenses, there shall be no person entitled to take the residuum, under the laws of this commonwealth directing the distribution of intestates' estates, such undisposed of residuum shall in no case go to the executor or administrator of the person so dying, but the same shall vest in the commonwealth, for the benefit of the Literary fund, and may be recovered by bill in equity, in any court having jurisdiction thereof: Provided, That nothing in this act contained shall be so construed as to affect the right of the husband to the personal estate of his wife dying intestate. When any suit shall be instituted in behalf of the commonwealth, for the purpose of recovering such undisposed of residuum, it shall be the duty of the court to cause publication to be made for three months in some newspaper published at the seat of government of this state, and in some newspaper published at the seat of government of the United States, setting forth the nature of the action, the name and nativity of the deceased person, and requiring of all persons claiming an interest therein, as distributees of the deceased, to appear and make themselves defendants on a given day of some succeeding term. If no person shall appear accordingly, and shew a sufficient title in himself, the court shall decree the undisposed of residuum to the commonwealth, for the benefit of the Literary fund. At any time after such decree shall have been pronounced, any person not a party thereto, claiming title as distributee of the deceased, shall be permitted to appear, make himself party to the suit, file his answer, and have his claim discussed and decided according to the rules and practice of the court. If, upon the final hearing of the cause, it shall appear that such person is justly entitled to the whole, or any part of such undisposed of residuum, it shall be decreed to him accordingly, but without interest or costs, and shall be refunded to him out of any moneys in the treasury accruing for the benefit of the Literary fund. 6. § 6. All sums of money which have accrued or may hereafter accrue to the Literary fund, in consequence of the appropriations thereto, already, now,

Act of March 3, 1819-January 1, 1820. R. C. ch. 33.

or hereafter to be made, shall be and the same are hereby vested in the following persons, to wit: [the governor, treasurer, auditor and second auditor, ex officio; act of March 5, 1933, Ses. Acts 1832-3, c. 14, § 1, p. 16,] for the time being, and they and their successors are hereby constituted a body corporate and politic, under the denomination of the president and directors of the Literary fund, with power to sue and be sued, plead and be impleaded, and to hold lands and tenements, goods and chattels, and the same to sell, dispose of, or improve, for the purposes hereafter mentioned, [with full power to transact all the business [of the board;] to assemble when and where they choose and may deem expedient, and a majority being present, to proceed to the discharge. of all or any business, Ibid. § 1.] of which board when present, the governor shall be president, [should the governor from any cause fail to attend at any session, the treasurer shall in his absence act as president thereof. Ibid. § 5.] [The second auditor shall act ex officio as accountant of the Literary fund, and as clerk of the president and directors thereof. And he is hereby authorized to appoint a clerk should the board of directors hereby established deem one necessary, to aid him in the discharge of his duties. All books and papers in any manner connected with the constitution, administration or regulation of the [said fund], shall be deposited with the said second auditor, who shall carefully preserve them. Act of Feb. 24, 1823, Ses. Acts 1822-3, c. 45, $2; Sup. R. C. c. 351, § 2, p. 434.] They shall have power to appoint such other officers as they may deem necessary, and make such rules and regulations for the better ordering of their proceedings as to them may seem meet; provided, they be not inconsistent with the constitution and laws of this commonwealth. And the said president and directors shall report to the general assembly, once in every year, [on or before the fifteenth day of each session, Act of Feb. 15, 1823, Ses. Acts 1822-3, c. 10, § 1; Sup. R. C. c. 14, p. 31,] the state of the funds committed to their charge, with such recommendations with regard to the improvement thereof as to them shall seem advisable.

Act of March 5, 1833, Ses. Acts 1832-3, ch. 14.

7. § 2. Whensoever [the said board] may think it necessary for the public good to assemble or meet at any other place than at the seat of government, or at any time to send one or more members of their body to examine the condition of any of the public works, or to transact any business connected with the discharge of the duties required [of them] all reasonable expenses incurred thereby shall be paid out of the fund, the accounts to be allowed by the board and certified and paid in the usual manner.

8. § 3. [The said board] shall adjourn its sessions from time to time; but any intermediate meeting may take place at the pleasure of a majority of said board, notice thereof being given to all the members of the time and place of meeting, to each individually, if may be, and if not, by publication in some newspaper.

Act of March 3, 1819-January 1, 1820. R. C. ch. 33.

9. 7. And, for the more speedy and certain collection of the Literary fund throughout the commonwealth, the said president and directors are authorized and required to appoint in each county and corporation therein, an attorney or agent for the collection of the funds of that county or corporation, who shall act without any fee or emolument, and whose duty it shall be to report to the president and directors, from time to time, such portion of the said fund as any officer appointed to collect the same may have collected, and failed to pay into the public treasury, or such portion thereof, as may be

Act of March 3, 1819-January 1, 1820. R. C. ch. 33.

uncollected in the hands of any person, and, (if no other mode of recovery be provided by law,) to authorize proper actions to be instituted for the recovery thereof in the name of the said president and directors; the costs of which shall be defrayed by the said president and directors, out of the Literary fund: Provided, That nothing in this act shall be construed to prevent the sheriffs of the respective counties from collecting such fines and other sums of money, as they are at present by law authorized and required to collect and account for.

Act of March 2, 1821, Ses. Acts 1820-21, ch. 10. Sup. R. C. ch. 18.

10. 3. All moneys accruing for the benefit of the Literary fund, whether on account of fines, forfeitures and escheats, or on account of dividends or interest upon stock, or on account of interest upon money loaned, or on any other account, shall be paid into the public treasury, and shall be kept by the treasurer of the commonwealth, ex-officio, in the same manner that other public moneys are kept by him; except only that there shall be a separate account raised therefor, in the name and for the benefit of the Literary fund; and that when such moneys shall be deposited in bank, they shall be placed to the credit of the treasurer as such, for the benefit of the Literary fund, and only to be checked or drawn for in his official capacity as such treasurer.†

11. 4. The treasurer and his securities shall be accountable for the moneys so paid into the treasury, and may be proceeded against for a misapplication thereof, in the same manner as for other public moneys.

12. § 5. Dividends and interest upon stock belonging to the Literary fund, interest on its moneys loaned, and all other profits of its property, together with all moneys due upon any contract, express or implied, with the president and directors, shall be paid into the treasury, upon warrants from the auditor, founded on the orders of the board,‡ duly certified by the accountant, and countersigned by the president, or in his absence by some other member of the board; and if any person, body politic or corporate, being indebted to the Literary fund, for interest on money loaned, or for dividends on stock, or for other profits of its property, or upon any contract, express or implied, with the president and directors of the Literary fund, shall fail to account with the said president and directors for the sum due, and to pay the same into the treasury pursuant to the directions of this act, within thirty days after it shall become due, it shall be lawful for the said president and directors, by motion in the general court, on ten days previous notice, to recover the principal sum, with interest from the time when due till paid, and costs.

13. § 6. When an execution, on the judgment of any court, in the name of the president and directors of the Literary fund, shall be levied, it shall be the duty of the sheriff or other officer levying the same to account with the president and directors of the Literary fund for the money made thereupon, and to pay the same into the treasury in manner above prescribed; and on failure thereof, he may be in like manner proceeded against, and shall be liable to the same damages as if he had failed to pay such money upon a lawful demand made thereof in his county.

14. § 7. No money belonging to the Literary fund shall be paid out of the treasury except upon a warrant from the auditor, drawn in pursuance of an

By act of March 20, 1841, the treasurer's chief clerk, in case of his absence or sickness, shall act in his stead, and he and his securities are made responsible for the acts of such clerk. See Acts 1840-41, c. 19.

See the act to prescribe the mode of paying public moneys into and out of the treasury, passed February 16, 1829, Ses. Acts 1828-9, c. 4, p. 7; Sup. R. C. c. 251, p. 313.

Act of March 2, 1821, Ses. Acts 1820-21, ch. 10. Sup. R. C. ch. 18.

order of the president and directors, duly certified by the accountant, and countersigned by the president, or in his absence, by some other member of the board; nor shall any such order be drawn by the president and directors, unless in favour of some person entitled to the money drawn for, either by virtue of some appropriation made by law, or by reason of some contract entered into, or for expenses actually incurred.

15. 9. It shall be the duty of the said accountant, to keep a faithful record of all the proceedings of the board; copies whereof, duly authenticated by him, shall be received in evidence in all cases in which the originals would be evidence.

16. § 10. It shall be his duty to negotiate all contracts on account of the board, which he shall be required by them to negotiate; to draw all writings. which he shall be required by them to draw; and to settle and adjust all accounts which he shall be required by them to settle and adjust; and it shall be moreover his duty to examine, state and balance the accounts of all persons or bodies corporate who now have, or heretofore have had, accounts with the Literary fund; and of all persons through whose hands any moneys belonging to the Literary fund may have passed, whether agents or otherwise; and of any body or bodies corporate, who may have been made agents or receivers of any moneys on account of said fund.

The

17. § 11. It shall be his duty to keep fair and regular books, in which shall be kept distinct accounts of all the stock and other property belonging to the Literary fund, and distinct accounts of all moneys authorized to be paid into the treasury, and to be drawn therefrom on account of the said fund. books shall be regularly balanced on the thirtieth day of September and thirtyfirst of December in each year; and a statement of the accounts forthwith thereafter furnished, by the accountant to the president of the board, to be by him laid before the general assembly: [See ante. No. 6.]

Act of February 24, 1823, Ses. Acts 1822-3, ch. 45. Sup. R. C. ch. 351, p. 442.

18. § 28. The second auditor shall after his election, and before entering upon the discharge of the duties prescribed by this act, enter into bond with sufficient security, to be judged of by the executive of this commonwealth, payable to the governor thereof, in the penalty of twenty thousand dollars, conditioned for the faithful discharge of all the duties created by this act.‡

19. 27. In case of the death, resignation or inability to act, of the second auditor, the executive shall have power to fill such vacancy; and the person so appointed shall continue in office till the end of the next session of the legislature. [The executive shall have the same control and superintendence of the office of the second auditor which it has over that of the first auditor; and shall have it visited and examined in the same way; and shall have power to remove the second auditor for misbehaviour or neglect of duty, and to supply any vacancy in the said office during the recess of the assembly, subject to their approbation. Act of March 8, 1824, Ses. Acts 1823-4, c. 9; Sup. R. C. c. 352, § 9, p. 445.]

Act of March 20, 1832, Ses. Acts 1831-2, ch. 84. Sup. R. C. ch. 345, p. 419. 20. § 2. The annual salary of the second auditor shall hereafter be [two thousand dollars, act of March 30, 1837, Ses. Acts 1836-7, c. 9, p. 13,] and

See act of March 16, 1832, Ses. Acts 1831-2, c. 15, p. 17, prescribing the term of office of the second auditor, the time of its commencement and termination, and requi

ring his bond so to be worded as to make the sureties responsible for his official conduct so long as such officer shall continue in office under his appointment.