In reply, the lower court, sustained by the Supreme Court, said:

"We fully appreciate the difficulties that the board of directors labor under in this case, as disclosed by the answer filed and affidavit; but the act of assembly gives the directors no power to make a second levy for the same purpose. The plain words of the act are, that, for school purposes, the directors shal! annually levy a tax for school purposes. After this has been done, no other tax can be levied for the same purpose during the same year."

Legal requirements as to determining tax.

4

393. Without proper preliminary meeting there can be no legal assessment.

"It is a part of the law relating to common schools that, at their first annual meeting in each school year, they are required to ascertain by the precise means pointed out by the school law the amount or rate of mills that is to be collected during the ensuing school year for school purposes, and for building purposes, if there is any building tax to be collected. They are required to do this, and to keep a minute of it; and to authorize the issue of a warrant to any collector to collect school tax, there must be this preliminary meeting of the school board; and they are to determine what amount of rate of mills shall be assessed for school purposes. Without that there can be no legal assessment of school tax." 5 Tax levy. Time of making the levy.

394. The amount of the tax to be levied cannot be determined until between the date of organization and the Ist day of July, and the tax ought to be levied before the 1st day of July, but a levy after such date has been held to be iegal.

In Walker vs. Edmonds, 197 Pa. 645, 1901, the only reference to any regular annual tax appeared under the dates of June 19 and July 22, 1897. Under June 19, as follows: "And in order to provide for principal and interest on said bonds as they become due, that we levy two (2) mills in ad

4. Verona Borough School District's Appeal, 1 Mona. 697, 1889. Irvin vs. Gill, 155 Pa. 8, 1893.

5.

dition to our present millage, which shall be designated as the high school building and ground tax," etc. And under date of July 22, as follows: Moved by Edmonds and seconded by Twaddle that the clerk be instructed to add to the minutes of June 19, 1897, after the words, "Our present millage," the words, to wit: Eight mills for ordinary school purposes, the omission of which words from said minutes was a clerical error, etc. The Supreme Court said: "The court (below) also ruled that as the act of assembly required that the determination of the amount to be levied, and the levy itself, should be made by the school directors before July 1; a strict compliance with its requirements was necessary, and without it there could be no legal assessment of the school

tax.

"The act is clearly not mandatory, but only directory in this respect, and if the only question were as to whether or not the levy had been made at the proper time, we would have no difficulty in sustaining it. Where action is required to be taken within a certain time, the mere failure of an officer or of a body to act within the set time is not fatal, and the requirement as to time may be held to be directory." 6

Resolutions and proceedings of the board should appear upon the

minutes.

395. "Before a school board, therefore, should exercise the sovereign power of levying a tax, there ought to be a deliberation as a body, a careful investigation of assets and liabilities, a clear understanding of the needs of the district, and an intelligent ascertainment of the amount necessary to meet those needs, and that this has been done should appear on the minutes."

"In this case the only minute of the school board as to the levying of a tax was the following: Plymouth, June 29, 1901, Plymouth school board met this evening, with President Virtue in the chair, and all members present. Motion by Dunphy, seconded by Boyle, that we levy 13

6.

See also Gearhart vs. Dixon, 1 Pa. 228, 1845.

mills for school and 13 mills for building. Carried."" The court declared this minute insufficient.7

"The minutes of the board of directors of a meeting on June 19, 1897, show these words, 'That we levy two mills in addition to our present millage, which shall be designated as the high school building and ground tax, etc.,' but there was nothing else in the minutes to show a levy or assessment for ordinary purposes, and the assessment of a high school tax of two mills was afterwards abandoned by the directors. But on July 22, an attempt was made to amend the minutes of June 19, so as to make the resolution read as follows: That we levy two mills in addition to our present millage, eight mills for ordinary school purposes, which shall be designated as the high school building and ground tax, etc.' We think the court below was right in holding that this is not a minute of a levy of a regular annual tax for such year, but is only a reference indicating that such action may have been taken at some other time and place; but nowhere in the minutes is there anything to show that such levy was actually made for the year 1897."8

'Very large sums of money are annually appropriated by the commonwealth, and the people submit to the lawful tax for the benefit of the schools and the education of the children of the state. The law commands that the officials who control these vast sums and conduct the affairs of the schools shall expend the money economically and wisely, and that a record of how it is to be done shall be made, in most cases in advance.

"It may be mentioned here that most if not the whole difficulty complained of could have been avoided had the directors in the commencement of the school year made an itemized estimate of the resources as well as the liabilities and expenses of the district, and then spread the whole proceedings upon the minutes of the board." 9

7. Coal and Iron Co. vs. Dunphy, 11 D. R. 218, 1901.

8. Walker vs. Edmonds, 197 Pa. 645, 1901.

No tax to be levied by directors except by affirmative vote of a majority. Votes. Minutes.

396. A majority of the members of the board must vote for the tax, and the names of those voting in the af firmative and negative must be entered on the minutes.

No tax for school or building purposes shall be levied, except by the affirmative votes of a majority of the whole number of the directors or controllers thereof; and, in each of said cases, the names of the members voting, both in the affirmative and the negative, shall be so entered on the minutes of the board by the secretary.10

The courts demand a substantial compliance with all the provisions of the act.

397. They (provisions of the act) are wise and wholesome provisions, intended to correct gross abuses which had gradually crept into the administration of our school system, and hence it is not too much to insist upon a substantial compliance with the spirit, if not the very letter, of the act."

To hold that it is merely directory and that the board may at pleasure substitute a secret ballot, and thus make it impossible for the secretary to record the affirmative and negative votes, would defeat the manifest purpose for which it was enacted."

In the matter of hiring teachers or levying taxes, where the law requires the vote of a majority of the whole board to vote for the hiring of the teacher or the levy of the tax, the minutes must show that at least four of the directors voted to levy the tax or to hire the teacher, and it is much better that the minutes show the names of the directors voting for and against such proposition.

13

But where the minutes stated that all of the school directors were present, and the vote for the tax was unanimous, the names of those voting and how they voted, how

10. Act April 11, 1862, Sec. 4, P. L. 471.

II.

School District vs. Mercer, 115 Pa. 559, 1879.

12. Heisey vs. Risser, et al., 3 Pa. Superior Ct. 196, 1896.

13. C. Mathewson et al. vs. School Directors, 23 Pa. C. C. 121, 1899. Burke vs. School District, 28 Pa. Superior Ct. 163, 1905.

ever, not appearing on the minutes, the act was held to have been substantially complied with. 14

Where less than the whole board were present, but the minutes set forth the names of those present, and that in each case the resolution passes unanimously, the court, "after a good deal of hesitation," held that there had been a substantial compliance with the law.15

Amount of tax and kind of taxables.

398. The board of directors or controllers shall, annually, before the 1st day of July 16 proceed to levy and apportion the school tax, not exceeding the amount of state and county taxes authorized by law to be assessed on all objects, persons and property, made or to be made taxable for state or county purposes, and that all the taxes levied and assessed by the directors or controllers within each school year, shall be contained in the same duplicate."7

Amount of tax not to exceed the sum of state and county tax.

399. "The school director says: 'I have now a lawful list of the subjects which I may tax, now what is the amount I may levy?' Answer: an amount not exceeding the amount, that is, the aggregate, the sum total of the state, and, i. e., added to (for this conjunction implies addition) the county tax.

We are, therefore, to take the amount of the county tax authorized by law at the time when the school tax is assessed, now ten mills, and add thereto the amount of the state tax, in like manner authorized at the time of said assessment, now three mills, and their sum gives us the maximum rate for the school assessment." 18

"The amount of ordinary school tax cannot be greater in any district (except by special legislation) than the amount of state and county tax authorized by law to be assessed. The amount authorized to be levied at the time of

14. Tobin vs. Morgan, 70 Pa. 229, 1871.

15.

Genesee Township vs. McDonald, 98 Pa. 444, 1881.

16. Act April 22, 1863, P. L. 523.

17.

Act May 8, 1854, Sec. 30, P. L. 617.

18. Conyngham School District's Appeal, 77 Pa. 265, 1874.