We cannot perceive the justice or legal rule which would exempt the surplus of the annual taxes from the payment of debts contracted for buildings; provided it does not prevent the schools from being kept open for (five) months in the subsequent year.38 Special tax for building purposes. 413. The board of directors or controllers in cities or boroughs where the school property is vested in them agreeable to the provisions of Section 2 (Act May 8, 1854), may, at any time not oftener than once in each school year, levy a special tax not exceeding the amount of the regular annual tax for such year, to be applied solely as follows: (a) for purchasing grounds; (b) for erecting and furnishing buildings; (c) for the accumulation of a fund for purchasing grounds and erecting buildings; (d) for the payment of a debt contracted in purchasing ground and erecting buildings; (e) for completing improvements in school buildings contemplated at the time of their erection; (f) for fencing and improving grounds in connection with the erection of buildings; (g) for the payment of the expense of fuel used in the heating of buildings; (h) for the payment of the expense of janitors employed to care for school buildings, which said tax shall be levied and collected at the same time in the manner and with like authority as the regular annual tax. 39 Building tax can only be levied when there is a levy for ordinary school purposes for the same year, and it cannot exceed such levy. 414. As the extent of a special tax in any year, is limited by the act of assembly to an amount not exceeding the regular annual tax for such year, it necessarily follows that if no regular annual tax be levied, then any attempt to levy a special tax must fail, as such tax in any amount would be in excess of the regular levy.40 38. German Township School District vs. Sangston, 74 Pa. 454, 1873. 39. Act May 26, 1897, P. L. 94, as amending Sec. 33 of Act May 8, 1854, P. L. 617. 40. Walker vs. Edmonds, 197 Pa. 645, 1901. It must appear that the tax was authorized. 415. Where, upon hearing, it does not clearly appear that any particular action was taken by the school board at the time the last new school building was erected by the school district, in relation to certain improvements, the court will continue a preliminary injunction to restrain the collection of a building tax until it appears that the tax levy was authorized and legal.41 Building tax not to be levied during division of township or school district or the erection of a borough. 416. Whilst proceedings are pending in any court of this Commonwealth for the division of any township or school district, or for the erection of any borough, it shall not be lawful for the school directors of the township or district proposed to be divided or out of which such borough is proposed to be erected, to levy, assess or collect any tax whatever for the purchase of ground or for building purpose except where the same shall be necessary to rebuild a school house accidentally injured or destroyed, or to pay a debt previously incurred.42 The ordinary tax and the building tax to be kept separate. 417. "These two taxes are to be placed in the same duplicate, but are to be kept entirely separate, so that each taxpayer may know just how much tax is assessed against him and for what purpose. Then, too, these taxes are for separate and distinct purposes. The school tax is not applicable to the purchase of grounds and erection of school buildings, neither is the building tax to be used to pay the wages of teachers or the purchase of fuel, or for any of the ordinary expenses of keeping the schools open and in operation."43 When a building tax is levied, the assessment made for that purpose must be voted, and calculated as a separate tax, and placed in the duplicate as a distinct and separate item from the assessment made for school purposes. When 41. Gilbert et al. vs. Tierney, 14 Pa. C. C. 472, 1894. 42. Act June 13, 1874, P. L. 284. 43. C. Mathewson et al. vs. School Directors, 23 Pa. C. C. 121, 1899. collected, each fund must be applied to its lawful purpose according to its proportional rate.44 Special tax must be devoted solely to purposes for which authorized. 418. The building tax levied by school directors is only applicable to certain definite purposes set out in the statute authorizing this tax.45 The act of May 26, 1897, P. L. 94, previously cited, specifies the following purposes for which the revenue from the tax may be used: I. Purchasing grounds. 2. Erecting and furnishing buildings. 3. The accumulation of a fund for purchasing grounds and erecting buildings. 4. The payment of a debt contracted in purchasing ground and erecting buildings. 5. Completing improvements in school buildings contemplated at the time of their erection. 6. Fencing and improving grounds in connection with the erection of buildings. 7. The payment of the expense of fuel used in the heating of buildings. 8. The payment of the expense of janitors employed to care for school buildings. Special levy, mandamus, Act of 1835. 419. Mandamus will not lie under the act of February 28, 1835, to compel directors to levy a special tax to pay the districts' indebtedness; the act of 1835 does not apply to school districts.46 Building tax cannot be diverted to ordinary school purposes. 420. Where an attempt was made to levy and collect a building tax in one year, for the purpose of using a portion thus collected to pay a deficit in the general fund for the preceding year, the court said : 44. Pa. School Laws and Decisions, 1903, page 189. 45. Mason vs. Caffrey, 9 Kulp, 414, 1899. 46. Pittston Twp. School District, 12 Luz. 472, 1905. "It is settled that the building tax of a school district cannot be diverted to ordinary school purposes.47 The court was clearly right in enjoining the collection of so much of the tax levied for building purposes, as was not needed or intended to be used therefor. When levied as a building tax it must be used in good faith for that purpose alone. Although in form, it may be levied for that purpose, yet, if in fact, there is no expectation or intention of so using the greater portion thereof, such excess is without authority of law. The rights of taxpayers cannot thus be set at naught, and their property be taken from them."48 Building tax cannot be levied for ordinary repairs, but may be for "completing improvements in school buildings contemplated at the time of their erection." "The 421. In Gilbert et al. vs. Tierney, the court said: continuance or dissolution of the injunction seems to turn upon the question whether or not the tax really is a building tax, or a tax to make repairs. Without stopping at this time to inquire what is included in the term building or erection of school buildings thereon, we may say it does not clearly appear that any particular action was taken by the school board at the time the last new building was erected by the school district, in relation to steam heat, nor have we before us what the action of the school board was. There can be no difficulty in giving us this information and also the time when such action occurred and the building was erected. The authorities in relation to this subject, we think, make this necessary in order that the question of the legality of the tax may be ascertained. The cases of School District vs. Sangston, 74 Pa. 454, and Conner's et al. Appeal, 103 Pa. 356, show that a building tax may not be levied for ordinary repairs only. Hence the necessity of showing what the records of the school district show in relation to this matter." 49 47. German Twp. School District vs. Sangston 74 Pa. 454, 1873. 48. Conner's Appeal, 103 Pa. 356, 1883. 49. Gilbert et al. vs. Tierney, 14 Pa. C. C. 472, 1894. A special building tax may be used to lease a building and fit it up as a school house. 422. "The duties and powers of school directors are defined and regulated by the act of May 8, 1854, and its supplements. Their important duties are two in number. One is to establish a sufficient number of common schools for the education of every individual between the ages of six and twenty-one years, in their respective districts, who may apply for admission.' The other, as defined by the act of 1854, is to cause suitable lots of ground to be procured and suitable buildings to be erected, purchased, or rented, for school houses,' in which the common schools may be conducted. To provide them with the means necessary to enable them to perform these duties they are clothed by law with the power to levy and collect two distinct taxes. One of these is styled a school tax, the other a special or building tax. The school tax must be large enough so that, 'together with such additional sums as the district may be entitled to receive out of the state appropriations and from other sources, it shall be sufficient to keep the schools of the district in operation not less than four or more than ten months in the year.' The special or building tax must be levied and used to provide 'suitable buildings' for use as school houses, and cannot be lawfully diverted to any other purpose. a sum large enough to enable the directors to perform both duties no other tax would be necessary. If it should not, it must be supplemented by the special tax which must be devoted to the sole purpose of providing the school houses needed. Whether a special tax may be lawfully levied and collected depends on whether greater school house accommodation is needed in the district than the directors can supply with the means at their command. If such need exists the best manner in which to meet it is a question for the directors to settle in the exercise of their official discretion. The law authorizes them to meet it by the erection of a suitable building (which would include the enlargement of an existing building), by the purchase, and by the renting, of a suitable building for use as a school If the general or school tax should produce |