school boards on the state courts, which, under the act of May 8, 1852, P. L. 617, the courts did not have. It was also the purpose of the act to confer on the courts of common pleas a power, through the appointment of an inspector to ascertain the facts and determine whether the directors have exercised a sound discretion in providing suitable accommodations for all the school children of the district; but the findings of fact by such inspector are not conclusive in the court of common pleas.

School directors are not entitled to notice of the time and application for the appointment of an inspector. All that the law requires is that they shall have notice of the investigation.

It is no ground for reversing an order of the court of common pleas that the inspector appointed was an attorney at law.8

Power of the court to remove directors under act of June 6, 1893.

193. Under the school law of 1854, the courts of this Co nmonwealth have invariably refused to interfere with the discretion of school directors in all matters, especially in the building and location of schoolhouses, for the reason that matters of discretion are not reviewable in law or equity.

It is only in cases of bad faith equivalent to fraud that the courts would interfere, suggesting that the remedy for the abuse of discretion was in the votes of the taxpayers at the polls. The act of 1893, however, has expressly given to courts enlarged powers. Justice Dean, in delivering the opinion of the Supreme Court on an interpretation of this act of assembly in re rule upon G. S. Walker, Rose's App. 179 Pa. 24, says, among other things: "There is no doubt, however vaguely expressed, that the legislature intended by the act of 1893, to confer a certain power of supervision of the discretion of school boards on the state courts, which, under the law of 1854, they did not therefore have."

And further on in commenting upon the wording of section 1, viz: "If the directors shall wilfully neglect or

8. Gross' Appeal, 179 Pa. 24, 1897.

Petition of Barr, 188 Pa. 122, 1898.

refuse to provide houses, rooms or buildings, then on petition of ten or more taxable citizens, the court shall act."

"This imposes upon the court the duty" says Justice Dean, "through its own appointees of investigation and putting upon record the facts and testimony. If the inspector then finds that 'without valid cause' the directors have neglected or refused to perform their duty, he shall report.

"It will be noticed, the words, 'wilfully neglected and refused,' are here dropped, and the words, 'without valid cause,' substituted; words not by any ineans importing the same thing. If a duty be enjoined on an officer, his refusal to perform it is wilful. He has no discretion as to its performance. But if he be commanded to do a certain act, unless he have a valid cause for not doing it, and he then refuses for cause, the question is at once raised between him and his superior, whether the cause is sufficient to excuse him in his disobedience; it brings the judgment and discretion of the subordinate at once under the supervision of his superior.

And further reading of section 2, bears out this view. "It says the court is empowered to grant a rule on those directors who have failed without justifiable excuse' to perform the duty enjoined.

"This discretion also settles another question raised in the same case; that is, that the finding of fact by the inspector is not conclusive, like that of an auditor, on the court below. His reported conclusions are subject to a careful review on the rule to show cause on school directors, which the act of assembly authorizes, in case the inspector finds that the directors have refused, neglected or failed to provide adequate accommodations, as required, without valid cause for such refusal, neglect or failure.'

"We have very carefully examined the testimony and the report of the inspector in the case, because we feel that the power given us by the act of assembly should be exercised only in a very clear case. The facts in this case, as we gather them from the testimony taken by the inspector, are plain, and clearly show that there is an absolute necessity for a new schoolhouse at the village of Kirkwood. The testimony shows, as the inspector says, that there are thirty

eight children of school age in the village of Kirkwood, within a radius of half a mile from the center, and the nearest schools to the said village, which these pupils now attend, are each a mile and a half distant, and that the seating capacity for all school children residing within the district, who desire to attend these is insufficent to accommodate them. These facts are uncontroverted. The testimony also shows, and the inspector so reports as the fact, that there has been no change in school sites or locations during the the past sixty years, and no additional school house facilities were furnished in that time, and the school tax rate in said district in 1895 was but two and a half mills on the dollar, which was reduced to two mills in 1896, and that the board of school directors had reduced the salaries of teachers $2.00 a month; while the school law authorizes an amount of tax to be levied annually equal in amount to the county and state taxes, which is thirteen mills on the dollar for school purposes and an equal amount for building purposes, making in all twenty-six mills on the dollar.

"It seems to us that there could scarcely be a stronger appeal made to the legal discretion of a court, than the one now before us. The abuse of discretion in this case is very clear, in our opinion, which compels us to make this rule absolute, the costs to be paid by the school district."

In reviewing the case the Supreme Court, by Mr. Justice Dean, said:

"This was a proceeding under the act of June 6th, 1893, to remove the board of school directors of Colerian township school district, Lancaster County, for neglect and refusal to provide suitable school houses within the district to accommodate all the school children residing therein.

"The court appointed an inspector as provided by the act, who took much testimony on both sides, and in a very careful report finds that the averments of the petition are true. On the report being presented to the court additional testimony was taken in the shape of depositions; the court again carefully considered the whole subject, and in an unanswerable opinion filed concurred with the inspector.

"Then, an order or removal was made, a new board appointed, a tax laid and a new school house built. From the decree of removal we have this appeal by the old board. "The principal assignment of error is an attack on the power of the court under the act of 1893. We shall not repeat what we said in Ross's appeal, 179 Pa. 25, and in Kittaning School District's Appeal 179 Pa. 60. After a careful consideration we adopt the construction of the act announced in these cases, and we adhere to it now.

"Evidently when the legislature adopted the policy of largely increased state appropriations, it also adopted the policy of conferring on the state courts enlarged powers of supervision. The millions of additional money appropriated were not intended to lesson local taxation, but to increase the efficiency of the schools.

"The court below, on ample testimony, has found the facts warranted its decree; we would not touch it, unless there was a manifest error in its findings or a flagrant abuse of its discretion."9

Attorney fees cannot be taxed as costs.

194. On September 8, 1899, six taxable citizens of the school district of the borough of Alden presented a petition to the court of quarter sessions setting forth that the school directors of the said district had neglected to perform their duties as required by law, asking the court to declare their seats vacant and appoint others in their stead.

On this petition a citation was issued commanding the directors to show cause why their seats should not be declared vacant and others appointed in their stead. No answer was made to this citation, and on its return the seats of the members of the board were declared vacant and others appointed in their stead, the court making a decree that the costs of the proceeding should be paid by the school district.

A bill of costs was filed amounting to $42.95, part of which was a fee of $25.00, for counsel, who conducted the proceedings. The school district declined to pay the counsel fee of $25.00, and this rule was taken to compel payment.

9. Petition of Barr, 188 Pa. 122, 1898.

The act of assembly of May 8, 1854, P. L. 618, under which this proceeding was instituted, makes no provision for the payment of fees. Without some statute authorizing it none can be allowed. Commonwealth vs. Myers, 170 Pa. 380.

No such statute has been pointed out by the petitioners. In re Incorporation of the Borough of Wayne, 7 Del., 545, while not exactly in point, decides the principle which governs this case. It is against the contention of the petitioners. Rule discharged.10.

10.

In re School District of Alden Borough, 23 Pa. C. C. 416, 1900.