The opinion of the court was delivered, November 5th 1868, by
Agnew, J.The plaintiff below mistook his remedy. When the board of school directors laid the tax, made out the duplicate, and issued the warrant to collect it, and when they authorized the issue of bonds to borrow money to pay bounties and relieve the township from the draft, they were clearly acting within their authority. A draft had been ordered, and the laws authorized them to borrow money and lay taxes to procure volunteers; and even to pay drafted men who had procured substitutes as volunteers in their stead.
The act off the directors was an exercise of sound discretion under the authority conferred upon them, and was therefore not void. In issuing the warrant the board was not guilty of an excess of authority, but exercised a high public function upon a just legal cause. If any of the persons to whom the directors were about to pay out money were believed not to be within the purview of the law, the proper course of the tax-payers who doubted the legality of the disbursement of the money was to restrain payment by proper legal proceedings, or to contest the payment before the auditors having jurisdiction of the accounts of the directors.
The legality of the disbursement of the money raised under a lawful proceeding cannot be tested by means of an action of trespass vi et armis, against the board, by every tax-payer who may choose to refuse payment, and suffer a levy to be made under the warrant. Such a mode of testing the appropriation of money *235ordered to be collected in, a regular proceeding, would be onerous and oppressive to tbe district.
Tbe drafted men wbo paid substitutes volunteering in tbeir stead fell witbin the terms of tbe 3d sect, of the Act of tbe 25th of August 1864, and were entitled to tbe bounty. They were liable to tbe draft up to tbe time of putting in tbeir substitutes: Debolt v. Dunkard Dist., 3 P. F. Smith 216. If the tax-payers believed tbe law to be beyond legislative power, they could contest tbe legality of payment to them, but certainly cannot subject tbe school district to actions of trespass vi et armis after a draft had conferred jurisdiction upon tbe board to borrow money and levy a tax.
This being a fundamental objection to tbe plaintiff’s action, it becomes unnecessary to determine tbe remaining assignments of error, and tbe judgment must therefore be affirmed.
Judgment affirmed.