Opinion delivered Nov. 30, 1874, by
In this bill the complainant avers that he is a tax payer in the borough of Pinegrove, Schuylkill county. - That the six defend1
The affidavit of Dr. Robinson shows that the school house for which this tax is required (situate on the corner of Mill and Miflin streets) was erected over 15 years ago. The only question here is, “Have the directors transcended their gratitedpowers t”
Courts of Equity have no control over the discretionary powers of school directors. If they exercise their unquestionable granted powers unwisely, there is no judicial remedy. (9 Wr. 390). But if the directors refuse to perform their duties, or transcend their authority, or misjudge their powers, a Court of Equity will interfere to compel, restrain, or correct them. Wharton v. Cass township directors — 6 Wr. 358.
The power of taxation exists wholly by statute. History teaches us that all free people have been jealous of taxation, and have tolerated it on account of its necessity, and then only as imposed by themselves or their representatives. While the power of the Legislature to tax for public purposes is almost unlimited, the School Board can levy no tax unléss authorized by law, and they are held átrictly within their granted powers. To determine whether the directors have exceeded their authority, we must look to the facts of this case and the several Acts of Assembly on that subject.
By the 30th sec. of the Act of May 8, 1854, (Pur. Dig. 246, PL 64) “the board of directors or controllers shall on or before the first Monday in June annually proceed to levy and apportion the school tax.,not exceeding the amount of State and coicnty taxes authorized by law to be assessed on all objects, persons, and property made or to be made taxable for State and county purposes.”
This section has received a judicial construction by Judge Elwell, in
The purpose of the regular tax is for the payment of teachers’ salaries, books, stationery, for fuel, lights, repairs and the ordinary and incidental expenses incurred in keeping the school in operation.
The object of the special tax is solely for the payment of the ground and the buildings.
The minutes of the school board show that the special tax of two mills purports to be for building purposes, but it is admitted that the fund is for constructing improvements and repairs to an old building, built as Dr. Robinson testifies over 15 years ago. Besides this the evidence shows that the public schools in Pinegrove borough have been kept open ten months in the year, the maximum time allowed by the Act of Assembly(P. D. 245 PI. 62) and there is no allegation that the regular tax is not sufficient to pay these improvements — on the contrary the auditors’ report for the year ending 1 June, 1874, shows a balance due the board of $104.69. I am aware that the efficient superintendent of the Common Schools, for whom I entertain a high respect, has construed this 33d section of the Act to extend to repairs and improvements (School Laws, p. 93, sec. 201) but what is conclusive to my mind is the clear and explicit language of the statute. The word “solely” means for 710 other purpose and is imperative. Any other view would be judicial legislation.
When the defendants levied a building tax to repair an old erection (which should have been done out of the regular fund) they exceeded their powers. And as the maximum tax has been already levied, they cannot increase it under another name, for if they could they would indirectly do what they could not do directly.
The special injunction to restrain the collection of the excess over ten mills, is, therefore, granted. ‘
See German Township School District v. Langston, 24 P. F. S. 454. St. Clair School Board’s Appeal 24 P. F. S. 252.