(dissenting) :
The substantive question is whether the Board of Public Education in Wilmington, called Board, or the Council of the Mayor and Council of Wilmington, called Council, is authorized to determine the amount of money not exceeding a prescribed maximum-to be raised annually by school taxes for the use of the public schools in Wilmington.
I shall commence with the Act of 1905, where the basic law applicable to the Board of Education in Wilmington is found. Chapter 92, Volume 23, Laws of Delaware. By this Act the City of Wilmington was made a consolidated school district.
Section 2 of the Act provides for an elected school board, which is given general and supervisory control of the government and management over all public schools and public school property of the City.
Two pertinent sections of the Act of 1905 are as follows:
Section 9. “* * *. The Board shall, during the month of April in each year, cause to be prepared and laid before them estimates of their probable revenue and expenses for the ensuing fiscal year, which estimates they shall lay before the Council on or before the first stated meeting of Council in May following. At the time of "presenting to Council said estimates of revenue and expenses, the Board shall, if necessary, also in addition thereto, present to Council an estimate not to exceed Twenty Thousand dollars for the erection or extension of school houses and for furniture and heating apparatus for the same. The said Board, early in June in each year, after the Council shall have made appropriation for the use of the public schools for the following fiscal year as hereinafter mentioned, shall make apportionment and appropriations for their expenditures for that year, based as nearly as may be, upon the estimates *356made- by them in April previous, and such apportionment and appropriations shall be specified and arranged under the heads or items designated in said estimates. The expenditures of the year under any head or item of appropriation, shall not exceed that item of appropriation unless the same be voted for by two-thirds at least of all the members of said Board, a record of which vote shall be made upon the minutes. Under no circumstances shall the appropriation for the erection or extension of school houses, and for furniture and heating apparatus for the same, be used for any other purpose. The said Board shall have no power or authority, except when specially authorized ■ by act of the General Assembly, to borrow money, or contract or create any debt or liability except ordinary debts and liabilities incurred in executing the duties imposed on them by law, to be paid out of the said appropriation made by Council and the receipts of the year for the time then current; no money shall be paid from the treasury of the Board unless the same shall have been appropriated as aforesaid.”
“Section 11. The Council shall, every year, when determining the amount necessary to be raised on the persons and estates in the City of Wilmington for public use, also include the sum necessary to be raised on the persons and estates for executing the foregoing provisions; provided, that the amount to be raised for current school expenses . as aforesaid in any one year shall be exclusive of the amount designated for the erection or extension of school houses and for furniture and heating apparatus for the same. The amount collected for school purposes shall be paid into the city treasury as other taxes are paid. At the time of making the annual appropriations for public use, the Council shall also make an appropriation for current school expenses equal in amount to that annually computed and laid before said Council by the ‘Board of Public Education in Wilmington’ ; provided that the sums so computed and appropriated *357shall be exclusive of the amount designated for the erection or extension of school houses and for furniture and heating apparatus for the same; and, provided further, that any demand made by the Board upon the Council for ordinary and current expenses, exclusive of. the amount required for the erection or extension of school houses and for furniture and heating apparatus for the same shall not exceed One Hundred and Eighty-two Thousand dollars for the fiscal year A. D. 1905-6 and the increase shall not for any succeeding fiscal year, be greater than one and one-half per cent, additional upon the aggregate amount for the fiscal year preceding. The Council shall appropriate annually for the erection or extension of school houses and for furniture and heating apparatus for the same the amount estimated by said Board therefor not to exceed Twenty Thousand dollars per annum.”
My associates have concluded that under the 1905 Act the Board alone had the authority to designate the amount of the appropriation. With this determination I concur. Nevertheless, it becomes important to analyze the 1905 Act in order to determine from what language such authority springs which places the duty upon Council to appropriate for the fiscal years 1905 and 1906 an amount equal to the request of the Board as set forth in their estimates not to exceed a designated maximum.
Certainly, this duty cannot be implied, even remotely, from the language of Section 2 of the Act, which merely confers the general supervisory control over the operation and maintenance of the City schools.
The majority say that the language of Section 9 “seems to indicate that the appropriation to the Board must conform to its estimates rather than that Council can determine the amount.” With such a conclusion I am in complete disagreement.
*358Section 9 contains three pertinent sentences:
(1) “The Board shall, during the month of April in each year, cause to be prepared and laid before them estimates of their probable revenue and expenses for the ensuing fiscal year, which estimates they shall lay before the Council on or before the first stated meeting of Council in May following.”
Surely, it cannot be seriously contended that this sentence confers such a duty upon Council. The language is clear and readily understandable. The Board is merely charged with the duty of having an estimate prepared and filing it with Council on or before the first stated meeting of Council in May.
(3) “The said Board, early in June in each year, after the Council shall have made appropriation for the use of the public schools for the following fiscal year as hereinafter mentioned, shall make apportionment and appropriations for their expenditures for that year, based as nearly as may be, upon the estimates made by them in April previous, and such apportionment and appropriations shall be specified and arranged under the heads or items designated in said estimates.”
Under this sentence no duty is imposed upon Council to ' appropriate in terms of the Board’s estimate. On the contrary, it is most clear that the Board shall meet early in June, after Council shall have made appropriation for school purposes for the next fiscal year, and then allocate the said appropriation made by Council based as nearly as may be according to the estimates made by the Board in April. This language, when read with the first sentence, indicates most emphatically that Council and not the Board has the authority to determine the amount of the appropriation.
(6) “The said Board shall have no power or authority, *359except when specially authorized by act of the General Assembly, to borrow money, or contract or create any debt or liability except ordinary debts and liabilities incurred in executing the duties imposed on them by law, to be paid out of the said appropriation made by Council and the receipts of the year for the time then current; no money shall be paid from the treasury of the Board unless the same shall have been appropriated as aforesaid.”
This sentence clearly states that the Board may not create any debt or liability except those ordinarily incurred in executing the duties imposed upon them, which debts are to be paid out of the appropriation made to the Board by Council.
Summarizing under Section 9,1 find the language therein employed to be free of ambiguity, thus negativing the need of construction. The Board merely files estimates of their probable revenue and expenses for the ensuing fiscal year with Council on or before the first stated meeting of Council in May. Council then makes an appropriation, after which the Board makes an allocation of the amount appropriated by Council under heads and items as nearly as may be based upon their estimates of probable revenue and expenses as previously filed, and in administering said sums the Board shall not contract or create any debt except ordinary debts and liabilities incurred in executing the duties imposed upon them by law, “to be paid out of the said appropriation made by Council.” The mere fact that the Board shall allocate the appropriation made by Council as nearly as may be to the estimates furnished by them of probable revenue and expenses clearly indicates that Council and not the Board shall determine the amount to be appropriated.
Section 11 contains two pertinent sentences:
*360(1) “The Council shall, every year, when determining the amount necessary to be raised on the persons and estates in the City of Wilmington for public use, also include the sum necessary to be raised on the persons and estates for executing the foregoing provisions; * *
My associates are of the opinion that the reasonable inference to be drawn from the use of the words “sum necessary” is that the “sum necessary” is the sum estimated by the Board. I do not think so. The language of this sentence clearly indicates to me that Council shall determine the “sum necessary” to be raised on persons and estates for executing the foregoing provisions, meaning the provisions as set forth in Sections 2 and 9 of the Act.
After considering Sections 2, 9, and the first sentence of Section 11, as above indicated, it is my opinion that the authority rests in Council and not in the Board to determine the amount of the appropriation.
(3) “At the time of making the annual appropriations for public use, the Council shall also make an appropriation for current school expenses equal in amount to that annually computed and laid before said Council by the ‘Board of Public Education in Wilmington’; * *
Under this sentence I find an express mandatory duty upon .Council to appropriate in terms of the estimate as filed by the Board. This language, however, is inconsistent with the other language under Sections 2, 9, and the first sentence of Section 11. Nevertheless, I conclude that the definite expression as indicated under this sentence establishes the authority, and only by reason of the language employed do I conclude that the Board and not the Council has the power under this Act to determine the amount to be appropriated for school purposes.
The next Act of importance is the Act of March 25, *3611907. Ch. 177, Vol. 24, Laws of Del. By this Act the City Charter of the City of Wilmington was amended. Section 15 of said Act provides as follows:
“First. The Council shall have the power and it shall be its duty, on or before the first day of June in each and every year, to appropriate to and for the Departments hereinafter named, sums of money to whatever amounts the Council may deem proper, provided that the minimum amount for the Departments respectively shall not be less than the following:
“Board of Health, One thousand dollars per annum; Board of Police Commissioners, Ninety thousand dollars per annum; Board of Public Education in Wilmington, One hundred and eighty thousand dollars per annum; Board of Water Commissioners, One hundred and twenty thousand dollars per annum; Board of Directors of the Street and Sewer Department, One hundred thousand dollars per annum. Such appropriations shall be paid to the respective Departments in quarterly portions thereof during the month (sic) of August, November, February and May. All rents, incomes, receipts, revenues, and moneys from any and all sources now received, or hereafter to be received by any of said Departments (excepting the Board of Public Education in Wilmington, and excepting the annual appropriations made by the Council to the said Departments respectively), shall be paid monthly on the first secular day in each and every month by the said Departments respectively to the City Treasurer for the use of the City, to be expended for municipal purposes in such manner as the Council may deem proper.”
While this amendment did not in express terms repeal or modify the 1905 School Act with reference to the authority to determine the amount of the appropriation for school purposes, nevertheless, it is later in point of time and con*362tains a provision repealing inconsistent Acts; and, since it reposed in Council alone the authority to determine the amount of the appropriation, I conclude the Act of 1905 was amended at least with respect to the body authorized to exercise the power. Thus, under this amendment will be found the first of a series of important changes relating directly to legislative policy, concerning the authority to determine the amount to be raised for school purposes.
The authority as conferred under this amendment remained in Council alone during the next eight years. On March 16, 1915, the Legislature enacted an Act, Ch. 167, Vol. 28, Laws of Del., amending Section 11 of the Act of 1905 by providing a new Section 11, as follows:
“Section 11. The Council shall, every year, when- determining the amount necessary to be raised on the persons and estates in the City of Wilmington for public use, also include the sum necessary to be raised on the persons and estates for executing the foregoing provisions; provided, that the amount to be raised for current school expenses as aforesaid in any one year shall be exclusive of the amount designated for the erection or extension of school houses and for furniture and heating apparatus for the same. The amount collected for school purposes shall be paid into the city treasury as other taxes are paid. At the time of making the annual appropriation for public use, the Council shall also make an appropriation for current school expenses equal in amount to the amount annually computed and agreed upon by the said Council and the ‘Board of Public Education in Wilmington’; provided that the sums so computed and appropriated shall be exclusive of the amount designated for the erection or extension of school houses and for furniture and heating apparatus for the same. The Council shall appropriate annually for the erection or extension of school houses and for furniture and heating *363apparatus for the same the amount estimated by said Board therefor not to exceed Twenty Thousand Dollars per annum.”
This Act, insofar as the question of authority to determine is concerned, repealed the Act of March 25, 1907. Ch. 177, Vol. 24, Laws of Del.
Now we are back to the original Act of 1905, as amended by this Act (1915). Sections 2 and 9 of the 1905 Act were not disturbed. Section 11 was radically changed. The first and second sentences are the same. However, the third sentence has been re-written and here I find the second important change in policy regarding the authority to determine, as under this sentence the Council shall make an appropriation for current school expenses “equal in amount to the amount annually computed and agreed upon by the said Council and the ‘Board of Public Education in Wilmington’.”
At this juncture I find Sections 2, 9, and the first two sentences of Section 11 to be the same; consequently, my conclusion relating to the meaning of the language employed is the same as I have previously indicated. However, I find under the third sentence of this amendment an express mandatory provision to the effect that the appropriation for current school expenses shall be equal in amount to an amount annually computed and agreed upon by Council and the Board. Here again, as in-the Act of 1905, the language in the third sentence of Section 11 is inconsistent with other language of the Act. Nevertheless, I now conclude, as I did with reference to the original Act of 1905, that the definite expression as indicated in the third sentence of this amendment establishes the authority, and only by reason of the language employed am I able to say that the Board and the Council together have the authority to determine, rather than Council alone.
*364The authority thus conferred by the amendment of March 16, 1915, remained jointly in Council and the Board together during the next six years, or until March 30, 1921, at which time the Legislature amended Section 9 of the . Act of 1905 by providing a new Section 9, and further amended Section 11 of said Act by providing a new Section 11. Ch. 163, Yol. 32, Laws of Del.
Section 9. “* * *. The Board shall, during the month of April in each year, cause to be prepared and laid before them estimates of their probable revenue and expenses for the ensuing fiscal year, which estimates they shall lay before the Council on or before the first stated meeting of Council in May following. At the time of presenting to Council said estimates of revenue and expenses the Board shall, in addition thereto, include the amount necessary to be paid for interest on bonds in the following fiscal year, and also, when necessary, the amount required in that year for the retirement of bonds, provided that the total estimate of expenditures for the Board of Public Education in Wilmington, exclusive of the amount of bonds that may be • issued as in this Act hereinafter provided, shall not exceed nine mills on each dollar of the value of real and personal property as assessed and taxable for current city revenue. The said Board, early in June in each year, after the Council shall have made appropriation for the use of the public schools for. the following fiscal year as herein provided, shall make the apportionment and appropriations for their expenditures for that year, based as nearly as may be, upon the estimates made by them in April previous, and such apportionment and appropriations shall be specified and arranged under the heads or items designated in said estimates. The said Board shall have no power or authority except when specially authorized by act of the General Assembly to borrow money or contract or create any debt or liability except ordinary debts and liabilities *365incurred in executing the duties imposed on them by law, to be paid out of the said appropriation made by Council and the receipts of the year for the time then current. No money shall be paid from the treasury of the Board unless the same shall have been appropriated as aforesaid.”
“Section 11. The Council shall, every year, when determining the amount necessary to be raised on the persons and estates in the City of Wilmington for public use, also include the sum necessary to be raised on the persons and estates for executing the foregoing provisions; provided, that the amount to be raised by taxation for school expenses in any one year including all the expenses which the Board of Education is authorized to incur under the provisions of this Act, and including expenses for maintenance, operation, interest on bonded debt, and retirement of bonds falling due, shall not exceed seven mills on each one dollar of the value of real and personal property as assessed and taxable for city purposes. The amount collected for school purposes shall be paid into the city treasury as other taxes are paid. At the time of making the annual appropriation for public use, the Council shall also make an appropriation for school expenses equal in amount to the estimate of revenues and expenses laid before said Council under the provisions of Section 7 of this Act, being Section 9 of the Act as amended, provided, that the sums so appropriated shall not exceed seven mills on each one dollar of the assessed value of city property as assessed and taxable for city purposes.”
I am unable to find- any changes of a substantial nature in Section 9, as amended, and certainly not insofar as the question of authority to determine the amount to be raised for school purposes is concerned.
Section 11, however, has been changed again. The first sentence is substantially the same as before. In the third *366sentence I find that the policy insofar as the authority is concerned has been expressly taken from the Board and Council acting together, as it appeared under Section 11 of the Act of 1915, and placed back in the Board alone, as it originally appeared under Section 11 of the Act of 1905.
My conclusion under these amendments is the same as previously stated in relation to the original Act of 1905. The express provision under sentence 3 of Section 11, “at the time of making the annual appropriation for public use, the Council shall also make an appropriation for school expenses equal in amount to the estimate of revenues and expenses laid-before said Council. * * *,”• is determinative of the question of authority.
The authority thus conferred remained in the Board until May 4, 1927, at which time the Legislature amended the 1905 school law by enacting Chapter 87, Volume 35, Laws of Delaware. Under this amendment Sections 9 and 11 were amended to read as follows:
“* * *. The Board shall, during the month of April in each year, cause to be prepared and laid before them estimates of their probable revenue and expenses for the ensuing fiscal year, which estimates they shall lay before The Council on or before the first stated meeting of Council in May following. At the time of presenting to Council said estimates of revenue and expenses, the Board shall in addition thereto include the amount necessary to be paid for interest on bonds in the following fiscal year, and also, when necessary, the amount required in that year for the retirement of bonds. The said Board, early in June in each year, after The Council shall have made appropriation for the use of the public schools for the following fiscal year as herein provided, shall make the apportionment and appropriations for their expenditures for that year, based as nearly as may be, upon the estimates made by them in *367April previous, and such apportionment and appropriations shall be specified and arranged under the heads or items designated in said estimates. The said Board shall have no power or authority except when specially authorized by act of the General Assembly to borrow money or contract or create any debt or liability except ordinary debts and liabilities incurred in executing the duties imposed on them by law, to be paid out of the said appropriation made by Council and the receipts of the year for the time then current. No money shall be paid from the treasury of the Board unless the same shall have been appropriated as aforesaid.”
“Section 11. The Council shall, every year, when determining the amount necessary to be raised on the persons and estates in the City of Wilmington for public use, also include the sum necessary to be raised on the persons and" estates for executing the foregoing provisions; provided that the amount to be raised by taxation for school expenses in any one year, including all the expenses which the Board of Education is authorized to incur under the provisions of this Act for the maintenance and operation of said schools, but not including interest on bonded debt and retirement of bonds falling due, shall not exceed seven mills on each one dollar of the value of real and personal property as assessed and taxable for City purposes. The amount collected for school purposes shall be paid into the city treasury as other taxes are paid.”
Under this amendment Section 9 has not been changed, insofar as the question of authority to determine the amount is concerned. Section 11, however, has been radically changed. I am unable to find any material alteration, insofar as the. first and second sentences are concerned, but I do find that the third sentence, “At the time of making the annual appropriation for public use, the Council shall *368also make an appropriation for school expenses equal in amount to the estimate of revenues and expenses laid before said Council under the provisions of Section 7 of this Act, being Section 9 of the Act as amended, * * *” as the same appeared under Section 11 of the Act of 1921 has been omitted. Under this amendment the mandatory provision conferring the authority to determine the amount to be appropriated, as contained in the Acts of 1905, 1915, and 1921, no longer exists. Now the question is, What import is to be given to the omission of such an important sentence ? My associates do not attach any particular significance to the omission of this language; yet, under the Acts of 1905, 1915, and 1921 they point to the third sentence of Section 11 as the same appears in each Act as being solely determinative of the question of authority. For instance, under the Act of 1915 they rely upon the third sentence only as establishing the authority in Council and the Board together. They assert that, since under this amendment express authority was not conferred upon Council, there exists other language contained in Sections 2, 9, and 11 of the Act, upon which they find that it is more reasonable to say that the Board rather than Council still possesses the authority to determine the amount of the appropriation.
To me such a conclusion from the language employed under Sections 2, 9, and 11 of the 1905 Act, as amended, is so strained that it falls into the field of judicial legislation. The Legislature at all times has squarely met the question of authority by an express provision under the Acts of 1905, 1915, and 1921, by stating under sentence 3 of Section 11 of each Act where the authority should rest.
The Legislature, regarding enactments, is not only charged with the knowledge of the present state of the law, but also with knowledge of any course of conduct over a period of time as evidenced by enactments pertaining *369to the subject matter then at hand. I am unable to conclude that if the Legislature intended the authority to remain in the Board, as evidenced by the third sentence of Section 11 of the 1921 amendment, such intent would not have been indicated on their part by the omission of the third sentence carrying the express provision. I find the omission of this sentence to be clearly indicative of another change in policy as to the authority to determine the amount. The omission standing alone is highly significant, in that it caused to be eliminated from Section 11 the express provision under which the Legislature conferred to the Board alone the authority to determine. By reason of this omission I find Sections 2, 9, and 11 to be in complete harmony with one another. Inconsistencies heretofore pointed out in the original Act of 1905 no longer exist.
I think this legislative action is a clear indication that the Board should not have the sole authority to determine. However, regardless of my conclusion in this respect, admitting arguendo that the omission of the third sentence is not of the import that I have announced, yet its omission unquestionably eliminates the express provision that the Board alone shall determine the amount, thus necessitating a consideration of other language in the Act, as amended, in order to determine the question of authority.
What I have previously said concerning the authority to determine, with reference to Sections 2 and 9 of the original Act of 1905, will suffice, since those Sections have not been substantially changed by subsequent amendments.
Section 11 has been frequently changed, as I have indicated, but with the exception of the omission of the third sentence it is substantially the same as in the original Act of 1905. My associates say that certain language appearing in the first sentence of Section 11 of the Acts of 1921 and 1927 (“the amount to be raised by taxation for *370school expenses in any one year including all the expenses which the Board of Education is authorized to incur”) means the amount as set forth in the estimates filed by the Board under Section 9. On the contrary, I find this language to mean that the expenses which the Board is authorized to incur are those in connection with the carrying out of the duties imposed upon them by law, to be paid out of the appropriation made by Council.
Based upon the reasons as stated, it is my opinion that Council and not the Board has the authority to determine the amount to be appropriated for school purposes in the City of Wilmington.
On Motion for Reargument.
Harrington, Chancellor: The majority of the Court deny the motion of the City Council for a reargument.
Conceding that the holders of an unconstitutional office are not accorded the usual powers of de facto officers, with respect to the exercise of corporate rights and duties (Norton v. Shelby County, 118 U. S. 425, 6 S. Ct. 1121, 30 L. Ed. 178; Cooley’s Constit. Lim., 382, 383), that principle is not applicable to this case. We have already pointed out that the “Board of Public Education in Wilmington” was made a Consolidated School District and given certain appropriate corporate powers at least as early as 1905 (§ 1, Chapt. 92, Vol. 23, Laws of Del.) which were, perhaps, somewhat broadened in 1921 (Chapt. 163, Vol. 32, Laws of Del.). Each Act provided for a Board of a specified number of elected members; the 1905 Act for 13 and the 1921 Act for 7. The latter Act reduced the original number by striking out Section 1 of the 1905 Act and substituting a new section therefor, but that was the only material change in the section as the identical language, incorporating the district, was again inserted. Each of these Acts *371received a two-thirds vote in the legislature and the offices or positions created thereby have never been abolished. The 1931 amendment to the 1905 Act, as amended, (Chapt. 202, Vol. 37, Laws of Del.) purported to provide for an appointive Board of six members and such a Board held office when the estimate of the sums necessary to operate the schools was made and filed with Council in the early part of this year. The validity of that action by the Board is questioned because the 1931 amendment did not purport to receive a two-thirds vote in the legislature (see § 1, Art. IX, Constit. of 1897; Clendaniel v. Conrad, 3 Boyce 549, 83 A. 1036, Ann. Cas. 1915B, 968; State v. Burris, 6 Boyce 133, 97 A. 387; In re School Code of 1919, 7 Boyce 406, 108 A. 39), but it is unnecessary to consider that contention. The right of an appointed Board to hold office under that Act may be directly questioned in some other proceeding, but so long as the members purport to exercise thq duties and functions of the “Board of Public Education in Wilmington,” they must be regarded as de facto officers and Council is bound to act accordingly. Norton v. Shelby County, swpra; Drob v. Nat. Memorial Park, Inc., 28 Del. Ch. 254, 41 A. 2d 589.
As sections 9, 10, 11 and 23 of Chapter 119, Volume 28, Laws of Delaware, were not cited at the original argument, they were not commented on in the majority opinion. They were merely intended to facilitate the collection of taxes, after a levy made, and questions as to whether they can apply to a tax assessed in or after the month of December will not prevent the issuance of the writ of mandamus.
The various provisions of the 1927 amendment to the School Law have already been considered at some length and no further comments on them seem necessary.
Terry, J., dissents from this conclusion.