The opinion of the court was delivered by
Royce, J.— Several objections are taken to the sufficiency of the defendant’s justification, which he offered to prove at the trial:—
1. Because the tax was voted to be raised upon the scholar, and not upon the list of polls and rateable estate.
2. Because it was not sufficiently definite in amount; and,
3. Because it was prematurely voted.
We are sensible that the enquiry, involved in the first objection, is of deep importance to the public interest, and should extremely regret to fall into any mistaken construction of the statutes relating to it. By the third section of the act of October 31, 1797, it is enacted “that the inhabitants of any school district, at a legal meeting, holden for that purpose, shall have power to raise money, by a rate or tax, on the list of the polls and rateable property of the inhabitants of such district, or by subscription, or otherwise, as they shall think most proper, for the purpose of erecting and repairing shool houses, and supporting schools in such districts.” This was the only permanent provision for the support of common shools, except the aid derived from the rent of public lands, until the acts of 1810 and 1824, *478were passed. By these statutes an annual tax upon tbe list, first of one cent, and then of two cents on the dollar, was granted for this object. Next came the act of 1827, which is still in force; and which, by the 11th section, has reaffirmed the power of districts to vote taxes on the list for general purposes, as the erection and repair of school houses, &c., including the support of schools. But to this section is added a proviso, that, for the support of schools, (omitting the other objects before enumerated) the districts shall have power to raise money by subscription or otherwise. It will thui be seen that from the passage of the act of 1797, the law, on this particular point, has remained substantially the same. Under that statute, it was the unquestioned practice for the districts to support their respective schools in the manner indicated by their votes; either wholly upon the list, or wholly upon the scholar, or partly upon each. And such being the well known practical construction of that statute, we must suppose that a similar enactment in the subsequent act of 1827, was meant to receive a like interpretation. If the term “ otherwise,” in the former statute had authorized a tax to be voted upon the scholar, the same language in the latter act could do no less. But this matter is placed beyond doubt by the explanatory act of 1833, which says; — “ that the proviso to the 11th section of the act of 1827, shall not be construed to empower a district to raise money for the support of a school, upon any scholar who does not attend the district school.” Now upon the principles of construction uniformly applied to such limitations in a statute, here is a satisfactory recognition of the power to raise money upon scholars who do attend the school. It is urged,that,upon this construction, the great objects of our system of popular education may be defeated ; that a school, supported in any degree upon the scholar, may cease to be a public and free school, and become, in effect, a private and exclusive one; and, becoming so, that it will not entitle the district to their portion of the public moneys, to be distributed for the support of schools. These suggestions, however important in a future revision of the law, are not sufficient to change the construction of our present statutes. The only definition, which they have given of a free district school, is one to which ail inhabitants of the district are at liberty to *479send. Such schools are now supported, in a considerable measure, by taxes raised upon the list, the interest of public moneys, and the rents of public lands. The balance of moneys required for their support, may legally be raised upon the list or scholar, as a majority of the legal voters shall prefer. Such is not only the obvious construction of the several statutes, but the received opinion upon which most of the districts throughout the state are believed to act.
The vote was to raise a sum, not exceeding one hundred dollars, for the support of a school for the winter then next ensuing, “ said sum to be the amount of the expense of said school, after deducting sixty dollars of public money.” It is objected that here was a discretion left with the prudential committee as to the amount to be raised, within the limitation of one hundred dollars. Admitting this to be true,, we do not perceive that it furnishes any valid objection. The district protected themselves by the limitation, and the amount of expense to be incurred/within the limit prescribed, was a matter properly entrusted to the judgment of the committee. It is believed that votes of towns, as well as school districts, to raise taxes not exceeding a specified sum, are sanctioned by very general practice.
The third objection is evidently without foundation, as the tax was not to be assessed upon any list whatever. In such a case it is only requisite, that the vote should direct the tax to be assessed and collected within a reasonable and limited time.
Judgment of the county court reversed.