dissenting:
I cannot concur in the holding of the court concerning the taxes levied by the three high school districts in question. The districts were organized under section 890 of the School law. (Laws of 1919, p. 908.) That section does not prescribe a certain time during the year for holding elections for the organization of such school districts, but provides that the county superintendent of schools shall, upon receipt of the required petition, order an election to be held by posting notices as by the act prescribed. It follows that under this section the organization of such districts may be had at any time during the year. This section further requires that within thirty days after such organization an election for a board of education shall be held. The members of the board are by that act required to meet and organize within ten days after their election, and, when organized, to proceed to establish at some central point a community high school. By section 117 of the School law they are authorized to issue anticipation warrants ag-ainst a tax levied to conduct such high school, thus providing for the operation of the high school pending the collection of the tax.
Section 190 of the School law, while providing that boards of directors or boards of education are required to ascertain, annually, the amount of money necessary to be raised by tax for educational and building purposes for the next ensuing year and to certify and return the same to the township treasurer on or before the first Tuesday in August of each year, also provides as follows: “A failure by the school board to file the certificate, or of the treasurer to return it to the county cleric in the time required, shall not vitiate the assessment.” Statutes prescribing the duty of officials where the time within which the act is to be performed is not fixed for the purpose of giving a party a hearing, or for some other purpose important to him, are generally regarded as directory, unless the nature of the act to be performed or the phraseology of the statute is such that the designation of the time must be considered as a limitation on the power of the officers. (Sutherland on Stat. Const.—2d ed.—sec. 612.) This particular question has not been before this court in a case of this kind. It has, however, been decided by the Supreme Court of Kansas in two cases: Rural High School District v. Raub, 103 Kan. 757, and Bush v. Rural High School District, 103 id. 874. In each of these cases the district was not organized until after the time named in the .statute for the making and return of the levy, and it was held by the court that the purpose of fixing the time within which the school officers should perform their duties was to secure the orderly and prompt conduct of official business and not for the purpose of giving á party a hearing or for some other purpose important to him, and that in a case where the district had not been in existence and there was therefore no default on the part of the officers, the provision of the statute as to the time for the making and return of the certificate of levy was directory merely. These cases are on all-fours with the case at bar.
While in the instant case these school districts were not in existence on the first Tuesday in August, yet such school districts were in existence and ready to function before the time for the extension of the tax-, and unless the statute designating the first Tuesday in August as the time for the making and return of the certificate of levy must be taken as a limitation on the power of the officers, when elected, to make such a lev)'-, then such provision, in a case of this kind, ought to be held directory rather than mandatory, and it ought not to be held that although the legislature has power to authorize the organization of such school district after the first Tuesday in August, yet such district, when formed, is to be considered as wholly unable to function. It cannot be contended that the legislature does not have power to authorize the tax to be levied and extended in the manner here followed. It cannot be urged that the time fixed by the statute for the making of the certificate is so fixed for the purpose of giving opportunity to tax-payers for a hearing. The substantial justice of the tax is not affected by the date of the making and return of the certificate of levy. The rule quoted in Sutherland on Statutory Construction, supra, should be applied in this case. The legislature having authorized the districts and charged the boards of education with the duty to proceed to establish and conduct high schools, it is a construction of the act not within its spirit to hold that because the districts were not in existence before the first Tuesday in August the provision of section 190 of the School law regarding the failure of a school board to file its certificate in the time required should not apply.
Section 190 declares the levy shall be made by certifying and returning to the township treasurer and county clerk the amount of tax needed. It has been definitely held in this State that the levy of a school tax consists of the making and the filing of the certificate of levy by the board of education. (Lawrence v. Traner, 136 Ill. 474.) The filing of the certificate with the town treasurer and county clerk is as much a part of the levy as is the preparation of such certificate, (Baltimore and Ohio Southwestern Railroad Co. v. People, 195 Ill. 423,) and since both are required to make a valid levy, I am unable to find reason for holding that the- provision as to the time for preparing the certificate, as distinguished from the time of filing it, must be considered mandatory in such a case as this. To construe the law as it is construed in the opinion of the court is to say that while the certificate may be returned or filed with the town treasurer and county clerk at any time before the extension of the tax, yet, unless such certificate is prepared before the first Tuesday in August, such district, though required under the act to proceed to conduct a high school, must, nevertheless remain inert and helpless for a year before it is authorized to levy taxes. Such I believe to be contrary to the legislative intent. Moreover, section 90 of the School law provides, in part, as follows: “If any high school district organized * * * under any statute in force at the time of its organization, * * * shall for one year fail to maintain a recognized high school it shall be the duty of the ex-officio board of the county in which the larger part of the district lies to dissolve said high school district and attach the territory of the district to other high school districts, or to non-high-school districts, or in part to both.” By the adopted construction of section 190, a district organized shortly after the first Tuesday in August is to be dissolved, under section 90, before it functions at all, because it has failed for one year to maintain a recognized high school. I do not believe this to have been the intention of the legislature. To so hold is to render section 89a nugatory in so far as it requires the school district to proceed to conduct a high school.
Considering the various sections herein referred to, I am of- the opinion that it was the intention of the legislature, in cases where a district has been organized between the first Tuesday in August and the time when the taxes must be extended, to allow such district to make its levy of taxes and to conduct a high school. The objection to this tax is not valid.
Mr. Justice Thompson took no part in the decision of this case.