Gearhart v. Dixon

The opinion of the court was delivered by Burnside, J. The plaintiff in error has no cause to complain of the way he was treated in the court below. Rush township had adopted the school system. The law required the school directors, not only of Rush township, but the directors of every school district which adopted the common school system, before the first Monday in May, annually, to levy a tax for school purposes, not less than equal to, or more than treble the amount which the district is entitled to receive out of the annual state appropriation. Sect. 4, act of 1836. Here is a positive duty, enjoined by express legislative enactment. Disobedience to an act of Assembly is an indictable offence at common law. 4 Black. Com. 122; 2 Smith’s Laws, 593. The school directors of Rush township were enjoined, by law, to levy the tax on or before the first Monday in May. The act of Assembly is directory as to the time, and if by accident, or from any other cause, this duty was omitted, it could be performed in any reasonable time thereafter. The Court of Common Pleas should have received the township school-book, offered in evidence by the defendants in error. It was evidence, and the best evidence of the proceedings of the school board, and where it was defective, it might be explained or supplied by parol testimony. There is no error in the admission of testimony in the first, second, and third bills of exception; nor is there any substance in the errors assigned to the charge of the court. The law does not require the [229] school directors to keep á record of their proceedings, although it is better that they should do so. The duplicate and warrant were signed by the whole board, and issued in blank, on the 29th of May, 1843. It was some time before a collector could be obtained. Dixon was not appointed until the 30th of September. He demanded the tax from tire plaintiff in error, and payment was refused. It was then his duty to levy and sell. The proceedings of the school directors, his duplicate, and the warrant, justified him in so doing. The supplemental act of the 5th April, 1844, which is alleged to be unconstitutional, was only declaratory of a sound construction of the preceding acts, and has no bearing on the cause. The judgment is affirmed.