Strathern v. Gilmore

Opinion by

Mu. Justice Fell,

The vote of the members of the board of directors on the question of the sale of the school property is found by the court not to have been a unanimous vote, and there is no record of the vote as it was cast. The provision of the fourth section of the Act of April 11, 1862, P. L. 471, that in the levying of taxes, the purchase and sale of real estate, the location or change of location of schoolhouses, and the appointment and dismissal of teachers, “ the names of the members voting both in the affirmative and negative shall he so entered on the minutes of the board by the secretary,” has been held to be more than merely directory. The necessity of recording the vote in the manner prescribed by the act was recognized in Tobin v. Morgan, 70 Pa. 229, in the levying of a tax, and in School Dist. v. Padden, 89 Pa. 395, and School Dist. v. Mercer, 115 Pa. 559, in the employment of teachers, and seems to have been directly affirmed in the latter two cases. In School Dist. v. Mercer, supra, it was said by the present Chief Justice: “ They are wise and wholesome provisions, intended to correct gross abuses which had gradually crept into the administration of our school sj'-stem, and hence it is not too much to insist upon a substantial compliance with the spirit, if not the very letter, of the act.”

The departures in the terms of the sale from the terms of the advertisement were in themselves fatal to the whole proceeding. These departures, both as to the amount of the land sold and as to the terms of payment, were material, and the board was without power to make them. The approval of such action would open the door to gross abuse of power.

The court found that there was no fraud or collusion, and that all of the school directors acted in good faith. They overlooked the requirements of the statute and exceeded their power in departing from the terms of the advertisement. There was no improper conduct on the part of the purchaser, James W. Johnston, and there is no reason why he should be charged with any part of the costs. He is of course entitled to recover back the flOO which he paid on account of the purchase money, but we can make no order to that effect. We think that all of the defendants should be released from the payment of the record costs, and that they should be placed on the school district of the township of Wilkins, and it is so ordered.

With this modification the decree is affirmed.