Answers to Questions on the School Law.

BY THE COMMISSIONER OF COMMON SCHOOLS.

QUESTION 25.-Under the new school act, is it made the duty of county auditors to divide the school funds belonging to their respective counties, among the townships, incorporated villages, towns and cities in the county, or among the sub-districts therein?

ANSWER. Among the former unquestionably. In this respect, the present differs from the former school law. The present, like the old law, requires the State tax for schools to be distributed to the several counties by the Auditor of State, according to the enumeration of children; but under the new law, county auditors, instead of making the apportionment to the sub-districts, as under the old law, now make it to the townships, cities and incorporated villages; and there the local boards of education distribute the State school funds to the several sub-districts, according to the enumeration. There can be, it seems to me, no doubt on this point. The language of the law clearly points to such a construction. In section 24, which relates to the duties of township boards, it is declared that "all school funds made applicable to the payment of teachers' wages, shall be distributed to the several sub-districts in the township, in proportion to the enumeration of scholars." Distributed by whom? By the township boards, most certainly; for in this section of the law, the duties of township boards, not those of county auditors, are prescribed.

Again, in section 28, the following language is used: "Before the county auditor shall deliver to the township treasurer any order on the county treasurer for the payment of any school funds belonging to the township," not to the sub-districts of the township-" such treasurer shall furnish," etc.

In section 35 it is again declared—“and the school funds shall be divided among the sub-districts, so as to make the distribution as nearly equitable as possible." By whom is such distribution to be made? Evidently, by the boards of education of the incorporated villages or cities, in which the said sub-districts are situated; for in this section, the duties of such boards, and not those of county auditors, are prescribed.

It is no answer to say that an incorporated village, town or city, is made a special school district by the new law; for it might be rejoined

that the first section of the law makes each township one district for the general purposes of education.

Again, in section 37, we find the following: "And the county auditors shall annually apportion the school funds for their respective counties, according to the enumeration and returns in their respective offices; and no township, city or village, which shall have failed to make and return such enumeration, shall be entitled to receive any portion of the common school funds. And in making such distribution, each county auditor shall apportion all moneys collected on the tax duplicate of any township for the use of schools, to such township."

Still further on in this section, the expressions relating to the distribution are, "to the civil townships"-"to the proper townships"-" to his respective township," etc., etc.

I am really at a loss, then, to determine how it is that several county auditors entertain the opinion that they are to apportion the school fund of their counties to each sub-district as under the old law, unless it is the result of the force of habit.

QUESTION 26. Are unincorporated villages, containing not less than three hundred inhabitants, obliged to maintain a school organization separate from and independent of the rest of the township?

ANSWER. They are not; for sec. 32 refers to cities and incorporated villages only.

QUESTION 27.-If an incorporated village containing not less than three hundred inhabitants, and the township in which such village is situated, do not each possess pecuniary strength enough to provide for the maintenance and support of a high school, independent of the other, are they obliged to maintain a separate organization, and separate high schools, if they establish them at all?

ANSWER.The law declares incorporated villages, not governed as to schools by charter or special law, as specified in the 67th sec., to be distinct school districts, in all cases where the number of inhabitants is not less than three hundred, with a board of education consisting of three persons, who shall have power to divide such village into sub-districts; and this board of three may establish within their jurisdiction as many schools of "different grades" as they may think the public interest requires, and “shall have the same powers, perform the same duties, and be subject to the same penalties as township boards;" and by agreement with the township board, may transfer territory from the township, and annex it to the village, for school purposes.

By sec. 21, the township board possesses specific powers for estab

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lishing high schools, when authorized by the qualified voters of the township not resident within the jurisdiction of an incorporated village or city, governed as to schools by charter or acts mentioned in the 67th section, or organized into a single district by the provisions of the 32d section of the new school act. It should be observed that by the provisions of section 21, the qualified voters of the township, when convened by a notice of the township board, "shall decide by vote any questions which may be deemed important in relation to the cost and location of the building or buildings, or other provisions necessary for the establishment of any such school, (high school,) and also the amount of township tax which may be levied for the purpose;" but this township tax is to be levied, as provided in section 22, only on so much of the taxable property of the township as is not included in any city or incorporated village, or territory annexed thereto, forming a special district.

Now, as the board of education of an incorporated village possesses, by law, all the powers of the township board, it would seem to follow, as a matter of course, that they might proceed in the same way, as prescribed in section 21, to call a special meeting of the qualified voters of the incorporated village, and decide all questions connected with the establishment of a high school, independent of the township, or in connection with the board of the township, as might be agreed, or authorized by the action of the qualified voters of the village and township, each acting within their own jurisdiction, or each levying within their own jurisdictions such share of the necessary tax as might be agreed: and, in this way, there is no legal difficulty or want of power on the part of the village board or township board of education, to prevent acting in concert, for the purpose of establishing a high school, for the joint benefit of both village and township, and locating it in the village, or out of it, in such part of the township as may be desirable, and in accordance with the wishes of the qualified voters of each.

No high school, in the proper sense of the term, can be established, either in such incorporated village or in the townships, except by authority of the qualified voters. Each board is clothed with an independent power to tax; but may act jointly and by mutual agreement in reference to transfers of contiguous territory, or the establishment of a high school in accordance with a vote of the people. This construction of the school act is believed to be the true one, and such as comports with its spirit and the intention of the Legislature. Hence the conclusion is drawn, that although each incorporated village containing not less than three hundred inhabitants, is by the law created a separate

district, yet there is nothing in the law prohibiting the establishment of a high school for the mutual accommodation of the scholars of both village and township, provided it be done in the manner above specified. A village not incorporated is, of course, subject to the jurisdiction of the township board until it becomes incorporated, no matter what the population may be.

QUESTION 28.-If the State and township school funds are to be distributed according to the enumeration of scholars, some of the sub-districts of our township will not receive from both sources, even with a two mill township levy, money enough to continue their schools in session for more than five or six months; and yet the law requires them to be continued seven months. What is to be done? Does the law require that the amount raised in the township "for the purpose of prolonging, after the State funds have been exhausted, the terms of the several sub-district schools," should be distributed according to the enumeration?

ANSWER. When all the funds which the law makes provision for raising, have proved insufficient to keep the schools in operation seven months, they may be discontinued without any blame attaching to the school officers, and without any forfeiture on the part of the sub-districts. A law which requires an impossibility, is of no validity.

In relation to the State school funds, it is my opinion that they should be distributed according to the enumeration; but in regard to the funds raised in the township, I am not so clear.

In construing the several parts of a law, the rule laid down in the books is, so to interpret its several provisions as, if possible, to make them harmonize, and accomplish the end proposed. Touching the matter of the school taxes, and the mode of distributing the proceeds, what was the end proposed? By referring to section 63, and to the closing part of section 24, it will be seen that the end was, “to afford the advantages of a free education to all the youth of the State, and to continue the schools in operation in the several townships, for at least seven months in each year." The means which the law provides for the accomplishment of this munificent and noble purpose, are the proceeds of the general school fund, the two mill State levy, and a township levy not exceeding two mills on the dollar valuation.

By reference to section 22, it will be seen that the township levy is authorized, for the "exclusive purpose of sustaining teachers in the central or high schools, or for the purpose of prolonging, after the State funds have been exhausted, the terms of the several sub-district schools in the township."

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But suppose some of them are populous enough to secure from the distribution of the State funds, means sufficiently ample to keep the schools in session as long as the law requires and as long as the inhabitants desire; while others, owing to the sparseness of population, or other peculiarities of the country, cannot be made to embrace more than thirty or forty scholars of school age, without compelling them to walkan unreasonable distance, and therefore cannot receive from the State school fund money enough to keep up a school more than four or five months; what is to be done?

Shall we adhere to the strict letter of the law? Shall we disregard the object of the two mill township tax, as expressed in section 22, and disregard also the requirement in the closing part of section 24, and only heed the provision in the middle part of that section, which declares that "all school funds made applicable to the payment of teachers only, shall be distributed to the several sub-districts in the township in proportion to the enumeration of scholars ?" Certainly not; for such an interpretation would make the law require an impossibility, in short would render it an impracticable law. Such a construction would not be carrying out the design of the Legislature, which is one of the guides to the interpretation of a law.

I arrive at the conclusion, then, that township boards, by virtue of the provisions contained in sections 22 and 24, possess the same power in respect to the distribution of the school funds raised in their respective townships "for the purpose of prolonging their schools, etc.," as is conferred by section 35, on the boards of education in incorporated villages, towns, and cities, viz: the power to "divide said funds among their several sub-districts in a manner as nearly equitable as possible." This equitable division of the school moneys raised in the township, must be secured by vesting in the township board a sound discretion.

It is proper to state here, that the property of the sparsely populated districts, which contain but a few scholars of school age, often pays a much larger tax than the populous districts, which contain quite a large number of scholars; at least, such representations have been frequently made to me.

QUESTION 29.-"Under the old school law, our township was composed of four ENTIRE districts, and eight fractional or joint districts; but the township is now sufficiently settled to supersede the necessity of including in our sub-districts any of the territory of the circumjacent townships.

"Does the Board of Education of one township possess the legal