SYLLABUS.

WILLIAM E. HUSBANDS, Tax Collector, p. b. a., vs. ABNER P. TALLEY, d. b. r.

School Laws-Legislative Intent-Statute; Construction of— Repeal by Implication-Taxation-Building School House.

I. Authoritative adjudications clearly show that, in determining questions o repeal by implication, the legislative intention is the controling factor, and its ascertainment the paramount object.

2. The enactment of a general system of government complete in itself, or the revision of a previous statute or statutes, covering the entire subject of such prior enactments, and the consolidation thereof, especially with new provisions, in a single act complete in itself, is regarded as evidence of the legislative intent and purpose to substitute the latter for the former, and consequently is a repeal thereof.

3. The power to build a school house and to raise by taxation the funds necessary therefor are amply provided for by sections 14, 15, 17, 18, 19 and 20 of the act entitled "An Act Concerning the Establishment of a General System of Free Public Schools," passed at Dover, May 12, 1898.

4. The said act of 1898 was designed to provide a complete general system for the government and administration of the frce public schools of the State, and was intended to be a complete revision of the prior general free public school laws, and a consolidation and codification of them with such new provisions as were deemed advantageous, in a single act desiged to cover the whole subject in all respects, and to be a substitute for all antecedent general free school legislation not incorporated therein, or continued in force thereby as essential to its effective operation.

5. Section 3, Chapter 70, Vol. 12, Laws of Delaware (Rev. Code, 328, Sec. 3), limiting the amount which may be raised by tax for the purpose of building or repairing a school house to the sum of $500, has been repealed.

(January 24, 1901.)

LORE, C. J., and GRUBB, PENNEWILL and BOYCE, Associate Justices, sitting.

William S. Hilles for plaintiff.

L. Irving Handy for defendant.

Court in Banc.

OPINION.

Question of law arising on a special verdict in an action of debt (No. 125, May Term, 1900), directed by the Superior Court for New Castle County to be heard by the Court in Banc.

GRUBB, J., delivering the opinion of the Court:

The question before this Court arose in a suit in the Superior Court for the recovery of school tax assessed and levied upon the defendant for the building of a new school house in District No. 6 in Brandywine Hundred, New Castle County.

Under Section 14 and other pertinent provisions of the act of May 12, 1898, Chap. 67 Vol. 21 Delaware Laws, the school voters of said district, at their stated meeting, in June 1899, resolved, by a majority vote, that the sum of one thousand dollars should be raised by taxation for the purpose of building a new school house therein. Accordingly a tax was duly assessed and levied to raise this sum, upon the defendant and the other taxables within said district, together with the amount required by law, and an additional amount for the maintenance of the school; and the warrant for the collection thereof, was delivered to William E. Husbands the plaintiff the collector of county taxes in said hundred. The defendant having refused to pay his tax, this suit was brought for its recovery by said collector.

At the trial, by agreement of counsel, the jury, under the direction of said Court, rendered a verdict in favor of the plaintiff for the sum of $18.92, subject to the judgment of the Court in Banc whether the provision of Sec. 3, Chap. 70 Vol. 12 Laws of Delaware (Rev. Code 328, Sec. 3), limiting the amount which may be raised by tax for the purpose of building or repairing a school house, to the sum of $500, has been repealed.

The jury having rendered such verdict, the Court thereupon directed said question to be heard here in Banc.

At the argument here, the defendant contended that said provision of section 3 operated as a complete defense to the action. On the other hand the plaintiff claimed that said provision had

OPINION.

been repealed, first, by Sec. 12 Chap. 602 Vol. 19 Laws of Delaware, passed April 27, 1893, and, second, by the said act of 1898, Chap. 67, Vol. 21.

The proper determination of the sole question directed to be heard here, will be found in the careful examination of the provisions of the act ef 1898 in connection with the antecedent legislation relating to the gradual evolution and development of free public school education in this State.

In Delaware, from our earliest colonial period, popular education has been the subject of earnest thought and effort in varying degrees at various times, with both her rulers and people. When establishing their early settlements within our borders, Sweden and Holland, then foremost among all the nations of Europe in the promotion of public education, especially directed their colonies to provide for the maintenance of schools and schoolmasters and the instruction of the young. And when the English succeeded them, William Penn's Frame of Government, promulgated in 1682, ordained "That the Governor and Provincial Council shall erect and order all public schools and encourage and reward the authors of useful sciences and laudable inventions in the Province." Accordingly his General Assembly enacted laws contemplating the erection and establishment of public schools in both his Province and the "Territories thereof," as our three counties were then called.

But whilst such was the enlightened design of our early rulers, yet, from our earliest settlement in 1638 until the enactment of our Free School System in 1829, the cause of education was chiefly conducted and maintained in Delaware by religious societies and private schools, or academies. Frequently the clergyman was the schoolmaster and the church, or a private house, the school where popular instruction was imparted. At the best, public school houses were few, good teachers were rare, books scarce, the methods and facilities crude, meagre and altogether inadequate for more than the acquisition of the most rudimentary knowledge.

OPINION.

So far as our statutes show, governmental aid to education was first rendered in 1743, by "An Act for enabling Religious Societies of Protestants within this Government, to Purchase Lands for Burying Grounds, Churches, Houses for Worship, Schools, etc. Delaware Laws Chap. 108-a, Vol. 1, p. 271.

The next educational encouragement was given in 1772, when a lot of land in New Castle was granted for a school house site. Chap. 212-a, Vol. 1, p. 516. Next follows the direction of our second State Constitution of 1792, that "The Legislature shall, as soon as conveniently may be, provide by law for the establishment of schools and promoting arts and sciences." Sec. 12 Art. 8, Vol. 1, p. 47.

With this injunction-so similar to that of Penn's Frame of Government a century earlier-the General Assembly complied February 9, 1796, by passing an act entitled "An Act to Create a Fund sufficient to Establish Schools in this State." Chap. 15-c, Vol. 2, p. 1296.

This School Fund was the first appropriation, in the history of the State, of its public revenues for the encouragement and support of popular education, so far at least as its legislative enactments disclose. It marked a new era in the progress of education in Delaware, and proved to be the permanent foundation of her present efficient Free School System. Though small in its beginnings, it steadily grew until, with the addition, in 1837, of Delaware's share of the United States Surplus Revenue, it became a most useful aid and incentive to educational efforts throughout the State.

In 1817 and in 1821, the Legislature appropriated a portion of the annual income of this fund, to be expended yearly for the instruction of the children of the poor in the rudiments of knowledge. But this project proving unsuccessful, said acts were repealed by the act passed February 12, 1829, Vol. 7, p. 184, entitled “An Act for the Establishment of Free Schools." This act created the

OPINION.

first general Free School System which had theretofore existed in Delaware.

Under this statute each county throughout the State was divided into incorporated school districts; the qualifications of the school voters were prescribed and the school voters in each school district were required to hold a stated meeting every year. At every stated meeting the school voters present were to elect by ballot, by a majority of votes, a clerk and two commissioners, who should be the school committee of the district; and were further to resolve, by a majority of votes, what sum shall be raised by subscription or by voluntary contribution in the district, for building, procuring or maintaining a school house, or for the support of a free school in the district. The powers and duties of the school committee were, inter alia, to determine the site, lease or purchase the necessary ground, and build or procure a suitable school house for the district, but not to remove a school house or build or procure another without the authority of the school voters first given at a stated meeting; to employ and dismiss teachers, to provide a school so long as the funds permit, free to all white children; to receive and collect all money appropriated for the district, or to be raised in it according to the resolution of a meeting of the school voters, and to appoint a collector of the district, etc. The clear income of the school fund thereafter to accrue was to be apportioned and appropriated among the school districts for their aid and encouragement in the maintenance and improvement of their respective schools. Each district, however, should only have from the school fund an amount equal to that resolved to be raised by the voters, and received by the school committee. The act also provided, inter alia, for a school superintendent in each county, and prescribed his duties.

This act committed to the school voters the general power over the subject of free schools for their respective districts. Every school district was an incorporated community for the special purpose of taking care of the interests of popular education within its boundaries. It committed to the school voters the power and