And that the offences

charged in one and the same count. charged are distinct, is sufficiently clear. The familiar doctrine that a later statute, in regard to the same subject matter, repeals a former statute when repugnant and irreconcilable, even without repealing or negative words, is so firmly fixed and grounded in the law, and so abundantly illustrated in almost every volume of our reports, as to need nothing beyond its statement. The act of 26th February, 1855, so far forth as it was intended to apply to the sale of intoxicating liquors on Sunday, was repealed and superceded by the act of 12th April, 1875. This is apparent, not only from the fact that the act of 1875 is later in date, and contemplates a new classification of dealers in liquor, and of the rates to be paid for license, but also from the change in the penalties imposed for violations of the law. These changes are substantial and radical. Instead of a fine of fifty dollars for each offence, the minimum penalty is fixed at two hundred dollars, with a provision for a greatly increased punishment, upon a second or subsequent conviction.

The indictment before us was evidently framed under the act of 1855. It charges in one count the offence of selling liquor on Sunday, and also, the other offence of knowingly allowing liquor to be drank upon the premises. The copulative conjunction "and" is used in the indictment, while the statute employs the disjunctive conjunction "or," so that, even under the act of 1875, it would seem that the offences were intended to be twofold and distinct, rather than one, or parts of one offence. However this may be, it still remains true, that the indictment is based upon a statute a portion of which at least (and that the material portion in this inquiry) has been repealed, and is therefore obsolete. If it be contended that the other portion of the act of 1855, relative to allowing liquor to be drank upon the premises, is still in force, then the reply must be, that the offences laid in the indictment are twofold and distinct, and not such as can be charged in a single count. In either case, the indictment would be bad. The motion to quash the indictment is granted. John McGahren, for commonwealth.

John D. Hayes, for defendant.

Orphans' Court of Schuylkill County.

FORNEY'S EState.

The court will not direct a resale of real estate for payment of debts on account of not being properly advertised, unless the costs of resale are secured to be paid in case the property should not bring an equal price on a resale.

Exceptions to confirmation of administratrix's return of order of sale of decedent's real estate for payment of debts.

The opinion of the court was delivered by

GREEN, J. From the testimony taken upon the rule to set aside the sale, it appeared that the real estate consisted of two lots, on each of which a dwelling house and out-buildings were erected. There was a division fence between the two lots. They were described as two certain lots, containing in front 85 feet and in depth 1922 feet. No description of the buildings appeared in the advertisement. The lots were sold separately. On January 22, 1883, the court ordered a resale of the property, on condition that the exceptant would give security to pay the costs in case the property should bring less at a resale. The exceptant refusing to comply with the conditions upon which the resale was ordered, the return of the administratrix was confirmed.

Court of Common Pleas of Luzerne County.

SAMUEL BOYER 7. SAMUEL WINTERS et al.

To appeal from an award of arbitration without payment of costs, the fact of poverty should be established by some evidence produced to the court.

Rule for an appeal without payment of costs.

The opinion of the court was delivered November 26, 1883, by WOODWARD, J.-The act of 16th June, 1836 (Pur. p. 86, pl. 57), permits an appeal in certain cases without payment of costs. To

establish the fact of poverty, some evidence should be produced to the court. How else is the judge to be "satisfied of the truth" of the statements made in the petition?

The rule in this case must be discharged, unless the plaintiff, within twenty days, submits to us satisfactory proof of the allegations contained in his petition. If this is done, the rule will then be made absolute.

G. L. Halsey, for plaintiff.

W. S. McLean, for defendants.

Court of Common Pleas of Columbia County.

S. P. KRICKBAUM 7. THE SCHOOL DIRECTORS OF BENTON.

1. When a statute confers a power which concerns the public, as well as individuals, it is not merely permissive, but is mandatory.

2. Where some antecedent and pre-requisite condition must exist prior to the exercise of a power conferred by statute, the statute must be regarded as mandatory.

3. The 25th section of the act of 1854, in respect to the selection of school books by directors, is mandatory in its character, in that it requires that the selection of a series of school books shall be at a meeting of directors and teachers after the annual election of the latter.

4. An injunction will lie against school directors to restrain them from adopting a new series of text books otherwise than as prescribed by law.

5. When school directors have adopted a series of school books, not at a meeting of directors and teachers, they will not be restrained by injunction from adopting a series of books according to law at any time after discovering their error, the books irregularly adopted not having been introduced into the school.

Motion to dissolve preliminary injunction.

The opinion of the court was delivered August 18, 1880, by

ELWELL, P. J.-The school directors of Benton school district, at a special meeting held on the 17th of June, 1879, by a unanimous vote, passed a resolution adopting a series of text books, therein designated, for use in the schools of the district for the ensuing three years. No school teachers were present at the meeting, and none had then been elected for the current school year to teach in that district. In pursuance of the resolution,

arrangements were made in writing with the agent of the publishing house of the books to supply them for three months at a certain price, and if, after that time, it was desired that the house should furnish the books, they were to be furnished at a certain named discount from catalogue wholesale prices.

Under this arrangement a box of the books was shipped by the publishers to J. J. McHenry, one of the directors (according to agreement), which was subsequently returned, the books being unused.

This preliminary injunction was granted to restrain the use of any books other than those adopted by resolution of June 17th, 1879.

The jurisdiction of school directors over the subject of text books for the schools of their district is derived from and is regulated by acts of Assembly, passed on the 8th day of May, 1854, and the 25th day of May, 1871. Purd. Dig. 244, pl. 55 and 260, pl. 148-9. By the 25th section of the act of 1854, it is enacted as follows: "Immediately after the annual election of teachers in each school district of the state, and before the opening of the schools for the ensuing term, there shall be a meeting of the directors or controllers and teachers of each district, at which meeting the directors or controllers shall select and decide upon a series of school books in the different branches to be taught during the ensuing school year, which books, and no other, shall be used in the schools of the district during said period."

By the act of 1871, the directors are forbidden to make any change in the series of text books more than once in three years. Any violation of this provision is made a misdemeanor, and subjects an offending director, on conviction, to a fine not exceeding two hundred dollars and to removal from office.

School directors may be enjoined from adopting a new series of text books except at the time prescribed by law. McNutt v. School Directors of Chartiers, 22 Pitts. L. J. 42. That is, if they, at a meeting constituted as required by the act of Assembly, have adopted a series of text books, no change shall be made until three years thereafter.

Whether the meeting of the 17th June, before the election of teachers, was a legitimate meeting for the purpose of adopting text books for the schools or not depends upon the proper construction of the statute. If that portion of the act which relates to the presence of school teachers is merely directory, the directors might legally act in their absence; but if it is mandatory, the action in their absence was invalid, and does not preclude the directors from proceeding according to law in the discharge of their duty.

It is not always easy to determine to which class the provisions of a statute belong. It is impossible to reconcile all the decisions of the courts upon the subject; but by reference to a few of them which appear to be proper aids to the construction of the statute in question, we may arrive at the intent of the legislature in regard to the subject under consideration.

Words in a statute which relate merely to the time or manner of doing an act may be considered directory; but where they relate to the powers to be exercised, they are in general imperative. Bladen v. Philadelphia, 10 Smith, 466. Where the thing directed to be done is of the essence of the thing required, the statute is mandatory. Norwegian Street, 31 Smith, 349.

Where the directions of a statute are given with a view to the proper, orderly, and prompt conduct of business merely, the provision may be regarded as directory. But where the fair interpretation of a statute which directs acts or proceedings in a certain way shows that the legislature intended compliance with such provision to be essential to the validity of the act or proceeding; or, where some antecedent and pre-requisite condition must exist prior to the exercise of the power, the statute must be regarded as mandatory. Homer City v. Omaha, 7 U. S. Dig. N. S. 804, pl. 127. And, although the language of a statute is simply enabling, yet, if it confers a power which concerns the public as well as individuals, it is not merely permissive, but is mandatory. People v. Supervisors, 11 Abb., N. Y., 35. Mason v. Tearson, 9 How. 248.

To say that a statute is directory approaches so near legislative discretion that this rule ought to be applied by the courts with reluctance, and only in cases where public mischief would