The opinion of the Court was delivered by

It is unnecessary to repeat the provisions of the different Acts of Assembly relating to the system of public schools which have been cited in the argument. It is sufficient to state the results to which we have come on a consideration of them.

We are of opinion that, under the 11th section of the Act of 12th April 1838, and the 33d and 36th sections of the Act of 7th March 1840,' the remaining directors have the power, and it is their duty to declare the seat of a director vacant whenever the cases contemplated in those sections arise, as well in the county of Philadelphia as in other parts of the State; that provision in the Act of 1838 not conflicting at all with the Act of 1840, but being equally proper and necessary, it is, therefore, not repealed by the latter act. The truth is, that to the public the great object is to have these places filled, and the duties of them uninterruptedly attended to; and the board themselves are made competent to effect this without delay, and to their decision it is given.

But we are of opinion that this power and duty of declaring the seats of directors vacant is, in Penn township, expressly vested, by the 33d section of the Act of 1840, in the remaining directors respectively of each of its election districts, North and South Penn. No director of any other township or election district is empowered to participate in declaring or filling a vacancy. It follows that as these acts, in the present cases, were done by the 11th section of school directors, consisting of both North Penn election district and South Penn election district, and the township of Unincorporated Northern Liberties, they were unauthorized.

Whatever, therefore, may have been the acts of Rheiner or the disqualification of Heyberger, their seats in the respective boards have not been legally declared to be vacant, and of course Felton and Nathans were not legally appointed in their stead.

Judgment affirnled.