
    Kowalczyk v. Buyanoski
    (No. 1)
    
      J. Earl Langan, for plaintiffs.
    
      Joseph V. Kasper, for defendants.
    August 25, 1958.
   Aponick, P. J.,

This action is brought by four taxpayers of the Borough of Dupont to restrain the school board of that borough from levying and collecting taxes or making any disbursements under the budget adopted for the year 1958-1959 and declaring the resolution adopting such budget to be illegal, null and void and of no effect.

A preliminary injunction was granted and this matter is now before the court on the motion to continue the injunction until the time of trial.

The action is predicated upon the fact that section 687 of the Public School Code of March 10,1949, P. L. 30, 24 PS §6-687, provides that the amount of the budget shall not exceed the amount of funds including the proposed annual tax levy and State appropriation. Defendants contest the issuance of this injunction on several grounds, including the fact that, although the tax duplicate has been issued to the tax collector, he has not been made a party to the action.

We are informed by counsel that the tax collector has started to collect the taxes and has sent out the usual notices to some of the taxpayers. Among other things, plaintiffs ask for an injunction restraining the school board from collecting any taxes for school purposes. To issue an injunction against the school board without also enjoining the tax collector would be futile because the board is not the body which collects the taxes and it is beyond its power, at this time, to stop the collections.

Having received the duplicate, it is the duty of the tax collector to proceed thereunder. No action of this court against the school board would excuse the tax collector from doing his duty as required by law.

We think this defect is fatal to plaintiffs’ case and that the injunction should not be continued. This disposition of the case makes unnecessary the consideration of any of the other questions raised by defendants.

Accordingly, the motion to continue the preliminary injunction is denied and the injunction is dissolved.  